Members of Parliament enjoy many privileges and one of the most fundamental is to come into the chamber and make statements without fear of a civil suit for defamation. Parliamentary privilege harks back to the English Bill of Rights of 1689, a provision which was adopted in our Constitution and applies to all Australian legislatures. It provides that “the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”. Its great value is that it confers on members of parliament (and other participants in parliamentary proceedings, such as witnesses) immunity from liability, civil or criminal, for what they say or do in the course of these proceedings. It is part of the mechanism we have to protect people and see injustice revealed and punished.
But, with privilege comes responsibility: if the use of parliamentary privilege is to be respected by the Australian community, there must be an exercise of responsibility on the part of Members when they avail themselves of it. Although it is possible for Members of parliament to use the cover of Parliamentary privilege to make offensive of defamatory remarks, or the nation’s leaders to make unproven allegations about someone, or to invade someone’s privacy to an unreasonable degree, this is not the intention of the provision.
Parliamentary privilege was designed as a defensive tool to protect members so that they could act to create a fair society without fear of repercussions. It was not designed to be used as an offensive weapon against a target. I believe that last Tuesday night, in his offensive use of parliamentary privilege, Senator Xenophon acted irresponsibly. I want to speak not about the details of the case he raised, but about the principles involved in his action.
The resolutions regarding the exercise of freedom of speech which were adopted by the Senate on 25 February 1988 exhort the Senate to take the following matters into account:
• The need to exercise this valuable right of free speech in a responsible manner
• The damage that may be done by allegations made in Parliament to those who are the subject of such allegations and to the standing of Parliament
• The limited opportunities for persons other than members of Parliament to respond to allegations made in Parliament
• The need for Senators, while fearlessly performing their duties, to have regard to the rights of others; and
• The desirability of ensuring that statements reflecting adversely on persons are soundly based.
Mr President, you very clearly drew our attention to both the letter and the spirit of this resolution last Tuesday night.
Acting in a responsible manner means obeying the spirit of the rules. I consider that it would be acting in a responsible manner to advise the person about to be named, outlining any charges and the evidence before denouncing that person as guilty in parliament. In this case, there has been no complaint made against the man Senator Xenophon named. He has not been charged. He has been accused and has categorically denied the accusations. Where is the justice in naming him before any due legal processes have been undertaken? After all, another of the rules that makes us a civilised society is the presumption of innocence. And I believe it would be acting in a responsible manner to give a person a timely opportunity to respond to the accusation. I also believe it would have been acting in a responsible manner to write to the victim of the alleged crime, explaining what the senator intended to say under Parliamentary privilege, and why—and giving him, too, the right of reply.
But, last Tuesday, I do not believe Senator Xenophon took any of these precautions. I am not suggesting that he acted with malice or evil intent, but I am saying that he did not exercise his right in accordance with the guidelines that I have just read. He did not act in a responsible manner. He did not pay due attention to the damage his act would cause. As for the accused man’s opportunity to respond to the allegations, it’s true that under the Senate rules he has the right to write to the President to for a formal right of reply, and then have his statement presented for consideration by the Senate Committee of Privileges, who would decide whether or not to publish it in Hansard. Too little, too late: in the public mind, he is presumed guilty. Certainly, the senator was being fearless, but without due regard for the rights of others—including the rights of the alleged victim, who made it explicitly clear that he did not want the accused man named in Parliament . Finally, in response to point (e) above, the senator cannot be sure that the statements reflecting adversely on the priest he named are soundly based, when the matter has not been investigated by the police or the courts.
Senator Xenophon’s actions made me think about the dangers that are unleashed when individuals put themselves above the rules we have established for the benefits of being part of a fair society. Most of us would have read William Golding’s novel Lord of the Flies, and would remember the group of schoolboys whose plane crashed and who landed on a beautiful but unpopulated island. It could have been paradise. With no adults to guide or organise them, the boys rightly established rules to live by, to protect the good of the group, and enforce the moral and ethical codes of the English society they were raised in. That was the plan of one of the emerging leaders of the group, Ralph, and the rules he set up made good sense.
But you will recall that the other protagonist in the novel is Jack. He too is a leader, and — in case anyone in this chamber needs reminding that leaders are not all alike — Jack is energetic, active and productive. Before long he is ignoring or refusing to follow Ralph’s rules and making up his own. He declares his allegiance to his own tribe and decides to follow his own path. What Golding tells us is that Jack was drawn to “the brilliant world of hunting, tactics, fierce exhilaration, skill.”
I believe that is what we saw in Senator Xenophon last Tuesday: his Jack-like seduction by the thrill of the hunt and the exhilaration of the naming. Frankly, I think it was beneath him. His action has also made me think about how we must take responsibility for the repercussions of our actions, even if we did not intend or anticipate them.
Outside parliament, if someone makes an unproven allegation about another, they risk being sued for defamation. Derryn Hinch behaved like a bit of a Jack when he named sex offenders before due process had been taken—and Hinch was rightly challenged for doing so. The courts found him guilty of breaking the rules, and inflicted a price.
We senators are also accountable to the Senate, and therefore to our constituents, not to use the protection of parliamentary privilege to cause harm. Unfortunately, this is what has happened—and not just last week. Since I have been here we have had Senator McGauran naming and criticising an expert witness and, of course, Senator Heffernan named Justice Kirby. Senator Heffernan, as you will recall, was censured by the Senate.
But I want to point out that the environment has changed even since 2002. The rapid advances in technology mean that one statement like Senator Xenophon’s is immediately broadcast through the social media. Within seconds of him naming the person last week, it was on Twitter. And, when news travels through Twitter, texting and 24-hour news channels, there is a responsibility for us to be very aware of the potential damage a single statement can make.
Senator Xenophon wanted to speed up the church’s investigations. Will his action necessarily have this intended consequence? Well, they are underway. But what about the dramatic unintended consequences? Who is taking responsibility for them?
There is the damage to the priest’s reputation, of course. Compare the lightning speed at which the allegations circulated with the snail’s pace at which any possible response from the accused will take place—and the small numbers of recipients who will be instantly fed his side of the story. Is that justice?
The repercussions ripple out more widely. The members of his parish community are shocked, distressed and dismayed. The students at the schools have certainly learnt that natural justice can be whisked away in a moment. The person in charge of the church’s ongoing investigation, Monsignor Cappo, has resigned from his position as the Chair of the new Mental Health Commission, just one week into his appointment. He has had his reputation damaged with little opportunity for redress. His resignation is not an admission of guilt or responsibility; he asserts that he applied due diligence to the case, but he has made his decision also to resign from the Australian Social Inclusion Board. And, what are the consequences going to be for the person who asked Senator Xenophon not to name his alleged abuser? Is this for him yet another breach of trust?
Senator Xenaphon said he thought long and hard before he named the priest. I am sure he did. He came into this chamber on Monday and made an explicit threat that if the church did not stand down the priest by Tuesday, then he would name him. Senator Xenaphon knew that to make the allegation could possibly destroy the priest’s life.
This episode I think is a cautionary tale for everyone in this parliament. We should not seek to act as judge and jury. The rule that allows a Senator to say in Parliament something that he could say, but chooses not to say, in public — without the shield of parliamentary privilege — must be treated with the utmost care, for all our sakes.