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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-03-25 Daily Xml
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KANCK, HON. S.M.

The Hon. DAVID WINDERLICH (20:08): I move:

That this Council—

1. notes the remarks made under parliamentary privilege on Thursday 19 February 2009 by the Hon. Michael Atkinson concerning a former member of this council;

2. affirms the important role of parliamentary privilege as a means of enabling members to bring important truths to light and to speak out on behalf of ordinary people against powerful vested interests and urges all members to use this privilege judiciously and for the greater good rather than to pursue personal agendas and vendettas; and

3. conveys this resolution to the House of Assembly.

I understand I am getting a reputation for short speeches. Tonight you have a long one, with not too many media extracts. On Thursday 19 February, Michael Atkinson, Attorney-General and the first law officer of this state, made a very strange speech as part of the adjournment debate.

The Hon. J.S.L. Dawkins: It is not the first time

The Hon. DAVID WINDERLICH: Weird gear, yes. He essentially spent his time attacking someone whom he says is irrelevant about things that happened years ago from a party that is in decline, and perhaps abusing parliamentary privilege in the process. I am taking the equally unusual but, I believe, more defensible approach of responding to the speech made in the other house and, if this council supports my motion, sending our resolution back to the House of Assembly.

In my remarks I will make three key points. First, I will defend someone who cannot defend herself in parliament (Hon. Sandra Kanck) and who was attacked by the Hon. Michael Atkinson from behind the shelter of parliamentary privilege. Secondly, I will be making the point that parliamentary privilege should not be cheapened by being drawn into service to settle old personal scores. It exists, as the motion says, to allow us to tell truths and to speak out for the powerless against the powerful. Thirdly, I will be asking whether the Attorney-General should find better uses for his time.

Let me begin with the Hon. Sandra Kanck. When I started asking people what I should do about this attack on the reputation of a long-term member of this parliament and my former employer, I received two kinds of advice. The political advice was: don't do it; it's risky—you need to distinguish yourself from your predecessor. Then I received much more everyday, morally-based advice from everyday people: you have to respond—what he did was not fair. What was most compelling was a conversation I had with an employee of this parliament (one who does not have a political or legislative role). It went something like this: 'It's not really my business to talk about politics, but what are you going to do about what Atkinson said about Sandra?' We had a chat. I talked about the difficulty of balancing the political calculation with the moral imperative and found myself talking myself into just this course of action—doing the right thing instead of the political thing. So, thank you to that person.

I should also point out that Sandra Kanck herself never asked me to respond and was non-committal when I said I was thinking about responding. She did send me an email of her views on what the Attorney-General said, and I will refer to that several times during this speech.

So, now for Michael Atkinson's speech. I will not go through every detail but will just quote a few selected low lights. He begins:

Good manners dictate that we speak well of departing legislative councillors at a joint sitting of the house to replace them. Now that the joint sitting is over it is time to speak frankly. I served in the parliament with Sandra Kanck from the time she filled a casual vacancy—

In fact, that is an error. She did not fill a casual vacancy: she was elected twice at a general election. He continues:

Any person who had teenage children or loved ones who were prone to depression would remember Sandra Kanck as the person who, on 30 August 2006, sought to publish under parliamentary privilege easy ways to commit suicide.

The Attorney-General is fully entitled to disagree with Sandra Kanck and with that course of action. He is entitled to criticise, but an honest representation is that she felt impelled out of compassion for the suffering of the terminally ill to take this course of action, and that compassion was based on her seeing, first-hand, people die slow and painful deaths.

If the aim was to smear, one could invert the Attorney-General's comments and reflect on how he and his government are condemning people to painful, lingering deaths by their inaction, but I know that many people are passionately opposed to voluntary euthanasia, and I will give the Attorney-General the benefit of the doubt and assume that he approaches the issue as a serious moral question and not as an opportunity to score political points. The Attorney-General continues:

During the 2006 general election, the Democrats issued a news release referring to the death of...(Pope John Paul II) as the death of an 85 year old Polish man in Italy, without using his name or title, and criticised the state government for spending money on a memorial service for him. The news release was headed, 'He's dead. How much money does he need?'

I think this media release was tasteless, offensive and unwise. I would not have done it, and Sandra did not. Another former MLC sent out this media release, and this is guilt by association, which is consistent with some of the legislation that the Attorney-General has brought to South Australia. He continues:

My opinion is that the author of this news release was Hendrik Gout, now a reporter with The Independent Weekly. I asked him to confirm or deny this by email yesterday but, most unlike him, he has not responded. I tried searching for this news release in the Democrats online archive but could find it only in a bowdlerised form re-headed, 'When was the last time three lines worked for you?'

Frankly, who cares if Hendrik Gout authored this release? It is ancient history; you could almost carbon date this stuff.

The interesting point is why the Attorney-General would spend his time raking up such old muck. The man has a pretty important day job. Why is he spending his time working his way through the Democrats' website? The Attorney-General goes on to talk about a Social Development Committee inquiry into prostitution on which he sat with Sandra Kanck. He says:

Sandra feared she did not have the numbers, so her allies sought to disband the committee. After discussions between Sandra Kanck and a sex worker who had been a witness before the committee...the witness petitioned the Governor to disband the committee owing to the aggressive and humiliating questioning by men on the committee. If asking the Governor to shut down a parliamentary committee was Sandra's purpose, the English Civil War and the Glorious Revolution of 1688 were not strong points in her reading of history...Once she was in the majority, Sandra no longer wanted the committee disbanded.

Sandra wrote in an email that she had no idea what he is talking about. I was not there, but one thing that I can say about Sandra is that she was never worried about being in a minority. In fact, she was quite used to it, so any account of her trying to shut down a committee because she was in a minority does not quite ring true. The Attorney-General continues:

Sandra Kanck invited members of the outlaw motorcycle gangs into Parliament House for a so-called balanced justice forum, but she did not invite any of their victims.

The truth of this matter is that an email list of over a thousand people were invited. Some who came along were bikie groups, of which none were outlawed at the time, and the fact that they were invited makes eminent sense, as they were likely to be affected. Those bikie groups included, amongst others, the Christian Long Riders, Bikers Against Child Abuse and the Motorcycle Riders' Association.

There are parts of the Attorney-General's speech with which I have absolutely no problem. The Attorney-General comments on the parlous state of the Democrats, pointing out that, in the 2007 federal election, we ran a vigorous campaign but polled less than the Democratic Labor Party. That is a matter of historical fact and entirely fair comment. The Attorney-General can say it as often as he likes, and I will not quibble, but most of his speech is just character assassination. Here is another example:

In the 1980s and early 1990s, an elderly constituent of mine, Albert Geisler, lived alone in a room on the corner of Drayton Street and Fifth Street, Bowden. Albert had often been a victim of break-ins and beatings; he was deaf. One night he heard his window break and realised that it was yet another burglar breaking in. Albert had been a skeet shooter in his younger days. He reached for his rifle and shot the intruder.

The Attorney-General then went on to say that Sandra Kanck said that Mr Geisler should be charged with homicide. I will quote Sandra's response directly, as follows:

As for Albert Geisler, again a long time ago but the point I was making (and I do have a Stateline interview record of this) is that no matter how sympathetic any of us might be to a person defending themselves, it is not up to us to circumvent the normal processes of justice. It's a long time ago, so I can only paraphrase myself, but I said those processes must be followed through, but I suggested that a jury might not find him guilty, and a judge might not record a conviction.

So, it is a point about due process and law—the sort of perspective you might expect from an attorney-general. On it goes; I have given members an adequate taste.

In summary, he paints a picture of a person who is intolerant, offensive, seeks to stifle dissent and manipulate process and so on. He has done what he can to tear down the reputation of a former politician, a person to whom reputation is a main tool of trade.

It sounds a lot like defamation. In fact, if you look at the Law Handbook Online, it sounds exactly like defamation. That handbook states that the law of defamation protects individual reputation. The law assumes that all people are of good character until the opposite is proved. The test of what is not defamatory depends on the standards of the community as a whole and not just of some narrow section or group. It does not matter if the person intended to refer to or disparage a particular person. It is enough if the words reasonably lead persons acquainted with the complaining person to believe that she or he is referred to or that the material discredits the person's character and reputation.

I think it is pretty clear that the material is intended to disparage the particular person. It is pretty clear to whom the words refer and it is pretty clear that the material discredits the person's character and reputation. So, it certainly is defamation but carried out from behind parliamentary privilege.

It is useful to compare the portrait of the Hon. Sandra Kanck with what some of her colleagues (members of this chamber) said about her last year. I will read selected passages from the adjournment debate on Sandra's last day in parliament on Thursday 2 December 2008. Several of these are from people who found Sandra a thorn in their side or who disagreed violently with her on key issues. The Hon. Paul Holloway said:

Although as Leader of the Government I have often questioned her stance on many of the bills before this place, I could certainly never question her passion and her firm belief in the correctness of her position.

The Hon. David Ridgway said:

On a personal level, I have always found her extremely easy and understanding to work with and, even if we have not agreed on a position, we have worked well professionally together on the ERD Committee initially, and I certainly appreciate that.

The Hon. Mark Parnell said:

One of the things that I think Sandra personifies in relation to the legislative agenda is courage, and it is one of those words whose currency has been devalued by Yes, Minister as much as anything else, because when they talk about 'courageous decisions', they are talking about decisions that are deeply unpopular, which no person in their right mind would make. However, there are some incredibly important issues that we deal with which most of us do not have the courage to name. Quietly in the bar or quietly in the corridors, we might say to each other, 'Yes, she is right, but I'm not going to say it in parliament.' Sandra has the courage to do that and she has paid the price...

When you think about the strong opposing views around drug policy of the Hons Ann Bressington and Sandra Kanck, you might think that the Hon. Ann Bressington would be a person who would be less likely than anyone to see the good in the Hon. Sandra Kanck, but she said:

To the Hon. Sandra Kanck, I also would like to convey my best wishes. I have a great deal of respect for her serving 15 years in this place. I think that, in itself, deserves a medal and, although we have disagreed on some issues, it is always appropriate to acknowledge that disagreement in here should never reflect what we feel about a person on an individual or personal level. I do see that the Hon. Sandra Kanck is a person who has a kind heart, and she has served her constituency base faithfully and persistently over that 15 years. I have also had the honour to share a couple of constituents with her, and I know that she has gone above and beyond the call of duty for those particular people to try to seek justice for them.

The Hon. Rob Lucas said:

I acknowledge first her courage on a range of issues, but I also acknowledge her respect and support for the institution of the parliament and, in particular, the Legislative Council.

So, the people who worked most closely with the Hon. Sandra Kanck saw her as courageous, kind-hearted, easy to work with and a defender of the institution of parliament—even when they disagreed vehemently with most of what she had to say. In other words, they could see past the policy to the person. I worked with Sandra for two years, and many of those points ring true. However, one aspect of Sandra that really stands out is that she was a dedicated, diligent and passionate legislator. She loved this institution, which makes the Attorney-General's attack on her even more unfair.

So, what on earth was the Attorney-General doing? As I have said, he was using parliamentary privilege to throw mud. He was pursuing his own personal agendas and vendettas from behind the petticoats of parliament. I, too, could use parliamentary privilege in the same way to reflect at length upon aspects of the Hon. Michael Atkinson's career by referring to intemperate and inflammatory remarks and serial law suits and, of the little I know about him, I would not have even scratched the surface. I know there are people in this chamber who could tell us a lot more, but is that what parliamentary privilege is for?

I can think of three reasons that parliamentary privilege is important. First, it is a way of bringing truth to light that would otherwise be hidden by the threat of defamation. Secondly, it is a way in which we can strengthen the hand of an individual or community group locked in battle with powerful vested interests: they cannot afford to speak out; we can speak out for them. Finally, it is a way of defending the innocent from unfair attacks. As I said, it is a tool I could use today, and maybe one day I will; however, I do not choose to use it in this speech. I do not believe I have said anything I could not say on the steps of Parliament House. The New South Wales Public Library Research Service published an extensive discussion on parliamentary privilege.

Members interjecting:

The PRESIDENT: Order!

The Hon. DAVID WINDERLICH: I will quote from Stockdale v Hansard, a judgment of 1839, which leapt out at me. It states:

All persons ought to be very tender in preserving to the Houses all privileges which may be necessary for their exercise and to place the most implicit confidence in their representatives as to the due exercise of those privileges. But power, and especially the power of invading the rights of others, is a very different thing; it is to be regarded, not with tenderness but with jealousy; and unless the legality of it be clearly established, those who act under it must be answerable for the consequences.

So, members, do you think the Attorney-General treated this institution and the concept of parliamentary privilege with appropriate tenderness by using it to launch a personal attack on a former member? Do members think he used parliament to invade the rights of others? I think the answer to both those questions is absolutely yes.

Finally, let us reflect on how the Attorney-General, our first law officer, spends his time. When we look back at his speech, we see a combination of painstaking research, sloppiness and smears. The sloppiness is evident in basic errors, such as whether the Hon. Sandra Kanck was elected as a result of a casual vacancy or in a general election. The smears are evident when he seeks to link the Hon. Sandra Kanck to things about which she had no knowledge and for which she was not responsible.

However, it is the research I find most interesting. Consider this: the Attorney-General spends his time looking through the Australian Democrats' website. If he actually starts concentrating on his day job, our statistics will suffer, and we may have to come up with strategies to keep up the website stats!

He chased up Hendrik Gout about some ancient history, and I assume he pores over yellowing old newspaper clippings for some of his material. So, the first law officer of this state is spending his time trawling websites, contacting ex-press secretaries about old stories and reading old newspapers. Does he not have anything better to do with his time? Perhaps he needs some suggestions.

I will refer now, although not at length, to an article, entitled 'Atkinson: Bikies, dope growers took priority over mental health', that appeared in The Advertiser of 19 March 2009. As members would be aware, the story refers to the Attorney-General's rejecting claims that his failure to act on reforms to the powers of the Parole Board in relation to the mentally ill led to the tragic stabbing in Davoren Park, when a man and his son died and his newborn baby was stabbed. The article states:

Mr Atkinson defended the lack of action in changing the laws, saying that the government was inundated by policy proposals and had to make priorities. 'We have given priority to cracking down on the drug trade, on hydroponics and outlaw motorcycle gangs, we're coming to (mental health laws) now, we're coming to it with an open mind,' Mr Atkinson said at a press conference today. 'We get policy proposals coming to us every day of the week. I opened my own mail today and there were 50 items there. We decided at that time it was not proportionate and not high enough on the scale of legislative changes to be made.'...Ms Nelson [of the Parole Board] said she had asked the Government to amend the laws to give her board the power to detain offenders as far back as 2004.

I appreciate that the Attorney-General is busy, and I appreciate that there are many legislative priorities, but maybe if he spent less time on our website and more time on other legislative priorities he might have been able to include necessary changes to mental health legislation.

In summary, I have responded because what the Attorney-General said is an attempt to destroy the reputation of a controversial but fundamentally good and brave person, and he did this by sheltering behind parliamentary privilege. As several ordinary, everyday, non political people said to me, 'That is not fair; that is not right,' and I would add that it is not very brave, either. I have done what I can to stick up for someone who is at a disadvantage in this context.

However, the Attorney-General's actions raise more important questions that should concern us all. What do we make of an Attorney-General, the first law officer of the state, the person who knows more about the purposes and history of these institutions and traditions than almost anyone in the country—what do we make of a person in that position with that knowledge using parliamentary privilege not for the greater good but in pursuit of some personal and rather arcane historic and irrelevant vendetta?

What do we make of an Attorney-General, our first law officer, spending his time trawling the internet in search of ammunition for use in old wars? What sort of values does this person have? What sort of priorities does he have? Well, I think we have identified a way in which he can find some more time, but I think the larger issues are important. We are talking about a very important tradition here, that of parliamentary privilege. It is there to be used for the greater good: it is not there to be used for personal gain or personal vendettas.

I urge the Legislative Council to support this motion so that we can convey this important sentiment back to the other place in the hope that it concentrates the minds of the Attorney-General and other people who have attempted to misuse parliament on their important job of representing their constituents, running the legal systems of this state or administering their departments. I commend the motion to the council.

Debate adjourned on motion of Hon. B.V. Finnigan.

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