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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-05-13 Daily Xml
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KANCK, HON. S.M.

Adjourned debate on motion of Hon. David Winderlich:

That this council—

1. notes the remarks made under the 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.

(Continued from 25 March 2009. Page 1738.)

The Hon. J.A. DARLEY (17:34): I rise to make a very brief contribution to this motion. I indicate that I do not support this motion, as I think that more than enough time has been taken up in this chamber on a motion such as this. I think there are much more important issues that demand our attention, other than bothering to engage in a game of who said what, with or without the protection of parliamentary privilege, and I therefore reiterate that I do not support the motion.

The Hon. A. BRESSINGTON (17:35): I also rise to make a brief contribution, which I will read so that I do not put my foot in my mouth. I think it says a lot of the Hon. David Winderlich that he would move this motion in what he believes is in defence of the Hon. Sandra Kanck—that is my interpretation. It shows loyalty to his party and to someone who was a member of this council for 16 years. The Hon. Sandra Kanck no doubt believed that she served her particular constituency well and held the party line on issues, and those issues are what I believe has brought the Democrats to their present position.

I stated in my farewell speech that the Hon. Sandra Kanck was a person who I believed had a kind heart. I know of people she fought desperately for in matters relating to child protection and the Family Law Court, and I have heard from others that at times she was reduced to tears in her efforts to try to get some level of justice for those people. I also know how frustrating it can be to try to penetrate the barricades that are put up in what I believe are efforts to cover up incompetence and, often times, gender prejudice in those particular arenas, but they are other stories for other days.

I also saw in the Hon. Sandra Kanck a person who was able to show compassion and thoughtfulness at times, and I believe these are the qualities that should be acknowledged. These are the character traits that define who and what we are outside of this place, and they are qualities that in the political arena are rarely identified, let alone acknowledged, by those with whom we share this chamber. That is basically the nature of the job we have and the work that we do.

I have read and reread the speech made by the Hon. Michael Atkinson on Thursday 19 February, and I must say that in that speech there is little I can refute in the matters that he raised that I bore witness to. He has addressed the actions and behaviour of the Hon. Sandra Kanck, based on her performance. I see no personal attacks in any of the comments that he made, and I see nothing in the comments or in the speech that are not already available on the public record. The truth is that, in respect of some of the occasions that the Attorney-General mentions in his speech, the Hon. David Winderlich is asking us to defend the indefensible and put it down to an abuse of parliamentary privilege, which I do not believe is the case.

I was in this chamber the night the Hon. Sandra Kanck insisted on putting on the record ways and means used by some to commit suicide. I recall many of us trying to reason with her that night and convince her that it was an irresponsible action, yet she persisted and had her way. Then this chamber was forced to set a precedent, which was considered unparliamentary, by having that particular part of her speech struck from the record. I recall that the Hon. Rob Lucas was one of the members who objected to such an action because Hansard should not be altered and should bear witness to every word spoken in here.

Part of me on that night agreed with what he said, yet the other side of me also agreed that a person in this place should show a greater level of responsibility with the information put on that record. To this day, I am still not sure why the Hon. Sandra Kanck felt the need to be quite so explicit. It was almost as though she believed that she was the only person in here who related to the pain and anguish that so many go through who are emotionally stuck in depression, hopelessness and helplessness. If that is the case, I believe she was being presumptuous.

Our concern, and mine in particular, was that people become quite desperate, and anyone contemplating suicide might stumble on this speech and then act on one of those methods. However, she was unable to appreciate the view that it was irresponsible. Of course, the most disturbing part for me was that she would never know whether her words had affected anyone in such a way.

The honourable member attended a rave party; her face was plastered all over the paper and, as a result of this, her naive followers named an ecstasy pill after her—not quite the legacy that most of us would hope for in our time in this place. I still do not think that the Hon. Sandra Kanck was able to comprehend how difficult it was for parents to counter her antics and public comments on illicit drugs when so many of them were trying desperately to convince their kids that drugs bring pain and suffering in many cases and more often than not do not help anyone achieve their goals.

Public outrage was expressed in letters to the editor, via talkback radio, and I received many emails saying that we should insist on her resignation. She appeared to thrive on the controversy, and I must admit that every time she opened her mouth about drugs I would quietly give thanks, because it was an opportunity for the will of the people to be expressed and the anger, outrage and disbelief of her actions were an indication that the majority of the community had not bought the cruel hoax of the propaganda of the legalisation movement.

In her pursuit to normalise drugs and minimise the extent of the harm of these substances to our young, she was also not past misrepresentation of public figures to assist in her deception. In the lead-up to the debate on medical marijuana, the Hon. Sandra Kanck and David Caldicott held an information session where they aired a video on the need for marijuana to be prescribed for illnesses, and in that video, entitled Wanting to Inhale, they showed Dr Robert Dupont in the 1970s in his role as adviser to the White House advocating medical marijuana.

They failed to mention that Dr Dupont had publicly recanted his views and publicly apologised to the American people for misleading them on such a vital issue. I raised this in my speech on the bill, and in her rebuttal this was not mentioned, even though I tabled a letter from Dr Dupont himself expressing his disappointment in the Australian Democrats for using his image and words that were spoken over 30 years ago.

As some may know, Dr Dupont is the founder of the National Institute on Drug Abuse, considered to be one of the foremost authorities for research on the effects of illicit drugs. He has dedicated 30 years of his life to setting the record straight and undoing some of the damage he had done in his younger years.

The Hon. David Winderlich has stated that we should use privilege judiciously and for the greater good, rather than pursue personal agendas. I can say with confidence that Dr Dupont would have taken action if it were not for the fact that this particular abuse occurred under parliamentary privilege. In fact, just for the record, I will repeat the words of Dr Dupont that were spoken at an international conference in Atlanta, Georgia, in 1987, as follows:

Not only is marijuana worse than alcohol and tobacco combined, but it has other distinctive properties that neither of the others have. I now consider marijuana to be the single biggest new health problem in our nation. For today's youngsters, kicking the marijuana habit, individually or as a group, is going to be a life and death struggle. My supporting decriminalization of marijuana was the worst thing I ever did. I hereby apologise to the American people.

I wonder what recourse Dr Dupont could expect from the Hon. Sandra Kanck, who used her position in this place to his detriment. I was also in this chamber the night she made the statement about giving bushfire victims a dose of MDMA to overcome their trauma. She added returned Vietnam vets to her list, and then was shocked that the media jumped all over it. She claimed that she had been unfairly misrepresented in the media on the intention behind her words.

She was advocating the use of a dangerous and illegal drug about which there is sound scientific research that no level of use of this drug is safe. She used the tragedies of others to pursue her liberal drug agenda. I am sure that the bushfire victims and returned vets would much rather have compassion and practical support in order to recover from their life experiences than to be used as a political football to make headlines.

In fact, the Democrats behaved as poorly as the Attorney-General (Hon. Michael Atkinson) has been accused of behaving, and perhaps the Attorney-General simply chose an inappropriate time to air his views on the conduct of another member. Most will recall that I did exactly the same on the day that the Hon. John Darley was sworn in, so it would be quite hypocritical of me to condemn another of the same conduct.

Perhaps I am also able to empathise with the Attorney-General on why he would use such a time to express his views on the occasion that he did. Can the Attorney-General be criticised for abusing his position? That would depend on the perception of each person in this chamber today and whether or not selective memory is ruling the day, whether it is an opportunity to score political points, whether there are others like the Hon. David Winderlich who still somehow hold the view that we should all agree with the words and actions of others, or whether we are actually able to use our democratic right and freedom of speech to speak the truth.

I do not believe that the content of the Attorney-General's speech is defamatory in any way towards the Hon. Sandra Kanck, that his words have misrepresented her conduct in any way or that what was said by him can be seen to be inaccurate; therefore, I do not support this motion.

The Hon. R.D. LAWSON (17:44): Whilst I agree with many of the observations just made by the Hon. Ann Bressington about the various statements and campaigns of the Hon. Sandra Kanck, the subject of this motion is not the statements and campaigns of the Hon. Sandra Kanck: it is, in fact, the statements and comments made by the Attorney-General in another place. I indicate that Liberal members will be supporting this motion. The effect of this motion is to draw attention and to highlight, again, the unparliamentary behaviour of the Attorney-General.

This motion relates to a speech that he made on an adjournment debate in another place shortly after the Hon. Sandra Kanck had resigned. Ordinarily we would not bother with comments made in another place however offensive or obnoxious they might be. However, this particular speech of the Attorney was an egregious example of his tendencies to distort. The mover of this motion has focused on the fact that the Attorney's remarks were made under parliamentary privilege. My focus is somewhat broader than that. My party and I do not believe that the speech should ever have been made inside parliament or outside parliament.

As I indicated at the outset of my remarks, I am not here to defend every comment, speech or campaign of the Hon. Sandra Kanck—indeed, I disagreed with many of them. The point about this speech made in another place is that it was unbalanced, it was in many respects untrue (as the Hon. Mr Winderlich indicated) and in other instances it distorted the truth. It was petty, pusillanimous and meretricious. In other words, it was the unmistakable work of the member for Croydon.

It was also hypocritical, and 'hypocrisy' was the word just used by the Hon. Ann Bressington in her contribution. It reminds me of the ministerial statement made by the Attorney following the discovery by the media that the former DPP, Paul Rofe QC, had visited the Gawler Place TAB during office hours. The Attorney was full of indignation. In a ministerial statement, omitting immaterial words, he said:

Mr Rofe QC...should set the highest standards of personal conduct...The people of South Australia are entitled to rely upon the public and private conduct of public officers, such as Mr Rofe's, being beyond reproach...Mr Rofe's conduct was less than desirable and at worst may have had the effect of diminishing public confidence not only in his own performance but in the performance [of his office].

He finished as follows:

The government...will not tolerate any deviation from the expected standards of behaviour for a person in his position.

Despite these holier than thou words, some time thereafter it was revealed that the Attorney-General, when attending the chambers of the Chief Justice for a regular important meeting on public business, was found consulting the form guide in The Advertiser. Here he is, on the one hand attacking Rofe QC for not maintaining high standards and bringing his office into disrepute and there he is guilty of exactly the same conduct.

The PRESIDENT: Order! I inform the honourable member that he reminded the council that the Hon. Ann Bressington strayed off the motion. I think that the honourable member is tending to stray off the motion as well.

The Hon. R.D. LAWSON: There are many other cases where the Attorney has engaged in exactly the same type of campaign that he engaged against the Hon. Sandra Kanck. Members will recall that, when the Hon. Sandra Kanck's replacement was to be elected in this chamber at a joint meeting of members, the Attorney sought to raise the point that the Australian Democrats was a party of fewer than 150 members and to make other disparaging remarks about the Democrats, a point entirely irrelevant to the particular meeting, the purpose of which was to elect a representative of the party with whom the retiring member was associated, whether or not that party was a registered political association or entitled to be one by virtue of its membership.

The PRESIDENT: Order! I remind the honourable member that the motion refers to comments made by the Hon. Michael Atkinson on 19 February 2009.

The Hon. R.D. LAWSON: Indeed, and the motion talks about bringing important truths to light, to speak on behalf of people against vested interests, to urge members to use privilege judiciously for the greater good rather than to pursue personal agendas and vendettas. Perhaps I should focus on the personal vendettas and agendas—

The PRESIDENT: Order! All that relates to the remarks made on 19 February 2009.

The Hon. R.D. LAWSON: Indeed, but it is highly relevant to determine the proclivities of the honourable member.

The PRESIDENT: Order! I remind the honourable member that he was quick enough to pick up on the fact that the Hon. Ms Bressington strayed off the motion. I remind the honourable member that he should stick to the motion.

The Hon. R.D. LAWSON: Well, you certainly were not—

The PRESIDENT: Order! The honourable member has the call.

The Hon. R.D. LAWSON: Mr President, no point of order was taken against the Hon. Ann Bressington raising the important points—

The PRESIDENT: Not until you got to your feet.

The Hon. R.D. LAWSON: I quite understand why some would wish to defend the Attorney-General and not want put on the record relevant comments about the personal vendettas and agendas referred to in the honourable member's speech that the Attorney-General pursues. His description of the Criminal Law Committee as 'enemies of the people' and the 'usual suspects' are typical of those agendas and vendettas, as well as the recent attacks made by the Attorney in the House of Assembly regarding presidents of the Law Society.

Rather than laying a complaint in the appropriate forum—as indeed there is an appropriate forum—for overcharging or for professional misconduct, the Attorney-General chooses the forum of this parliament to attack certain former presidents of the Law Society, and then to name others as being the subject of some further possible attacks. All members will know how the Attorney has embarked upon personal vendettas and agendas against journalists such as Graham Archer and Hendrik Gout, who is his latest bête noire. They will remember, too, the attacks made on Professor Tony Thomas, about whom the Attorney-General quoted disparaging remarks made by a magistrate.

That might be a long time ago, but it is important because, on that occasion, the Attorney-General well knew that the remarks of the magistrate had been overruled by Justice Mullighan on appeal; however, once again, because the Attorney was running a vendetta in relation to a particular case, he was prepared, under parliamentary privilege, to make a savage attack upon that gentleman. So, all too often we see unparliamentary behaviour and abuse of parliamentary privilege from the Attorney-General. It is deplorable. We look forward to support of the motion.

The Hon. B.V. FINNIGAN (17:53): The government opposes the motion, and I think there is no clearer demonstration of why than what we have just heard from the Hon. Mr Lawson. We have spent 15 or 20 minutes of parliamentary time talking about who said what and when. What about the Attorney-General? Was he mean to the Law Society?

This is not some 19th century gentleman's drawing-room; it is a house of parliament, a house of robust debate where individual members are entitled to say what they think. We heard the Hon. Mr Lawson say that MPs are being picked on, that QCs are being picked on and that journalists are being picked on. These are the powerless whom the Hon. Mr Winderlich is so keen to protect—journalists, queen's counsels and members of parliament. These are not people who are powerless; they are people engaged in robust public debate—and long may that be so.

What we hear from the Hon. Mr Lawson and members opposite is that there should not be that sort of debate in the houses of parliament; instead, it should be all politeness and decorum. How dare the Attorney-General elect to criticise the Hon. Ms Kanck! This is a fatuous motion, it is a waste of time and it is indulgent.

While I note that the wording of the Hon. Mr Winderlich's motion is relatively innocuous, it is clear from his and other speeches that it is simply about an attack on the Attorney-General, who is the first law officer of the state. Why? Because he chose to make remarks about a former member of this place in which he made clear that he disagreed with the Hon. Ms Kanck on a number of matters. That is the great crime that is the subject of this motion.

The Hon. Mr Lawson wants to establish the principle that we should spend most of our parliamentary time talking about what people said down there, what was said in the paper and what the Law Society had to say. That is all we have now to deal with—we in this place and the other place should spend all our time worrying about what other people are saying about us. The Hon. Mr Lucas is constantly coming up with nonsense and, if I spent all my time worrying about what Mr Lucas said in this place, I would do nothing else.

The Hon. Mr Winderlich made three key points; one was to defend the Hon. Sandra Kanck in relation to the remarks. I do not doubt that the Attorney-General stands by his remarks but, supposing that the Hon. Ms Kanck did feel aggrieved, she is entitled to write to the Speaker and seek a right of reply on the record which, in the lower house, is dealt with by the Standing Orders Committee.

Secondly, the Hon. Mr Winderlich said that the Attorney's speech was an abuse of parliamentary privilege. That claim is frequently made when one disagrees with the content of a speech, but one does not see members opposite worrying too much about parliamentary privilege when they are trawling through the gutter and maligning people's reputation left, right and centre, as they do so frequently.

Because one disagrees with a speech it does not mean that one has to say that it is an abuse of privilege. We all value and make use of parliamentary privilege, and to suggest that a reaction to something an honourable member has said is an abuse is to invite restriction of a privilege that we value so highly.

I find the claim that the Attorney abused privilege quite bizarre, given that one of the things for which the Hon. Mr Atkinson criticised the Hon. Ms Kanck was her decision to use privilege to read into Hansard rather gruesome details regarding how you can end your life. At the time, that was rightly criticised as a gross abuse of privilege. Honourable members are free to advocate voluntary euthanasia, as many in this chamber do, but to say, 'I don't have the numbers to get that through, so I'll advocate civil disobedience and encourage people to take the law into their own hands' is unconscionable, and I joined with other members at the time in taking action regarding that abuse of privilege.

The Hon. Mr Winderlich said that privilege should be used to speak out for the powerless against the powerful. I am uncertain when former members of parliament became the powerless. It is quite beyond me how a person who has spent many years in this place, who has contributed robustly to debate, as is proper, and who still has the capacity to contribute to public debate, as we have already seen with statements in the public media, can be considered powerless.

We in this place have an obligation to look after the vulnerable, the weak and those unable to defend themselves. To suggest that someone who has served in parliament for 13 years is powerless and needs our protection from the big bad Attorney-General being mean and saying nasty things is, quite frankly, extraordinary and a waste of this parliament's time. If a colleague of mine moved a motion such as this, I would feel aggrieved because it suggests that I am too frail to take care of myself in public discourse—and that is not a very kind to thing to say to any politician.

The Hon. Mr Winderlich asked whether the Attorney-General had better things to do with his time. I can tell him what the Attorney has been doing with his time: implementing this government's law and order agenda, putting in place legislation to combat home invasion and for DNA testing hardened criminals and implementing better sentencing guidelines, not to mention putting in place measures to fight the scourge of outlaw motorcycle gangs—measures which have been strenuously opposed by the Hon. Mr Winderlich and the Democrats at every turn, which are now being considered by other states and which were, in fact, the subject of commendation by the federal Leader of the Opposition in Canberra, Mr Turnbull.

So that is what the Attorney-General has been doing with his time: combatting the scourge of bikie gangs and being fought every step of the way by people like the Hon. Mr Winderlich, and those peace-loving, freedom-riding, outlaw bikie gangs, who the Hon. Ms Kanck was happy to host in this very building. Let us spend no more of parliament's valuable time with this absurd motion, which is indulgent and petty and deserves no more attention.


[Sitting suspended from 18:00 to 19:48]


The Hon. D.G.E. HOOD (19:48): Members will be pleased to hear that I intend to be brief on my contribution to this motion. I had intended a seven hour speech, but I have decided on about one or two minutes. This motion implies, if you like, that the speech that the Attorney-General made on 19 February 2009 in some way was an unwise use of parliamentary privilege.

I have read the speech that the Attorney-General made on that day and, to be frank, I think what he said in that speech he could lawfully say on the street outside parliament; what he said was factually correct. Whether people are sympathetic to the thrust of what he was saying is another matter but, in terms of what he specifically said, he would not have found himself facing defamation charges if he had said that outside this place.

I can understand what the honourable member is trying to achieve with this motion. He, to use the vernacular, is sticking up for his colleague. I respect that and, to date, the Hon. Mr Winderlich has brought some worthwhile contributions to this place in his short time in this council. However, on this occasion, Family First is not inclined to support the motion because I do not feel that the Attorney overstepped the mark on this particular occasion. In fact, I think all of us have used our parliamentary privilege, on occasion, to address a matter that was somewhat delicate, but, as I say, in this particular instance, I do not believe that the Attorney would be facing any defamation claim if he had said what he said outside the chamber. Whilst I can understand the reasons for the Hon. Mr Winderlich's motion, I am afraid that Family First is not persuaded to support it.

The Hon. DAVID WINDERLICH (19:50): I thank everyone for their contributions. I thank the Hon. Ann Bressington for her honesty, as always, but I think she confuses the policies of Sandra Kanck with the principles that are at stake here around the debate of the purpose of parliamentary privilege. I think the interesting matter for a person like the Hon. Ann Bressington to consider is that, in many ways, she is the mirror image of Sandra Kanck and, as controversial polarising figures, both can be subject to attack. That is the common interest of people who are at opposite ends of a spectrum.

I thank the Hon. John Darley for his brevity. He believes we should not waste time talking about this matter. The point is that, if we do not set standards around what the use of parliamentary privilege should be, we will spend a lot of time talking about parliamentary privilege because there will be many instances of the use of parliamentary privilege that we will find beyond the pale. I thank the Hon. Bernard Finnigan for amusing my children. They came to join me for dinner tonight, as they often do on a Wednesday, and they found it interesting that you could say that this was not a matter we should be talking about and then talk about it at length. I also take the opportunity to—

The Hon. R.I. Lucas: It is one of the first useful things he has done in his time in the parliament.

The PRESIDENT: Order!

The Hon. DAVID WINDERLICH: That is a bit harsh—clarify the irrelevant point he made in relation to bikies. As I told 300 bikies on the steps of Parliament House—and I was the only one who did so—they need to clean up their rogue elements, but I do not believe in laws which criminalise association and which would possibly send someone to gaol for going fishing with their uncle. I continue to stand by that and I am very happy for people to publicise that. In fact, I have a Facebook called 'I will associate with whomever the bloody hell I like', which some of you may want to join. I thank the Hon. Rob Lawson for expanding all our vocabularies, and I thank the Hon. Dennis Hood as well.

Getting back to the point of this motion, this was not really about Sandra Kanck. She never asked me to do this; another person suggested I should—not a person involved in politics—but it was not Sandra Kanck. Although I was prompted by the fact that I thought the speech was grossly unfair, I thought it took issues out of context. There were definitely areas of fact and I do think it was defamatory. I will read to you again the description of defamation in the Law Handbook online. That handbook states:

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 or is not defamatory depends on the standards of the community as a whole and not just of some narrow section or group [such as members of parliament].

In other words, just because we happen to rip each other to shreds in here does not mean a court would see that as a reasonable use of freedom of speech.

The key point about this is the very question of parliamentary privilege and what parliamentary privilege is for. It may be because I am relatively new here, but I do have a fairly idealistic notion of this. As I said when I first spoke to this motion, I think parliamentary privilege is a very important tool for us, a very important right and a very important privilege. It is a way of bringing to light truth that would otherwise be hidden by the threat of defamation. If you read through the Attorney-General's speech, did he bring truths to light that would otherwise be hidden? I do not think so.

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. Did he strengthen the hand of an individual or community group that needed some help? Absolutely not. Finally, it is a way of defending the innocent from unfair attacks. Well, the only person attacking in that whole episode was the Attorney-General. So, it is hard to see what could have motivated his speech, apart from a desire to personally attack and wound a person.

Of course, this is politics, and sometimes we do that. The significant difference here is that we are now talking about a person who formerly was a politician and is no longer, and at that point had not quite become a public figure again, although that happened soon afterwards—and members might recall that I very quickly disassociated myself from Sandra Kanck's remarks about one child policies. So, there are times when I am perfectly happy to take my own position and disagree.

However, once we start using parliamentary privilege to attack people who are not really playing a role in parliament or who even at that point in time have any significance in political debate, you have to ask who else we will turn that parliamentary privilege on. If we do that then all sorts of innocent people can be caught up in our vendettas and agendas. That is what I think the Attorney-General was doing, and that is why I think it is wrong.

It has been said to me that this is politics and this is what we do, and that is true. However, it has also been said to me that other precedents have been cited—and quite relevantly, I think, in a number of cases. There are relevant precedents of a range of people abusing parliamentary privilege. However, I would prefer to set a different precedent.

If we vote tonight to send a signal about what we think the proper purpose of parliamentary privilege is, we can set a different sort of precedent and, instead of continuing to descend in a race towards the bottom, driven by the occasional abuses of parliamentary privilege, we could set a precedent of attempting to set limits on those abuses and try to lift debate towards where it should be, which is focusing on important issues and policies, not personalities, past debates and dislikes and vendettas, and that is the whole point of this motion.

If members want to try to drag, however haltingly and imperfectly, the notion of parliamentary privilege to a higher standard and have it used as it should properly be—to defend and help the weak and the innocent and to expose truths that need to be exposed—they will support this motion. If they think that, really, it is not that important and, therefore, because we abuse it from time to time it is okay to continue to abuse it, then they will not. I urge the support of members. I think I have counted the numbers accurately and I do not believe I will have a sufficient number, but I think it was a useful debate and I thank everyone for their contributions.

Motion negatived.

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