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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2010-05-12 Daily Xml
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MEMBERS' REMARKS

The Hon. M. PARNELL (17:14): I move:

That this council—

1. Notes the decision of the Supreme Court on 9 April 2010 in the matter of White and Others against the State of South Australia.

2. Notes with alarm the misguided intervention of the two government ministers in this case, namely, the Treasurer (Hon. K.O. Foley) and the Minister for Police (Hon. M.J. Wright).

3. Notes the remarks of His Honour Justice Anderson that the comments of the ministers were unfounded, unreasonable, antagonistic, unjustified and offensive and that His Honour increased the award of damages to the plaintiffs by $135,000 as a direct consequence of the ministers' behaviour.

4. Calls on the Treasurer and the Minister for Police to apologise to the South Australian people for the impact their comments have had on the finances of the state.

This motion deals with a disgraceful situation whereby the conduct of two ministers in a recent civil court case has cost the taxpayers of this state a substantial amount of money. In the motion, I refer to the sum of $135,000; however, that is only the tip of the iceberg because the precise liability of the state for legal cost has yet to be determined.

On my calculation the amount is likely to top half a million dollars, and every cent of that can be sheeted home to these two ministers. Before getting into the detail of the motion I need to explain to members the circumstances that led to the court case and the role that ministers Foley and Wright played in undermining a settlement to that case.

The summary that I recount is largely taken from notes supplied by Brian Walters SC, who was one of the lawyers representing the plaintiffs. In May 2000 several groups converged on the Beverley uranium mine to support the local Indigenous people and to oppose mining. On 9 May, about 70 people walked quietly and peacefully onto the land constituting the uranium lease.

The police reacted with violence. They drove cars into retreating protesters; they beat protesters with batons, including protesters on the ground; they sprayed fleeing protesters with capsicum spray; and they sprayed people who had already been brought to the ground. In one case, for no good reason, they sprayed into the rear of a cage car and left the three young women occupants, one of whom was an asthmatic, in the sun for over an hour. They sprayed an 11 year old Indigenous girl who was legally entitled to be on the land.

STAR Force officers (that is, the riot squad) with helmets, shields and batons used wedge formations to drive into retreating protesters and attack them with shields and batons, even though they were leaving the land and obviously behaving peacefully. The police targeted anyone who was filming, and this included a Channel 7 cameraman and Lucinda White, who had not been on the land at all but was standing outside the fence to film police conduct. The police then locked 30 prisoners into a shipping container even though they had no legal basis for arresting them in the first place. They held their prisoners for up to eight hours, giving them no food and virtually no water in that time.

The Police Complaints Authority recommended disciplinary charges against police, but no disciplinary proceedings were launched. Not having seen the police made accountable in any other way, 10 plaintiffs sued for assault and false imprisonment. They included Jamie Holland, the Channel 7 cameraman who was locked in the shipping container, and Helen Gowans, the 11 year old Indigenous girl who had been sprayed by the police.

Senior ministers in the South Australian government publicly attacked the plaintiffs calling them 'ferals' and 'anarchists' and accusing them falsely of having put the lives of police at risk. They also implied that they had deliberately provoked the police response in order to claim damages. They publicly stated that they would not settle the claim.

The trial lasted four months. All the plaintiffs gave evidence, and they were cross-examined at great length by senior counsel for the State of South Australia. All the police gave evidence. At no stage did police apologise for their conduct. Last month, on 9 April 2010, nine years and 11 months after the incident, the Supreme Court of South Australia awarded the plaintiffs a total of $724,560 damages, together with costs yet to be assessed—that is, nearly three-quarters of a million dollars.

The judge was scathing about the comments of the senior ministers involved, the Hon. Kevin Foley and the Hon. Michael Wright. He said that he had increased the damages because of their unjustified comments. I do need to refer directly to His Honour's remarks. His Honour Justice Anderson said:

It was submitted that the public statements of both the Deputy Premier Mr Foley and the Police Minister Mr Wright show a 'high handed and contumelious disregard of the rights of the plaintiffs'. The statements were made by the Ministers to a newspaper to explain why the government had instructed its legal advisers to withdraw from a mediation at the last moment. The mediation had been suggested by and agreed to by both parties and had been approved by the court.

Mr Foley described the plaintiffs as 'a bunch of feral protesters who put the safety of our police officers in peril'. The plaintiffs submit that this statement is all the more offensive because it was made with knowledge of a Police Complaints Authority report. This report described incidents which occurred at Beverley on 9 May 2000. The conduct of several police officers was criticised. That conduct was the unnecessary use of force by the use of both capsicum spray and batons and a failure to follow proper procedures.

His Honour went on to state:

The fact that there are criticisms clearly set out in the report is sufficient to show that the statements made by the ministers are unfounded and made in the face of adverse comments by the Police Complaints Authority on the actions taken by the police against the protesters. The report is particularly critical, as am I, of the decision to hold protestors in custody in a shipping container and for long periods which were unjustified. It is also critical of the force used by individual officers. Mr Foley in his statement, also said, 'The government sends a message to any anarchist group that we will not be a soft touch. They can have their day in court.'

The plaintiffs have now had their day in court and have succeeded. My findings indicate that the comments made by Mr Foley were both unreasonable and antagonistic when made in the circumstances of aborting the planned mediation. These statements are relevant to the assessment of exemplary damages. The comments are one-sided and do not acknowledge the extreme way in which the police dealt with the protesters and the circumstances of their detention.

Mr Wright, as the Minister for Police, made similar provocative statements without any factual basis. He must have known the full details of the report. He said, 'The offering of substantial sums to the plaintiffs by way of settlement has the potential to undermine the authority and good standing of the SA Police.' He also said, 'The payment of a settlement amount may encourage other members of the public to provoke a response from SA Police in similar situations with a view to seeking compensation from the state.'

Again, these comments were unjustified and offensive to the plaintiffs and will sound in exemplary damages. The authority and good standing of the SA Police was undermined by the report. It is my view that both ministers, in making these statements, have acted with a high-handed and contumelious disregard of the plaintiffs as citizens of the state with a right to protest, and with the right to be treated according to law if they did protest. As I have found, they were not treated according to law.

They were His Honour's words in the judgment. When calculating damages His Honour stated:

In addition, each plaintiff is entitled to be compensated for the unnecessary and demeaning remarks of the two government ministers. In my view an award of $15,000 would not be overcompensation.

That amount, $15,000, was applied to nine of the plaintiffs who were unlawfully detained, hence the sum of $135,000 directly attributable to the comments of those two ministers.

Normally when civil proceedings for damages are commenced in court, the parties seek to reach an agreement without the need for a trial. In the present case, as His Honour found, the government ministers prevented any negotiations. Eventually the plaintiffs did offer to settle the case and they offered to settle it for far less than they were ultimately awarded by the court in damages.

The difference between what the plaintiffs offered to accept and what they were ultimately awarded by the court was about $75,000. Had the ministers not interfered, there is every chance that a settlement would have been reached, either for that amount or for a lower amount, and that would have avoided an unnecessary trial, and it would have avoided hundreds of thousands of dollars in unnecessary legal costs. I estimate about $400,000 being the legal costs, about $200,000 each side; however, the court is yet to determine the government's precise liability for costs.

The operative provision of my motion is at point 4, and the wording: 'Calls on the Treasurer and the Minister for Police to apologise to the South Australian people for the impact their comments have had on the finances of the state.' Members should know that I am not calling for condemnation of the police force. I am not even calling for either the police minister or the police themselves to apologise to the protesters, even though I think that would be the right thing to do.

I think that if this government had any moral fibre then it would admit the mistakes that were made, it would put in place mechanisms to make sure those mistakes never happened again, it would apologise to the victims and it would move on. However, the government has not sought to do that, and in this motion I only seek the ministers' apologies to the people of South Australia for the impacts that their comments had on the finances of the state; that is, probably upwards of $500,000 that they have personally and directly cost us as taxpayers.

All members should be distressed at the circumstances that gave rise to this case, but most of those issues are really for another day, particularly those issues of accountability for wrongdoing and making sure that our authorities, including the police, learn from their mistakes.

Our system of government relies on the separation of judicial, executive and the parliamentary arms of government so that each can bring the other to account. It is a tribute to the effectiveness of that system that in this case the judiciary has called the executive arm of government to account and required it to pay substantial damages for its severe wrongdoing and for the harm caused to citizens.

My motion is focused solely and squarely on the conduct of ministers Foley and Wright; it does not focus on the conduct of the police. I want those ministers to apologise to the people of South Australia for the financial impacts of their behaviour. They have cost us a small fortune and they should apologise. Members should bear in mind that these ministers knew that the Police Complaints Authority had found against the police, yet they continued to attack and denigrate the plaintiffs and refused to allow any negotiation over a settlement. As a result, ministers Foley and Wright, between them, have cost SA taxpayers about $500,000 in extra damages and court costs.

We should also remember that the judge specifically increased the award of damages to take into account the fact that the ministers had literally added insult to injury. My fear is that the government has learned nothing from this sorry episode and that, having failed to learn, that is a recipe for history to be repeated.

Debate adjourned on motion of Hon. R.P. Wortley.

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