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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-07-29 Daily Xml
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GILBERT, MR R.

Adjourned debate on motion of Hon. A.M. Bressington:

That the Legislative Council condemns the slur against the then Burnside city councillor, Mr Robert Gilbert, by the member for Newland in the House of Assembly on 14 October 2010 and calls on the member for Newland to correct the record through an apology.

(Continued from 18 May 2011.)

The Hon. P. HOLLOWAY (15:25): I rise to oppose this motion. There are two grounds for my doing so. If any member of the public believes that they have been aggrieved or in some way slandered through any comments made in parliament there is a method with which they can address their grievances, and that is to go to the appropriate house to seek to have a response incorporated in Hansard.

It is my understanding in this case that the motion of the Hon. Ms Bressington refers to former councillor Gilbert of the Burnside council. It is my understanding, and I checked this morning with the Speaker of the House, that no such request has been made to the House of Assembly that there should be any redress under the appropriate standing orders of the House of Assembly. That is the appropriate way in which such grievances should be addressed. That has not been the case in this situation.

The second reason is, and perhaps a more important reason, that it is completely inappropriate that one house of parliament should be judging the members of the other house and what they say. It is a longstanding tradition that members of this house should be accountable to this house. Similarly, members of the House of Assembly should be accountable to the rules of their house. If they say things that people feel are inappropriate then it is up to that house to deal with them. Similarly, if any member of this house makes statements which members want to challenge there are longstanding methods with which to deal with them.

It is completely inappropriate that we should be passing judgement on comments made in the other house of parliament on a particular matter. Just suppose that we were to set this precedent. There are two things that would come of that. First, if we set the precedent where we pass judgement on everything that is said in another house the first problem is that we would probably have little else to do with our time, we would be completely absorbed with having to deal with everything that was said.

I put the challenge to every member of parliament: if they want to support this motion then what they would have to do is check the facts relating to the case. Is that what members of parliament should be doing? Should we really be spending our time reading comments made in another house to try to pass judgement on them? Of course not. It is absolutely ludicrous that we should be doing so. That is why there is a longstanding tradition that we do not pass judgement on what is said in another house.

If the person who is the subject of the complaint feels aggrieved they can either take advantage of the methods that are available to them to deal with it in the appropriate way through that house, or the Hon. Ms Bressington has put the case of councillor Gilbert on the record. That should have been the end of it. She is entitled to do that. If any member of the public, if they ever read Hansard, is concerned about these matters they can read the Hon. Ms Bressington's account, they can read what was said and make their own judgement.

What should not happen is that members of this house are put through the exercise of adjudicating, as this motion requires us to do, on the merits of statements made in the other house. Frankly, I have far better things to do than to try to pass judgement on those sorts of comments that are made.

As members of parliament, we are provided with parliamentary privilege. We have an obligation to use that privilege wisely, and if we do not do that then there are appropriate forms of the house that can be taken to address that. What we should not be doing is spending our time in this parliament passing judgement on what is said by members of another place.

So, it would set an extremely bad precedent. If we were to go down this track, if we were to support this motion and require members in another place to make an apology, can you not imagine what would happen? The other house, if it wanted to, could start to move motions condemning people like the Hon. Ann Bressington. It is a stupid idea. That is why, with 750 years of parliamentary tradition, we do not go in for such stupid things.

I am not really interested in the merits of the case, for or against councillor Gilbert. That is not really the issue. It is up to members of parliament to raise those issues, if they wish. Councillor Gilbert has the means to defend himself. It is not the role of this parliament to stand in judgement on what other members of parliament say; otherwise, it would really turn this council into a bigger farce than it is already becoming.

The Hon. S.G. WADE (15:30): I rise today to speak on the Hon. Ann Bressington's motion and to address the comments made about a former councillor of the Burnside City Council, Robert Gilbert, by the member for Newland in the other place. Many of my points are similar to those of the Hon. Paul Holloway, but I hope my tone is distinctly more respectful.

The motion before us asserts that the honourable member for Newland abused parliamentary privilege by making unsubstantiated allegations against Mr Gilbert regarding his conduct at a meeting of the Burnside council. The opposition respects the Hon. Ann Bressington's strong defence of Mr Gilbert, consistent as it is with her recurring concern to protect individual rights and the little people against institutional unfairness. However, for the reasons I am about to outline, it is the view of the opposition that it would be inappropriate for these concerns to be dealt with by a motion in this council.

First, we should be circumspect in criticising the use of free speech in this place of all places. Parliamentary privilege should not be used lightly. It is granted to us as parliamentarians so that we might engage in free and fearless debate. From time to time, the wise use of these freedoms is challenged, but it is primarily the responsibility of each house of this parliament to ensure that any abuse is dealt with.

Regardless of the merits for or against the member for Newland's statement, this council needs to be careful not to usurp the responsibility and the authority of the other place in disciplining its own members. Secondly and related, I understand that Mr Gilbert is entitled to address the House of Assembly to clear his name, and I think the Hon. Paul Holloway indicated that that is his understanding as well. Whether or not he chooses to exercise that right is a matter for him.

Thirdly, the Hon. Ann Bressington defended Mr Gilbert at length in her speech after moving this motion and has put on the public record her views about the intent behind the member for Newland's statements and allegations against Mr Gilbert. For the above reasons, the opposition feels unable to support the motion; however, the opposition's position should in no way be taken to agree with the member for Newland's comments. As I said previously, it is simply a matter of it being inappropriate for us to deal with a member of another place.

I also believe that the opposition's position is made stronger by the fact that we now have on the Notice Paper a motion moved by myself on behalf of the opposition for matters relating to the Burnside investigation to be referred to the Ombudsman. In that context, Mr Gilbert is one of a number of people whose actions were looked at by the MacPherson investigation so, in our view, it is not appropriate or helpful for this council to comment favourably or negatively on the guilt or innocence of Mr Gilbert or any other person who might be part of that investigation. We cast no aspersions on Mr Gilbert; we simply consider that it is not appropriate for the council to consider this motion.

The Liberal Party has consistently called for the investigation to be completed so that all allegations can be dealt with accordingly with regards to due process, and our position on this motion is consistent with that approach.

The Hon. M. PARNELL (15:34): I believe that the member for Newland was completely out of line when he launched his pre-election attack on Burnside mayoral candidate councillor Robert Gilbert back on 14 October last year. I believe that his attack was unfounded, unfair and unparliamentary. I think that it brings no credit on the member for Newland, and I believe that he should apologise. I do not propose to go through all of the misinformation, the untruths and the scurrilous innuendo that is contained in the member for Newland's speech in the other place because I think that the Hon. Ann Bressington has summarised that very well and made the case for why the member for Newland should apologise.

I will just say that one of the most telling features for me in the member for Newland's attack on councillor Gilbert was that he chose to rely on discredited character evidence in support of his politically-motivated conclusion that the voters of Burnside should not vote for such a bad person. When I say 'discredited character evidence', I particularly refer to the repeating of allegations under parliamentary privilege that were found by the District Court to be without foundation, and the substantial award of damages to councillor Gilbert in a 1999 defamation action shows why that is the case.

I would also say that I have met councillor Gilbert on a number of occasions over the years. I do not profess to know him well, but I will say that I have always been impressed with his dedication and his commitment to the people he was representing in Burnside. The Hon. Paul Holloway refers to alternative methods available for correcting the record if people feel dissatisfied. As I understand the procedures in the other place they are similar but not identical to the process that we have here, namely, that members of the public who feel they have been defamed or otherwise unfairly dealt with in a contribution by a member of parliament have the ability to seek to have correction—or at least their point of view—incorporated into the Hansard.

Whilst that may be available here, I do not think it is entirely adequate, and that is why I am pleased that the Hon. Ann Bressington has put this matter on the agenda today for debate. In circumstances such as these, I think that it is important that members have the opportunity to put their views on the record, and that option is not available simply using the formal right of reply provisions in the sessional or standing orders.

The next matter to consider is the appropriateness of members of one house of parliament formally censuring a member of the other house of parliament. I think that the answer is that it is appropriate if that other member is a minister—a member of the executive. That is actually a key part of our role as members of parliament: holding members of the executive to account for their decisions and for their behaviour.

However, I do not think that it is an appropriate approach in relation to non-executive members of the other house. Here in the Legislative Council we value our independence, and the members of the other place no doubt do as well. That is why I do not think it is appropriate for the motion as introduced to be formally passed, notwithstanding that I agree with both the basis of the motion and the action proposed, that is, an apology from the member concerned.

As I have said, I think that the member for Newland should apologise. He will know that because he will read the Hansard, Mr Gilbert will know it, too, because he will read the Hansard and the public will know it because it is now on the permanent record.

The Hon. R.L. BROKENSHIRE (15:37): First, I understand why the Hon. Ann Bressington has moved this motion, and had the Hon. Ann Bressington not moved this motion then the way the structure of the parliament is right now someone would have no way currently of being able to get on the public record the facts and also to defend a situation which, to me, was totally out of order by the member for Newland.

Just very quickly, but I think importantly, I think that things have changed for the worse with respect to the introduction processes for new members of parliament over the last 10 years or so. Prior to that there used to be some convention that you would be mentored, instructed and supported in the way you went about your business in parliament, but it appears that the government does not seem to be mentoring newer members when they are coming into the parliament.

I think that is one of the reasons why the honourable member for Newland was totally out of order in using parliamentary privilege to cast a slur, at least, on someone who I have met and worked with on several occasions and who I find is a very honourable, open and accountable person. Perhaps it was done because the member felt they owed someone else in their party a favour before an election. Maybe that was the reason it was done.

I was always warned that you use parliamentary privilege with the utmost caution as a member of parliament and should not turn it into an opportunity. The community outside calls this place 'coward's castle', and I think we are on a slippery slope if we abuse parliamentary privilege. Parliamentary privilege is there for members to be protected when, in the course of the business and the work that they are doing on behalf of the state, they need that protection for the best interests of the state.

The Hon. David Wotton went through this with me very thoroughly, and also the Hon. Trevor Griffin and other experienced members clearly told me that you do not use parliamentary privilege to attack individual people who have no recourse. That is why, from that point of view, I very much support the Hon. Ann Bressington in raising this issue in the house.

The member for Fisher (Hon. Bob Such) in another place has on occasion said that he believes there should be some process set up within the parliament so that if there is a deliberate unfair attack on an individual that person can write to the house in which the attack occurred and, with an absolute majority of members supporting that letter, be given the right to come before the bar of the chamber and put their point of view. Frankly, I think the member for Fisher makes a lot of sense because that would stop some of the stuff that we have seen in recent years.

From that point of view I think I have made it pretty clear as to how I see it, and it would be my advice to the member for Newland to write to former councillor Gilbert and apologise. That said, convention has taught me that we cannot support motions where members are involved in another place. In this instance, this member is not in this house: this member is in the House of Assembly. For that reason, I support what the Hon. Paul Holloway has said and therefore cannot support the motion.

The Hon. A. BRESSINGTON (15:42): Probably surprisingly, I also agree with the determination of the Hon. Paul Holloway that it is not this house's place to be forcing any action on members of the House of Assembly. However, that still does not condone the conduct of the Mr Tom Kenyon and the defamatory and slanderous comments that he made about Mr Gilbert—using no other than his Appropriation Bill speech to do that.

I notice today in this place, and rightly so, Mr President, that you directed the Hon. Stephen Wade to get back on track with appropriations business during his speech. As I said, so he should. It is your job to direct members from the chair. Maybe perhaps the Labor Party should be educating their president on what appropriations business is in the other house, but that is for your party to sort out because, certainly—

The PRESIDENT: That is the Speaker.

The Hon. A. BRESSINGTON: Sorry, the Speaker, whatever she is called. Perhaps there should be education on what appropriations business really means in the House of Assembly. I am sure it does not differ too much from what it means here.

There is a basic flaw here, and we have citizens who basically have no faith in the fact that, if they were to put in a submission for a right of reply, under the requirements of the House of Assembly, it would not get past the committee: it would be rejected. That is a sad indictment on the level of faith that our citizens have in the processes of this parliament to allow them a right of reply. It is my understanding—given that the Hon. Tom Kenyon delivered his speech, as the Hon. Mark Parnell pointed out, post election of the Burnside council, and the fact that he was a mayoral candidate—that he felt quite confident that his submission to the standing orders committee would actually be rejected, so it would not be heard on the floor of the house.

As I said, it is a sad indictment of the confidence citizens have in the representation they are getting from members of the parliament. Another sad thing is that they feel they have to come to a member of the upper house to be heard and to have their case put. It really does not say much at all for government in the lower house, and what the people of this state truly believe is lacking in our so-called democratic processes.

I would have thought it would be just common decency, now that members of the Labor Party in this chamber know what Mr Kenyon said, and how he managed to get that information onto the public record, onto the floor and into the house via an Appropriations Bill speech, using parliamentary privilege to do it. I challenge Mr Kenyon to go out on the front steps and repeat what he said—as we are so often challenged in this place, when we are speaking the truth. Go out on the front steps and say it; get yourself a megaphone, go out there, repeat the speech word for word and open yourself up to be sued for defamation. I bet he would not do it.

I also want to mention conventions. We always fall back on conventions and on how we must uphold conventions in this place. I wonder how convenient that is, on some occasions. I also wonder, when we have a government that only respects conventions that suit the government on the day at the time, how useful they are. How real are they? Are we not inviting anarchy when we are prepared to only pick and choose, and cherry pick those conventions that suit the government of the day?

In saying that, I offer my apology to Mr Gilbert on behalf of other members of the South Australian parliament that we would abuse this privilege and that we would slander a man and destroy his reputation and character in such a way for nothing other than what I believe were political reasons.

The Hon. R.P. Wortley: You did it to me yesterday; what are you talking about? You are a bloody hypocrite.

The Hon. A. Bressington: You do it to yourself.

The PRESIDENT: Order!

Motion negatived.

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