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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-10-19 Daily Xml
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MEMBERS' REMARKS

Adjourned debate on motion of Hon. M. C. Parnell:

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 two government ministers in the case, namely, the Treasurer (the Hon. K. O. Foley) and the Minister for Police (the 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; and

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.

(Continued from 26 May 2010.)

The Hon. S.G. WADE (23:22): I rise to indicate the opposition's support for this motion. It is rather fitting that this motion is being debated today, the second to last day of the police minister and former treasurer Kevin Foley's time in cabinet. However, this motion is a fitting tribute to a minister who cannot stop talking about his supposed legacy.

The legacy we are discussing today is his contribution to yet another multimillion dollar cost to the taxpayers of this state. While his legacy in this case pales compared to his financial mismanagement of the state, this case does highlight that former treasurer Foley (now minister Foley) does not think twice about risking taxpayers' money.

Part 4 of the motion calls on the former treasurer and the former minister of police to apologise to the South Australian people for the impact their comments have had on the finances of the state. I am sure that many would like to hear the former treasurer in particular apologise more generally for the impact he has had on the finances of the state. But the matter we are particularly discussing today is one particular indiscretion of two ministers who have followed the enduring tradition of this government of making disparaging comments which ultimately the taxpayers pay for.

The case that the motion refers to arose out of a protest in May 2000. On 9 May 2000, between 70 and 100 protestors illegally entered the Beverley uranium mine lease. The police response was violence and the Police Complaints Authority recommended disciplinary charges against police. No disciplinary proceedings were launched.

Eleven protestors and two others sued for assault and false imprisonment. Mediation had been agreed to by both parties and had been agreed by the court. However, the government instructed its legal advisers to withdraw from mediation at the last moment. Former treasurer Foley and former police minister Wright publicly stated that the government would not settle the claim—too tough to settle, too dimwitted to care about the consequences.

In defending the decision to a newspaper, Mr Foley described the plaintiffs as 'a bunch of feral protestors who put the safety of our police officers in peril'. Further, he said that 'the government sends a message to anarchist groups that we will not be a soft touch. They can have their day in court.' So they did have their day in court, and the taxpayers of this state paid for the privilege.

Following a four-month trial, in April 2010 the Supreme Court of South Australia awarded the plaintiffs a total of $724,560 damages, together with costs. The judge, Justice Anderson, was highly critical of the comments of the ministers, and stated that he increased the damages because of their unjustified comments. I quote from the comments of Justice Anderson:

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.

The Hon. Mark Parnell has previously advised that he estimated that the exemplary damages in this case were $135,000 and were 'directly attributable to the comments of those two ministers', and that the payout would have been about $75,000 lower and the state would have avoided hundreds of thousands of dollars in legal costs. In total, he estimates that ministers Foley and Wright between them cost taxpayers about $500,000 in extra damages and court costs.

More recent advice from the plaintiffs' legal team is that the plaintiffs' costs awarded against the state came to around $2.4 million. When people in sectors such as disability services and poverty, in particular, are crying out for additional resources, the fact that the intemperate remarks of ministers can cost millions of dollars is extremely galling. That $2.4 million brings the total cost of the case to $3,289,560. This final amount excludes the Crown's legal costs.

I appreciate that from time to time ministers of the Crown have a legitimate input into legal proceedings, but input needs to be timely and it needs to be appropriate. The intervention of then treasurer Foley and then minister Wright was not timely. If mediation was not appropriate that should have been made clear at an early stage. The intervention was also not appropriate in that the ministers of the Crown made intemperate remarks in the middle of legal proceedings. As we know, Labor ministers get their jollies by hairy-chested outbursts, but I find it offensive that South Australian taxpayers have to pay millions of dollars for the self-indulgence of ministers.

The opposition makes no reflection on the actions of the police in the handling of these legal proceedings. In fact, I assume that police were participating in a mediation that the government aborted. The government fails to appreciate the financial risk to the state from unprofessional interventions in legal proceedings. Not only did the ministers cost the state hundreds of thousands—in fact, millions—of dollars, they also ensured that an adverse judicial finding was made against the police. South Australians do indeed deserve an apology from the former minister for police and the current Minister for Police. The opposition supports the motion.

The Hon. A. BRESSINGTON (23:28): I rise to indicate my support for the Hon. Mark Parnell's motion, calling upon former treasurer the Hon. Kevin Foley and former minister for police the Hon. Michael Wright to apologise to the South Australian public for the financial cost of their comments about the Beverly uranium mine protesters.

I feel as if I will be speaking verbatim to the Hon. Stephen Wade's speech, but I can assure members that we did not collude. In doing so, I add my voice to the condemnation of ministers, in particular the Hon. Kevin Foley, for what the Hon. Justice Anderson, in his judgement White and Others v the State of South Australia 2010, called unjustified, antagonistic and offensive comments about the 10 plaintiffs who initiated court action for trespass to the person and false arrest, amongst other claims.

In a nutshell, on 9 May 2000, 70 people from various groups breached the Beverly uranium mine perimeter, to which STAR Force officers, South Australia's elite unit, responded with force. Protesters were subject to excessive use of capsicum spray and beatings with batons, and some 30 protesters were unnecessarily and unlawfully detained for up to eight hours in a shipping container and provided little water and no food. Despite the Police Complaints Authority recommending disciplinary proceedings, no action was taken against the officers involved. Ten protesters, frustrated at the lack of accountability, initiated the court action as described. Despite the parties engaging in court-sanctioned mediation which, given the state's clear liability, would have presumably resulted in a negotiated settlement, the ministers then intervened and demanded the matter proceed to trial.

Justifying his intervention, the Hon. Kevin Foley described the protesters as 'ferals' and stated to the media: 'The government sent a message to any anarchist group that we will not be a soft touch. They can have their day in court, beat the chest.' Have their day in court they did, resulting in a judgment of $724,560 for damages, including $15,000 each to the nine plaintiffs unlawfully detained for the (and I quote Justice Anderson) 'unnecessary and demeaning remarks of the two government ministers'. Hence, the $135,000 mentioned in the motion text.

As the Hon. Mark Parnell points out, this represents only a fraction of the true cost of the ministers' irresponsible intervention in the court proceedings because, if the matter had settled as expected, the cost of the trial and legal expenses would have been avoided. I believe it is appropriate that the ministers should apologise, at the least, to the South Australian public for the financial cost of their conduct. To suggest, as the Hon. Paul Holloway did, that the ministers' comments did not result in the $135,000 paid is to ignore Justice Anderson's clear reasoning as quoted.

To further suggest that ministers have a right to attack the protesters and intervene out of some misguided loyalty to the South Australia police force is to ignore the excesses of the STAR Force officers on the day and the recommendation for disciplinary proceedings by the Police Complaints Authority, of which the ministers at the time would have no doubt been aware.

To somehow connect the ministers' comments with a tough stance on law and order is absurd and is just another example of how low this government will go in its attempts to beat that law and order drum and try to scare people, literally, into voting for it. I support the motion wholeheartedly and commend the mover for bringing it to the attention of this council.

The Hon. R.L. BROKENSHIRE (23:32): I want to put on the public record a couple of my thoughts about this matter, which I have not put on the public record before, because that particular protest happened when I was police minister and I had quite a lot of briefings on it. I actually watched that protest with a great deal of interest, because there was enormous risk at that site. There were enormous risks for the safety and security of the mining site itself, for the protesters and the police. Those protesters entered that property and trespassed, and they went a lot further than just general trespassing. I am not against protesting, but there is a way to protest and a way not to protest. I would say—

An honourable member interjecting:

The Hon. R.L. BROKENSHIRE: I am going to get to that. I would say the way that protest was conducted was probably the worst of any protest that I can recall, including protests that I observed with interest at places like Baxter. The police were way outnumbered on that occasion. Some of those protesters, in my opinion, were incredibly violent; and, interestingly enough, when you have a look at some of those protesters and you have the privilege of looking at some of the film and then watch some of the other protests, those people are professional protesters who went out of their way to be far more than disruptive in their protests. Interestingly enough, depending on the weather conditions, you see them protesting in Tasmania, Queensland and other parts of Australia.

I want to defend the police publicly on this because, even though the Police Complaints Authority may have recommended some disciplinary action for some of them, I said to the head of the tribunal then, whom I had a lot of respect for, Mr Wainwright, 'You go up there and try to manage a situation like that and see how you would handle it when you feel that your own life is at risk.' It was not as if they were protesting in Prospect or somewhere like that. They had very little area in which they could restrain people while they tried to restore law and order.

I am not happy about the fact that taxpayers' money has been spent in this way. In fact, we are not happy about that at all. Whilst I understand what the honourable member is trying to do, on this occasion we had a police minister, Michael Wright, at the time. I think he was the second police minister after I had the portfolio, but it was on his watch when these comments occurred. I can tell you that the morale and the feeling generally in police at that time about that whole matter and how it was handled right through was a huge concern to police and consequently to the police minister. He may have overstepped the mark a little bit, but I want to put on—

The Hon. S.G. Wade: Only $3 million worth.

The Hon. R.L. BROKENSHIRE: I am not happy about the money, and I am pretty sure that the Hon. Michael Wright and the Hon. Kevin Foley would not be happy about the money either. I am just raising the issue, because you may well be in government in a couple of years and it will be interesting to see what police ministers do then and whether they are prepared to defend police when the police are in a very vulnerable position. I do remind—

The Hon. S.G. Wade interjecting:

The PRESIDENT: Order!

The Hon. R.L. BROKENSHIRE: —colleagues that, whilst I am not happy about the money wasted here—I am never happy about money wasted, not when I have Scottish blood in me. Notwithstanding that, I do remind honourable members that you do not have to go very far back through the history of previous governments to find where ministers have also cost the taxpayers of this state a hell of a lot of money through comments that they have made. I want to put that on the public record. No-one wants to see that sort of money going that way, and I am sure the treasurer and the police minister did not, but they were in a difficult position, particularly the Hon. Michael Wright at that point, and I can tell you that thousands of police had enormous angst over that whole matter. From that point of view, I want to put a little balance into the debate.

The Hon. J.A. DARLEY (23:37): I will be supporting this motion.

The Hon. M. PARNELL (23:37): In summing up, I thank the Hon. Stephen Wade, the Hon. Ann Bressington and the Hon. John Darley for their support, and also to note the comments of the Hon. Rob Brokenshire. Whilst they were interesting comments, they bear no resemblance at all to the motion that is before us. Certainly the conduct of the police is not part of this motion. The initial responses of the police minister and others soon after are not the subject of this motion. The subject of this motion is the ill-conceived intervention of two ministers that has cost South Australian taxpayers a fortune. It could be getting close to $6 million that is directly attributable to these two ministers shooting their mouths off, the result being unnecessary court action that has cost South Australian taxpayers a fortune.

The final costs of this case have now been settled. Legal costs were awarded against the state, and the total payout to the protestors is now $3,289,560. That consists of $2.4 million that was paid for the plaintiffs' legal costs, $50,000 because of the abandonment of the mediation, $724,560 in damages following the trial judge's ruling, and $115,000 for those who settled before trial. What we do not yet know is what are the government's own legal costs. Chances are they will probably be around the $3 million mark. If you add all those together, these ministers have cost us nearly $6 million, and for that they should apologise.

What we have in the case of treasurer Foley is that his big mouth has cost South Australian taxpayers a small fortune. His poor judgement has directly led to this enormously expensive legal bill. This motion is not about condemning the police: it is asking, on his last day as a minister and in executive government, for Kevin Foley and Michael Wright to apologise to the South Australian people for the impact that their comments have had on the finances of this state.

The motion says no more or no less than that. It is asking for them to apologise. For people who are opposing this motion, they are effectively saying that $6 million is a reasonable price to pay for chest beating. I do not think it is. I do not think anyone in the health sector, the education sector or the disability sector would agree that $6 million down the drain is a good use of taxpayers' money because ministers cannot keep their thoughts to themselves. It is a shameful episode and I am hoping that, on his last day in executive government, the former Treasurer will apologise to us for this incredible waste of taxpayers' funds.

Motion carried.

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