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Lawyers slam privilege abuse

Lawyers slam privilege abuse

A “DANGEROUS PRECEDENT” threatened three hundred years of open government and free speech when the South Australian premier recently introduced legislation that attempted to curtail…

A “DANGEROUS PRECEDENT” threatened three hundred years of open government and free speech when the South Australian premier recently introduced legislation that attempted to curtail parliamentary privilege, according to a Holding Redlich partner.

Premier Mike Rann introduced legislation — subsequently withdrawn — into the South Australian Parliament that would take away the protection from prosecution, or the naming or identification of an MP, former MP, or public official of criminal sexual misconduct in Parliament.

The push followed comments made by Speaker of the Parliament Peter Lewis, who claimed government ranks included a paedophile. Reacting, Rann asked Lewis to reconsider his position and resign from the Speaker’s chair after he failed to provide evidence backing his comments.

“I think it is absolutely incumbent on [Lewis] to do the honourable thing, the decent thing and step down with the dignity and the grace that the office of the Speaker deserves and that the Parliament deserves,” Rann said in an ABC Online report.

Holding Redlich media and communications partner Nicholas Pullen told Lawyers Weekly that although the Bill was withdrawn after hours of derision from every source except Rann’s own government, this was a real threat to the tradition of free speech and open government in this country, and could have set a “dangerous precedent”.

Pullen referred to England’s Bill of Rights, and Article 9, which provided that “freedom of speech, and debates or proceedings of Parliament ought not be impeached or questioned in any court, or place outside Parliament”. This policy allows MPs to freely express their opinions, no matter how offensive they may be.

“It provides for the safety and welfare of the public where an MP must, in the execution of their office, be wholly uninfluenced by private considerations,” said Pullen.

But the State’s Attorney-General, the Hon Michael Atkinson MP, was disappointed the Bill was not supported. He said he was “appalled” that Liberal, Democratic and Independent MPs have failed to support a move to allow police urgent access to the “evidence” of paedophilia in the Parliament. “The Government introduced [the] Bill into Parliament as a matter of some urgency to ensure Parliamentary privilege did not impede police investigations into allegations of paedophilia by a range of people,” he said.

“[All MPs] who refused to support this Bill have, together, further frustrated a police investigation and left the way open for individuals’ personal reputations to be unfairly stained which may damage the dignity and integrity of the Parliament itself,” Atkinson said.

South Australian Law Society president Alex Ward told Lawyers Weekly that the matter of the police investigation raised further issues relating to privilege. If there was evidence in the form of a statement someone made, it may have been provided under legal professional privilege. Had the Bill passed, this privilege would have been stripped in making the law retrospective. The Law Society thinks that this would have caused considerable harm, said Ward. “Anything that attacks privilege retrospectively [is dangerous],” he said.

According to Holding Redlich partner Pullen, the principle to be curtailed in the legislation is the same that allows a person to provide evidence, a judge to deliver findings or a lawyer to make comments without fear of retribution. “This allows for robust and frank views to be expressed in an environment that is controlled and has sanctions for abusing such a privilege,” he said.

“If people are identified or companies named then the environment allows the truth of such allegations to be put to the test. Nevertheless, its purpose has been served by the issue being brought to light — something that in all likelihood would not occur due to our harsh defamation laws.”

Pullen said Rann appeared to be under the misapprehension that if something is true then you don’t have to worry about the threat of defamation proceedings. “Such a burden of proof can be extremely difficult to meet,” Pullen said. “It also appears [Rann] has little faith in the workings of his own Parliament. One of the functions of the parliamentary Privileges Committee is to deal with MPs who use parliamentary privilege for malicious purposes,” said Pullen.

If the Bill had passed, according to Pullen, a precedent would have been set and future governments may have looked towards such examples as a precedent to prevent debate on issues that may be embarrassing or that could damage their agenda. “[The legislation] would have also set an expectation and fear in the community that only the privileged would receive special treatment in such circumstances. After all, the proposed Bill applied only to politicians and public officials — why should it not have applied to all people that might be named as paedophiles?”

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