Sunday, November 30, 2014

#314: Power To The People


That was amazing. I have not followed an election as closely with as much interest since the 2007 Federal Election.  Last night's Victorian State Election was as exciting as they come, for all the same reasons as the 2007 Federal effort - because it was the PEOPLE who led the way - not the incredibly biased media or the large corporations - and rightly so.

The Murdoch media did it's best to call the result for the Liberals. They believed that, by running a negative campaign, that they were a lock, all they had to do was turn up.  But they didn't take into consideration the complete an utter disgust that the average Australian has for the current Federal Government, and that this disgust will impact upon State politics.

It was interesting that the Victorian Liberals claim that this election had nothing to do with Federal policies, yet they distanced themselves from the power brokers of the current Cabinet.  I counted one appearance from the PM, nothing from the Treasurer an the rest. In fact only Julie Bishop popped up and that was a token effort.

My hope now is that this very powerful message is heard in Canberra and things start changing for the better. The reality is that it simply won't as the Liberals have Rupert Murdoch and his media empire on their side, which will spin this crushing defeat into a State issue and not an election run on Federal issues.  It was both. The people in Victoria who booted the Liberals out were just as frustrated and annoyed by decisions made in the Federal arena as they were the many State issues (the East-West City Link, Arts funding, rogue MP Geoff Shaw).  The truth is Tony Abbott now faces the very, very real prospect of being a one-term PM (just as Dennis Naptime was a one-term Premier). But, the way things are going, with the infighting over dumped policies and the inability of ministers to agree on policies, he may not even last that long.

The Liberal Party, a party that has prided itself for being such a strong, united party for so long, is now rapidly imploding beneath it's own hubris.  For far too long they have treated the people of Australia with total and utter contempt, heaping lies upon broken promises and expecting that all will be forgotten come the next election in just over eighteen months time.  And always remember, as was stated last night, 'Corporations donate, people vote'.  As an individual your vote counts, you can make a difference.  On your own, in an election, you may think that you have no power, but when millions feel the same as you do, together you have the power to toppled entire governments.

Saturday, October 18, 2014

#313: Six Months In A Leaky Boat

Ahhhh yes, the new policy by the Liberal/National Party, as designed by the Prime Minister that nobody wants Tony Abbott and Scott Morrison, the (Anti) Immigration Minister. Welcome to the New Australia, a throwback to the Menzies Era of white people only.
 
In short, if you're not from England, white, preferably a racist who believes in all things English (ie: peers, lordships, knights, royalty etc etc) and can speak 'proper' English (that is, you have a 'posh' accent and can't say your 'r's pwopely) then you're just not welcome. Full stop. Stay away. The LNP don't care what violence, persecution or tyranny that you might be fleeing; they'll simply send you right back to where you came from, but only after telling the people you're fleeing from your name, your details and why you were running. While the rest of the world will, rightly, label you an Asylum Seeker, the LNP will call you an Illegal Immigrant.

But, if you're from England and you fly in then you're more than welcome to overstay your tourist visa, ignore the conditions of your visa and get a job that pays cash only (so you don't need to worry about taxes), exploit our medical system at no cost to you, but at a cost to the Australian taxpayer, go and get hands outs in the form of emergency money from Centerlink, emergency accommodation from various State run Housing authorities and generally do what you want. The LNP will call you a decent fellow instead of calling you what you really are - an Illegal Immigrant. An exception can be made for certain European countries and some Americans (North only - not those pesky South Americans). But, be sure that you can speak English, are a God-Fearing Christian and the more racist you are, the better. And no darkies. The LNP wants it's new Australians to be whiter than white, thank you very much.

And you fucking Russians can stay home too. Two Ton Tone is going to beat your man up, if he gets the chance.

Tuesday, July 15, 2014

312: Crim du Jour

A new series, in which I post real things that criminals get up to, taken from official court records.

Today's Crim du Jour comes to us from Mount Gambier, South Australia.

"The facts of the offences are relatively straightforward.  On 8 December last year you went to a car yard in Millicent to steal petrol. It was in the late evening. You punctured the petrol tanks of two vehicles and were in the process of collecting the fuel from the tanks when you lit a cigarette and an explosion and then a fire took place."

Result - 8 months in the Big House and 3rd degree burns all over the body. That's a winner!

Saturday, July 05, 2014

311: Crown Court R ‐v‐ Rolf Harris. Sentencing remarks of Mr Justice Sweeney

  In the Southwark Crown Court 

R
‐v‐
Rolf Harris
Sentencing remarks of Mr Justice Sweeney
4 July 2014
Rolf Harris you are 84 years old. You have no previous criminal convictions or cautions recorded against you. You are no longer in the best of health. For well over 50 years you have been a popular entertainer and television personality of international standing – with a speciality in children’s entertainment. You are also an artist of renown. You have been the recipient of a number of honours and awards over the years. You have done many good and charitable works and numerous people have attested to your positive good character.
But the verdicts of the jury show that in the period from 1969 to 1986 you were also a sex offender ‐committing 12 offences of indecent assault on 4 victims who were variously aged between 8 and 19 at the time. There were a number of aggravating features. You took advantage of the trust placed in you, because of your celebrity status, to commit the offences against three of your victims ‘A’ (Count 1), ‘B’ (Count 2) and Tonya Lee (Counts 10­12). All your offences in relation to ‘C’ (Counts 3‐9) were committed in breach of the trust that her parents had placed in you, and two of them took place in her own home. In every case the age gap between you and your victim was a very considerable one. You clearly got a thrill from committing the offences whilst others were present or nearby. Whilst such others did not realise what you were doing, their presence added to the ordeal of your victims. It is clear from the evidence that what you did has had a significant adverse effect on each victim, and particularly so in relation to ‘C’ who suffered severe psychological injury in consequence. None of the victims had the confidence to complain at the time. Each, including Tonya Lee, and especially ‘C’, showed considerable courage in eventually coming forward and in giving evidence.
You have shown no remorse for your crimes at all. Your reputation now lies in ruins, you have been stripped of your honours but you have no one to blame but yourself.
On Count 1 you indecently assaulted ‘A’ in 1969 (when she was aged 8 and you were aged 39). You did so when you made an appearance at the Leigh Park Community Centre in Havant, and she approached you for your autograph. Others were present. Taking advantage of your celebrity status, you twice put your hand up her skirt between her legs and touched her vagina over her clothing. In her Victim Impact Statement ‘A’ states, which I
am sure is true, that you took her childhood innocence ‐for which she blamed herself and became an angry child and teenager, unable to express herself and unable to trust men. She continued “I have carried what Rolf Harris did to me for most of my life, it took away my childhood, it affected every aspect of my life from the point he assaulted me. Something that he did to me for fun that caused me physical and mental pain for his own pleasure and then probably forgot about as quickly as he did it, has had a catastrophic effect on me…..”
On Count 2 I have no doubt that you indecently assaulted ‘B’ in July 1978 (when she was aged 16. and you were aged 48). You did so on the day that you took part in Star Games on Jesus Green in Cambridge. You were clowning around and took advantage of the fact that she was somewhat awestruck. Again others were present. You groped her bottom, squeezing her left buttock a number of times. In her Victim Impact Statement, which I am also sure is true, she says amongst other things “…Rolf Harris took advantage of me and made me feel ashamed. That an adult man could do what he did to me made me feel so powerless. He treated me like a toy that he played with for his own pleasure with absolutely no regard for what he was inflicting and then getting on with his life as if nothing had happened….”.
‘C’ and her family began living across the road from you and your family in Sydenham in the mid 1960s. She and your daughter Bindi became the very best of friends. In late 1978 when ‘C’ was aged 13 and you were aged 48 you were allowed by Jo’s parents to take her on holiday with your wife and Bindi to Canada, Hawaii and Australia. Her parents trusted you to look after their daughter and continued to do so after the end of the holiday. I have no doubt that you fancied ‘C’ – even at that young age. I make clear that I am not sentencing you in relation to what happened on that holiday, but I am sure, in the light of the jury’s verdicts, that ‘C’ gave truthful evidence as to what occurred, and that it was the indecent assaults that you carried out on that holiday that emboldened you to commit offences against her in this country thereafter.
On Count 3 you indecently assaulted ‘C’ in the latter part of 1980 by which time she was aged 15 and you were aged 50. You had moved to Bray, and were visiting the ‘Cs’ with your wife. You committed the offence in breach of trust, and it was further aggravated by being committed in ‘C’’s own home. You left your wife and ‘C’’s parents downstairs and you went up to Jo’s bedroom on the top floor of the house. You spat on the fingers of one hand, put that hand down her jeans and knickers, and digitally penetrated her vagina. The episode lasted for about a minute until she managed to get away.
On Count 4 you indecently assaulted ‘C’ after Xmas 1980 when she was still aged 15 and you were aged 50. Again you were visiting the ‘C’s with your wife. Again you committed the offence in breach of trust and it was further aggravated by being committed in Jo’s own home. You left your wife and ‘C’’s parents downstairs whilst you went up to the TV room on the first floor where ‘C’ was. You spat on the fingers of one hand, put that hand down her dungarees and knickers and digitally penetrated her vagina. You continued for up to a minute until she managed to get away.
Counts 5 & 6 arose from a single incident in the period between the autumn of 1980 and Easter 1981 when ‘C’ was aged 15 and you were aged 50. ‘C’ was visiting Bindi at Bray and was permitted by her parents to stay – sleeping in one of two single beds in Bindi’s room. On this occasion after Bindi had got up, and whilst she and/or your wife were in the house, and again in breach of trust, you went into the bedroom where ‘C’ was still in bed. You took her pants down, spat on the fingers of one of your hands, and digitally penetrated her vagina
(Count 5), then you took off your glasses bent down to her vagina and started licking it (Count 6) ‐continuing until she closed her legs and pushed you away.
Counts 7 & 8 arose from another single incident in the same period between the autumn of 1980 and Easter 1981– and thus when ‘C’ was still aged 15 and you were aged 50. Again ‘C’ was visiting Bindi at Bray and was sleeping in one of the two single beds in Bindi’s room. On this occasion, whilst Bindi was still asleep in her bed and ‘C’ was in the other bed you entered the room, again in breach of trust, pulled ‘C’’s pants down to her ankles, spat on the fingers of one hand and digitally penetrated her vagina (Count 7), then you licked her vagina again keeping an eye on Bindi (who was still asleep) as you did so (Count 8) ‐continuing until ‘C’ closed her legs and pushed you away.
On Count 9 you indecently assaulted ‘C’ in 1984 when she was aged 19 and you were aged
54. On this occasion she and her mother were visiting your wife at Bray. ‘C’ was using the indoor swimming pool when you appeared in your swimming trunks and got in. Your wife and Mrs ‘C’ (who trusted you) withdrew to another part of the house whereupon you touched ‘C’’s breasts and then put one of your hands down her bikini bottom and digitally penetrated her vagina.
Whilst I do not sentence you in relation to what you did to ‘C’ in the decade that followed that offence, I am sure that offences against her continued until 1994. Indeed the point is made on your behalf that you have not committed any further offences since then.
In her Victim Impact Statement, which I am sure is true, ‘C’ says, among other things, “…The attacks that happened have made me feel dirty, grubby and disgusting. The whole sordid saga has traumatised me. I have panic attacks and suffer from anxiety. The effects of the abuse have been with me for many years. I started drinking at the age of 14 to 15 years old. This was to block out the effects of what he was doing to me. This had an effect on my relationship with my parents and people close to me. The slightest thing would upset me, I would get so angry, my reaction would be so disproportionate and over the top. As a young girl I had aspirations to have a career, settle down and have a family. However, as a direct result of his actions, this has never materialised. I have never had a meaningful relationship whilst sober. I have also never been able to hold down a job. This was down to the need to block out what he had done to me through drink. Rolf Harris had a hold over me that made me a quivering wreck….He made me feel like a sexual object. He used and abused me to such an extent that it made me feel worthless….. I suffered abuse at the hands of a person who thought he could get away with it. He made me feel that I would not be believed and as a result I suffered in silence. This has had a detrimental effect on my life and health outcome….”.
I have no doubt, in view of the evidence given at trial by ‘C’, and by the doctors and counsellors who treated her, that it was your crimes against her that resulted in her becoming an alcoholic for many years with all that that entailed, and that thus (as I have already touched on) you caused her severe psychological harm
On Count 10 you indecently assaulted Tonya Lee on 31 May 1986 – when she was aged 15 and you were aged 56. She was one of the Shopfront Theatre Group from Sydney, Australia who were on a tour of the UK at that time. You knew the lady who was in charge of the Group, and at her invitation had attended the Group’s last performance on the tour which was in South London. Thereafter you accompanied them to a public house called the Queen’s Arms. It was there, in the presence of others, that you committed the offence.
Taking advantage of you celebrity status you got Tonya to sit on your knee, put your hand on her thigh under her skirt and moved it up to her vagina over her tights and knickers and fondled her there until she managed to make an excuse and fled to the Ladies toilet.
You followed her to the vicinity of the toilet and waited outside.
Counts 11 & 12 arose from a single incident after she came out. Others, although not present, were nearby. You got her in a forceful bear hug, put one hand down her top and into her bra and played with one of her breasts for about 30 seconds, fondling and squeezing it (Count 11). Then, really quickly, you moved the same hand under her skirt, down her tights and knickers and quickly digitally penetrated her vagina (Count 12). You then stopped and walked away.
In an email from Australia Tonya Lee writes that what you did to her was a turning point in her life that she has never recovered from. She says, among other things, that “…What Rolf Harris took from me was my self belief and more so the ability to feel safe. I have never felt safe since. I live in a constant state of anxiety”.., She goes on to describe the difficulties that she and her children have faced since and continues “…What Mr Harris took from me was my very essence. I believe that it was for Mr Harris a forgettable moment but it was something for me that I have never moved on from and will never forget…”
I proceed upon the basis, as both sides have invited me to, that (consistent with her evidence at trial) your offences were not the sole cause of Tonya Lee’s problems
It was in the mid 1990s, and after it had stopped, that ‘C’ then still an alcoholic, finally told her family what you had done to her. In 1997 she confronted you and you sent that letter to her father in the hope of avoiding or minimising the consequences. You succeeded at that stage, but only because she was in no fit state to face making an official complaint.
However, following her brave recovery from alcoholism, and after extensive counselling and support from her family, it was ‘C’’s eventual complaint in the autumn of 2012 which began the series of events that led to your prosecution and conviction.
I apply the approach to sentencing historic sexual offences set out in Annex B of the current Sentencing Council Definitive Guideline, and have also considered the guidance given in the judgment of the Court of Appeal in Attorney General’s Reference (No.38 of 2013)(R v Stuart Hall) [2014] 1 Cr.App.R. (S.) 61
The maximum sentence on Count 1 is one of 5 years’ imprisonment, on each of Counts 2‐9 it is one of 2 year’s imprisonment, and on each of Counts 10‐12 it is one of 10 years’ imprisonment.
With the exception of Counts 10 & 11 the equivalent offences today attract significantly higher maximum sentences. For example on Count 1 the equivalent offence today is sexual assault of a child which carries a maximum of 14 years’ imprisonment and would be likely to involve a starting point of around one year’s imprisonment. On Counts 3,4,5,7,9&12 the equivalent offence today is assault by penetration which carries a maximum sentence of life imprisonment and would be likely, to involve a starting point (given the severity of the psychological damage to ‘C’) of around 8 years’ imprisonment on Counts 3,4,5,7, & 9 and a starting point of around 4 years’ imprisonment on Count 12
On your behalf I am asked to take into account a number of matters in mitigation, including the following:
    (1) With the exception of ‘C’ the offences were brief and opportunistic.
    (2) The fact that you have no previous convictions and have led an upright life since 1994 -albeit it is accepted that that must be tempered by the reality, underlined in the Attorney General’s Reference (above), that you got away with your offending for years.
    (3) The fact that you have a good side, that there are many people who know you who speak well of you, and that over many years you have dedicated yourself to a number of charitable causes.
   (4) The fact that you are not in the best of health, as attested to in the report of Dr Fertleman, and that therefore, although capable of serving a prison sentence, it will be particularly tough on you.
   (5) The fact that your wife, who you help in looking after, has various health problems, as attested to in the report of Dr Mitchell‐Fox.
   (6) That you should be enabled to spend your twilight years with your family.

I have no doubt, despite your age and the other matters relied upon in mitigation on your behalf, that given the seriousness of the offences and particularly those in relation to ‘C’) and the extent of the aggravating features that I have identified only an immediate custodial sentence is appropriate for each. Sensibly, no argument to the contrary has been put forward on your behalf. Some of the sentences will be consecutive ‐in passing them I bear firmly in mind the principle of totality and have reduced a number of the sentences that I would otherwise have passed accordingly.
The sentences that I impose are as follows:
Count 1: 9 months’ imprisonment. 
Count 2: 6 months’ imprisonment consecutive. 
Count 3: 15 months’ imprisonment consecutive 
Count 4: 15 months’ imprisonment concurrent 
Count 5: 15 months’ imprisonment concurrent 
Count 6: 12 months imprisonment concurrent 
Count 7: 15 months’ imprisonment consecutive 
Count 8: 12 months’ imprisonment concurrent 
Count 9: 12 months’ imprisonment consecutive 
Count 10: 9 months’ imprisonment concurrent 
Count 11 9 months imprisonment concurrent
Count 12 12 months’ imprisonment consecutive
The total sentence is therefore one of 5 years and nine months’ imprisonment
Unless released earlier, you will serve half that sentence when you will be released on licence for the remainder of the sentence. Should you breach the terms of that licence, including by the commission of further offences, you will be liable to recall.
Your convictions mean that you are automatically subject to the notification requirements of the Sexual Offences Act 2003 and you will also be considered under the provisions of the Safeguarding Vulnerable Groups Act 2006
In my view it is not appropriate for me to make any awards of compensation. The issues involved are too complex and the information before me insufficient for me to be able to properly do so.
You will however pay the costs of the prosecution in such sum as may be agreed or assessed in due course.

I order that a copy of the medical report from Dr Fertleman be provided to the Prison Service for their information.

Saturday, May 17, 2014

#310: Tony The Toothless Tiger

I just can't work people out. I'm seeing and reading comments from the same clowns who, a mere fortnight ago, were applauding Tony Abbott for his 'fine' work in keeping asylum seekers out of the country by putting them in a concentration camp on Manus Island and voted him in on his lies are now calling for his head because of the Budget. I guess you have to give Abbott credit in one area - he's been consistent with his punishment of everyone and anyone who isn't wealthy. He said he'd 'stop the boats' - he hasn't, he just stopped telling people about them - and the masses roared in approval. He ran on a platform of xenophobia, hatred and lies, and the masses rushed out to vote for him. But now the shoe is on the other foot and people realise that Abbott isn't just the 'saviour' of the 'great white Australian way' and that he will be taking money from the unemployed, the elderly, the sick and poor, those same people who cheered him on and elected him are seeing the light. Tony has bitten them on the arse, as the majority of voters knew he would.

If you supported Tony Abbott and the Liberal Party because of their racist and draconian policies, if you believed him both before, during and after the election when he stood there and said "No new taxes, no cuts to Education, Medicare, the ABC or pensions," and you voted for him and his party, then you're getting EXACTLY what you voted for. Those of us who voted against him, and have been rallying against him since the election (some at the cost of their own jobs and futures, as Tony hates anyone who points out his flaws) knew what was coming.

This sums Abbott up perfectly. In the Budget he cut $25,000,000 from the Neo-Natal unit at Finders Hospital, but he approved $20,000,000 for a rugby team in Sydney to build a new ground. If only ONE child loses a life because of this cut then ask yourself, is watching rugby worth that baby's life? 

He's cut education but approved $200,000,000 (that's TWO HUNDRED MILLION) to ensure that Chaplains are placed in every school. Not for counselling, but for theological reasons. Your kids, no matter what religion they are, will be educated in good, old fashioned Christianity. If your kids are at school, you'll have no say in it.  Suck it up and deal with it. 

He's cut billions from health and education, but approved 24 billion dollars to buy war planes that don't exist and will be made in America.  No jobs will be created in Australia with that 24 billion, but plenty will be created in the countries that will manufacture the parts and assemble them. 

He wants people to get a job, but has cut welfare and job creation to the point where a new underclass of homeless people will be present, and they'll all be under the age of 30. By telling people under the age of 30, by targeting those vulnerable people who have just left school and are trying to break into an already depressed job market that they'll have to wait 6 months before getting ANY kind of a benefit will increase crime rates.  You can count on that. But Abbott doesn't care for that - he has to pay for those planes.

And then there's the 'upgrades' to the Lodge, the official PM's residence where he lives. How much will that cost? He refuses to say. It's 'confidential'. You work it out.

Next time don't be so bloody keen to vote in an absolute liar. He's treating the Australian people in the exact same way that's treating asylum seekers - with sheer and utter contempt. You are beneath him. And if you think he's EVER going to keep a promise from now on, or if ANYONE associated with his party will, then you're a bigger fool than even you know.

Ponder that at the next election.

Wednesday, March 26, 2014

#309: Don't Call Me Whitey

Lots of debate about freedom of speech and how people have the right to be bigots.  Good stuff too, anything that allows me to the freedom to upset Andrew Bolt without the fear of him demanding an apology for 'hurting his feelings' (the poor luv) the better.  Trust me, if the proposed changes are adopted, then watch me really unleash!

Nothing is more worrying that giving someone like me the freedom to write whatever the hell I want to. This could get very, very messy.

In amongst the many debates, people have been quoting the famous frog philosopher, Voltaire.  Now, allow me to help some of you out here.  For the record, Voltaire never said, "I disapprove of what you say, but I will defend the death your right to say it."  He also didn't say, "Yum yum, pigs bum, turn it into powder," either.  As far as I know. So, who said it? 

That'd be the relatively unknown Greek philosopher, Electrolux.

What Voltaire did say was, "Think for yourselves and let others enjoy the privilege to do so too."  Now that quote gets perverted into the previous quote (no, not the pigs bum one) all too often by lazy students who did philosophy in their first year of Uni in order to impress girls.  These are the same people who once debated me and insisted that Voltaire was a brand of vacuum cleaner.

Thus this has been brought to you today by the 'Voltaire Is Not A Vacuum Cleaner Appreciation Society."

Next up, Crowley Quotes.  Do what thou wilt....

Friday, March 21, 2014

#308: Say You, Say Me

EASLING v RANKINE

[2014] SADC 40

 

 

This is a defamation action by which the plaintiff alleges that he was defamed by the defendant.  At the time of the publications relied on by the plaintiff the defendant was a Member of the House of Assembly of the South Australian Parliament.  She was also the Minister for Families and Communities; for Housing; for Ageing; and for Disability.

 

The publications relied on by the plaintiff occurred in October and November 2008.

 

The first occurred in the South Australian Parliament on 30 October 2008.  On that day the defendant answered a question put to her by another member of the Parliament.  Obviously, that publication was made inside Parliament.

 

The other two publications are said to have occurred on 12 and 14 November 2008.  Those two publications were made outside of Parliament.

 

All three publications are referred to in the plaintiff’s Second Statement of Claim. 

 

The plaintiff commenced his proceedings in this matter on 17 March 2011.  His Second Statement of Claim was filed on 1 November 2011.

 

In March 2012 the defendant sought from the court, amongst other orders, an order that the court permanently stay the plaintiff’s action.  A learned Master of this court decided that application on 7 September 2012.  He refused the defendant’s application for a permanent stay.  His reasons for doing so were fully and carefully expressed.  He set out the background to this action, the contentions of both parties on the application for a stay, the authorities relevant to the issues he had to decide, his findings and his conclusions.  The Master’s views of the two emails upon which the plaintiff sought damages against the defendant (the publications made outside of Parliament) were expressed in this way:

In my view, this can be read as the defendant “justifying” or “standing by” the allegations she made (in Parliament).  The defendant appears to suggest that there are documents to justify, if not to prove, the allegation she made. 

This is an expansion upon and justification of what was said there.

There is a clear temporal and substantive connection between the October statement and the emails.

On the authorities, it seems to me that the emails are an effective repetition or adoption of the October statement, and hence of the imputations conveyed by the October statement.

The plaintiff’s case as pleaded relies on these extra parliamentary statements or publications, and does not necessitate reliance on the October statement which he concedes is protected by absolute privilege.

If I am wrong in coming to this conclusion, the issue should in any event go to the trial judge for consideration . . .  as the plaintiff’s contention is clearly arguable.

 

The Master’s decision and mine require consideration of the privileges of Parliament, the judicial approach taken to extra-parliamentary publications, and the powers of a court to stay proceedings which intrude upon parliamentary privilege.

 

I have come to different conclusions to those reached by the learned Master.  My conclusions are as follows.

First, I am satisfied and find that as a matter of law and fact the defendant could not be said to have adopted, repeated, confirmed as true and republished by reference the statement she made in Parliament in causing the two emails to be sent on 12 and 14 November 2008 in a context which was not protected by privilege.

Secondly, it is, in my view, inconceivable that a trial on the current pleadings in this action could be conducted without both parties being in breach of the privileges of the Parliament of South Australia. 

Thirdly, it is my view that the plaintiff has squarely put the truth or otherwise of any defamatory imputations in what the defendant said in Parliament in issue in the trial of this action.

And fourthly, I am satisfied that fairness and justice to neither party can be accorded in a trial where the issues are as they are joined between them.

 

Whilst some of the above conclusions might overlap with each other and whilst I acknowledge that the first might more appropriately be cause to dismiss the plaintiff’s action, each of them, either separately or in conjunction with each other, well justifies an order that the action be permanently stayed.

 

As to the issues raised by the pleadings it is agreed that on 30 October 2008, in answer to a question put to her in Parliament by another member of Parliament, the defendant said the following words referring to the plaintiff:

I have to say that in certain circumstances each and every one of us would question whether our children would have been safe in Mr Easling’s care.

We had people going into that house and finding semi-naked boys in his bed.

If you want me to go into detail, I can.  It is very unsavoury.

 

The plaintiff says those words were “the October Statement”, although the defendant says those words were only part of what the defendant said on 30 October 2008 in Parliament in answer to a question regarding when the Special Investigations Unit investigated the plaintiff (Exhibit “DPL1”, Affidavit of Daniel Peter Lorbeer).

 

It is agreed that the October Statement, or a substantial part of it, was republished extensively through South Australia by the electronic and print media. 

 

It is agreed that on 12 November 2008 an email was sent by Matt Clemow to Hendrik Gout in the following terms:

On October 30th the Member for Davenport raised issues in the Parliament in relation to an investigation undertaken by the Special Investigations Unit of Dept Families and Communities.

In response to the Member for Davenport I again highlighted to the Parliament that the SIU’s responsibility is to investigate serious allegations where a child in the care of the State is put at risk.

The documentation provided by the SIU, since this matter has been raised by the Member for Davenport, includes the many serious allegations that led to Mr Easling’s deregistration as a foster carer.

 

The plaintiff refers to this email as “the November Email”.  The plaintiff says this email was sent to Mr Gout, a reporter then employed by The Independent Weekly, by a member of the defendant’s staff on her direction.  Although this is denied by the defendant, the matter was argued before the Master and me on the basis that it was a publication by the defendant.

 

It is agreed that on 14 November 2008 the same person who sent the November Email to Mr Gout sent the same email to the email address of David Bevan. The plaintiff refers to this email as “the ABC Email”. 

 

There are some issues joined between the parties as to whether or not the defendant knew or ought to have known that the November Email would be republished by The Independent Weekly in the context of  a report or commentary upon the making of the October Statement, and whether or not, in causing the ABC Email to be sent, the defendant knew or ought to have known that the content of the ABC Email would be republished by ABC Radio in the context of a report or commentary upon the making of the October Statement.  These issues, however, do not have to be resolved for the purpose of determining this appeal.

 

Although the plaintiff does not say that he has suffered loss and damage as a consequence of the October Statement made by the defendant in Parliament (refer to SofC, para 13), he does say that the October Statement, the November Email and the ABC Email were defamatory of him, were unjustified and were untrue (SofC, para 10). 

 

Further, the plaintiff says that the October Statement carried certain imputations (SofC, para 9).  They were said to be:

9.1          That on occasions Officers of the Department of Families and Communities (“Departmental Officers”) had attended at the Plaintiff’s residence and had seen semi‑naked boys in the Plaintiff’s bed;

9.2          That the Defendant was in possession of detailed evidence of inappropriate conduct by the Plaintiff towards children at his residence;

9.3          That the Plaintiff had engaged in acts of a sexual nature with children in his care;

9.4          That the Plaintiff had engaged in acts with children in his care that an ordinary person would consider to be improper;

9.5          That, by the conduct observed by Departmental Officers, the Plaintiff poses a risk of harm to children;

9.6          That the Plaintiff is a paedophile;

9.7          That the Plaintiff preyed upon and exploited children in his care;

9.8          That the Plaintiff took advantage of the vulnerability and naivety of children in his care;

9.9          That the Plaintiff was guilty of sexually assaulting children notwithstanding the verdict of acquittal on all charges the subject of an earlier prosecution;

and

9.10        That evidence exists which supports each of the imputations pleaded herein.

 

The defendant says that the plaintiff is not entitled to rely on the October Statement made by the defendant in Parliament, or any imputations said to arise from it, because “such a pleading is in breach of the privilege of the Parliament of South Australia and the plaintiff is thereby disentitled from relying on the matters so pleaded” (D, para 20).

 

Whilst the plaintiff does not allege that he has suffered loss and damage as a consequence of the publication by the defendant of what she said in Parliament (the October Statement) he does say that by causing the November Email and the ABC Email to be sent she “adopted, repeated, confirmed as true and republished by reference the October Statement in a context which was not protected by privilege” (SofC, para 8).  This is denied by the defendant.  She says that by neither the November Email nor the ABC Email were any of these things done.

 

Further, the defendant submits that the plaintiff has put in issue the truth or otherwise of what the defendant said in Parliament on 30 October 2008, and that a trial cannot fairly be conducted on that issue, where both parties are precluded, in particular by s 16(3) of the Parliamentary Privileges Act 1987(Cth), from lawfully questioning that issue.

 

Section 16 of the Parliamentary Privileges Act provides:

(1)   For the avoidance of doubt, it is hereby declared and enacted that the provisions of article 9 of the Bill of Rights, 1688 apply in relation to the Parliament of the Commonwealth and, as so applying, are to be taken to have, in addition to any other operation, the effect of the subsequent provisions of this section.

(2)   For the purposes of the provisions of article 9 of the Bill of Rights, 1688 as applying in relation to the Parliament, and for the purposes of this section, “proceedings in Parliament” means all words spoken and acts done in the course of, or for purposes of or incidental to, the transacting  of the business of a House or of a committee, and, without limiting the generality of the foregoing, includes:

(a)     the giving of evidence before a House or a committee, and evidence so given;

(b)     the presentation or submission of a document to a House or a committee;

(c)     the preparation of a document for purposes of or incidental to the transacting of any such business; and

(d)     the formulation, making or publication of a document, including a report, by or pursuant to an order of a House or a committee and the document so formulated, made or published.

 

(3)   In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of;

(a)     questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament;

(b)     otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or

(c)     drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament.

 

 

I have set out s 16 here because I consider it relevant to each of my conclusions on this appeal.  I consider that the breadth of absolute privilege accorded to parliamentary proceedings in this country is relevant and important. It also provides colour to the issues for decision.

 

I do this notwithstanding that perhaps logically the first question is whether by the publication of the November Email and the ABC Email outside of Parliament the defendant “adopted, repeated, confirmed as true and republished by reference to the October Statement in a context which was not protected by privilege”.  This is so because the plaintiff says that he does not seek damages from the defendant as a consequence of the publication by her of what she said in Parliament, nor any republication of her words in Parliament by the South Australian electronic and print media.  He says that he is entitled to damages against her on the basis that by the two email publications made outside Parliament (“the emails”) she “adopted, repeated, confirmed as true and republished” the defamatory statement and imputations she made in Parliament, where they are not protected by parliamentary privilege. 

 

As to that assertion I am convinced that the submissions advanced on behalf of the defendant are compelling and correct.

 

In considering this question I regard it as important to differentiate between the words the plaintiff has defined as being “the October Statement” on the one hand, and all of what the defendant said in Parliament in answer to a question on 30 October 2008 on the other.  Another Member of Parliament had raised in the Parliament an investigation undertaken by the Special Investigations Unit of the Department of Families and Communities, of which the defendant was then the Minister. The question was whether, when that unit investigated the plaintiff, it did so within its powers and in accordance with a certain philosophy and practice guidelines. It appears to me that these were the topics or issues raised with and the question asked of the defendant in Parliament, and to which she responded.  What she said in response was not confined solely to the three sentences defined by the plaintiff as the October Statement.

 

The first paragraph of the emails states the subject matter of the issues raised by another member in a question to the defendant. It refers to an investigation undertaken by the Special Investigations Unit of the defendant’s Department.  It states what the questioner in Parliament stated to be the subject matter of the issues raised.  Although the questioner mentioned the plaintiff’s name in the context of an investigation by the Special Investigations Unit the first paragraph of the emails does not.  It refers only to words spoken by the other member of Parliament in a question directed to the defendant.

 

The second paragraph of the emails is a statement that the defendant had highlighted to the Parliament that the Special Investigations Unit’s responsibility is to investigate serious allegations where a child in the care of the State is put at risk. This paragraph states, albeit in slightly different words, what the defendant first said in answer to the question asked of her in Parliament. This paragraph says nothing about any words uttered by the defendant about the plaintiff. Although there may be some “link” between “children in Mr Easling’s care” in what the plaintiff has said is the October Statement and “a child in the care of the State” in the second paragraph of the emails, this second paragraph of the emails does no more than state what the defendant said in Parliament as to the responsibility of the Special Investigations Unit.

 

The third paragraph of the emails asserts that documentation provided by the Special Investigation Unit includes the many serious allegations that led to Mr Easling’s deregistration as a foster carer.  In my view that does no more than describe what was in the documentation provided by the Special Investigation Unit as including allegations that led to Mr Easling’s deregistration as a foster carer.

 

A consideration of the Master’s reasons for decision, the submissions before me, and the authorities cited before me by both parties discloses that a number of words, and a combination of words, have been used when consideration has been given to when, and in what circumstances, publications made outside of Parliament that “refer” or “relate” to something said in Parliament loses the protection of absolute parliamentary privilege.  They include: “a reference to, a comment upon, or an elaboration upon” an earlier privileged publication; “the repetition or adoption of” a privileged publication; a defendant “justifying or standing by” the allegations in a privileged publication; a privileged publication being “repeated, expanded upon and sought to be justified” later; a defendant “adopting and publishing the words said” in a privileged publication; a defendant “adopting, repeating and confirming as being true” a statement made in a privileged publication; and a defendant “effectively repeating” a privileged publication.

 

The plaintiff here says that the defendant, by causing the emails to be sent “adopted, repeated, confirmed as true and republished by reference the October Statement” and that she did that in a context not protected by parliamentary privilege.

 

The learned Master was of the view that the emails could be read as the defendant “justifying” or “standing by” what she said in Parliament, and further that she “appears to suggest that there are documents to justify, if not to prove, the allegation she made”.  He concluded that the emails were “an expansion upon and justification of what” she said in Parliament.  It seemed to him that the emails were “an effective repetition or adoption of the October Statement”.  Whilst the Master obviously drew some of these words from the authorities which he carefully examined they are not all relied upon by the plaintiff in this case.  For example, “expansion upon and justification of” does not seem to be relied on by the plaintiff here, although he does allege that the emails “confirmed as true” what was said in Parliament.

 

Some of the other authorities referred to by the Master and in argument before me have considered publications made outside of Parliament that “refer” or “ relate” to something said in Parliament where someone is asked outside Parliament about what he or she said in Parliament.  In some cases a person has said words to the effect “What I said in Parliament was what I said”; or “I said what I said”; or “I do not propose to say anything further than what I said in Parliament”; or “I don’t resile from what I said in Parliament”.  

 

There may often be differences of views as to whether a statement or statements made outside of Parliament that “refer” or “relate” to something that was said in Parliament is properly to be characterized as falling within a description of being “adopted, repeated, confirmed as true and republished by reference” to a statement in Parliament on the one hand, or as a statement to the effect “What I said in Parliament was what I said in Parliament” on the other.  I have come to a different view and different conclusions to those reached by the learned Master.  My views and conclusions have been influenced significantly by the importance in our society of the principle underlying the absolute privilege accorded to statements made in our Parliament, and by what I consider to be the quite high and binding test in South Australia which imposes a fairly strict embargo on any form of reliance on a parliamentary statement as a foundation for an action in defamation against a Parliamentarian.  Such an embargo is, in my view, concomitant to the importance of the principle.

 

I consider that Australian Broadcasting Corp v Chatterton (1986) 46 SASR 1 requires that there must be clearly established a strong link between something said in Parliament and something said outside it before a Parliamentarian can be made liable in defamation on the subject matter of something he or she said in Parliament.  I consider that this authority requires there to be found the actual repetition or adoption in substance of what was said in Parliament in a statement made outside it, before the latter is actionable in defamation.

 

The defendant’s words that the plaintiff says constitute the October Statement are that “each and every one of us would question whether our children would have been safe in (the plaintiff’s) care – people (were) going into that house and finding semi-naked boys in his bed – (the) detail … is very unsavoury”.  When I compare those words with the words in the emails I cannot conclude that the emails actually repeat or adopt in substance the defendant’s words in the October Statement.  In my view the emails make no reference to what the defendant said in the October Statement in Parliament about the plaintiff, let alone actually repeating what she said or adopting in substance what she said.

 

What the defendant said in the October Statement in Parliament about the plaintiff forms the base of his claim against her in damages, the words are said to carry imputations defamatory of him, and they are said to be unjustified and untrue.

 

My conclusion is that they were not, at law or in fact, published by the defendant in the emails and are therefore not actionable. 

 

This conclusion is enough to dispose of the appeal.  If the basis upon which the plaintiff seeks damages against the defendant in defamation, being defamatory publications and imputations not protected by Parliamentary privilege which I find were not made, then the plaintiff’s claim must fail and be dismissed, or be permanently stayed.  The relief the defendant seeks here is a permanent stay.  I would grant such a stay on the conclusions and findings I make.

 

Even if I was convinced that the plaintiff had an arguable case as to the pleading upon which he relies in paragraph 8 of his Second Statement of Claim, I would not allow the case to go to trial to have that matter determined by the trial judge. 

 

My view of the case is that it is inconceivable that a trial could properly and fairly be conducted without both parties being in breach of the privileges of the Parliament of South Australia.  The truth or otherwise of what the defendant said in Parliament and whether her words carried the defamatory imputations pleaded, would, in  my view, inevitably be an issue in any trial.  I consider that it would be impossible to conduct a trial where s 16(3) of the Parliamentary Privileges Act would not be breached in some way or another, probably by both parties. 

 

The truth of what the defendant said in Parliament would inevitably be questioned, as would her intention and her good faith in saying the words of the October Statement. The drawing of inferences or conclusions, wholly or partly, from what the defendant said in Parliament would, in my view, be inevitable.  The words of the October Statement and the imputations they are alleged to carry are in issue on the pleadings and would be issues between the parties in any trial.  The plaintiff intends, by his pleadings, to prove the falsity of the statements made by the defendant in Parliament, or at least to put in issue the inability of the plaintiff to prove or justify them.  He also intends to question her motive in saying what she said of him in Parliament “notwithstanding the verdict of acquittal on all charges the subject of an earlier prosecution” against him.

 

My view is that it can not be said in this case that all the plaintiff intends to do at trial is to prove what the defendant said in Parliament “as a matter of history” (cf Della Bosca v Arena [1999] NSWSC 1057 [25]).

 

It is my conclusion that I should order that the plaintiff’s action against the defendant be permanently stayed.