2.4.3 Public Scrutiny
Public debate has been curtailed by the use of the processes of Parliament and the courts. Discussion within Parliament has been stifled by the wide use of the sub judice convention in relation to current litigation and defamation writs have been used to silence critics of public administration outside Parliament.
(a) Sub Judice
On 7 and 8 September, 1976, the Australian Broadcasting Commission telecast information and comment concerning the Cedar Bay incident. On 9 September, the Speaker learned that a writ had just issued that day by one of the police officers involved in the raid. He ruled that the matter was sub judice, and stopped all discussion of the topic in the Parliament. Less than a week later, on 14 September, 1976, the Parliamentary Privileges Committee was asked to consider the sub judice convention and, on 8 December, the Committee's report was tabled. The Committee stated that the application of the rule was dependant upon the Speaker's discretion based upon consideration of the need to avoid substantial prejudice in pending court proceedings. It recommended that the only restriction Parliament should place upon itself was to ensure that it did not act so as to become an alternative forum to the courts or to permit its proceedings to interfere with the course ofjustice. It was recognized that the commencement of either criminal or civil proceedings need not automatically prevent consideration by Parliament of a matter, although the wide discretion of the Speaker would properly be applied earlier in criminal than in civil proceedings and in jury trials than in those presided over by a judge sitting alone. Guidelines were suggested. Matters involved in criminal trials should not be referred to after a charge was brought until a verdict and sentence were handed down, but matters involved in civil cases could be referred to up until four weeks preceding the date fixed for determination of the substantive issues in the case. There is no purpose to be served in multiplying instances of the matters which have been ruled sub judice since that time. One occasion early in 1986 to which reference is later made provides a sufficient example for present purposes.
(b) Litigation
Until 1976, there was a broad and generally appropriate policy of providing legal assistance to public officials who were sued in relation to activities in the course of their duties, and ordinarily the Crown Solicitor was appointed to act. (As has been noted elsewhere, later at least, there were even payments of the legal costs of some police acquitted of criminal charges). Defamation writs appear to have been in a slightly different category in the mid 1970's. Public servants generally had to fund their own defences but were indemnified if they were successful, whereas the position of Ministers was considered on a case by case basis with the assistance of advice from the Solicitor-General. In 1976, the Crown Solicitor considered that it was not fitting for him to be involved in the conduct of defences of defamation actions since, theoretically, defamation might also amount to a criminal offence. Accordingly, from 1976 to 1980, if Cabinet approved legal assistance to a Minister who had been sued for defamation, he arranged his own legal representation. However, all expenses of his defence and any damages awarded were paid from public funds.An example can be found in a writ for defamation against Bjelke-Petersen issued in 1977 by John Sinclair, a Queensland public servant. Sinclair and Bjelke-Petersen held opposing views on the use of Fraser Island, and Sinclair sued after Bjelke-Petersen made disparaging remarks about him. Sinclair obtained a judgment against Bjelke-Petersen in September, 1981, but the verdict was overturned on appeal and Bjelke-Petersen was awarded his costs. There was controversy at both stages. Many were disturbed at Bjelke-Petersen’s avowed intention to pursue Sinclair for the substantial costs which he was ultimately ordered to pay, just as there had initially been concern that Bjelke-Petersen would have been indemnified out of public funds if the original judgment had stood. On 2 November, 1981, before Bjelke-Petersen’s appeal was heard, Cabinet adopted a new policy. From then on, there was no need for case by case decisions. If a Minister was sued, costs and damages were to be paid out of public revenue, and ordinarily the Crown Solicitor was to act even in defamation actions. However, there was no suggestion that public money might be used to fund civil proceedings brought by, not against, a Minister until 1986.
(c) The Callaghan Sequel
Callaghan was one of a number of former ministerial press secretaries who were appointed to senior positions in the public service. By early 1986, he was head of the Department of Tourism, National Parks, Sports and the Arts, and his wife, Judith Anne Callaghan, was the Executive Director of the Queensland Day Committee. Both were later convicted of offences involving dishonesty in relation to the misuse of public money. By February, 1986, the Auditor-General had provided a report to the Executive which was critical of Callaghan. By 13 February, a police investigation had been commenced on the advice of the Solicitor-General, and Callaghan had resigned. It was apparent that there would be a furore in Parliament when it resumed on 18 February. The Solicitor-General advised Bjelke-Petersen that the sub judice convention would not prevent debate on the Auditor-General’s report if it were tabled in Parliament because it was unlikely that charges would be brought against Callaghan for some weeks. By 18 February, Mrs. Callaghan had been charged, and the Speaker prohibited discussion of any matter related to her activities on the basis that they were sub judice. Bjelke-Petersen refused to table the Auditor-General’s report in relation to Callaghan, and stated that he had received police advice that tabling the report “would seriously inhibit sensitive police enquiries”. Not surprisingly, some Opposition members of Parliament were frustrated. On 19 February, the Deputy Leader of the Australian Labor Party Opposition, Mr. Thomas James Burns, M.L.A., was suspended for five days for his remarks. Outside Parliament, Burns made allegations of Government mismanagement and corruption, and spoke of Ministers “having their hands in the till”. There was considerable public controversy, and Bjelke-Petersen spoke to Lewis on 22 February. According to Lewis’ diary, Bjelke-Petersen wanted proceedings commenced against Callaghan, and Lewis gave instructions to Detective Inspector D. Plint. By 24 February, he was able to advise Bjelke-Petersen that action had been taken. According to Bjelke-Petersen’s evidence to this Inquiry, while he could not remember what had occurred, he could have asked Lewis to take action but only in the interests of expediting the course of justice. On the following day, 25 February, the Speaker ruled that debate in relation to Callaghan was sub judice. At the next Cabinet meeting, on 3 March, Bjelke-Petersen spoke of the need to stop talk about corrupt government, and a policy was adopted to allow Ministers who were criticized in connection with their official duties to bring actions for defamation and that public funds would be used to pay their costs. A search of Cabinet records has failed to reveal any written submission or any formal record which explains the basis for the adoption of such a policy. The policy is impossible to reconcile with the reasonable exercise of free speech by ordinary citizens and by the parliamentary Opposition on the frequent occasions when Parliament is not sitting. On the following day, 4 March, 1986, Bjelke-Petersen took advantage of the new policy to issue five writs for damages for defamation at the public expense.
On the following day, he issued another writ on the same basis.Within a week, on 11 March, every member of Cabinet joined Bjelke-Petersen in a publicly funded action against Burns. The defendants in all of the actions were political opponents of the Government and media organizations. The subject matter in every case concerned allegations which had been made of corruption. In his evidence before this Inquiry, Bjelke-Petersen sought to justify what had been done. His general position appears sufficiently from the following passage in his evidence:
“ ... if Premiers and Ministers had to carry all their own litigation, you wouldn’t
have any members of Parliament because then any party, whoever they are, could
annihilate a government simply by saying all sorts of terrible things about them
day after day. You have to have the system.”
However, Bjelke-Petersen himself had not been inhibited from suing for defamation before the new policy was adopted. One of his actions has already been noted; namely, the action in which Bjelke-Petersen sued Queensland Television Limited and negotiated a $400,000 payment with Bond. In all, over a five year period he brought five defamation actions apart from the publicly funded actions which he commenced after the new policy was adopted on 3 March 1986. For reasons which are not apparent, and which are not explained by the Cabinet records, two weeks later, on 17 March, Cabinet decided, again on the oral submission of Bjelke-Petersen, that in cases where the Government bore the costs of initiating and pursuing actions for defamation brought in the name of Ministers, damages should be paid into consolidated revenue. Perhaps there was some contemporaneous controversy about the earlier decision to fund such litigation at the public expense, or perhaps the decision of 17 March reflected an unusually sensitive preference for public over private interests. Certainly, there are logical difficulties associated with the second decision when regard is had to the intent of damages for defamation which are supposed to be a solace to plaintiffs whose reputations have been injured. Perhaps there was simply no intention of ever taking such actions to trial, and none went so far. However, the writs were undoubtedly useful weapons to silence critics, a traditional use of writs for defamation which has been known for many years and engaged in by police officers such as Parker amongst others. The additional refinement which arose from the policy decisions in March 1986 was the use of public funds to promote such actions. By another Cabinet decision made on 6 June, 1986, the Crown Solicitor’s certificate that costs incurred by a Minister were reasonable was required, but that inconvenience was removed on 30 March, 1987, when, on another oral submission from Bjelke-Petersen, Cabinet decided that future accounts submitted by the private solicitors acting for Ministers in such actions would be paid upon certification by those private solicitors that the fees were reasonable. Meanwhile, Bjelke-Petersen had taken further advantage of the modern policy. In August, 1986, the amount which Queensland Television Limited had paid to Bjelke-Petersen became public and, on 5 August, the then Leader of the Australian Labor Party Opposition, Mr. Neville George Warburton, M.L.A., called on Bjelke-Petersen to resign and described the compromise which Bjelke-Petersen had negotiated with Bond as involving mutual “back scratching”. On the following day, Bjelke-Petersen issued another writ against Warburton at public expense.While the Cabinet policy enabled a Minister to sue at public expense provided that the proceeds were paid to consolidated revenue, it left each Minister free to choose whether he would sue at his own expense and retain any damages which he was awarded. According to Bjelke-Petersen’s evidence to this Inquiry, the distinguishing test which he applied was whether the defamation was “personal”. In all, there have been sixteen publicly funded defamation actions since March 1986, in thirteen of which Bjelke-Petersen was the plaintiff Many, if not, all have been discontinued, and costs in excess of $200,000 have been paid by the Justice Department.
Public debate has been curtailed by the use of the processes of Parliament and the courts. Discussion within Parliament has been stifled by the wide use of the sub judice convention in relation to current litigation and defamation writs have been used to silence critics of public administration outside Parliament.
(a) Sub Judice
On 7 and 8 September, 1976, the Australian Broadcasting Commission telecast information and comment concerning the Cedar Bay incident. On 9 September, the Speaker learned that a writ had just issued that day by one of the police officers involved in the raid. He ruled that the matter was sub judice, and stopped all discussion of the topic in the Parliament. Less than a week later, on 14 September, 1976, the Parliamentary Privileges Committee was asked to consider the sub judice convention and, on 8 December, the Committee's report was tabled. The Committee stated that the application of the rule was dependant upon the Speaker's discretion based upon consideration of the need to avoid substantial prejudice in pending court proceedings. It recommended that the only restriction Parliament should place upon itself was to ensure that it did not act so as to become an alternative forum to the courts or to permit its proceedings to interfere with the course ofjustice. It was recognized that the commencement of either criminal or civil proceedings need not automatically prevent consideration by Parliament of a matter, although the wide discretion of the Speaker would properly be applied earlier in criminal than in civil proceedings and in jury trials than in those presided over by a judge sitting alone. Guidelines were suggested. Matters involved in criminal trials should not be referred to after a charge was brought until a verdict and sentence were handed down, but matters involved in civil cases could be referred to up until four weeks preceding the date fixed for determination of the substantive issues in the case. There is no purpose to be served in multiplying instances of the matters which have been ruled sub judice since that time. One occasion early in 1986 to which reference is later made provides a sufficient example for present purposes.
(b) Litigation
Until 1976, there was a broad and generally appropriate policy of providing legal assistance to public officials who were sued in relation to activities in the course of their duties, and ordinarily the Crown Solicitor was appointed to act. (As has been noted elsewhere, later at least, there were even payments of the legal costs of some police acquitted of criminal charges). Defamation writs appear to have been in a slightly different category in the mid 1970's. Public servants generally had to fund their own defences but were indemnified if they were successful, whereas the position of Ministers was considered on a case by case basis with the assistance of advice from the Solicitor-General. In 1976, the Crown Solicitor considered that it was not fitting for him to be involved in the conduct of defences of defamation actions since, theoretically, defamation might also amount to a criminal offence. Accordingly, from 1976 to 1980, if Cabinet approved legal assistance to a Minister who had been sued for defamation, he arranged his own legal representation. However, all expenses of his defence and any damages awarded were paid from public funds.An example can be found in a writ for defamation against Bjelke-Petersen issued in 1977 by John Sinclair, a Queensland public servant. Sinclair and Bjelke-Petersen held opposing views on the use of Fraser Island, and Sinclair sued after Bjelke-Petersen made disparaging remarks about him. Sinclair obtained a judgment against Bjelke-Petersen in September, 1981, but the verdict was overturned on appeal and Bjelke-Petersen was awarded his costs. There was controversy at both stages. Many were disturbed at Bjelke-Petersen’s avowed intention to pursue Sinclair for the substantial costs which he was ultimately ordered to pay, just as there had initially been concern that Bjelke-Petersen would have been indemnified out of public funds if the original judgment had stood. On 2 November, 1981, before Bjelke-Petersen’s appeal was heard, Cabinet adopted a new policy. From then on, there was no need for case by case decisions. If a Minister was sued, costs and damages were to be paid out of public revenue, and ordinarily the Crown Solicitor was to act even in defamation actions. However, there was no suggestion that public money might be used to fund civil proceedings brought by, not against, a Minister until 1986.
(c) The Callaghan Sequel
Callaghan was one of a number of former ministerial press secretaries who were appointed to senior positions in the public service. By early 1986, he was head of the Department of Tourism, National Parks, Sports and the Arts, and his wife, Judith Anne Callaghan, was the Executive Director of the Queensland Day Committee. Both were later convicted of offences involving dishonesty in relation to the misuse of public money. By February, 1986, the Auditor-General had provided a report to the Executive which was critical of Callaghan. By 13 February, a police investigation had been commenced on the advice of the Solicitor-General, and Callaghan had resigned. It was apparent that there would be a furore in Parliament when it resumed on 18 February. The Solicitor-General advised Bjelke-Petersen that the sub judice convention would not prevent debate on the Auditor-General’s report if it were tabled in Parliament because it was unlikely that charges would be brought against Callaghan for some weeks. By 18 February, Mrs. Callaghan had been charged, and the Speaker prohibited discussion of any matter related to her activities on the basis that they were sub judice. Bjelke-Petersen refused to table the Auditor-General’s report in relation to Callaghan, and stated that he had received police advice that tabling the report “would seriously inhibit sensitive police enquiries”. Not surprisingly, some Opposition members of Parliament were frustrated. On 19 February, the Deputy Leader of the Australian Labor Party Opposition, Mr. Thomas James Burns, M.L.A., was suspended for five days for his remarks. Outside Parliament, Burns made allegations of Government mismanagement and corruption, and spoke of Ministers “having their hands in the till”. There was considerable public controversy, and Bjelke-Petersen spoke to Lewis on 22 February. According to Lewis’ diary, Bjelke-Petersen wanted proceedings commenced against Callaghan, and Lewis gave instructions to Detective Inspector D. Plint. By 24 February, he was able to advise Bjelke-Petersen that action had been taken. According to Bjelke-Petersen’s evidence to this Inquiry, while he could not remember what had occurred, he could have asked Lewis to take action but only in the interests of expediting the course of justice. On the following day, 25 February, the Speaker ruled that debate in relation to Callaghan was sub judice. At the next Cabinet meeting, on 3 March, Bjelke-Petersen spoke of the need to stop talk about corrupt government, and a policy was adopted to allow Ministers who were criticized in connection with their official duties to bring actions for defamation and that public funds would be used to pay their costs. A search of Cabinet records has failed to reveal any written submission or any formal record which explains the basis for the adoption of such a policy. The policy is impossible to reconcile with the reasonable exercise of free speech by ordinary citizens and by the parliamentary Opposition on the frequent occasions when Parliament is not sitting. On the following day, 4 March, 1986, Bjelke-Petersen took advantage of the new policy to issue five writs for damages for defamation at the public expense.
On the following day, he issued another writ on the same basis.Within a week, on 11 March, every member of Cabinet joined Bjelke-Petersen in a publicly funded action against Burns. The defendants in all of the actions were political opponents of the Government and media organizations. The subject matter in every case concerned allegations which had been made of corruption. In his evidence before this Inquiry, Bjelke-Petersen sought to justify what had been done. His general position appears sufficiently from the following passage in his evidence:
“ ... if Premiers and Ministers had to carry all their own litigation, you wouldn’t
have any members of Parliament because then any party, whoever they are, could
annihilate a government simply by saying all sorts of terrible things about them
day after day. You have to have the system.”
However, Bjelke-Petersen himself had not been inhibited from suing for defamation before the new policy was adopted. One of his actions has already been noted; namely, the action in which Bjelke-Petersen sued Queensland Television Limited and negotiated a $400,000 payment with Bond. In all, over a five year period he brought five defamation actions apart from the publicly funded actions which he commenced after the new policy was adopted on 3 March 1986. For reasons which are not apparent, and which are not explained by the Cabinet records, two weeks later, on 17 March, Cabinet decided, again on the oral submission of Bjelke-Petersen, that in cases where the Government bore the costs of initiating and pursuing actions for defamation brought in the name of Ministers, damages should be paid into consolidated revenue. Perhaps there was some contemporaneous controversy about the earlier decision to fund such litigation at the public expense, or perhaps the decision of 17 March reflected an unusually sensitive preference for public over private interests. Certainly, there are logical difficulties associated with the second decision when regard is had to the intent of damages for defamation which are supposed to be a solace to plaintiffs whose reputations have been injured. Perhaps there was simply no intention of ever taking such actions to trial, and none went so far. However, the writs were undoubtedly useful weapons to silence critics, a traditional use of writs for defamation which has been known for many years and engaged in by police officers such as Parker amongst others. The additional refinement which arose from the policy decisions in March 1986 was the use of public funds to promote such actions. By another Cabinet decision made on 6 June, 1986, the Crown Solicitor’s certificate that costs incurred by a Minister were reasonable was required, but that inconvenience was removed on 30 March, 1987, when, on another oral submission from Bjelke-Petersen, Cabinet decided that future accounts submitted by the private solicitors acting for Ministers in such actions would be paid upon certification by those private solicitors that the fees were reasonable. Meanwhile, Bjelke-Petersen had taken further advantage of the modern policy. In August, 1986, the amount which Queensland Television Limited had paid to Bjelke-Petersen became public and, on 5 August, the then Leader of the Australian Labor Party Opposition, Mr. Neville George Warburton, M.L.A., called on Bjelke-Petersen to resign and described the compromise which Bjelke-Petersen had negotiated with Bond as involving mutual “back scratching”. On the following day, Bjelke-Petersen issued another writ against Warburton at public expense.While the Cabinet policy enabled a Minister to sue at public expense provided that the proceeds were paid to consolidated revenue, it left each Minister free to choose whether he would sue at his own expense and retain any damages which he was awarded. According to Bjelke-Petersen’s evidence to this Inquiry, the distinguishing test which he applied was whether the defamation was “personal”. In all, there have been sixteen publicly funded defamation actions since March 1986, in thirteen of which Bjelke-Petersen was the plaintiff Many, if not, all have been discontinued, and costs in excess of $200,000 have been paid by the Justice Department.
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