Should Kevin Andrews be personally liable if he’s defamed Haneef?
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Now that Kevin Andrews has been hit with a writ from lawyers acting on behalf of former Gold Coast doctor and wrongfully accused terror suspect Mohammed Haneef he will no doubt ask Attorney-General Robert McClelland to pay the any settlement or damages payout and his legal costs. According to parliamentary regulations, Mr Andrews can write to Mr McClelland requesting financial assistance for legal costs, damages awarded against him and settlement costs. In 2008-09, Canberra spent more than $155,000 on ministers’ legal costs. According to The Australian, more than $122,000 went towards funding Philip Ruddock’s legal battle with an asylum-seeker, Ali Reza Sadiqi. But should Mr Andrews be held personally liable if he has defamed Dr Haneef? Dr Haneef intends suing for false imprisonment and defamation. Mr Andrews will have to convince Mr McClelland that the claims against him fit the Commonwealth guidelines for ministerial indemnity. His actions must have related “to actual or alleged performance or non-performance of Ministerial duties and”, that he must have acted “reasonably and responsibly in relation to the matters that gave rise to the proceedings,” or show that the proceedings only arise because Andrews “was the holder of the office of Minister.” While the matter of Dr Haneef’s false imprisonment would be covered by these guidelines – Andrews detained Dr Haneef by cancelling his visa after he was granted bail by a Brisbane magistrate in 2007 – what about the defamation? Should politicians be allowed to spray off at the mouth about political opponents or other people for political advantage and expect the taxpayer to foot the bill if they are sued for defamation? This very issue was examined by the South Australian Auditor-General back in 1998. The State’s then Treasurer Rob Lucas had made statements about then Independent MP and now Senator Nick Xenophon in an electorate brochure. The topic was electricity privatization and Xenophon said Lucas had defamed him. Lucas settled the matter with an apology and payment of $20,000 to Xenophon. That payment and Lucas’s legal fees were paid for by the South Australian taxpayer. Auditor General Trevor Griffin took a critical look at the payment, and when it was appropriate for ministers to be able to seek indemnity from the state where they are sued in defamation proceedings. He concluded:
Perhaps this line of reasoning was what drove Tasmanian Premier David Bartlett earlier this year to unusually refuse a request for indemnity from Doug Parkinson, the government’s Leader in the Upper House who is being sued by former government staffer Nigel Burch for comments Parkinson made about Burch in 2008. So should Kevin Andrews be shielded from personal liability for actions and comments he took and made about Dr Haneef back in 2007? If you take the South Australian Auditor-General’s sensible guide then the answer is no. Mr Andrews’ conduct during the Haneef matter was driven purely by political concerns. It is certainly arguable that his constant linking in his statements of Dr Haneef to terrorism was at the very least not supported by the evidence he had available to him. Mr. McClelland might like to hold Mr. Andrews out as an example to other politicians in Canberra by refusing an indemnity for defamation. |
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19 Comments
The facts of what Andrews said and the circumstances might change what I suggest but my suggestion is simply that the issue of paying the (former) minister’s costs and the issue of paying any damages might be considered separately.
A minister must often speak off the cuff about contentious matters and he should not be inhibited by the prospect that he might have to pay the costs of defending himself. After all, it would be tempting for people to have a go at him to put him under pressure - maybe to resign from his seat so he can collect his superannuation payout and pay his debts - and it could be done by someone rich or by someone who, or who is a front for others and who, is insolvent so unable to pay the defendant’s costs.
If, on the other hand, a minister can’t justify as “fair comment” made in the public interest, there is at least the beginning of a case for why it should cost him personally. Perhaps there should be a new element brought in to the law of defamation which would allow a minister to rely (at least as against the government Treasury) on not having been totally reckless and indifferent to truth and fairness.
@Julius
Your analysis is way too complicated.
This should be a political decision.
Voters can now pressure Labor:
“Pay up, lose my vote”.
Indemnity Insurance is an interesting insurance that many companies pay to protect themselves against any idiot decisions made by their employees. We, the public or particular public members who voted for an idiot, are partly at fault because we voted for the idiot to be put in a federal position, John Howard, as PM, is partly at fault because he was the person who thought this idiot was able to do this job. So, based upon this argument, we, the public, should pay costs. If you have a problem with this then the answer is simple, don’t vote for idiots.
This is not a ‘new’ issue requiring a ‘new’ interpretation. Federal and State politicians all know the rules. What is said by MPs in the Parliament is protected as ‘privileged’ subject to the rules of the House as applied by the Speaker. This allows MP to properly represent their constituents and to raise difficult issues - eg: the matter of Dr Patel in Queensland was first raised under privilege by MP Rob Messenger. MPs also know that what is said outside of the Parliament is subject to the laws of the land and that they are personally responsible for what is said.
Let him pay his own costs. It might teach him to be more wary of using innocent people to score political kudos.
While we’re at it ask him why he, as Immigration Minister, approved Paytel to come here to work at Bundaberg Hospital and Abbott, as Health Minister, why the bloke wasn’t checked out. It’s cost the taxpayer heaps.
If ever a person should have to pay for his actions it is Andrews over the Dr Haneef debacle. However I wont be holding my breath. I fear this will be a case of politicians (regardless of persuasion) looking after their own. The Attorney General will ask himself I am sure, what if it were me?
Perhaps the test which will be applied by the Attorney General will start with “There, but for the grace of God, go I.”
I do not expect personal exposure to either the penalty or the costs. In the big picture of government, the primary and permanent result will, hopefully, be a resounding victory for Haneef which will stand as a beacon for future potential ministerial zealots to observe. Justice for the apellant must come first.
Beryceann is right: what is said in Parliament is protected, but what is said outside is subject to the laws of the land just as it is for everyone else in the country.
Andrews went out of his way to sink Haneef and win political capital for his “tough on terror” stand. He is responsible. Let him pay.
*Precedent* can be a very dangerous word in law and politics.
Just think about who might control the purse strings next time.
Much as I’d love to see Kevin Andrews so reduced in financial heath, that he couldn’t even afford that jumbo pack of Grecian 2000 on special at Woollies……
I’ll reluctantly forego that pleasure for the greater good.
Kevin Andrews is a committed Christian …no really despite everything he’s done he is …only god may judge him and how dare anyone suggest otherwise or dare to bring an action in the courts of mere mortals against him … shame Haneef shame
Suggest the brain deprived ’ DIRE ’ be ignored, is merely seeking replies to have sport.
When Kevin Andrews became Minister for Immigration he decided to change the name from DIMIA to the Dept. of Citizenship but the acronym was not nice so he changed it into DIAC
I mean, there was a lot of ego syndrome throughout Howard’s era. What worried me most was the labelling people without due process, baseless accusations and character assassination of totally innocent people. Cornelia Rau and Vivian Alvarez come to mind.
The role of a Minister is to represent voters and abide by the book of law.
I strongly suspected then, that Andrews was not particularly familiar with the Immigration Law. And he took criticism rather personally. His attitude towards the Magistrate was quite interesting. Why was it so important to reveal to the public that the Magistrate was an Aboriginal lady with ‘quite a record of leniency’?. The question is: did he want to show to the Magistrate that a (white) minister can have ultimate power? Why did he cancel the visa? The evidence available to him was obvious: dr. Haneef was not a terrorist.
He must have known that the front page photo in a Brisbane or Adelaide newspaper was wrong. The picture showed Dr. Haneef looking at a Gold Coast highrise; his intent was ‘obvious’: he wanted to bomb the building.
Personally, I do not think that it is in the national interest for any minister to behave in unbecoming manner.
He had the report from the UK police. He chose to ignore it. He had the report from the hospital Dr. Haneef was working for. He kept ignoring it. He did not take into consideration all aspects of the case. And it was his personal decision. He disregarded dr. Haneef’s interview with the police. The whole interview could be downloaded from an Indian newspaper. Australian public was not supposed to read it.
It took years to bring dr. Patel to justice. It took hours to ruin dr. Haneef’s professional career in Australia. Let’s face it; he would never be able to practice in Australia. Qui bono?
Character assassination is not the role of any minister in any democratic country. Some of the ministerial decisions under the Howard government cost us millions od dollars. Qui bono?
DELERIOUS
Although I agree with you about voting preferences, please remember that many people voted for Ruddock because he was/is a very proud member of Amnesty International.
@ Rena,
Thanks for the memories. This man is a turd.
@RENA and others! I think Andrews should have to pay his own way for reasons already covered above. His behaviour was considered and deliberate. Mind you, I think Howard, Rudock and Mick Keelty should join him! They were all despicable, or as JOHN BENNETTS correctly describes him - “This man is a turd”? They all were!
@dire
You and I can allow even god botherers to face dire consequences.
I’m glad someone introduced god into the discussion - it’s always so helpful. There is no way that politicians are going to change the rules so as to limit their freedom to carry on any way they please. Whether or not they are members of Amnesty International or the Country Womens Association. We don’t make that rule, they do. We should get over it.
And just because “committed christians” think they will be judged by some god after they have died (they’re dead for christ’s sake! - am I missing some metaphor here?) doesn’t mean that the rest of us should go along with this hocus pocus. There is no god and he ain’t in Parliament - except the picture of Gough which strongly resembles the non-existent diety.
One other thing - Dr Patel was allowed into Australia because the Queensland authorities had checked him out and found him to be an ideal candidate to fill a vacancy into the hospital system. They sponsored him. It happens every single day. It is not a conspiracy.
@HUGH MCCOLL - Re Dr Patel - there’s a strong case and I believe it arose during the recent trial, that in fact the Queensland authorities didn’t check Dr Patel out well enough, otherwise they would’ve found out about the sanctions that had been placed on him in the US for example. He’d been barred from performing certain surgeries, as they were deemed to be outside his expertise, and with that in mind, he pushed himself forward to be competent in areas that he clearly wasn’t. In fact, it was his arrogance that was the basis for his decisions to perform surgeries that he shouldn’t have even canvassed any thought to perform . The patients were either too ill and wouldn’t survive complex and dangerous surgeries like removal or partial removal of the osoephagus (which is apparently more dangerous and complicated than heart surgery?); and in the case of the man who had his bowel removed - it was NOT necessary.
What’s equally disturbing, is the fact that this man’s peers remained close mouthed during the time he was was performing operations in Qld, and either the patients died or were permanently disabled for life - losing your bowel without good reason is a pretty horrifying outcome, wouldn’t you say? This man is only in his 50’s or 60’s - hopefully he has at least 30 yrs of life left - with an artificial bowel, a colostomy!
I find it quite shocking the way the whistle blower in this case, a very caring and competent (senior) nurse, has been treated. She is still suffering from the traumatic repercussions caused because she had the strength, courage and sense of responsibility to speak up!
The other relevant aspect of this case is the fact, that due to the Howard govt, and to a lesser degree the Keating govt before him, there was a serious shortage of doctors of all types, including surgeons. We’re also going to have a serious shortage of obstetricians and other specialities in the future. There were far too few people allowed to study medicine, and now we’re feeling the effects of that. It was also cheaper to EMPLOY A DOCTOR FROM OVERSEAS rather than one within the country. I think the Rudd govt did make more positions available to study medicine, but that’s not going to show any positive effect for at least 10 years! That’s for GP’s - longer for surgeons and obstetricians, orthopedic specialists/surgeons etc
It’s not accurate to just glibly say that he was investigated and allowed to come here. The whole process was shabby and certainly not thorough, and the motive was financial rather than the health and safety of citizens in that state! I understand, that the whole process has tightened up since this sad and awful situation arose - one would hope so!
Hugh
Queensland authorities gave dr. Patel licence to practice in Australia. Immigration Dept gave him visa. If they had checked his records in the USA…
Rena and Liz45, re the Patel matter, it was raised by BH at 3.26 back on July 5 referring to the then Immigration Minister Andrews and what should happen in the Kangaroo Court of public justice:
“While we’re at it ask him why he, as Immigration Minister, approved Paytel to come here to work at Bundaberg Hospital and Abbott, as Health Minister, why the bloke wasn’t checked out. It’s cost the taxpayer heaps.”
If there is a public expectation that each decision by a State Health department (or any other government department) acting in concert with their own medical registration bodies would then be separately investigated by a fully independent Commonwealth process without reference to the state mechanism, all rather quickly to avoid the “red tape” and other administrative and bureaucratic delays - well, I think you’ve got rocks in your head. If a state government is offering a sponsored position in the state public service the Commonwealth is only too happy to provide a visa. The fact is Patel slipped through the state system because the state system was fairly sloppy and has now been tightened up. I would say it had nothing whatsoever to do with slack Commonwealth processes.
As a matter of interest, when a Police check is done on your visa application (say, to the US) the information is provided by State authorities in whatever state/s you have resided. Do we think that each one of these documents should be independently double-checked by the Commonwealth just in case the state system is sloppy? I don’t think so.