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:

It is important that political leaders not be improperly exposed to risk of liability in defamation matters. Nonetheless, they do not have a licence to defame other members of the community at public expense. The guidelines should be such as to provide assurance that a publicly funded indemnity will only be available where the Minister has acted reasonably and responsibly and the act giving rise to the claim was a reasonable means of performing his/her duties in the interests of the State.

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.

Peter Fray

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Peter Fray
Editor-in-chief of Crikey