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.
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.