Mercury News
September 15, 2011
http://www.adelaidenow.com.au/ipad/brave-actor-on-an-absolute-abuse/story-fn6bqvxz-1226139369608
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| Nick Xenophon's defends his actions to name and shame a Catholic priest |
THE naming of a priest in the Senate has triggered questions about free speech as Catherine Hockley reports.
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First it was a trickle, then a deluge.
On Tuesday morning Senator Nick Xenophon's parliament office in Canberra was buzzing.
Phones were ringing and emails arriving, triggered by the Senator's revelation at 9.38pm the previous evening of the identity of a priest alleged to be at the centre of sex abuse allegations.
The majority of responses supported the action. Some people, however, were upset.
And some callers wanted to tell Senator Xenophon they had decided to take long-suppressed stories of abuse to the police prompted by his actions.
The act to a virtually empty Senate chamber has been received as either brave, or as outright abuse of parliamentary privilege that has badly damaged the reputations of several men.
Brighton Catholic priest Monsignor Ian Dempsey was named as the alleged rapist of Archbishop John Hepworth. Monsignor David Cappo and the Archbishop of Adelaide Philip Wilson were accused of failing to properly investigate the allegations when made in 2007. All three men deny the Senator's claims.
Senator Xenophon had given the Catholic Church an ultimatum to be met by noon on Monday - stand down the priest in question or he would name him in parliament.
Before Senator Xenophon spoke, Senate President John Hogg reminded the chamber of the purpose of the parliamentary privilege, its responsibilities, and "the damage that may be done by allegations made in Parliament to those who are the subject of such allegations and to the standing of Parliament".
Senator Xenophon defended his decision. "I take the responsibility of parliamentary privilege very seriously," he said.
"Parliamentary privilege exists for situations like these where systems have broken down."
The reaction the following day was strong.
Liberal Senator Simon Birmingham said while he respected his colleague, he could not respect his chosen action.
"It's not the role of politicians to play police, prosecutor, judge and jury and I am concerned that it appears that Nick has perhaps overstepped that mark on this occasion."
Constitutional law expert Associate Professor Anne Twomey from the University of Sydney said parliamentary privilege was "a great privilege, so it is also a great responsibility".
"Senator Xenophon's recent statement in the Senate has proved controversial because it appears to bear little relationship with his parliamentary duties," she said.
"There is also a risk that by "naming" people under privilege, the attendant publicity can undermine the ability to hold a fair trial, if the person involved is prosecuted, so that possible criminal acts go unpunished.
"As a general principle it is unwise for Members of Parliament to use parliamentary privilege to make allegations of criminal behaviour or to "name" people in adverse circumstances, when such matters can more appropriately be dealt with by the police and the courts."
There is a long history of the naming - and the resultant shaming - of people by MPs in Parliament, protected by their access to absolute legal privilege.
Parliamentary privilege provides absolute legal protection for MPs, immunity from civil or criminal action, effectively providing freedom of speech within the confines of the chambers.
But with the freedom of speech also comes great power and responsibility.
In the same Senate chamber almost a decade ago Liberal Senator Bill Heffernan made inflammatory - and ultimately incorrect - claims about then High Court Justice Michael Kirby, alleging misuse of Commonwealth cars to solicit male prostitutes.
But Senator Heffernan had relied on evidence that had been fabricated by someone else, triggering a backdown, and an apology to Justice Kirby.
He was also censored by the Senate.
In NSW, parliamentary privilege was used notoriously by MP Franca Arena in 1996 to link a retired judge and a former MP with pedophilia.
One of the men killed themselves days later.
In South Australia state Parliament was scandalised in 2005 by then Speaker Peter Lewis and his claims about child sexual abuse, and a serving member of parliament.
His claims were found to be lacking in any substantiation by police.
The Rann Government, frustrated by Mr Lewis's threats, drafted a bill removing the right of privilege for MPs who named public officials accused of criminal sexual misconduct.
That Bill was withdrawn after Mr Lewis resigned as speaker.
The Federal Parliament does attempt to offer a remedy for people aggrieved by their naming in parliament.
The Senate allows the subject of the naming to make a submission to a privileges committee arguing why they should have access to a right of reply.
If that right is upheld, the response is incorporated in the Hansard.
But they are not permitted to respond on the floor of the chamber, where they were originally named.
It's understood the priest named this week, Monsignor Ian Dempsey, is considering a right of reply.
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