Friday, September 16, 2011

Nick Xenophon and Parliamentary Privilege: could this have been avoided?

As recorded in Hansard, in the House of Assembly, on 18 May 2011, the South Australian Premier Mike Rann said; “...The fact of the matter is, in terms of parliamentary privilege, there are people who use and abuse the privilege of the courts to smear people, and we have parliamentary privilege where we are required to tell the truth, the whole truth and nothing but the truth...’

Not long after, Moral Mike then said; '...or bikie lawyers like Craig Caldicott or David Edwardson...'

A brave man indeed, evidently hypocritical, linking a Queen’s Counsel, a member of the Independent Bar, with ‘...bikies...’. Under Parliamentary Privilege.

I think we are all informed enough to view some of the criticisms of Nick Xenophon for what they are, political convenience.

According to various reports, Archbishop Philip Wilson said that Monsignor David Cappo had urged Archbishop John Hepworth, on eight occasions, to allow an investigation to proceed.

I suggest that David Cappo and Philip Wilson both endure most of the blame for the dramatic events of this week. A week during which Senator Nick Xenophon used Parliamentary Privilege to name the person that John Hepworth claims raped him more than 40 years ago.

In McKibbin V South Australia (Office of the Public Trustee) of 2004, Judge Rice stated; “...the wishes or desires of the person making the complaint are not paramount and cannot be used as a reason for no action by management or inadequate action...’

Provided the media reporting is accurate, I get the impression the Church is suggesting that a formal investigation was constantly stymied by the complainant, John Hepworth.

PHILIP WILSON: “...from my perspective, from Monsignor Cappo’s perspective and in accordance with our legal advice, we have given Archbishop Hepworth’s allegations priority...’

PHILIP WILSON: “...on my behalf Monsignor Cappo urged Archbishop Hepworth, at the end of each meeting, to give his permission to proceed with an investigation into the allegations. On each occasion Archbishop Hepworth declined, indicating that he was not in a proper emotional state to deal with an investigation...”

In my own whistleblowing case, in which I was complaining about workplace bullying and sexual harassment for years, when asked by the Court why no action had been taken, the Public Trustee Executive said; “ order to move forward with these other comments that we would need clearer details in relation to that and a commitment from him that we were actually making a complaint, and I was never able to get that commitment from him...”

Fortunately, the Court saw through this nonsense and concluded that irrespective of the wishes of the complainant, once management becomes aware of any serious issue it is absolutely obligated to take an immediate course of action.

As Judge Rice stated, “...the wishes or desires of the person making the complaint are not paramount and cannot be used as a reason for no action by management or inadequate action...’

Did Nick Xenophon do the right thing? I am stuck in the middle between yes and no, but feeling I need to shift toward NO. I doubt any of us would be thrilled about being named in Parliament.

During my years of whistleblowing, action was eventually taken only after I went public. I took Public Trustee to the public arena of the District Court. Then 5 years later I gave evidence at the Parliamentary Inquiry.

And out of sheer frustration, brought about by the years of the government sitting on its arse doing nothing about my complaints, I appeared on Today Tonight.

For me, the end justified the means. I was vindicated. The Government was caught in all of its glorious bullshit!

Had the Church, irrespective of the complainant's position immediately initiated a transparent and independent investigation, the interactions leading up to this week's Xenophon declaration might not have occurred. By its own admission, the Church did not, and now has placed the blame for that inaction squarely at the feet of the complainant.

You cannot get much more wrong than that!

During the week Moral Mike also said; ‘...Naming a person in parliament, unsupported by evidence, rather than telling the complainant to go to the police, is really about publicity...’

I can but wonder why our Premier's most infamous nickname is Media Mike. I suspect Craig Caldicott and David Edwardson already know.


The Hooded One of Attorney General's Department said...

Bang! Bang! Bang! Every single nail you have hit squarely on the head. Superbly put across Rob. As usual you back everything you say with evidence that cannot be disputed. Keep up this great work.

Luv Ur Work said...

A breath of fresh common sense air in a debate that is getting more muddied as each day passes. I have always been impressed how you break these stories down to what always seems to be the facts behind the matter.