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5The Independent Weekly
news June 18 - 24, 2010
There s an interesting case at the
courts on Victoria Square, and
on trial is democracy itself.
Kris Hanna was an independent
MP from the seat of Mitchell, in
Adelaide s southern suburbs.
During the March election
campaign, Labor put out pamphlets
accusing Hanna of being "soft on
Labor had prepared the ground
for this allegation with wildly
exaggerated press releases and
news conferences about hoon
drivers and bikies and, worse,
ramping up community fears about
crime gangs, making householders
feel unsafe outside their own homes
and not much safer inside.
"Soft on crime" is a death
sentence in an election campaign.
Labor even had huge signs outside
polling booths: "Kris Hanna has
failed on crime".
He lost the election by 213 votes
out of 22,244 to Labor candidate
Hanna is ropable, and he d like to
string up someone.
He s taken his case to the Court
of Disputed Returns, claiming the
material distributed against him
was "misleading and defamatory",
and that therefore there should be
a fresh election -- which he thinks
he d win.
"The petitioner alleges that
publication of the leaflets during
the election campaign, together
with the display of posters similar
to the leaflets on election day,
constituted misleading advertising
within the meaning of the Electoral
Act," Mr Hanna s petition to the
He named Alan Sibbons and
the electoral commissioner as
But how can you tell if Hanna
is "soft on crime"? Labor relies
on speeches Hanna once gave in
parliament. The whole speeches put
it into context, but Labor quoted
selectively to make it look as if
Hanna was "soft on crime".
Hanna wants to use the entire
parliamentary speeches, in full, to
support his case that he was robbed.
But lawyers for Alan Sibbons told
the court Mr Hanna must not be
allowed to tender the parliamentary
speech in evidence, arguing that
courts should not "inquire into the
motives of MPs for their conduct or
comments in Parliament".
So Labor has used a parliamen-
tary speech, or just a snippet of it,
to allegedly defame and defeat a
political opponent, but it doesn t
want the whole speech to be used by
the opponent in his own defence.
The case even invoked the Privy
Council in London, and stretched
back through the centuries to laws
which helped define the power of
parliaments and MPs freedom to
say what they want under parlia-
mentary privilege, immune from
the rules of defamation.
These rules go back to the roots
of the Westminster tradition. More
than 600 years ago, English law
established the right to free speech
in Parliament. Through the South
Australian Constitution Act, both
houses of state parliament have
the same privileges enjoyed by the
House of Commons as at 1856, more
than 150 years ago.
So, this week, a senior solicitor
with the crown solicitor s office,
Danielle Seal, rose to her feet in
the Victoria Square. There were
just a dozen people in the public
gallery, half of them reporters.
Kris Hanna sat at the back, defeated
Liberal candidate Peta McCance
occupied a front-row seat and ALP
state secretary Michael Brown, who
authorised the material, sat as far
as possible from both.
Ms Seal has a dual role.
She represents the electoral
commissioner, Kate Mousley,
and the speaker of the South
Australian Parliament, the
honourable Lyn Breuer.
Ms Seal was adamant the
original Hansard should not
be considered in the case.
It was the speaker s very
firm view that she would
take a very dim view of a
parliamentary speech being
used as evidence in a Court of
Disputed Returns. Ms Breuer
reckons that parliamentary
privilege means Hansard
should not be used to decide
the case. Labor wants its
selective quotes, and only
those quotes, to sway the
Next to her sat the
experienced QC, Tim Stanley,
whose connections with the
Labor Party are as solid as
Kris Hanna s are shaky. ("It s
basically a case of me against
the Labor Party," Mr Hanna
ruefully observed.) Mr Stanley
also argued Hansard could not be
admitted as evidence.
And Mr Hanna s legal team,
led by Stephen Walsh with Simon
Ower and the irrepressible Dr
Stephen Churches, trawled through
the legal precedents. There was
the celebrated case of Rann
versus Olsen, which is still being
celebrated. There was the infamous
Wright versus Lewis double-
barrelled action. In case law, rich
dining at both tables. Both Rann v
Olsen and Wright v Lewis relied on
statements either to parliament or
a parliamentary committee. One
was in a federal jurisdiction, the
other -- the Lewis fracas -- in South
Australia. There were dissenting
opinions between learned friends,
and even more dissent among
Honour, Justice Ann Vanstone. She
looked around the courtroom, down
at her notes, and began to speak.
You could have heard a feather drop
as Mr Hanna s opponents went out
for a duck.
"I acknowledge there is a ques-
tion mark sitting over the ambit and
correctness in Wright v Lewis and
that state parliamentary privilege
might be wider than as held in that
case," Justice Vanstone began.
Democracy on trial
Continued Page 7
ALP lawyer Tim Stanley (front and centre), instructing solicitor Grant Feary and ALP state secretary Michael Brown leaving
Photo: Kate Elmes
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