Tuesday, 14 August 2018
Leyonhjelm, Senator David
Page 262 of chapter 10 of the 14th edition deals with the matter of sub judice. This motion, in the way it's worded, simply using the term 'defamatory', presumes an element of guilt for a matter that is actually before the courts. So, whilst there is no standing order in this respect, Odgers does give some guidance. It suggests that, if a matter is before the court and debate could perhaps prejudice the outcome of a court case, the matter should be deemed inappropriate for debate in this chamber.
The visual image of what Senator Bernardi does in his private evening is not something that should be inflicted on any of us. The reality here is—after discussion with you, Mr President—we believe the motion is in order, given that proceedings have not commenced. However, if it would assist in deliberations, we are happy to insert the word 'potentially' before 'defamatory' where it appears in the motion.
In recognition that Senator Di Natale, by seeking to amend the motion, has effectively acknowledged the merit behind the argument that I and Senator Patrick have put, it hasn't been amended and so, in its current form, it should absolutely be deemed to be inappropriate.
I did foresee this matter when I saw the Notice Paper. I would raise a few matters if I could. Firstly, as Odgers points out on page 178:
Senators may be censured by the Senate for misconduct.
That is not an issue that is in question. It is well established, and I have a handful of examples here. What I will go onto with the sub judice issue is that the convention turns on a consideration where the debate in the Senate could involve 'a substantial danger of prejudice to proceedings before a court'. This is balanced against a consideration as to whether there is 'an overriding requirement for the Senate to discuss a matter of public interest'. As Odgers records:
The concept of prejudice to legal proceedings involves an hypothesis that a debate on a matter before a court could influence the court and cause it to make a decision other than on the evidence and submissions before the court. A danger of prejudice would not arise from mere reference to such a matter, but from a canvassing of the issues before the court or a prejudgment of those issues.
I have read the same sections of Odgers as a number of others have, and, with respect to this, I will also refer to page 262 of the current edition of Odgers, which outlines:
… the fact that writs have been issued, which does not necessarily mean that proceedings will ensue, does not give cause for the sub judice convention to be invoked.
That is a selection, and there is some context to it, I concede.
The section also talks about the different risks of the sub judice convention with respect to issues before judges or juries. It is difficult for me to see how the mere use of the word 'defamatory' in the motion, particularly as it appears in the sense of a Senate debate, could involve 'a substantial danger of prejudice to proceedings that may be on foot'. I will listen very closely to any debate on the motion, and, if I sense that there is a reason to invoke convention in relation to that debate, I shall do so. I'm not going to rule the motion out of order, Senator Bernardi. I hope that clarifies the issue of sub judice for the chamber in this regard. Senator Leyonhjelm?
That the Senate censures Senator Leyonhjelm for:
(a) humiliating and intimidating a fellow female senator by making derogatory, defamatory and sexist statements about her during a formal division in the Senate;
(b) inflaming the situation by publishing and republishing further derogatory, defamatory and sexist statements concerning the fellow female senator in the media and on social media;
(c) refusing to apologise for his derogatory, defamatory and sexist statements; and
(d) failing to uphold the dignity of the chamber and ensure it is a place where all senators are able to freely and respectfully contribute to debate and deliberations, as expected of senators by the Australian people.
An honourable senator interjecting—
Is leave granted for Senator Leyonhjelm to make a statement for seven minutes? Senator Di Natale, are you limiting that to two minutes?
Honourable senators interjecting—
I have to go by the unanimous consent of the chamber. Senator Di Natale, do you wish to insist upon that?
What exactly is the Senate being asked to censure? On the afternoon of 28 June, Senator Hanson-Young made an interjection. I made an interjection in reply. Senator Hanson-Young then approached me and made a face-to-face comment. I then replied. So there were four statements in the Senate. We should know which of these four statements the Senate is being asked to censure. Let's start with the original interjection. Senator Hinch, no supporter of mine on this issue, tweeted in reply to Peter FitzSimons at 11.36 PM on 2 July that Senator Hanson-Young said something like, 'Women wouldn't need pepper spray if men weren't rapists.' If you don't think those words are objectionable, insert a reference to another group of people instead of men and consider what it sounds like. Would it be okay to say, 'Women wouldn't need pepper spray if blacks weren't rapists'? Would it be okay to say, 'Women wouldn't need pepper spray if Muslims weren't rapists'?
Interrogation of Senator Hanson-Young's original interjection has been sadly lacking. Senator Hanson-Young has not acknowledged what she said, and not one journalist in this country has asked Senator Hanson-Young what she said. All we've had is Senator Hanson-Young denying my claim that she said something to the effect that all men are rapists. The failure of journalists to ask Senator Hanson-Young what she actually said is a sad indictment on modern journalism and modern culture. Senator Hanson-Young's failure to outline what she said also reflects poorly on her. It indicates an unwillingness to stand by her comments and be a person of her word. To inform this censure motion, I request that Senator Hanson-Young finally outline her original interjection. Let's not rely on my recollection of what Senator Hanson-Young said, nor on Senator Hinch's recollection. That would be mansplaining. Let's hear it from her. I was scorned in the media for not recounting Senator Hanson-Young's words verbatim. If Senator Hanson-Young is unable to recount her words exactly, I trust she'll be held to the same standard.
Let's move on to my interjection. In response to Senator Hanson-Young's interjection about men as rapists, I interjected to the senator that she should stop shagging men, then. This interjection was a relevant rebuttal to Senator Hanson-Young's interjection, as it makes no sense to consider men in general as rapists yet to still choose to associate with them. The Senate should note that my interjection made no reference to the frequency of sexual partners and that the term shagging has never been considered unparliamentary. The Senate should note that if relevantly pointing out that someone is heterosexual is a personal reflection, it is a particularly benign personal reflection. If such a comment is considered out of order, then much of the debate in the Senate will be out of order.
The Senate should also note the context for Senator Hanson-Young's interjection and my interjection in response. Senator Anning had just moved a motion calling on the Senate to support the right of women to have access to pepper spray if they choose, and Senator Rice from the Australian Greens had been given leave to make a short statement. In that short statement, Senator Rice said:
The last thing that women in Australia need now is another man in power telling us that we are responsible for violence against us.
As an aside, I would ask Senator Rice to reflect on her comment directed to Senator Anning suggesting that he is another man in power telling women that they are responsible for violence against them. Senator Anning did no such thing. It was around the time of Senator Rice's short statement that Senator Hanson-Young doubled down on the hyperbolic anti-male rhetoric with her interjection about man as rapists. This surely is relevant context.
Let's move onto the third statement in the sequence. Senator Hanson-Young came and stood close to me at my desk, where I was seated. She sought and obtained confirmation of my interjection and then called me a creep. Oddly, the Senate is not being asked to deem this stand-over comment as intimidating or to censure this clearly unparliamentary personal reflection. Instead, we moved to the fourth statement, in which I responded by telling the senator to 'eff off' in a quiet voice that nobody else heard. Such language is also unparliamentary, but it is not a personal reflection, and it would be a departure from practice for the Senate to attempt to regulate face-to-face conversation in the chamber unheard by any third party and unrecorded in Hansard.
Senator Hanson-Young spent July saying to friendly media outlets that I had slut-shamed her, that she would see me for defamation because of this and that her legal action was for women everywhere. Yet in August, when I received the statement of claim from Senator Hanson-Young's lawyers, my supposed slut-shaming and sexism was nowhere to be seen. Instead, this statement of claim, which limits what the defamation can be about, is accusing me of calling Senator Hanson-Young a hypocrite and misandrist. So Senator Hanson-Young has misrepresented her legal case and has accumulated significant donations based on this misrepresentation.
This censure motion prejudges my comments as defamatory and in so doing violates the separation of powers. Moreover, this censure motion continues to incorrectly imply that supposedly sexist comments by me are the subject of defamation action. They are not, and the Greens should come clean to their supporters on this misrepresentation.
The President's statement yesterday appropriately addressed this issue. A censure motion is a very serious measure against a senator and is not warranted on this occasion. This motion also asserts defamation, a question that is currently sub judice. This is another reason why the government does not consider it an appropriate course of action for the Senate to take.
Seeing that Senator Leyonhjelm is now trying to drag me into his pathetic, unapologetic excuse for his behaviour, I just want to disassociate myself totally from him and say that I totally support Senator Hanson-Young's version of what happened on that day.
Pursuant to contingent notice, I move:
That the standing orders of the Senate be suspended to give precedence to the general business order of the day.
All I wanted was a couple of minutes. That's all I wanted, and we're done. Mr President, I just want a couple of minutes here. I want to make this point.
Senator Leyonhjelm's defence seems to be that he was provoked. Let's put on the record, firstly, that what Senator Leyonhjelm alleges was said is contested. Senator Hanson-Young and indeed her colleagues who heard what she said contest the nature of what Senator Leyonhjelm says was said to him. But that misses the point. It entirely misses the point. There is never an excuse for the personal, vindictive attack levelled at a colleague of the Senate. There is never an excuse under any circumstances.
What Senator Leyonhjelm did was that he attempted to humiliate and intimidate one of his fellow parliamentary colleagues. He was simply asked to apologise. Instead of apologising, he went as far as to double down. He went on to several radio and television interviews and sought to capitalise on those defamatory and sexist statements.
There is never an excuse to do what Senator Leyonhjelm did. It doesn't matter what was said to him. His response was disgraceful; it was shameful; it was sexist; it was misogynist; and it was personal. Now, we can have robust debate in this place, but there is never an excuse, both within this chamber and outside of it, to exercise so-called free speech in the manner in which Senator Leyonhjelm chose to exercise it—by vilifying, intimidating and smearing the reputation of somebody who has made an enormous contribution to this place. And, at a time when we should be making this an environment that is welcoming to all people so that we have a more representative parliament, those comments undermined everything that needs to change in this place so that we welcome more women and more diversity to ensure that this place is much more representative of the people we seek to represent.
I just want to finish by saying we did not want this to happen. We did not want it to get to this point. All we sought from the outset was an apology from Senator Leyonhjelm. Instead, he chose to besmirch the reputation of somebody who has made an enormous contribution to this country. He chose to use a sexist and derogatory attack on an individual senator, and if we can't censure a senator for those actions then there's no good in having that standing order within the provisions.
I'm opposed to this censure motion and I'm opposed to allowing the Greens to have a further platform to express what are very misleading statements, which have already been addressed, I guess, by Senator Leyonhjelm. I'm opposed to it because it draws us into a realm where, notwithstanding your ruling, it could be contested that the resolutions of this place could be used as a weapon in a court against an opponent in a legal action.
If we go down the path of censuring people for private statements that are made in this place, it opens up a can of worms from which we do not know what will emerge. I've heard a number of vile things. I've heard homophobic slurs and racist slurs from Senator Hanson-Young directed at members of the government in the past. I've called her to account for them. I've asked her to withdraw them. She has refused. She has pretended she hasn't said them. And now here we are with Senator Leyonhjelm, whether you agree with his comments or not, whether they are appropriate or not—I have said on the record it would have been better had they been withdrawn, but he said no, he wasn't going to do it—being taken to court, not on the basis of anything he has said in this chamber but for statements he has made outside of this chamber. What relevance is that to his ability to conduct his role as a senator for New South Wales?
You may think he shouldn't be here. That is up to the voters of New South Wales. You can level that accusation against all of us. But, ultimately, we are being asked to condemn someone and censure someone for making statements in this place which are protected by privilege, because they've hurt the feelings of someone else, who is, using the most polite explanation of it, inconsistent in her approach when she is on the receiving end of interjections and when she's dishing them out.
It is wholly inappropriate for this place to be engaging in the private lives or the personal conflicts between two senators that have happened outside of this place. Senator Leyonhjelm has made a very valid point. It's all good and well to get the kudos of the media and say, 'I've been slut-shamed'—using that term, or however else you want to describe it—and use that as the basis to mount a public attack on your enemies and to justify commencing defamation proceedings, and then suddenly to have those things disappear in your statement of claim which limits the defamation proceedings. I think it is inappropriate for this chamber to be moving motions such as this, because it has zero relevance to actually what happened in this chamber, because that is not part of the allegedly defamatory comments. It is not part of the lawsuit.
If we want to go down this path, we can move censure motion after censure motion about all the private conversations that take place that hurt people's feelings. I can tell you that none of us would come out particularly well from that sort of exposure of our private lives. And I would say this: Senator Hanson-Young would rate lower than most in that regard, because time and time and time again she has refused to withdraw the vile accusations that she has levelled at others. She does it and then pretends she's never done it. And yet her comments have been homophobic and they have been racist; they have belittled and humiliated individuals on the basis of their unemerged sexuality. It has been appalling. So if you want to ask all senators to abide by the same standards that Senator Leyonhjelm is being tagged with today, we are opening ourselves up to a disgraceful way of destroying what the function of this place is. That, I think, would be a great tragedy.
Since Senator Di Natale has provided me an opportunity to add to my earlier comments, I'll do so. I note that Senator Di Natale still cannot—notwithstanding the invitation in my earlier address—say what it is that he thinks is so bad about the exchange that occurred in June on the last day of sitting. Which of the four statements was sexist? Which of the four statements was misogynist? Which of the four statements slut-shamed her? Which of the four statements was demeaning and defamatory? If it wasn't what occurred within the chamber, then what are we talking about here? Are we talking about an exchange that occurred outside; comments I made in the media? Is that what we're referring to here? If we are, they are subject to a court action. We shouldn't even be considering those issues.
If we are really talking about those four expressions that I referred to in my earlier address, let's think about what else, as Senator Bernardi said, Senator Hanson-Young has engaged in. I actually had the Parliamentary Library investigate how many times Senator Hanson-Young has been required to withdraw comments in this chamber.
Okay. So 26 times in her time in this Senate Senator Hanson-Young has been required to withdraw comments—and they're only the ones that were heard and were drawn to the attention of the chair. I haven't been asked to withdraw a comment at any time since I've been in here in this Senate.
An honourable senator interjecting—
Yes; if you don't hear it, you can't very well withdraw it, can you? On the behaviour we are talking about here, first of all, what Senator Di Natale has mentioned is nothing but hyperbole. He won't say what he is talking about that leads to those accusations. Senator Hanson-Young won't say what she thinks she did say—because, clearly, she did say something. If the issue is really all about what was said outside the chamber, why on earth are we talking about it here?