Conduct Of The Honourable Franca Arena

Debate resumed from an earlier hour.

The Hon. R. S. L. JONES [5.03 p.m.]: As I said earlier, a number of judges have recently been leading miserable lives because fingers have unjustly been pointed at them. They have been accused, without evidence or justification, of committing certain offences. There is no basis for such rumours circulating in the community, and they must stop. I was very much opposed to the motion to expel the Hon. Franca Arena for a number of reasons. Firstly, she had not had the opportunity to give evidence in the right forum, that being the committee of which I was a member; and, secondly, this House should not have the right to expel a member. Legislation should be introduced that denies members the right to expel a member for any purpose. A member should be judged by the voters, not by other members of Parliament.

Such a right can be used by members capriciously and wrongly. On the two or three occasions throughout Australia that a member of Parliament has been expelled, the decisions were clearly wrong. After his expulsion from the lower House, Mr R. A. Price was re-elected one month later. We should quickly instigate moves to deny ourselves the right to expel a member for any reason. Parliamentary freedom of speech is an extremely valuable privilege that must be protected. Parliaments are probably the only forums in which we can make almost any statement without the fear of being sued for defamation. I accept that that privilege carries with it a great responsibility. During the past 10½ years that I have been a member, on one or two occasions I have overstepped the mark and put incorrect information on the record of the House. I regret having done that.

Members occasionally make mistakes and there is now a form of redress by which citizens can address the House. That is all the more reason why we must defend the precious right of freedom of speech that we have had for the past 300 years. The Hon. Franca Arena did go beyond what is considered right. She should now do the right thing and withdraw the imputations that the committee unanimously concluded she made. Although the Hon. Franca Arena has publicly denied that she made such imputations, the committee decided unanimously that she did. The media obviously decided that she did, and its headlines damaged some people’s reputations. Some members were extremely angry about that, and reacted by moving an expulsion motion.

I want to see an end to this matter. The Hon. Franca Arena should acknowledge that a committee of this House unanimously considers that she did the wrong thing. However, I have never thought that she should be expelled for exercising her right of freedom of speech in this House, even though she transgressed her privileges by going beyond what is deemed to be reasonable. The Hon. Franca Arena made allegations or imputations that were considered unacceptable by the committee and in that way fell below the standards that the House is entitled to expect from members.

The Hon. FRANCA ARENA [5.07 p.m.]: This is a serious matter. Nine months have passed since I made my speech on 17 September 1997, and I am not ashamed to say that my husband and I have been through hell. The emotional and financial costs have been very high for both of us, and I have been able to stand the pressure only with the enormous support I have received from the community. The community realises the terrible problem of paedophilia and it has always encouraged me to call loudly for a full inquiry into all aspects of paedophilia. That inquiry is yet to take place. I will read onto the record a letter dated 9 June I received only a few days ago from Double Bay. It is the type of letter that has given me the strength to keep going in my campaign. The letter states:

Dear Ms Arena

I am writing to commend you for your brave campaign against the paedophiles of this state and the corrupt people in authority who protect them.

Your uncovering this festering sore and bringing it to public view gave my son the courage to charge the man who, unbeknown to my family, had sexually abused my son when he was a member of a Sydney ice hockey team. The revelations have been extremely painful for all of us, the effect on my son of this abuse has been devastating.

I will not read the next part of the letter because it identifies certain people. The letter continues:

I believe that . . . the man convicted of the crime of paedophilia, should stand trial for murder. He has robbed my

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son of his life. Once a promising student attending an elite Eastern Suburbs private school, my boy did not complete his education and turned to drugs to mask his pain and blot out the horror of his experience.

He is today a hopeless heroin addict with a criminal record. He has also received the death sentence by contracting hepatitis C through sharing needles. He will die too young and without ever having lived.

My entire family suffered on account of this, the number of lives wrecked by this monster is incalculable.

Thank you for helping to bring [this man] to justice.

I read this letter because it is very important. It is the kind of support that has given me strength and has motivated me to act on behalf of the welfare of children. I thank the Hon. C. J. S. Lynn, the Hon. R. S. L. Jones and the Hon. Jennifer Gardiner, who have acknowledged my commitment to the welfare of children. Whatever happens to me, I will always be proud that in my small way I have helped to save children, given them strength to seek justice, and helped in some small way to put paedophiles in gaol.

Commander Small told the privileges committee that a number of people were charged as a result of the information I provided. Directly and indirectly I contributed to their arrest. Superintendent Woodhouse stated also that I am responsible for at least an additional three paedophiles being prosecuted in the near future. I hope I do not reveal anything, but I am always in contact with Superintendent Woodhouse, who is a very fine, top policeman. The committee’s report, consisting of three volumes, was tabled at 10.00 a.m. on Monday, two days ago, and the House has sat every day, Monday included, from 11.00 a.m. to 11.00 p.m. I have asked many honourable members on both sides of the House if they have had a chance to read the report, let alone to form a considered opinion. Few were honest enough to reply in the affirmative. Is that fair? I have five sitting days to decide whether to apologise and, if I do, the form it will take. Unless the House sits after Friday, the five days will not elapse until the first sitting day in September. I am grateful for that because I wanted to move an amendment to adjourn the debate until September to give members the chance to read the report and the other two volumes, which contain the transcripts and the minutes of the committee. In any case, I am grateful that I have five sitting days to respond.

I am disappointed that the House has not afforded me the courtesy it gave Justice Vince Bruce of allowing members a free, conscience vote, a non-party political vote. Members will vote on party political lines, and it is very sad to see that they will judge one of their colleagues purely on party political lines, but so be it. The committee inquiry into my conduct was never into whether there was evidence to support my claims. It was about determining what it was that I had claimed. There were two alternatives: did I allege a criminal conspiracy, or did I allege a failure to authorise a full inquiry into paedophilia?

Accordingly, it is of fundamental importance that my speech be analysed to assess exactly what I said. All sorts of diverse comments have been made about me, most without any consideration of what I actually said. Only last night one of our colleagues who will remain nameless confessed to me that he had never read my speech. In effect, he will take the party line even without knowing what I said, what I am supposed to be guilty of, or anything else. There is no substitute for studying exactly what I said in my speech. I especially ask the new members of the House to read my speech in detail. The relevant part of my speech is at page 3, and following are the appendices to the committee’s report.

My speech can be summarised as follows. First, I quoted Mitchell’s article in which he spoke about Carr meeting with Collins and about Carr and Labor strategists engaging in damage control. Second, I assumed that Carr met with Collins. Third, I claimed that Carr, Sheahan and Della Bosca met to organise damage control. Fourth, I claimed that Wood and Carr met, and I presumed they reached an agreement about ensuring that high-profile paedophiles were not named so as to not traumatise the community. Fifth, I claimed a cover-up, acknowledging the strong criticism of me that will result. Sixth, I criticised the limited terms of reference; I called it a cover-up; and I detailed the events that led to the rejection of the caucus vote calling for the terms to be widened. My barrister, Philip Taylor, who is in the Chamber tonight, and I have dealt with this extensively in all the submissions we have made to the committee.

The committee’s approach has been to combine the three meetings: the Carr-Collins meeting, the Carr-Sheahan-Della Bosca meeting, and the Carr-Wood meeting. It concluded that they were all for the same purpose; that the Carr-Wood meeting was not only chronologically after the other meetings but was "a logical outcome of the two preceding meetings." I gave a different reason for each of the meetings; it is all there in my speech. The purpose of the Carr-Collins meeting was as claimed by Alex Mitchell, that is, to discuss the paedophile segment. Nothing I said suggests a criminal conspiracy. I did not refer to the meeting again in my speech. In fact, quoting some of the royal commissioner’s words, I said:

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Did they not give us a lot of hope that things would change? But what happened? Next day Bob Carr’s office denies that such a meeting with Collins was ever going to take place. But it is fair to assume that the meeting did indeed take place when the furore died down.

Where did I say "criminal conspiracy"? Where is the imputation? There was a letter from Mr Carr inviting Mr Collins to a meeting to discuss the paedophilia segment. Mr Collins answered and said he looked forward to it. When it became public, Mr Carr did not go, but met with Mr Whelan. Where did I say there was a criminal conspiracy? The purpose of the Carr-Della Bosca-Sheahan meeting was, as I said in my speech, "to organise damage control", the same sort of damage control that Mitchell claimed in his article. No criminal conspiracy was alleged by him and none was alleged by me. I do not refer again to this meeting either.

Where in any of this is there an allegation of a criminal conspiracy? I could read again from my speech but I will not, because it is all there. I hope all honourable members have a copy of it. I trust that honourable members can see there is no scope, even upon the most strained construction, to read any criminal conspiracy into the first two meetings I mentioned. My barrister, Phillip Taylor, gave the committee a more detailed analysis. That is found at pages 354 to 360 of the transcript. It confirms the construction I gave. The committee did not make any proper attempt to answer that. Indeed, that part of the report was written even before the committee took evidence from Mr Taylor. That is really incredible: they had already made their decision before they asked him to make a submission. That was not the first and only unfair part of the committee inquiry.

The third meeting between Carr and Wood was claimed to result in an agreement. Whether this agreement was a criminal conspiracy or a lawful policy decision - which I happen to find unacceptable - depends on whether the agreement determined the scope of Justice Wood’s duties or sought to subvert his performance of them. In other words, the question the House must consider is whether I was alleging either that the agreement was to frustrate the terms of reference under which Justice Wood was obliged to inquire, or, alternatively, that the agreement was to limit the terms of reference because it was perceived that the public interest required a narrow inquiry.

There is only one possible answer to any reasonable construction of my speech. I spent three pages in my speech criticising the mistake of a limited inquiry into paedophilia. I called the failure to extend the terms of reference a massive cover-up. I never used the words "criminal conspiracy", "suppression", "unlawful", "secretive", "illegal" or any other such term. Honourable members would all know that I call a spade a spade. If I had wanted to allege a criminal conspiracy I would have, but I did not. Did the terms of reference prevent a proper inquiry into high-profile paedophiles? I believe so. Justice Wood was reported on 19 March 1996 as saying, "It is silly to focus on those who are perceived as holding positions of responsibility," and "It is not my purpose to investigate and bring to justice paedophiles in high places."

Honourable members will know that the explanation I have given is not new. It was repeatedly given to the committee. Indeed in the week following my speech of 17 September 1997 my solicitor, upon my instructions, wrote to the Sydney Morning Herald and criticised it for reporting that I alleged a criminal conspiracy when I had done no such thing. I wish to read the letter that my solicitor, Peter Karp of McCabes Lawyers, sent to the Sydney Morning Herald on 24 September 1997. It states:

Dear Sir/Madam,

We act for The Honourable Franca Arena.

In a newspaper article published this morning your paper asserts that our client has made allegations of "high level criminal conspiracy".

There has never been any assertion of criminal conspiracy by our client in respect of the Wood Royal Commission.

Speeches in Parliament last night, which your correspondent would have heard, made this issue quite clear.

Would you please ensure that these comments are withdrawn and not used in the future, to avoid any further action by our client.

Please revert to us by 2.00 p.m. today as to your intentions to correct this blatant error which may be damaging to our client.

Yours faithfully,
McCABES
Partner: Peter Karp

We did our best but it was like talking to a brick wall. Journalists who should have known better kept using the words "criminal conspiracy". I have proposed to the Opposition and the crossbenchers a formal explanation and expression of regret, which is as follows:

The Committee has asked that I withdraw certain imputations said to have been made in my speech of September 17, and to apologise for them. I cannot withdraw things that I did not say. I never alleged or implied a "criminal conspiracy" in my speech. To those who have inferred from my speech an allegation of criminal conspiracy, I say, as I have said from at

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least 24 September 1997 you are wrong. I ask all honourable members to again read my speech and the full explanation that my barrister Philip Taylor, gave to the Privileges Committee on 23 June 1998, particularly at transcript pages 354-360.

My speech has been misconstrued and so far as this has caused hurt to the people mentioned in my speech, I wish to express my regret. Even though it was not my fault I want to say I am sorry it happened. I regret that no point of order was taken during my speech, as I would have had the opportunity to explain myself and this matter would have been put to rest then and there.

I do not know who was sitting in the chair at that time, but it was certainly not you, Madam President. You would have been a lot more alert. I do not know who was in the Chamber but someone should have taken a point of order. I would have explained everything to the House, and my husband and I would have been saved this misery. I am grateful that my husband is sitting in the gallery and has given me magnificent support all this time. It would have saved the taxpayers the hundreds of thousands of dollars that must have been spent on the Nader inquiry and the privileges committee, so someone has also to bear some responsibility for that. The explanation continues:

My husband and I have paid a high emotional and financial price for this affair. I have never acted with malice towards anyone. I ask the House to accept the above as my expression of regrets for any misunderstanding that might have occurred. I hope to be able to provide a full and considered response to the Committee report after all the honourable members have had the opportunity to read it during the forthcoming break.

I gave this explanation to the Opposition and the crossbenchers but apparently it was not acceptable. I have been asked by the privileges committee to, in effect, mislead the House. Having said honestly on my oath that I did not claim there was a criminal conspiracy, I cannot and will not speak falsely to this House even if doing so might prevent my suspension. This House deserves better than that; it deserves the truth. It is wrong for the committee to ask me to say things that it knows I do not believe, and to ask me to deny things that I said honestly and on oath. Another important matter is that the House cherishes the freedom of speech which a House of Parliament enjoys. In 1984 the Commonwealth Privileges Committee said in a report:

We believe that there are two bedrock-elements to a democratic parliamentary system. Firstly, absolute protection must be given to a member for his participation in debates and proceedings in Parliament . . . Secondly, the most complete freedom to criticise the actions of government, Parliament itself, political parties represented with Parliament and members.

Honourable members will know that I am being sued for defamation in relation to my speech. The apology advocated by the committee uses the language of defamation; it seeks to have me concede that I made imputations of a criminal conspiracy. How am I to defend the defamation proceeding against me if I concede to this House - despite having denied them on oath before the committee - that I made those imputations. That is unfair to me. It would be a grave encroachment on the ability of members to speak freely if their words here carried pecuniary penalties. I have asked my barrister to give me an advice on this matter and this morning he wrote me a letter, which I circulated, and which I should like to put on the record. It states:

Dear Mrs Arena,

You have asked me for a brief advice as to any adverse legal consequences which may follow an apology by you in the terms recommended by the Privileges Committee.

In my opinion, the major difficulty with the terms of the apology is that it involves a concession by you that you made imputations of a criminal conspiracy, a matter which you have always strongly denied. It appears to me that three adverse consequences from such a concession are possible.

First, a concession of a criminal conspiracy is diametrically opposed to your evidence given on oath to the Committee. Although I do not regard it as likely, the concession could form a basis for perjury proceedings against you for (allegedly falsely) denying such imputations in your evidence.

I hope the Attorney, who is the first law officer of this State, is listening. Perhaps he would like to comment on this matter in reply. The advice further states:

Secondly, and conversely, parliamentary proceedings could conceivably be taken against you for misleading the House in the apology, since in your evidence to the Committee you deny the concession inherent in the apology. This consequence is, in my view, perhaps even less likely than the first.

Thirdly, the apology if given by you would make it very difficult for you to dispute in your pending defamation proceedings brought by Mr Della Bosca that you did not make imputations of a criminal conspiracy.

There are, of course, restrictions on the use which can be made of parliamentary proceedings.

Article 9 of the Bill of Rights 1689 prevents the contents of your apology from being called into question in a court. However, Mr Della Bosca, whether by tendering Hansard or by cross-examination of you, may be able effectively to utilize the apology without calling it into question. Indeed you will need to question or dispute the concession in order to maintain your defence in the defamation proceedings, but Article 9 would prevent you from doing so. Even if a parliamentary resolution was required before Hansard was tendered to prove your apology, you could not be confident that no resolution would be passed.

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Page 22 of the discussion paper entitled "Parliamentary Privilege in New South Wales" by the Hon. J. R. A. Dowd, QC, a member of Parliament and Attorney General at that time, stated in part:

However, it is understood that in New South Wales the fact of what was said in Parliament may be proved in Court by the tender of a Hansard report and that production without a certificate does not involve a breach of parliamentary privilege.

I hope honourable members will seriously consider that statement. The letter from Philip Taylor continued:

And quite apart from Article 9 it would seem extremely difficult for you to dispute a matter you have conceded to the House.

This analysis confirms the recent case of Prebble v Television New Zealand Ltd [1995] 1 AC 321, where the Privy Council held (at page 327):

the parties to litigation . . . cannot bring into question anything said or done in the House by suggesting (whether by direct evidence, cross-examination, inference or submission) that the actions or words were inspired by improper motives or were untrue or misleading . . . However their lordships wish to make clear that, this principle does not exclude all references in court proceedings to what has taken place in the House . . . there could be no objection to the use of Hansard to prove what was done and said in Parliament as a matter of history.

As is recorded in the head note at page 322:

If [a party] wishes at the trial to allege the occurrence of events or the saying of certain words in Parliament without any accompanying allegation of impropriety or any other questioning there is no objection to that course.

Accordingly it is my view that the defence of your defamation proceedings may be substantially prejudiced should you make an apology in the terms proposed by the Privileges Committee.

That important letter made me think that maybe there is somebody who, because he could not expel me, has decided that the best avenue to take was to financially ruin my husband and me, who have worked all our lives, to ruin us completely, to bankrupt us. I have been provided with a copy of an urgent advice by the Crown Solicitor on this matter, which states:

The fact that she would apologise might be taken to infer that she accepts she was at fault in making the imputations at the time.

Can he be more clear than that? I will repeat what the Crown Solicitor said:

The fact that she would apologise might be taken to infer that she accepts she was at fault in making the imputations at the time.

This is the very problem! I will have made, to use lawyer’s language, an admission which will be evidence against me in defamation proceedings. The Crown Solicitor’s advice refers to the case NSW Branch of the AMA v Minister for Health and Community Services (1992) 26 NSW LR 114. This case gives no comfort to me or to my barrister. As the Crown Solicitor concedes on page 5, this case establishes that Hansard can be tendered for the purpose of establishing the fact of what was said, when, and by whom. This is all that is required to defeat my defamation case. If I make the apology, the court would know that in July 1998 I conceded that I had made imputations of criminal conspiracy. That admission, under the Evidence Act, is evidence that I made those imputations, not because it is necessarily true, not because it has some additional force because it is said in Parliament, but simply because it is an admission by me.

The Attorney General knows that admissions are admissible as evidence against the person who made them. I really wonder whether the privilege committee members - the honesty of the great majority of whom is at the highest level - have ever contemplated or were ever told by their legal advisers that that could be the consequence? I am sure they were not. My barrister is in no doubt that an apology by me in the terms recommended would be admissible against me. If the Attorney General is in any doubt on this matter I urge him to seek advice from the Solicitor General. I am sure that the Attorney General, as a fair person, would not want to see me financially bankrupt. I hope he will respond to my remarks when he speaks, if he speaks.

The amendments proposed by the Liberals delete Mr Sheahan and Mr Della Bosca from the apology. I still believe that this does not protect me in the defamation proceedings. I cannot concede that I imputed a criminal conspiracy to Mr Collins but deny that I imputed a criminal conspiracy to Mr Della Bosca. On a fair reading of my speech neither is involved in any conspiracy, but no sensible distinction can be drawn between them. Honourable members should be under no delusions; both the Liberal amendment and the Labor motion force me to choose between two punitive sanctions. Either I make the apology, thereby inevitably losing the defamation proceedings brought by Mr Della Bosca and possibly conceding that I am guilty of perjury for giving contrary evidence to the committee, or I refuse to make the apology and face being suspended indefinitely.

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It is indeed a stark choice: perjury proceedings and a substantial award of damages against me if I apologise - suspension for ever if I do not. Neither choice is palatable. I can speak only the truth and let the consequences fall where they may. Contrary to what the Leader of the Opposition has said, there is no power or duty in this House to impose sanctions to protect the members of this House. The sanctions are rather to protect "the existence of the House and the true exercise of its functions", as the Privy Council found in Barton v Taylor, and as adopted by the committee in its report at page 51. In 1989 the committee stated at page 364 of the transcript that it is:

to preserve and safeguard the dignity and honour of the House and the proper conduct and exercise of its powers and duties, and is not to be used to protect the sensitivity of members . . . no matter how prejudiced, uninformed or exaggerated that criticism may be.

It is not I who has brought this Parliament into disrepute. The committee did not find that I was malicious or dishonest. I will never forget the Premier of New South Wales, who outside the Nader inquiry said, "She lied, she knew she was lying, she knew she was malicious". The matter was still sub judice and my defamation lawyer told me I could sue him for what he said. What a pathetic performance by the Premier, who should have known better. I am only sorry that I do not have the money for a defamation case against him, which I would be entitled to.

Today the Leader of the Opposition spoke at length about the Nader inquiry. I have great respect for the Leader of the Opposition, but why did he not once mention that the Nader inquiry was a one-sided affair? Mr Nader never heard my side of the story, because despite the fact that this House took away the privilege of the House with retrospective legislation, it did not take my privilege away and I did not give my privilege away. I did not go to the Nader inquiry, so Mr Nader heard only one side of the story. History will judge Mr Nader and many others involved in this sorry affair. I have always spoken with integrity and honesty, but the motion seeks to force me to admit perjury and concede Mr Della Bosca’s defamation case against me or be suspended.

The things that bring the Parliament into disrepute are the sort of things that have happened here in the past week and in the lower House in the past couple of months. A member who is prepared to speak out against the Executive, far from bringing this House into disrepute, enhances the reputation of this House as a voice of the people against unfair encroachment by the Executive. We must all uphold principles of fairness, natural justice, democracy and parliamentary propriety. In the final analysis the Parliament and I are answerable to the community. Whatever happens to me, the community will be my judge. I thank people for their support. I reserve my response to the motion.

The Hon. A. G. CORBETT [5.41 p.m.]: This is a most difficult matter to consider. I note the comments of the Leader of the Opposition that this debate is important, yet in reality honourable members have had little time for preparation. In coming to my views on this matter I am conscious of the importance of both this House and its reputation and the seriousness of the findings and recommendations of the Standing Committee on Parliamentary Privilege and Ethics. At the same time, I am conscious of the turmoil, disruption and agony that the events since 17 September 1997 have caused the Hon. Franca Arena and her husband, Joe. Equally, I am conscious of the hurt and anger that must have been felt by the Hon. Bob Carr, the Hon. Peter Collins, Justice James Wood, Terry Sheahan and John Della Bosca when the speech of the Hon. Franca Arena was reported in vivid and exaggerated tones, as it was by some sections of the news media.

There will be no satisfactory means of doing justice to all and, consequently, I must endeavour to settle on a decision that does as much justice as can be achieved in the circumstances. This motion contains some of the most important decisions that this House will ever make regarding the governing of its own functions and procedures and the restraints that it places on members. It will forever change the procedures and privileges of this House. The decision requires thought, it requires analysis and, at this moment, it requires more time. The gravity of this decision demands a delay. Even in the most advantageous of circumstances, honourable members would have been hard pressed to give this matter the attention it merits in the short time since the tabling of the report. Given what has happened in that time, and adjacent to it, we have not been afforded an environment that assists the judicious consideration of the report.

To say that the past week in this House has been eventful would be an understatement. This House and its members have never been subjected to the sustained scrutiny that has been experienced in recent weeks, and particularly since last Thursday. This has resulted, I believe, in an inability to consider properly the report of the Standing Committee on Parliamentary Privilege and Ethics. The committee report draws on the House of Commons privileges committee report into the behaviour of Mr David Tredinnick, MP and Mr
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Graham Riddick, MP for the formulation of the concept of conduct that "fell below the standards which the House is entitled to expect from its Members." The House of Commons in considering that report had 16 days over April 1995 between the tabling of the report and the subsequent debate.

Having just over two days to consider this report before being required to make a decision is manifestly unreasonable and is manifestly unfair not only to the Hon. Franca Arena but to all members of this House, who must give the matter careful consideration. Furthermore, this House gave ample opportunity - a month, between 26 May and 25 June - to members to consider the material relating to Justice Vince Bruce, which gave rise to the thoughtful and considered debate in the House last week. The Hon. Franca Arena is entitled to have the same thought and consideration given to her matter as that given to Justice Bruce. If we cannot extend the same consideration to a member of this House as that extended to any other person in similar circumstances, it is a sad day indeed for this House.

Given that the sanction proposed by the resolution gives the Hon. Franca Arena five sitting days to comply with its instructions, this matter will be substantially in abeyance until September in any event. This matter will not be resolved if the House concludes the debate today. Whatever happens, this matter will still be before the House in September, so I would have liked this House to proceed with due caution and take maximum advantage of the time available. Accordingly, I had intended to seek to adjourn this matter until September, but, given the sentiment of the House, I accept that such course of action would not receive sufficient support. I am also aware that a delay would have appeared to be prevarication and procrastination. That would have been unavoidable, because these matters should not be dealt with lightly or with excessive haste.

Between the tabling of the report and the commencement of this debate honourable members have had approximately 52 hours in which to read and assess the report and come to a decision on its findings and recommendations. There simply has not been the time or the opportunity to give the report of the Standing Committee on Parliamentary Privilege and Ethics the attention and consideration it merits. The report has implications for the governance of this House. It has implications for the rights and duties of honourable members. The report has implications for the freedoms, privileges and responsibilities of this House. As such, extreme caution should be taken before proceeding to deal with a member in the way proposed in this resolution. The findings of the Standing Committee on Parliamentary Privilege and Ethics in relation to the speech made by the Hon. Franca Arena on 17 September 1997 are serious. I have never doubted the motives of the Hon. Franca Arena in making the speech she made, and I never doubted that she sincerely believed the substance of her speech.

In a previous speech on this matter I mentioned that the Hon. Franca Arena has spent thousands of dollars on defending her case and she has consistently stood by her actions. I respect her for what she did. With the passage of time, it is difficult to determine whether the controversy surrounding the speech was based on the speech itself or on the public perception of what was said. It is very difficult now to re-read the speech free of the nuances and interpretations subsequently given to it by the media’s reporting and analysis. It is undeniable, however, that the consequences of that speech gave rise to suggestions that the Premier, the Leader of the Opposition, the royal commissioner, the President of the Australian Labor Party and the General Secretary of the Australian Labor Party were engaged in improper conduct with a view to minimising the scope and impact of the Royal Commission into the New South Wales Police Service inquiry into paedophilia.

Those suggestions, whether or not they were implied by the Hon. Franca Arena, have been thoroughly refuted by a succession of investigations and inquiries, culminating in the report of the Standing Committee on Parliamentary Privilege and Ethics. This should be nearly the end of the matter. We have only to turn our attention to the restoration of the reputation of the House in this matter and the means by which the Hon. Franca Arena can assist in restoring the integrity and reputation of the House. Components of the motion before the House and aspects of the Opposition’s amendment give rise to serious concerns. It is most undesirable to compel a member of the House to recite a form of words prepared by other members.

The standing orders do not provide for a form of words for withdrawal and apology when a point of order is taken against a member. The only constraint on any such withdrawal is that it be unconditional. To require a member to speak a particular form of words runs counter to every principle of freedom of speech and parliamentary privilege of which I am aware. Freedom of speech in this House demands that members be able to speak words freely spoken; not those formulated by a committee and approved by a majority of the House. To do otherwise on this occasion would be to establish a precedent and invite repetition.

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I have less difficulty with the requirement that a member be required to perform an action, in this instance apologise; but to go further and prescribe the specific manner in which the action is to be carried out is excessive and, in my view, unacceptable. As I have said, withdrawal and apology are standard parliamentary procedures, but we have never considered their application so late after the event that gives rise to their consideration. The value of such a withdrawal and such an apology could be questioned, given that they may take place nearly a year after the words that caused offence were spoken.

It is important that any apology and withdrawal be duly noted by all concerned. Certainly, the Hon. Franca Arena has taken the opportunity of this debate to clarify the motives behind, and the substance of, her 17 September speech. This has assisted the situation greatly. Notwithstanding this clarification, in view of the unanimous finding of her peers that the imputations brought the House into disrepute, she should be required to make amends as far as is possible and reasonable. Certainly, given the expectation that individual members of the Legislative Council will exercise their privileges responsibly, this House and the Hon. Franca Arena need to address the general impression that she irresponsibly exercised her rights when she made her speech.

In the end the House can restore its reputation only with the co-operation of the Hon. Franca Arena. How she assists the House should be a matter for her to determine, and then a matter for the House to accept. I have difficulty with the Opposition’s amendment, in so far as it would remove the requirement that the Hon. Franca Arena withdraw the imputations against the general Secretary of the Australian Labor Party, Mr John Della Bosca, and the former President of the ALP, Mr Terry Sheahan. I want to explain my difficulty, but reserve my decision. If we accept the findings, and then accept the framework of the resolution, to do justice to Mr Della Bosca and Mr Sheahan we must afford them the same recognition and protection afforded to Mr Carr, Mr Collins and Justice Wood.

If the House accepts that the speech imputed improper conduct by some of the persons referred to, it must find that the speech imputed improper conduct by all persons referred to. In this situation are we not dividing the list of persons into those who are worthy of protection and apology, and those who are not? To say that Mr Della Bosca and Mr Sheahan have access to a citizen’s right of reply is to deny the fact that they have been awaiting the outcome of the report of the Standing Committee on Parliamentary Privilege and Ethics. Mr Della Bosca and Mr Sheahan would not have contemplated any action involving the Parliament, believing that they were covered by the committee’s inquiry and report. It would appear manifestly unfair at this late stage to remove them from the coverage of the committee’s report.

I note, however, the comments made by the Leader of the Opposition in respect of a citizen’s right of reply. This would have been an acceptable option if it had been made available to Mr Sheahan or Mr Della Bosca at the time - indeed, if it had existed at the time, given that the right of reply was established on 13 November 1997, largely in response to the consequences arising from the Hon. Franca Arena’s speech. To remove the references to Mr Della Bosca and Mr Sheahan from the resolution at this late stage, however, is to compound and magnify those imputations established by the committee. I will continue to consider this particular issue. I will listen to other speakers and give the matter further consideration in the limited time available to me, before deciding what aspects of each of the questions before the House adequately ensure justice, and protect the interests and reputation of this House and its members.

The Hon. Dr MARLENE GOLDSMITH [5.52 p.m.]: In a democratic society, freedom of speech is a fundamental right. The members of a democracy know that such a right will sometimes be abused, because freedom - true freedom - includes the right to make a mistake; the right to be wrong. We see that abuse in our society often enough. When that abuse is sufficiently serious to trample on the rights of others, we make laws to restrict it. There are, for instance, laws against racial vilification, restrictions on publications that would expose children to pornography and violence, and legal protections against defamation. There are two institutions where freedom of political speech is fundamental: the media and Parliament.

The media function as the engine of communication in a democracy. Without a free press there cannot be true democracy. Do they abuse this right? Frequently. Major newspapers are too often used to propagandise for the vested interests of their proprietors. Columnists use their privileged spaces to push partisan political views. Reporters spin stories that have more to do with the angle they want than the events that actually occurred. We live in the world of the eight-second grab, but the question is which grab - the best or the worst from a politician’s speech? And, which politician and which story will get a run? The media are gatekeepers of what
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becomes news and public information, and frequently they fail this fundamental function of a free society.

As well as the realities of bias and self-interest described above, there is the thirst that results in a relentless focus on sensationalism and conflict, and an impression conveyed - especially to young people forming their views of the world - that things are bad and getting worse. In spite of all these problems, freedom of the press remains fiercely defended in a democracy because the alternative of government censorship of political speech is untenable. Indeed, there are many who campaign for further freedom of the press, for the watering down of defamation law, the argument being that such laws can often function to protect the corrupt, the criminal, the culpable. However, in cases where defamation law prevents the exposure of wrongdoing in the media, there is one last bastion.

That bastion is Parliament, which has a freedom of speech not restricted by defamation law; a freedom that is fundamental to the democratic process. Can that freedom be abused? Indeed it can, as we see in the case before us today. The actions of the Hon. Franca Arena in naming people without substantiating evidence, alleging paedophilia and imputing allegations of corruption and cover-up of paedophilia, were unconscionable. Because of her actions I support the motion before the House, as amended by the Leader of the Opposition. Where I draw the line is at the original motion as moved by the Attorney General. In requiring a written withdrawal, that motion effectively negates the whole principle of parliamentary freedom of speech and parliamentary privilege.

Of course, this requirement comes directly from the report of the Standing Committee on Parliamentary Privilege and Ethics. But with the legal advice and resources available to the Government, the implications of the requirement must have been obvious to the Attorney, if not to the committee. A written apology would not have the protection of Parliament - nor is such a written apology necessary, as the Leader of the Opposition pointed out. It is not the form of this House: it does not reflect the form of the offence. An allegation in the House should be withdrawn in the House. Indeed, in my view, it is a fundamental attack on the democratic process.

When a member behaves as the Hon. Franca Arena has done, we are subjected to sensationalised stories in the media. When the parliamentary process works as it should, the media often remain silent and the people of this State are not informed because a system working well does not generate sensational headlines. In that respect I have first- hand experience gained during the early 1980s when I served as executive officer to the former Leader of the Opposition, John Dowd, now the Honourable Justice Dowd. John Dowd is a man to whom the people of New South Wales have reason to be profoundly grateful. For many years as a member of Parliament, shadow minister and finally Leader of the Opposition in this Parliament he waged an ongoing campaign against corruption in this State, at great personal cost to himself.

Honourable members may recall the television series Scales of Justice. One of the episodes in that series - as I recall, the second - was based on the experiences of John Dowd in his campaign against corruption. Many others would have flinched under the pressure that was brought to bear on John Dowd and his family. The family cat was strangled and the body left on the front lawn of his home for his little girls to find, the same young daughters were followed home from school by known underworld figures driving a car very slowly behind them, and his family was harassed on the phone by Roger Rogerson. This speech is not about John Dowd but about parliamentary freedom of speech, so I will not continue although there are many more details in that story.

The story of his anticorruption campaign is one that needs to be told, but I will keep to only one example: his campaign against Bill Allen. Bill Allen had received extraordinarily speedy and stratospheric promotion through the Police Service, and was likely to be the next Commissioner of Police for New South Wales. An ongoing campaign of repeated questions without notice in the other place, orchestrated by John Dowd as Leader of the Opposition, assisted by Kevin Rozzoli as his deputy, gradually elicited information that led eventually to the establishment of a police tribunal to inquire into the allegations against Bill Allen, and to his demotion and resignation.

New South Wales was protected from having him as its police commissioner and John Dowd was totally vindicated, but not without great cost. Week after week he was pilloried in the House by Premier Neville Wran as a muck-raker, and this criticism was echoed in the media in ugly headlines and denigrating articles. When the Police Tribunal ultimately reported its damning findings against Bill Allen, little or no mention was made of the roles of John Dowd or Kevin Rozzoli. Certainly no remorse was expressed and no apology was given by the media for its previous and totally mistaken denigration of John Dowd. I have recounted this
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story for one reason: to demonstrate a clear example of the necessity of the freedom of speech for parliamentarians. The subject matter of this debate is different to the subject matter of the debate to which I have just referred because John Dowd moved only with great caution when armed with substantial evidence to support his case, and the outcome vindicated his behaviour.

Whatever the risks and whatever the abuses, freedom of speech is a right that must not be lost or endangered. The bastion of last resort was fundamental in the political climate of 1981 and 1982 and should be retained. The requirement of a written apology by the Hon. Franca Arena is a serious threat to the right of freedom of speech as it effectively removes her from the protection of parliamentary privilege. The media has been at the forefront of the campaign to liberalise our defamation laws, despite knowing that such liberalisation must necessarily lead to greater risks of abuse of the rights of the innocent and the privacy of every citizen. Recent examples of the invasion of the privacy and homes of the families of public figures are glaring examples of such abuse, even under the current system.

The Parliament must deal with the abuse of parliamentary privilege, but it must not establish precedents that could diminish the democratic process. The Hon. Franca Arena should apologise to those public office holders upon whom her statements reflect, but that apology should not be in writing. Instead, the apology should be made in this House where it will be recorded and retained for posterity in Hansard. I exhort the Government to reconsider its motion requiring a written apology from the Hon. Franca Arena. Such a requirement is a betrayal of the freedom of speech, a betrayal of parliamentary privilege and a betrayal of the democratic process.

The Hon. Dr A. CHESTERFIELD-EVANS [6.03 p.m.]: I must confess that towards the end of last year, when I was not a member of this House, I shared the public perception that the imputation or statement about there being or not being a meeting of politicians who had or had not changed the terms of reference of the Wood royal commission seemed rather to be a case of politicians spending too much time bickering amongst themselves. I am sure that perception remains in the community. Perhaps that perception is harsh, but the time it has taken to resolve this matter has harmed the image of this House particularly and Australian politicians in general. Since I became closer to the issue I have realised that justice needs to be done, and done expeditiously. In Lewis Carroll’s Through the Looking-Glass Humpty Dumpty said, "When I use a word . . . it means just what I choose it to mean - neither more nor less."

In the real world words mean what they mean and while shades of emotions can influence words used at a certain time, ultimately we must deal with what is said and written. The House acknowledges that the inquiry of the committee under the chairmanship of the Hon. Dr Meredith Burgmann was thorough and humane. It is significant that a unanimous decision was reached. At the end of the day it is reasonable to ask that an apology be made. I am uncertain of the legal significance of whether that apology should be written or oral and on that aspect I am content to listen to the arguments of those who understand the law better than I. However, the apology should follow the recommendation of the report which has been so widely supported in this House, so that the matter is resolved as rapidly as possible.

Reverend the Hon. F. J. NILE [6.05 p.m.]: I should like to give my impression of the events surrounding the inquiry by the Standing Committee on Parliamentary Privilege and Ethics into the statements of the Hon. Franca Arena in her speech on 17 September 1997. In many ways the House is debating this issue today, and has debated it on other occasions, because of sensational newspaper headlines, particularly those in the Daily Telegraph. Before seeking the call I pondered the events of the day when the Hon. Franca Arena asked in this House why Justice Yeldham had received special treatment from the Wood royal commission and why Mr Arkell, who apparently was quite well, was not called before the royal commission. The commission, of course, had been advised he was ill.

The newspapers the following day said that the Hon. Franca Arena had named them. Everyone believed that she had said, "I name them as paedophiles." People still believe that the Hon. Franca Arena named them in this House as paedophiles. But she never did. She simply asked why, if Mr Arkell was well, he had not appeared before the commission. Many people appeared before the royal commission for a variety of reasons, including the giving of information about other people. A judge could have been giving information about matters concerning the paedophile network. Everyone who appeared before the Wood royal commission was not automatically classified as a paedophile. If that were so, many Sydney clergy, including bishops and archbishops, would be called paedophiles because they gave evidence before the royal commission as to their concerns about paedophile activity within the church.

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When the Hon. Franca Arena gave her speech on 17 September newspapers displayed pictures of Mr Carr, Mr Collins and others on their front pages that could almost be classified as wanted posters. Everybody reading the associated articles would have assumed that the Hon. Franca Arena had set out to attack these evil men because they were involved in a criminal conspiracy. I believe the Daily Telegraph has coloured a number of these issues and has directly influenced public opinion. At public meetings I have found it almost impossible to correct that impression because people say, "I read it in the Daily Telegraph." That newspaper leaves a powerful impression in people’s minds, particularly by the use of headlines and photographs.

I was one of the members who supported the referral of the speech of the Hon. Franca Arena to the privilege and ethics committee so that her peers could assess her comments and motives. That procedure is followed all the time in this House. A similar thing happened in question time today. A member may use certain words to describe another member, who may take offence and ask the member to withdraw the words used. The committee spent a lot of time trying to discover the actual word that was said.

Sometimes members must read Hansard to establish what was said because there may have been a great deal of noise during the debate or they may not have been listening carefully and did not hear the word or words used. Not once during my 17 years as a member of this House have I heard an argument about imputations, deductions or the legal meaning of a word that was used by a member, as happened in the House today. During question time the Hon. Dr B. P. V. Pezzutti raised a point of order because another member said that he was not listening to the Minister’s response. One could draw an imputation that he was asleep, drunk or on drugs. An innocent statement can result in many imputations that are untrue. Lawyers often argue about the different imputations that can be drawn from the same words.

Honourable members know that I had to fight to be appointed to the committee. The crossbench and the Labor Party fought tooth and nail to prevent my appointment. However, when I was finally appointed the Hon. P. T. Primrose, who was an unwilling conscript, was also appointed so that the Government would have the majority on the committee. At a meeting held before my appointment the committee decided that legal advisers were necessary. After my appointment the committee reconsidered the matter and decided that the Hon. Franca Arena and the persons mentioned by her in her speech could also have legal representation during the inquiry. So the inquiry changed dramatically from what I envisaged and what I wanted it be, that is, lay people assessing the conduct of another lay person.

Although some members of this House are lawyers, I did not want the committee to comprise nine lawyers who would approach the inquiry from a legal viewpoint; I wanted it to comprise a range of lay people with practical knowledge of the world. If a committee has legal advisers it is a natural progression that members are expected to accept their advice. As the inquiry progressed the Queen’s Counsel advising the committee played a major role in helping members to understand some aspects of the matter, such as the meaning of words and the imputations to be drawn from them. I would not say that I was intimidated by the legal advisers but as a lay person I felt at a disadvantage and that I should not question the legal advice.

I am not suggesting that the legal advice was wrong. Mr Bernard Gross, QC, and Joe Catanzariti of Clayton Utz were highly qualified to give the committee advice, and they acted professionally and co-operatively at all times. My comments are no reflection on them. When the committee members asked questions and made suggestions, they made further suggestions. I tried to use their suggestions in some way. We then tried to use their suggestions positively. Indeed, some of my suggestions about the proceedings were taken up by the committee. When the privileges committee is disciplining a member of this House it should, whenever possible, comprise a group of that member’s peers. Lawyers from outside should not be involved in judging a member of this House for the words he or she may have used in a speech, and an independent inquiry, such as the Nader inquiry, should not judge such matters.

Members of Parliament have the right to make speeches, ask questions and make statements which are often controversial. Much of the tension surrounding this matter has resulted from the legal view that the simple allegations or the language used by the Hon. Franca Arena contained the imputation of a criminal conspiracy. Perhaps other legal advisers would have said that other imputations could be drawn from the words, but the committee accepted the legal advice that the words contained the imputation of a criminal conspiracy. As I said, when a QC says without any hesitation that that imputation can be drawn from the words, and another lawyer says the same thing, the committee accepts that. I questioned and argued about the legal advice but I was advised that it was correct.

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The committee and, indeed, the Hon. Franca Arena had to separate two major issues which are closely related and continue to overlap, and which add an emotional aspect to the matter. The first issue is the honourable member’s allegations that certain people held meetings and so on. It was obvious from the honourable member’s evidence that she relied on information she had ascertained from media reports and comments by other people, including parliamentary security staff. She felt that her information about the meetings and who had attended them was reliable. However, after a thorough investigation the committee was of the view that the information was unreliable. That was the main purpose of the committee’s inquiry.

The second issue, which was not included in the committee’s reference, was whether there is a paedophile network in New South Wales and, if so, whether there has been a cover-up of that network and of persons in high positions in the Parliament, the judiciary, the media, the church, et cetera. It was obvious from the honourable member’s evidence and statements to the committee that the two issues overlapped. That is understandable because the honourable member’s speech related to the possible existence of a paedophile network and whether every effort was being made to identify those involved and to take action against them. That is the reason the speech was made and why the House is now debating this motion. In the honourable member’s mind the two issues overlapped.

The committee’s terms of reference were not wrong. If they had included a reference to investigate whether a paedophile network existed and whether there was a cover-up that would have resulted in the inquiry being conducted along the lines of a police investigation. Obviously members of Parliament are not qualified, and it is beyond their role, as members, to investigate paedophilia. Justice Wood should have investigated paedophilia as part of his inquiry. However, the royal commission’s terms of reference restricted his investigation to paedophile activity involving police. Indeed, I understand that the royal commission’s amended terms of reference restricted his investigation to paedophile activities in government departments and what procedures and policies should be implemented to prevent such activity in the Department of Community Services, the Department of Education and Training and so on. There was nothing wrong with the amended terms of reference, but obviously the open and genuine inquiry into paedophile activity in New South Wales that was necessary did not take place.

The Hon. Franca Arena became frustrated when a full inquiry into paedophile activity in New South Wales did not take place. Indeed, no such inquiry was held even after the royal commission tabled its reports. I felt the same frustration and disappointment, and I made public statements along the same lines. I did not name people; I simply stated that I was disappointed that the royal commission did not achieve what many of us had hoped it would. I know that members of both Houses had worked hard to secure an investigation into paedophilia. But it was almost a no-go area; the Government did not want to get involved with the issue. The actions of the Hon. Deirdre Grusovin in the other place in trying to establish a royal commission into paedophile activity could have been a mistake, but members who were concerned about the issue had little choice; it is difficult to establish from scratch a royal commission merely to examine one issue.

It was suggested that the Royal Commission into the New South Wales Police Service should conduct the paedophile inquiry. That strategy succeeded to a degree when Justice Wood was given additional terms of reference. Justice Wood did not oppose an investigation into paedophilia. However, he wanted to finish an inquiry which had been going for nearly three years. Another royal commission may have been needed, but all members know how difficult it is to establish royal commissions and how much money they cost. It seems that governments of all persuasions are reluctant to give royal commissions a blank cheque, so to speak; they are reluctant to allow them to take an open-door approach, because they are fearful of what they will find out. As we all know, in the past governments have had their fingers burnt by the revelations of royal commissions. Even before a royal commission begins governments like to know what its findings will be. I suppose that is only political wisdom. The Queensland Government learnt that, to its shame.

The committee recommended that the Hon. Franca Arena be required to apologise and withdraw her allegations and any imputations concerning the persons named. It seems that she is not happy with that proposal. She said in her speech that she wants to reserve her response and that her response may involve a different form of words. I hope the House will entertain any proposal she puts forward. I had a discussion with the Leader of the Opposition about that possibility before the debate commenced. He indicated that there is a strong possibility that the Opposition may accept that proposal. If the Hon. Franca Arena does not apologise tonight, tomorrow
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or on Friday, the apology will have to be made in the first three days of the September sitting. As I understand it, the five sitting days would extend the time within which she is required to apologise to the first three days of the next session, that is, 8, 9 and 10 September.

The Hon. Franca Arena and her legal advisers will have to spend time on the wording of the apology. Whatever she says, she will not say to this Parliament that there is no paedophile activity or paedophile network in this State. The evidence on paedophilia is now overwhelming. The recent tragic murder of Mr Arkell has brought it back onto the front pages of the newspapers. It has been suggested in the media that Mr Arkell was murdered in a shocking way. Another man was also murdered recently in Wollongong in a shocking way. He was decapitated, blood was splashed around the room, and the word "Satan" was smeared in blood on the walls. I am not quoting the police directly but those murders were done in such a way that the real purpose behind them may have been concealed by making it appear that some kind of Satanist group was murdering people.

One thought that came to my mind was the possibility that someone had decided to silence both of those men, if they had been involved in paedophile activity. It is possible that Mr Arkell, who was under the pressure of an approaching trial on 29 charges, could have talked to the Director of Public Prosecutions about some sort of immunity, as happened in the case of other people such as Mr Bell. He may have asked for some of the charges to be dropped in return for naming names. Perhaps Mr Arkell knew a lot more about these matters than we know and someone wanted to silence him. He was certainly silenced in a very brutal way. Others have said that perhaps some young man whom Mr Arkell abused came back to vent his anger on him.

We do not know whether any of that is true; it is all conjecture. However, there is no doubt that there is a paedophile network in this State and, indeed, in all nations. No matter what the Hon. Franca Arena says, she will not say that a paedophile network or paedophile activity does not exist. We must focus specifically on the statements she made in her speech on 17 September 1997. I strongly support the suggestion that a joint Federal-State royal commission into paedophile networks is needed. Bearing in mind recent events, I hope Mr Howard will regard that as a priority. Some members, even members of the committee, have said that the police should investigate the matter, although we all know how difficult it is for the police to investigate this type of activity.

The Hon. Franca Arena: They don’t have the powers of a royal commission.

Reverend the Hon. F. J. NILE: That is right. The police do not have sufficient powers, and that is why there must be a royal commission. A royal commission can force people to give evidence and to answer questions. The royal commissioner can use different surveillance-type approaches that the police find it almost impossible to use because of all the red tape that is now involved. I still believe that prominent people in this State are involved in paedophile activity. They would breathe a sigh of relief if the Hon. Franca Arena were to be suspended or removed from her parliamentary role. From what the Hon. Franca Arena has said, it seems that she will need time to consider the form of words to be used in her apology. Some members have said that we do not need any form of words at all. The committee also faced that dilemma and realised that something must be done. From my point of view, I do not want her expelled, and I do not want her reprimanded.

The committee decided that if it could not find some way of rectifying, to everyone’s satisfaction, what was said on 17 September 1997, suspension seemed the appropriate course. As a layman, that seemed to me to be the way to go. The suggestion has been made that the Hon. Franca Arena should be suspended now, that she could make an apology at some future time and then come back. I do not support that proposition; I consider it to be heavy-handed. Some may say the present solution is heavy-handed. However, I believe the Hon. Franca Arena should at least be given the opportunity to speak and to perhaps discuss an alternative form of words for the apology and thus satisfy the concerns of both sides of the House. The first step is to get the right wording to satisfy the House so that the suspension does not come into effect at all.

I was one of the members who helped to determine the number of days within which the apology should made. At one stage it seemed that we would simply work on this session. That would have meant that the apology would have to be made today, on Thursday, or on Friday. That would have pushed the Hon. Franca Arena into a corner. I am not sure whether all members of the committee realised it, but the stipulation of five sitting days risked extending the time for the making of the apology to the next session. The committee succeeded in doing that, which gave the Hon. Franca Arena a little more breathing space, so to speak. As some members have said, the feeling was to simply expel the Hon. Franca Arena -

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The Hon. R. S. L. Jones: Don’t verbal our members.

Reverend the Hon. F. J. NILE: Some Opposition members said that only moments ago. The Hon. Dr B. P. V. Pezzutti just said it. I am simply stating that some Opposition members have that view. I am sure that Government members of the committee as a group felt that, because of what the Hon. Franca Arena said, she should have been expelled forthwith. That is evidenced by the expulsion motion. The Hon. R. S. L. Jones must have forgotten that the motion was moved. The atmosphere then was different to the atmosphere now, and it may improve even more in the time the Hon. Franca Arena has to consider the motion. At one stage it was felt that she should negotiate the words with the committee, but that seemed to be a complicated procedure.

It may be even worse for her to attempt to negotiate with the House as a group, but we no longer have a choice. It is up to the Hon. Franca Arena to find words that are acceptable to the Government, the Opposition and the crossbench so that we can bring this matter to an end and get on with the real issue of cleaning up the State and protecting children from child abuse - something that will continue to happen unless this House takes strong action to prevent it.

The Christian Democratic Party will support the Opposition’s foreshadowed amendments, which will improve the motion by giving all parties the opportunity to agree on the words of the apology. The House must consider the fact that a defamation case has already been brought by Mr Della Bosca, and I believe it has been mentioned twice in court. If the Hon. Franca Arena were forced to use words that could be used against her in court, the judge would immediately consider the award of damages and the case would come to an abrupt end. I have been involved in five defamation cases, so I am in a position to explain the process to honourable members who do not understand it. The Hon. Dr Marlene Goldsmith does not understand defamation. She said people are trying to water down the defamation laws to protect corrupt people.

However, defamation laws already protect corrupt people; they work against honest people. The court requires proof only that the statements complained of have damaged a person’s reputation and brought that person’s name into public disrepute. Courts do not want to hear about truth. If people have the money and the time, it is not difficult for them to nail down members of Parliament for what they say outside this place. Honourable members should not put the Hon. Franca Arena at risk by insisting that she use words that could be used against her outside this Parliament. That would really be an attack on free speech: she would be loading the gun to shoot herself with bullets prepared by the committee and the House. We must show some understanding, compassion and mercy rather than harshness or the desire for punishment that some members seem to have.

The Hon. Dr B. P. V. PEZZUTTI [6.33 p.m.]: I have stood with the Hon. Franca Arena, the Hon. Elisabeth Kirkby, the Hon. Deirdre Grusovin and my colleague Bruce MacCarthy at gatherings and rallies of concerned people who have been subject to child abuse and paedophilia. I understand that the Hon. Franca Arena is very passionate about this issue, and for good reason. However, I was most concerned when I heard her speech on 17 September. I will remind honourable members of the Premier’s response.

The Hon. R. S. L. Jones: Were you in the Chamber?

The Hon. Dr B. P. V. PEZZUTTI: Yes, I was in the Chamber; I was sitting behind the Hon. Franca Arena. If I recall correctly, she spoke from the Opposition side. On 18 September, when referring to the royal commission and the establishment of the Nader inquiry, the Premier said:

That can be the only consequence of her attempt to undermine the commission’s credibility through fantastic allegations of a cover-up. Nothing could be better or, rather, worse calculated to impede the real task - ridding the community as far as is humanly possible of this crime and, above all, protecting young children from all forms of abuse. What could be more calculated to persuade children that they would not be protected than the insinuation that the highest institutions in the land - the courts, the royal commission and both sides of the Parliament itself - were all in a conspiracy against them? . . .

No amount of sympathy for the member’s anguish or attempt to understand the member’s motives can condone what she has done . . . Once again I unreservedly support the royal commission and the royal commissioner in the way they approached their task . . .

There was no such meeting of party officers at any other time on a Sunday. There was no meeting with party officers about this matter on any other day of the week. There was no such meeting because there was no need for such a meeting.

At that stage the Hon. Peter Collins interjected and said:

There was no meeting with me, either.

Later the Premier acknowledged that there was no meeting with Mr Collins. Following Mr Carr’s statement, Mr Collins said:

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I appreciate the brief notice given to me by the Premier a few minutes before the House resumed this afternoon. I cannot conceal my personal disgust at the claims made yesterday by Franca Arena in another place . . .

As such, I welcome the Premier’s announcement today that there will be a special inquiry to lay to rest Franca Arena’s monstrous allegations. Members on both sides of this House are committed to fighting the notorious crime of paedophilia . . .

Franca Arena’s stand on paedophilia initially enjoyed my sympathy. I have had some compassion for the personal circumstances that led to her pursuit of this issue. But let me put a few items on the record today . . .

He then put his own position on paedophilia, and said:

Until now I have never had reason to question her motives. But she now exhibits the hallmarks of a reckless assassin. If she again refuses to give evidence to the inquiry announced by the Premier or cannot substantiate her claims before it, then her continued and unfettered access to the lethal weapon of parliamentary privilege must be considered and firm action must result.

On the same day he issued a press release along those lines, and a commission of inquiry was set up, with Justice Nader as the chair. The coalition amended the process to ensure a response was received from Peter Ryan. In his response, which was tabled on 27 November, he said:

I find that some of the material in the documents examined by me is worthy of further examination but a great deal of work will be necessary to discover corroborative evidence.

•A strike force will be set up under the command of a Detective Superintendent, reporting directly to me to investigate matters not currently subject to police inquiries.

•I have discovered nothing in the documents contrary to the findings of Mr Nader QC and his Special Commission of Inquiry.

Justice Nader tabled his report on 7 November. I have read the report in detail, as is evident from the notes I made on the document. Justice Nader clearly found that there was nothing in the evidence before him to substantiate the outrageous allegations made in this House on the evening of 17 September. The matter was then referred to the Standing Committee on Privilege and Ethics on 11 November. From 7 November the Hon. France Arena has issued a series of press statements casting doubt on the Nader report and calling into question Justice Nader’s ability to make determinations. She then had a go at the Labor Party. On 13 November she had a go at Mr Whelan for trying to rush the Commissioner of Police. On 4 December in this House the Hon. Franca Arena said:

Tonight I ask the community of New South Wales to judge me and to judge the Carr Labor Government on the witch-hunt it is conducting against me.

The Nader inquiry was followed by the inquiry of the Standing Committee on Parliamentary Privilege and Ethics. Yet the Hon. Franca Arena refers to a witch-hunt!

The Hon. Franca Arena: Have you read the transcript of the privileges committee?

The Hon. Dr B. P. V. PEZZUTTI: I have read the report, not the transcript. On 5 February the Hon. Franca Arena stated in a press release:

It appears that Dr Meredith Burgmann, the Chairperson of a supposedly impartial Committee investigating my allegations, seeks to communicate with me via the media.

That is an attack on the committee and the way in which it operates. The Hon. Franca Arena issued a press release on 9 February, in which she referred to the fact that she was denied an additional member of staff, and I can sympathise with her for that. On 19 and 24 March she again attacked the privilege and ethics committee, its terms of reference and the way in which it was to carry out its inquiry. A press release of 24 March stated:

Franca Arena today claimed that the Privileges Committee is biased against her.

She issued another press release on 8 May entitled "A Travesty of Justice". Today honourable members received the report of the Standing Committee on Parliamentary Privilege and Ethics, which I have read. It is important to note that the royal commissioner did not find any evidence to substantiate many of the allegations made by the Hon. Franca Arena. The committee supported the findings of both the royal commission and Justice Nader. It considered the evidence presented by the Hon. Franca Arena and the basis of her claims in relation to the Premier, the Leader of the Opposition, Justice Wood, John Della Bosca and Mr Sheahan, as he then was.

The findings of the Standing Committee on Parliamentary Privilege and Ethics were precisely the same as those of the other two inquiries. More importantly, the Hon. Franca Arena had no evidence on which to base her allegations, and she knew it. The committee recommended that she be called on to withdraw the allegations made in her speech on 17 September relating to a criminal conspiracy; and in the event of her failure to withdraw the imputations and make a written apology to the House within a specified time, that she be suspended.

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The committee further recommended that the House consider a resolution in similar terms to the motion moved by the Attorney General. I understand that motion will be amended by the Leader of the Opposition. Today I received letters from the Hon. Franca Arena’s lawyers, who said that she could not possibly apologise to anybody because she would end up in court, it would be all over, and she would have to pay up. This afternoon I was advised by Mr I. V. Knight, Crown Solicitor, as follows:

I advise that an apology by Mrs Arena in the terms of the apology contained in paragraph 2 of Recommendation No 2 and publication of it in the ways required by paragraph 4 thereof cannot result in prejudice to her in any defamation proceedings Mr Della Bosca may have initiated against her . . .

While Hansard is admitted on some occasions (without now the need for a Petition to the House seeking permission) for the limited purpose only of proving the fact of certain things having been said in Parliament, any attempt to tender Hansard as evidence of the facts and opinions contained in the statements would undoubtedly breach Parliamentary Privilege (see: NSW Branch of the AMA V Minister for Health and Community Services, supra, at pp 124-126).

The amendments of the Leader of the Opposition will omit from the motion the reference to Mr John Della Bosca and Justice Sheahan and leave the reference to the Premier, the Leader of the Opposition and Justice Wood. The Hon. Franca Arena should know how to behave. It is obvious that she knew at the time that she had made a big mistake, but she ignored it. I can understand that she was carried away with the urgency and sincerity of her campaign against paedophiles, but if she does not know how to behave when she is confronted with the facts, and it is clear to her, should she continue to be a member of this House?

The cost of these inquiries has been enormous. She will not listen. She said in the Manly Daily, "I have nothing to apologise for". This House will judge whether the Hon. Franca Arena should apologise. This is not a punitive matter. The House has to protect itself from members’ actions that will bring it into disrepute, and that is what we will do today. If the House suspends the Hon. Franca Arena she will sit in her office, use the privileges of the House and receive the money. But what will the people of New South Wales think?

The community will think we have wimped out or lost our marbles if we stop her from coming into the House but continue to give her money and privileges. I would be happy to resolve that she be suspended for five clear days. But I give notice that if the Hon. Franca Arena has not apologised within five sitting days, the House will have to take further and more serious steps in order to protect its reputation. Members will be assailed from all sides if she is suspended until the next election because of the inability of the House to make a decision to protect itself. We would be held up to ridicule for paying somebody who is not allowed to do her job because she offends the House.

Tonight we can decide to suspend her. We can give her another bit of rope with which to hang herself and wait until the end of September - one year after she made the comment. The inquiry of the Standing Committee on Parliamentary Privilege and Ethics went on and on, inveigled by lawyers on both sides. The decision to suspend the Hon. Franca Arena must be clear: she has five days to apologise, and unless she follows the steps in the motion, further action will be taken. I urge honourable members to remember that what they vote for tonight will have to be followed through.

I do not believe that the Hon. Franca Arena will resign, because she has already said she has no reason to apologise and does not believe she has brought this House and its members into disrepute. If she apologises and retracts her statement, that will go some way towards absolving her in the opinion of the House. If the matter is allowed to drag on for months, we will be the subject of ridicule.

The Hon. J. W. SHAW (Attorney General, Minister for Industrial Relations, and Minister for Fair Trading) [6.47 p.m.], in reply: It is not necessary to use the word "conspiracy" to allege a conspiracy. It is not necessary to use the words "unlawful or criminal activity" to allege that type of activity. An imputation is not some esoteric legal concept, it is an ordinary word. The committee that investigated this matter in exhaustive detail has provided, in volume 1 of its report, a cogent and well-argued account of the Hon. Franca Arena’s speech and the imputations that arise from it.

Paragraph 3.12.3 of the report concludes that the speech could not be sensibly understood as conveying anything other than very serious allegations. Those allegations are set out in the report. In particular it refers to the allegation that certain people met and agreed to confer favoured treatment on persons of social, political or judicial prominence in the community by ensuring that they would be protected from investigation, detection, exposure or punishment. The committee’s conclusions on pages 47 and 48 are similarly compelling in their reasoning and their analysis of the speech.

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I regard the argument that the speech has been misconstrued as engaging in medieval scholasticism because the imputations arising from that speech are clear. It has been said by the Hon. Franca Arena that the Nader inquiry was one sided. I believe it was a perfectly fair and independent inquiry. The honourable member had the right to elect not to give evidence. She did not give evidence but she was provided at public expense with a team of lawyers who could cross-examine witnesses, challenge what they said, and provide alternative evidence. They did not do this. Despite the provision of a legal team the honourable member was simply not present before that inquiry except in the initial stages. She did not take the opportunity to challenge that material.

Mr Philip Taylor, barrister, points to three possible adverse consequences arising from the making of the concessions called for by the motion and by the committee’s report. On a fair reading of his advice, he accepts that the first two possible consequences are remote. I would describe them as fanciful and not matters of real concern. His third point concerns possible deleterious effects in relation to the defamation action brought against the Hon. Franca Arena by Mr Della Bosca. There are two answers to that. The Hon. Dr B. P. V. Pezzutti referred earlier to this part of the Crown Solicitor’s advice:

. . . an apology by Mrs Arena in the terms of the apology contained in paragraph 2 of Recommendation No. 2 and publication of it in the ways required by paragraph 4 thereof cannot result in prejudice to her in any defamation proceedings Mr Della Bosca may have initiated against her.

The Crown Solicitor also provided detailed reasoning about the use of Hansard in civil proceedings of that kind. I refer finally to the amendments moved by the Opposition to this motion. I have no difficulty in accepting amendments Nos 1 and 2, which relate to whether the apology or retraction should be in writing. A good case has been made for the apology and retraction to be given through the ordinary forms of the House. I accept that. I understand that the opinion in the House would be to favour amendments 3, 4 and 5 and I do not intend to call a division to oppose those amendments, but I must say that they trouble me a little. I am not really satisfied that we should make a distinction between members of Parliament and judges on the one hand and other citizens on the other hand. I believe it is a delineation which may be seen to be unfair and unjust to Mr Della Bosca and Mr Sheahan, as he then was.

I would not want the view of the House that these amendments ought to be supported to be in any way construed as a view that in some way they are vulnerable to criticism or they are not equally entitled to the clearance that the Nader commission and the committee of this House gave them. In other words, there is a complete and utter absence of evidence against those gentlemen, just as there is against the members of Parliament Mr Carr and Mr Collins, and Justice Wood. I have expressed some difficulty about these amendments but I think it is sufficient for me to put my views on the record. Both Mr Della Bosca and Mr Sheahan have been utterly vindicated by two independent inquiries. There the matter should rest.

Amendments agreed to.

Motion as amended agreed to.

[The President left the chair at 6.55 p.m. The House resumed at 8.00 p.m.]