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senate vote 2018-08-14#6
Edited by
mackay staff
on
2018-10-05 10:36:05
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Title
Motions — Leyonhjelm, Senator David- Motions - Leyonhjelm, Senator David - Censor
Description
<p class="speaker">Richard Di Natale</p><p>I ask that general business notice of motion No. 950, relating to a censure motion, standing in my name for today be taken as a formal motion.</p> <p class="speaker">Scott Ryan</p>- The majority voted in favour of a [censorship motion](https://www.openaustralia.org.au/senate/?id=2018-08-14.131.1) introduced by Greens Senator [Richard Di Natale](https://theyvoteforyou.org.au/people/senate/victoria/richard_di_natale) (Vic), which means it succeeded.
- ### Motion text
- > *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.*
<p>Is there any objection to this motion being taken as formal? There is an objection, Senator Bernardi?</p> <p class="speaker">Cory Bernardi</p><p>Mr President, I'm seeking your advice before you accept this as a formal motion. In my lonely evenings as a senator for the Australian Conservatives, I happen to read <i>Odgers</i>.</p> <p class="speaker">Scott Ryan</p><p>It's a good read, Senator Bernardi!</p> <p class="speaker">Cory Bernardi</p><p>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, <i>Odgers</i> 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.</p> <p class="speaker">Scott Ryan</p><p>If senators are happy for me to rule on this, I have given the matter some thought. But I'm happy to take submissions. Senator Di Natale?</p> <p class="speaker">Richard Di Natale</p><p>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.</p> <p class="speaker">Scott Ryan</p><p>Can I take that as you seeking leave to amend the motion in those terms, Senator Di Natale?</p> <p class="speaker">Richard Di Natale</p><p>Yes.</p> <p class="speaker">Scott Ryan</p><p>Leave is not granted. I will take submissions then. Senator Patrick, you were on your feet.</p> <p class="speaker">Rex Patrick</p><p>Just to make the point that the Federal Court is a chapter III court in the Constitution. There is a very clear separation of roles between the Senate and a chapter III court, and we should be mindful of that.</p> <p class="speaker">Cory Bernardi</p><p>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.</p> <p class="speaker">Scott Ryan</p><p>I did foresee this matter when I saw the <i>Notice Paper</i>. I would raise a few matters if I could. Firstly, as <i>Odgers</i> points out on page 178:</p><p class="italic">Senators may be censured by the Senate for misconduct.</p><p>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 <i>Odgers</i> records:</p><p class="italic">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.</p><p>I have read the same sections of <i>Odgers</i> as a number of others have, and, with respect to this, I will also refer to page 262 of the current edition of <i>Odgers</i>, which outlines:</p><p class="italic">… 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.</p><p>That is a selection, and there is some context to it, I concede.</p><p>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?</p> <p class="speaker">David Leyonhjelm</p><p>Have you accepted the motion as formal?</p> <p class="speaker">Scott Ryan</p><p>No, I was about to put that. Senator Di Natale has asked for the motion to be accepted as formal. Is there any objection to the motion being taken as formal? There being none, I call Senator Di Natale.</p> <p class="speaker">Richard Di Natale</p><p>I move:</p><p class="italic">That the Senate censures Senator Leyonhjelm for:</p><p class="italic">(a) humiliating and intimidating a fellow female senator by making derogatory, defamatory and sexist statements about her during a formal division in the Senate;</p><p class="italic">(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;</p><p class="italic">(c) refusing to apologise for his derogatory, defamatory and sexist statements; and</p><p class="italic">(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.</p> <p class="speaker">David Leyonhjelm</p><p>I seek leave to make a statement of some minutes.</p> <p class="speaker">Honourable Senator</p><p>An honourable senator interjecting—</p> <p class="speaker">Scott Ryan</p><p>Do you want to specify? You're being offered two, Senator Leyonhjelm.</p> <p class="speaker">David Leyonhjelm</p><p>I'm seeking seven.</p> <p class="speaker">Scott Ryan</p><p>Is leave granted for Senator Leyonhjelm to make a statement for seven minutes? Senator Di Natale, are you limiting that to two minutes?</p><p>Honourable senators interjecting—</p><p>I have to go by the unanimous consent of the chamber. Senator Di Natale, do you wish to insist upon that?</p> <p class="speaker">Penny Wong</p><p>Mr President, the opposition will give Senator Leyonhjelm leave. We think, in circumstances where he is the subject of a censure, it is reasonable that he be heard.</p> <p class="speaker">Scott Ryan</p><p>I will put that again. Senator Leyonhjelm has sought leave for up to seven minutes. Is leave granted? Leave is granted. Senator Leyonhjelm.</p> <p class="speaker">David Leyonhjelm</p><p>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'?</p><p>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.</p><p>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.</p><p>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:</p><p class="italic">The last thing that women in Australia need now is another man in power telling us that we are responsible for violence against us.</p><p>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.</p><p>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 <i>Hansard</i>.</p><p>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.</p><p>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.</p> <p class="speaker">James McGrath</p><p>I seek leave to make a short statement.</p> <p class="speaker">Scott Ryan</p><p>Leave is granted.</p> <p class="speaker">James McGrath</p><p>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.</p> <p class="speaker">Derryn Hinch</p><p>Seeing that Senator Leyonhjelm has tried to drag me into his—</p> <p class="speaker">Scott Ryan</p><p>I assume you are seeking leave to make a short statement?</p> <p class="speaker">Derryn Hinch</p><p>Sorry. I seek leave to make a very short statement.</p> <p class="speaker">Scott Ryan</p><p>Leave is granted for one minute.</p> <p class="speaker">Derryn Hinch</p><p>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.</p> <p class="speaker">Richard Di Natale</p><p>I seek leave to make a short statement.</p> <p class="speaker">Scott Ryan</p><p>Leave is granted for one minute, Senator Di Natale.</p> <p class="speaker">Richard Di Natale</p><p>It seems that Senator Leyonhjelm's defence—</p><p class="italic">Senator Bernardi interjecting—</p> <p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>
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