CPS Let’s Roll, Part 2: An Apology to Arena Franca Is Long Overdue

by Mary W Maxwell, LLB

Well, it’s too late now. We should have asked every candidate in last week’s election if they would like to see Franca Arena get an apology for what the NSW parliament did to her in 1998. That would make them declare their opinion of the Wood Royal Commission and the SA Mullighan Inquiry.

The Honorable Ms Arena, who was born in Italy an immigrated to Australia in 1959, served as Member of the New South Wales Legislative Council from 1981, first for the Labor Party then as an Independent from 1997 until 1999. One day she was doing what a parliamentarian is supposed to do. She criticized government corruption.

Well! You’d think there was a nuclear bomb. Colleagues went crazy. They considered expelling her – which is legal. The Australian Constitution says (regarding the Commonwealth legislature), in Sec 49:

The powers, privileges, and immunities of the Senate and of the House of Representatives, …shall be such as are declared by the Parliament, and until declared shall be those of the Commons House of Parliament of the United Kingdom, …at the establishment of the Commonwealth.  [i.e., in 1901]

Those “privileges and immunities” at the relevant time, 1901, allowed each chamber to discipline its members. In New South Wales they did what was proper, they passed an Act that provided an inquiry regarding her “loose lips” (as it were). You don’t want to hear the whole saga. I’ll be brief.

To be exact, what Franca had said “from the floor” was that the ongoing Wood Royal Commission, tasked with looking into police support for pedophile rings, was holding back. She even said that certain persons – reach for your smelling salts here – conspired knowingly, in advance, to hold back on revealing the truth.

The ethics committee, or whatever it was called, that was formed to decide how to handle this tremendous problem, finally concluded that Franca should apologize. She did not agree but made a statement of regret.

I think Gumshoe readers know that Parliamentary privilege means an MP can say whatever she needs to say and never suffer a defamation suit (as long as she does not repeat it outside Parliament). That privilege has been extant since the British Bill of Rights of 1689, under William and Mary.

I quote:

“The freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.”

During her speech in the Legislative Council in 1996, Ms Arena named a retired judge, David Yeldham, and a former New South Wales MP, Frank Arkell, as possibly being pedophiles.

Fiona Barnett’s Chat with the Royal Commission

Australia had a Royal Commission into Institutional Responses to Child Sexual Abuse, from 2013 to 2017. It made a well-publicized invitation for any victims of child sexual abuse to send in a written submission or come in for a private talk, or both.

Fiona Barnett, who possesses much relevant information, to put it mildly, wrote a submission and participated in a two-hour interview, with her husband present. Later she wrote as follows about that meeting:

“At my hearing, I asked the commissioners what they planned to do differently in order to avoid the pitfalls of the last royal commission into institutional responses to child sexual abuse in New South Wales — The Royal Commission into the New South Wales Police Service [better known as the Wood RC].

“It was sparked by complaints of a paedophile ring in “high places” in Sydney, including established Christian churches, the Department of Children’s  Services [holy cow!], and the NSW Education Department [hole double cow!]. It was alleged that this paedophile ring was being protected by the NSW Police Service [No holy cow there – that’s de rigueur.]

“[However], based on the subjective opinions of a pro-paedophilia organisation, Commissioner Wood’s 1997 report dismissed the existence of high-end paedophile networks. It concluded that child abuse memories could be artificially created as a result of third person suggestion [False Memory Syndrome, compliments of the CIA].

“It alleged that victims can not possibly experience dissociation and repression of traumatic memories. Commissioner Wood’s wrongful findings lacked a scientific evidence base, and ignored documented case studies and previous Australian convictions.”

Reasons for an Apology

Now that the big RC has published its findings, in 2018, we know that 17,000 Australians said they suffered child sexual abuse. So of course we know that Franca Arena deserves an apology. More that that, she deserves great thanks and admiration for having tried to do what ultimately the big RC did.

She was harassed and smeared, and all the usual stuff. Yeldham suicided in 1996 and Arkell was murdered in 1998. In 1999 Franca again campaigned for election. this time as founder of the Franca Arena Child Safety Alliance, but lost.

I think there are two reasons a public apology would have benefit to Australia, besides delivering fairness to a whistleblower. First, it would teach citizens that there is such a thing as PP, parliamentary privilege.  I wish PP would be used voluminously.  Second, it would start a debate about secrecy.

The Wood Royal Commission documents remain under seal even today. We need to unseal those records — surely there is no legitimate basis for protecting criminals. South Australia’s 2008 Mulligan Inquiry papers are also under seal. Recall a Gumshoe article about Scotland’s illegal sealing, for 100 years — of the Cullen Inquiry report into the Dunblane massacre of 16 children and their teacher, Gwen Major.

SA’s Mullighan Inquiry was about sexual abuse of disabled kids. On April 1, 2008, The Australian reported re Ted Mullighan:

“’Nothing prepared me for the foul undercurrent of society revealed in the evidence to the inquiry,’ the commissioner wrote, prefacing his 564-page report released yesterday.

“… there were 809 hearings over the inquiry’s three years, and their evidence has led to the police investigation of 434 alleged abusers, 14 of which are now before the DPP.”

What, we may ask, happened to the other 420?

Arena v Nader

Ms Arena took her case, Arena v Nader, to the NSW Court of Equity.  She did not get satisfaction so asked for leave to go to the high Court. Leave was denied.  Of course it should not have been denied.  Whilst the judges have discretion as to which cases to hear, it is “settled” that they hear cases that call for a modern interpretation of a constitutional issue.

Now for the carry-on in NSW Parliament in 1997. I’ll bold it a bit.

STANDING COMMITTEE ON PARLIAMENTARY PRIVILEGE AND ETHICS INQUIRY INTO THE CONDUCT OF THE HONOURABLE FRANCA ARENA

84a breach of Standing Orders 80 and 81 in cases where a Member uses offensive words against another Member, makes imputations of improper motives or personally reflects on another Member.

In these instances if Members fail to withdraw, and in appropriate cases, apologise, they may be suspended from the House under the Standing Orders for disorderly conduct.    However, the powers  of  the  House  in  imposing  sanctions  on Members for  their  conduct,  in  or  outside  the  House,  are  not  restricted  to  those contained in the Standing Orders.

6.3.12 Should Mrs Arena fail to withdraw and apologise the need to protect the dignity of the House and its Members will, in the Committee’s view, be best served by requiring Mrs Arena to be suspended and remain suspended from the House until she has made the necessary formal apology and withdrawal which should be in terms determined by the House, as distinct from those chosen by Mrs Arena herself.

As the protective sanction determined by the  House  should  be  aimed  at  remedying  the  damage  caused  by  Mrs Arena’s wrongful conduct, the House should not leave the decision as to the terms of the apology and withdrawal to Mrs Arena’s discretion. The danger exists that if Mrs Arena is to choose the words in which to express any apology and withdrawal, she may do so in a manner which leaves the community in doubt as to what she is withdrawing, and whether she is truly apologising.

6.3.13 If Mrs Arena merely makes a token apology and withdrawal in grudging or qualified terms which  suggest  that  the  real  problem  has  been  misinterpretation  by  the  House rather than Mrs Arena’s own conduct, the damage done to the House and its reputation resulting from her allegations will persist….[That is exactly what is happening; let’s put an end to it!]

The Committee therefore recommends:

Recommendation No. 11. That Mrs Arena be called on to withdraw the allegations made in her speech on 17 September 1997 which involved imputations against:

(a) the Premier, Mr Carr.

(b) the Leader of the Opposition, Mr Collins.

(c) the Royal Commissioner, Mr Justice Wood.

[In her defense, Ms Arena says she] has been vindicated by the fact that after the NSW Police Service began to investigate the documents tabled by her in the House, she was advised by a Senior Police Officer  that   certain   unnamed   persons   whose   conduct   was   being investigated, based on the material she had provided, may face prosecution. [We can’t have that!]

336(11) The publicity created by her speech on 17 September 1997, and the subsequent tabling of documents, has encouraged more alleged victims to make complaints, and provided the  impetus  for  increased  criminal  investigations,  and  ultimately prosecutions to be undertaken.

337(12)She had  already  suffered  extreme  emotional  distress  and  significant  financial expense in the aftermath of her speech.

Committee has given careful consideration to Mrs Arena’s submission that there is no material in the speech of 17 September 1997 or in the evidence placed before the Committee justifying a conclusion that she is likely to commit further contempts of the House.

Mrs  Arena’s  submission  to  the  Committee  dated  30  January  1998  and  her 346 supplementary submission  dated  16  February  1998  both  referred  to  and  annexed documents containing very serious allegations made to her that various persons who occupy, or have previously occupied, high positions in public life have engaged in sexual misconduct towards  children.

Those  allegations  made  to  her  which  the  Committee investigated have been demonstrated to be totally without foundation.

Conclusion – You Know What To Do

The thing to be done now is to make formal apology to the Honorable (very honorable) Franca Arena.

We are in a hurry. There are desperate matters at hand. Arena was more than correct – and she did not even know a fraction of the horrors going on.

Come on, Everybody, let’s roll.