Page 138 - Week 01 - Wednesday, 8 December 2004
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that he and the government have joined, he was a witness. The matter has not been finalised; findings have not been made. They were coronial proceedings, which are a bit different from other proceedings. All of those matters are crucially important to the very question before the Assembly. But in no way are we impinging on the sub judice rule. Mr Seselja has quite eloquently quoted from House of Representatives Practice in relation to the sub judice rule and I would refer you to a couple of points there too, Mr Speaker. Page 494 of the fourth edition of House of Representatives Practice states:
The application of the sub judice convention is subject to the discretion of the Chair at all times. The Chair should always have regard to the basic rights and interests of Members in being able to raise and discuss matters of concern in the House. Regard needs to be had to the interests of persons who may be involved in court proceedings and to the separation of responsibilities between the Parliament and the judiciary.
It goes on to talk about what applies as a general rule for a criminal court and a civil court. We are neither here. In fact a coronial court is more akin to a commission. Indeed, page 497 has a number of precedents, including:
Debate relating to the subject matter of a royal commission has been permitted on the grounds that the commissioner would not be in the least influenced by such remarks ...
This is getting into the subject matter, what was actually said. We are not getting into that. Neither Mr Smyth nor I am getting into that and will not get into that. We are talking about the principles, and the principle that this man, the Attorney-General, was a witness and has now joined this appeal; how that is unprecedented and how it raises, as Dr Freckleton and other commentators have said, a conflict of interest situation incompatible with the role of the attorney.
The Attorney-General has said, publicly, “I didn’t need to get involved; other people have,” but he joined in anyway. He should not have, and one of the fundamental points here is this conflict of interest caused by the fact that he is a witness. We do not dispute that he should have been a witness; Kate Carnell was a witness in the Bender inquiry. But in no way did the then Attorney-General attempt to do anything in relation to appealing that inquiry or in fact going to court.
At another inquiry, the Quamby inquest, there were allegations of apprehended bias against Magistrate Somes. The government then, and counsel for the government, strenuously argued that that inquest should go ahead. Indeed, in those various inquests detrimental comments were made about the government and government agencies and how they had handled things. That happens in court matters. That happens in coronial inquests. But it is crucially important here, when you look at the peculiar and particular facts of the situation, that this attorney was a witness. Other experts have said that that raises political issues that have to be debated and it raises a conflict of interest. You just cannot avoid it. You cannot pretend it did not happen.
With the greatest respect to you, Mr Speaker, that is not breaching or coming remotely close to the sub judice rule, and the sub judice rule is something that needs to be applied fairly sparingly. There is significant precedent on it, but where we are in this debate today is nowhere near getting into the evidence. If we were trawling through the
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