Page 145 - Week 01 - Wednesday, 8 December 2004
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understanding of what the sub judice rule is about when he claimed that, because Mr Smyth canvassed things on 2CN this morning, he was in conflict with the sub judice rule. The sub judice rule applies to us in here. It does not apply to the Leader of the Opposition and 2CN, any more than it applied to the Attorney-General when he spoke about this matter on 2CN some time ago. This debate is about how the rule applies to us.
There has been extensive quotation from House of Representatives Practice. If you go quotation shopping through the seven or eight pages on the subject in House of Representatives Practice you will find a quotation to suit your argument, but the whole point of this rule is that it is a precautionary measure to ensure that a matter that is or may come before a court will not be substantially prejudiced by what is said in this place. House of Representatives Practice and all other practice rely on the fact that when push comes to shove the discretion of the chair is paramount.
Let us look at that. There has been a great deal said on the subject. The doctrine of sub judice has evolved over time. Once upon a time, you could not mention anything that was before a court. As Mr Seselja alluded to, it was very much the practice of the Queensland government in the 1960s and 1970s, if it wanted to stop anyone criticising the government, to bring a matter before a court and shut down debate.
That is not how we operate in the ACT in the 21st century. We have an open and evolving democracy and one of the things that we have to be careful about in the application of the sub judice rule is that we do not impinge upon the privilege of members to discuss an issue in this place. Those things need to be weighed very carefully. We have to remember that the essence of democracy is the right of members to speak about issues and to exercise their role as members.
There have been many issues of privilege brought in this place and others about cases where members’ rights are impinged upon. As an issue of the evolution of the sub judice rule, I would refer you to page 225 of Odgers’ Australian Senate Practice, which says:
In earlier years there was a tendency for the chair to restrain debate in the Senate on any matter which was before a court. In the 1960s and 1970s, however, there was a change in emphasis and a greater focus on the question of whether there was a danger of prejudice to proceedings.
In 1969, President McMullin ruled:
As a general rule the Chair will not allow references to matters which are awaiting or under adjudication in the courts if such references may prejudice proceedings.
Importantly, it goes on:
But it does not necessarily follow that just because a matter is before a court every aspect of it must be sub judice and beyond the limits of permissible debate in Parliament. That would be too restrictive of the rights of Parliament.
Mr Speaker, your ruling today impinges upon the rights of members to discuss in this place matters that are of paramount importance to the community. The community has a very great interest in the proceedings of the coronial inquest and the community has
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