Page 3895 - Week 12 - Wednesday, 19 October 2005
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That this Assembly adopt the following practice when debating matters before a court:
(1) the Assembly reinforces the basic principle that debate should be avoided which could involve a substantial danger of prejudice to proceedings before a court, unless the Assembly considers that there is an overriding requirement for the Assembly to discuss a matter of public interest;
(2) debate shall be allowed in the Assembly on any matter before the courts unless it can be demonstrated by a Member of the Assembly that such debate will lead to a clear and substantial danger of prejudice in the courts’ proceedings;
(3) unless the matter before the Assembly could cause real prejudice to a trial or court hearing in the sense of either creating an atmosphere where a jury would be unable to deal fairly with the evidence put before it, or would somehow perhaps affect a future witness in the giving of evidence, whether for the prosecution or the defence, then the matter for debate or questioning before the Assembly should be allowed;
(4) sub judice only applies to matters which are awaiting or under adjudication in a court; and
(5) this resolution have effect from the date it is passed by the Assembly and continue in force unless and until amended or repealed by this or a subsequent Assembly.
The term “sub judice” comes from the Latin. The words mean “under the judge”. Sub judice is a convention that has evolved in the Westminster parliamentary system to reconcile two fundamental rights—the right to a fair trial and the right to free speech. As one report by the Select Committee on Privileges of the Queensland parliament in 1976 on sub judice put it:
Parliament should be the supreme inquest of the State, whilst not poisoning the wells of justice before they have begun to flow.
To understand the convention of sub judice, we need to go back to the mother of parliaments, the Westminster model, the House of Commons in England, where, in 1688, the right of members of parliament to speak freely was enshrined in this way:
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.
E Campbell, writing in his book Parliamentary privilege in Australia, published in 1966, noted that this parliamentary privilege of freedom of speech, enshrined in—wait for it—the bill of rights which came in with William and Mary of Orange in 1688 is—
Mrs Dunne: It is still on the statute books.
MR STEFANIAK: You are right, Mrs Dunne. I quote:
… one of the most cherished of all parliamentary privileges, without which parliaments probably would degenerate into polite but ineffectual debating societies.
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