Page 3896 - Week 12 - Wednesday, 19 October 2005
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So privilege protects members of parliament from legal prosecution for statements that could be said to be defamatory or a contempt of court under the common law.
It is not clear how the convention of self-restriction through the principle of sub judice came about, but it seems that the convention may have applied to criminal cases before 1844. What is known is that in 1844 the Speaker of the House of Commons in the UK first made a ruling, and that remained the status quo until 1963, when a resolution in the House of Commons codified the issue for the first time. Commentators think that the expansion of the intensity, immediacy and reach of the media has been responsible for the extension of the sub judice convention to civil actions.
The purpose of the sub judice convention is held to be twofold: firstly, similar to common law sub judice, which operates for the media and for the public, the idea is that there is a need to prevent comment and debate by parliament from exerting an influence on juries and from prejudicing the position of parties and witnesses in court proceedings. I refer to House of Representatives Practice there. Secondly, the convention is to prevent parliamentary debate on matters that are sub judice so that a house of parliament is not set up as an alternative judicial forum to a court, which would lead to conflict between that house and the court.
This is not supposed to have been relevant to Australian practice; so in the Australian context sub judice has been about protecting matters from prejudice in the courts. The interesting thing about the convention of sub judice that differentiates it from common law sub judice is that it is imposed voluntarily by parliament on itself and exercised at the discretion of the chair to forestall prejudice of proceedings in the courts, whereas the courts can only protect themselves from prejudicial comment after the fact by punishing them for contempt. As Vicki Mullen points out in her interesting article in the University of New South Wales Law Journal on sub judice and the media, the key difference is that the application of the convention is always subject to the discretion of the chair and to the right of the house to legislate on any matter.
The parliaments of Australia follow the practice of the House of Commons. Everything one reads on sub judice makes it clear that the matter is all about a balancing act between maintaining robust, free parliamentary debate and not prejudicing matters before the court. The role of the Speaker in the Victorian parliament is summarised in the 1979 standing orders committee report on sub judice as follows:
The Speaker … has endeavoured to achieve a reasonable balance between the conflicting considerations of the rights of the House and its members to debate a matter if it wishes to as against both the rights of litigants and the preservation of the proper judicial processes.
For the Legislative Assembly of the Victorian parliament:
The key factor is whether a reference to court proceedings could affect the course of justice. The convention does not automatically prevent a broad general reference to a court case.
The background on sub judice from the Victorian parliament continues:
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