Page 3897 - Week 12 - Wednesday, 19 October 2005
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The convention has not been applied where a court appeal was still possible but had not been made at the time of the debate.
It also makes a distinction between matters before the courts and matters more generally under investigation. So a matter being investigated by a government department would not be sub judice. In fact, parliament is not prevented from legislating on an issue before a court, and debate, in consequence, can take place on a bill that covers the same subject as court proceedings.
The House of Commons also guides Australian parliaments on the time at which the convention of sub judice applies. With criminal matters, it applies from the time a charge is made to the time when the verdict and sentence have been announced. In civil matters, the convention applies from the time the case has been set down for trial or otherwise brought before the court. Civil matters can be referred to before the trial date has been set.
The collapse of the West Gate Bridge was a subject of debate and a censure motion even though Supreme Court proceedings were pending. The Speaker ruled the motion in order as long as issues pending before the court were avoided. The same principle applied when there was debate on the 1999 Metropolitan Ambulance Service royal commission.
My motion—and I would encourage the Assembly to accept it—would have the Assembly adopt the following practice when debating matters before a court and would provide us with guidelines on sub judice which, I submit, will assist this Assembly and future assemblies, you and future speakers and, particularly, members of assemblies, on what can and what cannot be done. It states:
(1) the Assembly reinforces the basic principle that debate should be avoided which could involve 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—
and you will find that form of words, virtually in identical form, in House Of Representatives Practice and Odgers’ Senate Practice—
(2) Debate shall be allowed in the Assembly on any matters 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 and prejudice in the courts’ proceedings;
The normal rule is that there should be debate unless there is a clear and substantial danger of prejudice in the court proceedings. But we think it is desirable that, if someone objects to a matter and raises the issues of sub judice, that member should demonstrate that the debate would lead to a clear and substantial danger of prejudice in the court’s proceedings. That, obviously, would then assist you, Mr Speaker, or some future Speaker. I continue:
(3) Unless the matter before the court 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 before it, or would
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