Page 4182 - Week 13 - Wednesday, 16 November 2005
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Key features of the practice of the House of Representatives are:
• that the application of the sub judice convention is subject to the discretion of the chair at all times;
• in exercising that discretion the chair should consider the basic rights and interests of members to raise and discuss matters of concern, the interests of people who may be involved in court proceedings, and the separation of responsibilities between the parliament and the judiciary; and
• in deciding about the application of the sub judice convention in a particular case, the chair should consider the likelihood of prejudice to the proceedings being caused by discussion or debate in the House.
Mr Stefaniak, by re-casting the practice, as he has in this motion that we are debating, seeks to narrow its focus and significantly reduce the discretion of the Speaker. Mr Stefaniak’s motion in effect insists that everything is open to debate unless it can be demonstrated that a clear and substantial danger of prejudice will be caused by the debate. He wants a matter to be open for debate or questioning unless real prejudice could be caused, and his motion even tries to narrow down what will constitute real prejudice.
If the Assembly adopted the practice proposed by Mr Stefaniak, there would be a risk that, in working through the requirements for the application of the sub judice convention, so much detail of the matter in question would have to be discussed as to make the process pointless. How else would it be possible for a member to demonstrate that debate would lead to a clear and substantial danger of prejudice?
Adopting this motion would replace the discretion of the Speaker, who can exercise it in the context of the particular circumstances, having regard to the underlying principles of the sub judice convention and informed by the experience of the House of Representatives over decades. That flexible and sensitive framework would be replaced by narrow, inflexible, clumsy rules.
No-one contests the basic right and duty of the Assembly to consider any matter that is in the public interest, or its right to legislate on any matter within its power. The sub judice convention is about self-restriction. Applying it, the Assembly agrees to restriction on debate, motions or questions in order that its overarching rights do not conflict with the basic right of people in the community to justice unprejudiced by outside discussion of their matters.
When the sub judice convention is applied with discretion based on an understanding of the underlying principles, it provides protection to people in a range of circumstances where the outcome of a judicial or quasi-judicial process could be prejudiced by what might be said during discussion in the Assembly.
It is not the Assembly that would suffer from the introduction of Mr Stefaniak’s practice in place of the current practice; it is community members whose affairs may be caught up in proceedings of some kind who will be the losers. The potential to provide them
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