Page 4183 - Week 13 - Wednesday, 16 November 2005
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with protection by the application of the sub judice convention to discussion in the Assembly would be substantially reduced.
Another area in which Mr Stefaniak would narrow the application of the sub judice convention is the kind of proceedings that would be covered. His motion would restrict the application of the convention to matters awaiting or under adjudication in a court.
Currently, applying the House of Representatives practice, the sub judice convention can be applied to matters before royal commissions or similar bodies concerned with the conduct of particular people. In some circumstances it may be entirely appropriate that the findings of such inquiries be protected from being prejudiced by discussion, or reports of discussion, in the Assembly.
Rather than allowing the Speaker to exercise discretion, based on the underlying principles of the convention that aim to protect the rights of both the Assembly and members of the community, Mr Stefaniak would preclude the application of the convention to those inquiries. On the other hand, retaining the current practice would allow the convention to be applied as circumstances require, providing protection from prejudice as is appropriate to our understanding of justice.
House of Representatives practice in relation to the sub judice convention draws on the practice of the House of Commons in the United Kingdom. With that in mind, it is worth noting that in 2001 the House of Commons, following a recommendation of its Joint Committee on Parliamentary Privilege, passed a resolution about application of the sub judice convention. That resolution is quite detailed in defining when a proceeding should be considered active and therefore not to be referred to in debate, motion or question.
The approach taken there, however, does not resemble the narrow approach taken by Mr Stefaniak in this motion. The House of Commons makes its detailed guidelines subject to the discretion of the chair as well as to the right of the house to legislate on any matter or to discuss delegated legislation. In addition, it makes explicit that matters referred by the House to any judicial body for decision or report and matters before coroners courts or fatal accident inquiries are covered by the sub judice convention.
While this Assembly should not feel tied to the practice of either the House of Commons or the House of Representatives, the approaches taken by those parliamentary bodies are worthy of serious consideration. A motion that would take this Assembly in a completely contrary direction requires substantial supporting reasons, especially when the result would be potentially to expose individuals to prejudice. No sufficiently persuasive reasons—indeed any real reasons—have been brought forward.
I have to say that, as far as I and the government are concerned, the present practice is flexible and appropriate. The alternative proposed by Mr Stefaniak is a poor substitute and would, quite genuinely, be a most retrograde step. One is then left to ask or to ponder what it was, or what it is, that has so moved the opposition to seek to undermine such a significant and fundamental principle of the practice of parliaments as the sub judice rule of convention in relation to proceedings within a parliament, in this case this Assembly.
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