Page 1265 - Week 04 - Tuesday, 27 March 2012
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that discretion can only be applied when the choice is there in front of you. You cannot come back and make some retrospective ruling.
It is quite within the realm of the chair to come and say, “We have got this issue before us and I need to remind people.” But the ruling on the day, through no interaction by the chair, is that it was okay. In continuing resolution 10, and it is very important, there is a paragraph that leads to the application of the law. It says:
Subject to the discretion of the Chair, and to the right of the Assembly to legislate on any matter or to discuss any matter, the Assembly in all its proceedings … shall apply the following rules …
So it says: “We have some rules on sub judice. How do we apply them?” The application is “subject to the discretion of the Chair”. You cannot let a debate go ahead. We have already seen it. As Mr Hanson points out, almost a dozen members spoke in August last year under the discretion of the chair. The chair has got to come back and apply that discretion to the previous debate in August if it is going to apply now, to have any consistency in this point. The discretion of the chair is not, in this case, something that you can—
Members interjecting—
MR SMYTH: The discretion of the chair is not something that you come back to. I go to the advice provided by the Clerk. He says that it is subject to the discretion of the chair. Indeed, in the second-last paragraph he says:
Whilst it is preferable to have these matters dealt with at the time to ensure that comments do not breach the sub judice resolution, the practice of the Assembly in relation to other standing orders (e.g. the use of parliamentary words) is that often these are determined after the event.
For sub judice, unfortunately, you cannot determine that after the event. In the terms of sub judice, once the horse has bolted, the horse has bolted. Of course, if a member feels that they are slighted, if we go to the other standing order for unparliamentary words, it is not unreasonable to come back—to check the tape and come back. But this was an entire debate. There was also an entire debate in August last year. And at no time did whoever was sitting in that chair exercise the discretion that guides resolution of continuing effect 10 on how it is applied.
You have got to go to the basis of it. I think it is quite logical that we cannot let the ruling that you have made stand in this regard. House of Representatives Practice is quite clear. House of Representatives Practice talks in terms of proactivity, not retrospectivity. It goes to the rulings of people like Speaker Snedden and others where it says: “This is how I will apply it. When things come up, this is how it will be applied.” It is not a matter of saying, “After the event I am going to come back and rule retrospectively that you have broken the conventions of the house.”
So in that regard, Mr Speaker, it is entirely appropriate to move dissent. The comparison the Clerk uses between unparliamentary words and this particular resolution of continuing effect—one can see how you might get to that, because it is
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