Legislative Assembly for the ACT: 2005 Week 12 Hansard (Wednesday, 19 October 2005) . . Page.. 3899 ..
45 years. Some very clear guidelines have been established in Odgers’ Senate Practice and House of Representatives Practice. That is basically where I have come up with this form of words. I was assisted, I must say, greatly by my colleague Mr Seselja, who will be talking on this issue as well. We have come up with this form of words here as a guide to everyone in this place.
I appreciate your position, Mr Speaker, and I do not want to reflect on past debates in the Assembly. I do, however, stress that it is important that we do all we can, whilst balancing the need to protect the courts, to balance the need to ensure that debate is as full as possible in this house. These rules will assist in that regard.
Senate Practice makes the point that there should a substantial, not a slight, danger of prejudice to proceedings before a court and states, moreover, that, because sub judice turns on the possibility of someone being influenced, judges are not seen to be influenced by public debate. House of Representatives Practice puts it that there is a long line of authority from the courts that indicates that courts and judges do not regard themselves as such delicate flowers that they are likely to be prejudiced in their decisions by a debate that goes on in the house.
The convention of sub judice is something, I would suggest, that needs to be used sparingly if there is to be any robust, democratic debate allowed in places such as the Assembly or any other parliament of the Commonwealth of Australia. Indeed, the principle seems to be, as it has developed over the years in the House of Representatives and the Senate, that debate must be allowed unless it can be demonstrated that there is a clear and substantial danger of prejudice in the court’s proceedings.
I would submit that, unless future matters that come before the Assembly could cause real or imagined 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 put before it or perhaps affecting the future verdict, free speech, in the primacy of public interest, must be maintained in the chamber. It is time—and I commend this to members—that we adopt an approach to sub judice that is consonant with House of Representatives and Senate practices and incorporate it into the standing orders that govern our procedures in this place. That will help create a properly democratic chamber of debate and democracy. As Senator Eric Abetz said recently, it is a garden that needs careful tending.
What the motion does is clearly enunciate what the current practice is in the Senate, in the House of Representatives and, from what I can gather from the research the opposition has done, in other Australian parliaments as well. It does tend, to an extent, to codify the position. The discretion ultimately is yours, Mr Speaker, or your successors’.
There is the addition, which Mr Seselja will talk to at further length, in relation to the matter, which we think is sensible, that, if a point is raised with you, Mr Speaker, or with anyone else in the chair, that sub judice should be invoked, it should be demonstrated by the member who raises it that such a debate will lead to that clear and substantial danger of prejudice in the court proceedings which is the principle that is enunciated and has been enunciated for many decades now in House of Representatives Practice and Senate Practice.
I commend the motion to the Assembly.