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Legislative Assembly for the ACT: 2010 Week 04 Hansard (Wednesday, 24 March 2010) . . Page.. 1326 ..


bill needs to be introduced. That is the subtext, Mr Speaker, of why he is referring to it. He does not need to refer to this evidence to explain why his bill is necessary. He does not need to do so; he is choosing to use this as an opportunity to litigate those matters in this place. It is, in my submission, completely inappropriate and I would ask you to rule accordingly.

MR SPEAKER: Thank you, members. I think we are in somewhat of a grey zone here. Of course, as you know, the continuing resolution 10 on sub judice practice in this place does give the discretion to the chair. Mr Smyth, I am a little concerned that you are using that evidence, the suggestion from the government that they do not have a duty of care, to make the case for your legislation. I would ask you to perhaps refrain from that particular inclusion. I think that you are able to make the case for your legislation perhaps without coming to that point, given that it is a key question in the debate in the Supreme Court.

Mr Seselja: Just on your ruling, Mr Speaker, it does appear that that is slightly different from what you ruled a moment ago. Mr Smyth is not litigating the case but Mr Smyth, as I understood your ruling earlier, is entitled to reference what has been argued in the case because it is relevant to the legislation going forward. That is part of why we exist as a legislature. Sometimes we bring forward legislation which is relevant to what happens in court cases. He is not saying which way the court will rule on that, but clearly the government—

Mr Corbell: After the court has made a decision, Mr Seselja.

MR SESELJA: Hang on. Clearly, the government have a position on this. They have put forward their position. Mr Smyth is entitled to have a position as well. He should not be artificially constrained. I would also turn your attention, regarding your discretion on this matter, Mr Speaker, to House of Representatives Practice where it does give judges some credit and says that discussions in this place are unlikely—because this is about prejudice in cases. Surely, Mr Corbell is not arguing that because Mr Smyth references in passing in this place these proceedings, the judges of the Supreme Court of the ACT are going to be influenced in their decision and the case will therefore be prejudiced. That is the heart of sub judice, Mr Speaker, that is where your discretion lies and that is where I think there needs to be some latitude for Mr Smyth.

Mr Corbell: On the point of order—and thank you for your indulgence, Mr Speaker—the point is, and what is also important in relation to the sub judice rule, that it is about respecting where these matters are to be decided.

Mr Seselja: And that could go on forever.

Mr Corbell: And the Assembly should pay due regard to the fact that it is the court, the Supreme Court, the third arm of government, that is hearing this matter at the moment. It is not correct to argue that it is open slather here because these are matters of relevant public interest. The fact is the matter is being actively litigated now, in one of the most significant litigation cases in relation to claims about duty of care, of any matter for some time in the history of Australia. It is actively being litigated. The


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