Legislative Assembly for the ACT: 2004 Week 01 Hansard (Wednesday, 8 December 2004) . . Page.. 143 ..
MR SPEAKER: Come back to the dissent motion.
MR STANHOPE: The crux of the matter is that the sub judice rule has a long history. It is well articulated; it is well developed. It requires that, in this place, there be no debate that touches on, goes to or may in any way influence or be seen to influence a matter currently before a court. In the debate today we have seen instances where the rule has been transgressed. You have quite rightly ruled in those instances, where debate was leading to or had led to an offence against the sub judice rule. You ruled quite appropriately on that. The suggestion that your ruling should be dissented from is simply wrong.
MR SESELJA (Molonglo) (11.37): I will not speak for long as I do not want to bore Mr Quinlan, but I just want to speak on a couple of issues.
Mr Quinlan: You’d have to be very, very brief.
MR SESELJA: Okay. The Chief Minister did rightly point out that the sub judice rule is modelled on contempt. I know there has been a lot of public discussion on this matter in probably a lot more detail than has been the case in the chamber today, yet I have heard no moves for anyone to be brought into contempt of the Supreme Court. I think that might give us a bit of a guide as to how the Supreme Court sees this matter—whether they see it as contempt and therefore it might be sub judice.
Most of what has been said here today is on the public record and I fail to see how that could be sub judice. I wanted to restate some of the aspects of the sub judice rule that I have touched on before. The first is that there must be a substantial danger of prejudice to judicial proceedings and the second is that there is no overriding public interest in the matter. On both counts I think the debate should be allowed to continue.
I refer to House of Representatives Practice. The Chief Minister pointed out that I had only quoted one paragraph from there. But there are others. On the same page, 497, it states that a private member’s matter was allowed to be debated and it was noted that the matter was a civil one and that a jury was not involved. So the chair should be taking that into account. Another factor that the chair must take into account in making a judgment on the application of the sub judice rule is whether the matter is of a criminal or civil nature. The test and the latitude that should be given in the case of a civil matter should be much greater.
In the end, though, it does come back to separation of powers, as Mr Stefaniak rightly raised. The members opposite seem to have a different understanding of the separation of powers. They think that judges should be making the law and we should not be able to talk about it.
Mr Hargreaves: Did you get yours off Joh Bjelke-Petersen?
MR SESELJA: We could talk about Sir Joh and some of the similarities. It does go back to the public interest for us to be able to scrutinise ministers in this place. There needs to be a large degree of latitude. What has been touched on here has not even gone close to the sub judice rule. There needs to be an ability to debate these matters. We have not