Legislative Assembly for the ACT: 2005 Week 13 Hansard (Wednesday, 16 November 2005) . . Page.. 4187 ..
MR SPEAKER: You won’t get the opportunity to close the debate. It is not a motion; it is an amendment and you only get to speak on the matter once, unless you get leave from the Assembly to speak twice.
DR FOSKEY: Okay. I have already said that the amendment is just a very simple change in words to make this motion much more in line with what happens in other states and territories. By omitting the words “can be demonstrated by a Member of the Assembly” and replacing them with the words “appears to the Speaker”, this amendment retains the Speaker’s discretion to decide on sub judice matters.
I take some of the Chief Minister’s points—and I am sorry that he is not going to listen, but I suppose someone is—that this amendment may serve to limit the application of the sub judice principle of the courts and thereby exclude royal commissions and inquests. I know that this motion will not be passed by the Assembly—we have already got that clear—but I do feel that this Assembly should have written guidelines on the application of the sub judice rule. Other legislatures have such guidelines. The Greens respect the propriety of leaving the determination of sub judice matters to the Speaker.
Given that the government chooses not to support my amendment, and I acknowledge that there may be some merit in their reluctance to support this particular motion, I believe it would be beneficial for the Assembly to have some guidelines or code of conduct on the sub judice principle and I suggest that this issue be taken up by the admin and procedures committee.
MR SESELJA (Molonglo) (10.53): I would like, firstly, to respond to some of what Mr Stanhope had to say and also some of what Dr Foskey had to say. In relation to what the Chief Minister said about how this motion would put us at odds with comparable parliaments around Australia and around the world, we have done a detailed study of what has been the practice in all parliaments around Australia, and this motion is very much framed around what the practice has been. So the Chief Minister’s point is completely unjustified. I notice there was no justification of that claim; it was just put out there by the Chief Minister. So, firstly, I would like to refute what he said.
This is reflecting the practice that goes on certainly in other parliaments in this country. One of the things about practice in the House of Representatives, on which much of our practice is based, and the Senate is that the sub judice rule has never been used where a matter is only before a judge. They have certainly focused much more on issues where there is a jury involved or possibly a magistrate. That is something that has never been done, whereas it has been used in this chamber.
The point needs to be made also that, if the sub judice rule is applied too broadly, it essentially gives governments an out, any time they do not want to discuss an issue of public importance, by launching court action—and clearly that is not in the public interest—so that has to be put out there first and foremost.
If I can just go to a summary of the principle, sub judice simply means “under a judge” or “under the consideration of a judge or court”. To summarise the principle as it has been applied particularly in the House of Representatives and in the Senate, an assessment needs to be made of whether there is a real danger of prejudice—and that is