Page 4188 - Week 13 - Wednesday, 16 November 2005

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real prejudice—and the danger of prejudice must be weighed against the public interest in the matters under discussion.

Thirdly, the danger of prejudice is greater when a matter is before a magistrate or jury, and chapter 10 of Odgers goes into why that is the case. The issue of juries is interesting. The courts are moving to a position where they do not see juries as so weak that some public discussion is going to necessarily affect them. In fact, in the 1992 case of Glennon the High Court said that jurors are not necessarily going to be influenced by reasonable public discussion. So that needs to be taken into account as well: even with juries, the courts have moved somewhat, and, of course, sub judice convention is based very much on how the courts rule on the issue of contempt. So we need to take that into account in looking at this convention.

This goes to the fundamental issue of freedom of speech. The basic principle in Australia and in modern Western democracies is that we have freedom of speech and that is fairly wide ranging, subject only to certain limitations, and obviously limitations such as defamation law are the first ones that come to mind. But, as a general rule, we should be able to say what we like, with some very limited exceptions.

This principle reaches its pinnacle in the parliament because in the parliament even the restrictions that apply outside, such as defamation law, do not apply, so this is the absolute pinnacle of freedom of speech and the chamber should reflect that. It should reflect the fact that we as elected representatives need to be able to discuss issues that are important to our community—issues that are in the public interest, issues that are of concern to our constituents. Any attempt to limit that, any attempt to gag that, needs to be done very carefully and only in very limited and clearly defined circumstances. It cannot be used as a blanket overthrow of the principle that parliament should be able to discuss whatever it likes; it should be able to discuss issues in the public interest.

A real danger of prejudice, which is what we are talking about here, is the crux of it—whether or not discussions could cause a real danger of prejudice—and judge versus jury is very important in that. Notwithstanding my earlier comments about the case of Glennon, where the courts recognise that juries are not necessarily influenced by all public discussion, the question of whether a matter is before a judge only or a jury is important in any consideration. So, where we are talking about, say, the full bench of the Supreme Court considering something where there is no jury, it is much less likely that any discussion in the Assembly would have any impact on such a case. In those cases, there is almost no foreseeable circumstance where, on a reasonable application of the sub judice principle, debate should be limited. Where there is a jury, it is a different matter; there is a greater case for limitation of discussion. But it is not an absolute; it does not mean that just because an issue is before a jury there should be no discussion.

The second part of it is dealing with the actual issues before the court—not peripheral issues; not just talking generally about the fact that there is a court case happening. It is talking about the actual issues that need to be proved—whether person X committed an assault; whether or not police acted appropriately—if that is something that is going to be looked at by a judge. To suggest that we just have this blanket application of the sub judice rule—that at any time there is a matter before a court we should shut it down—is wrong, and that is not the way the sub judice principle has been applied anywhere in this country.

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