Page 1264 - Week 04 - Tuesday, 27 March 2012
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one. We had better not actually bring that one to light. It would be a bit embarrassing, wouldn’t it, if we actually raised Ms Gallagher’s comments on 16 August, four days after these members have been charged, when she said, ‘The government do not support in any way the incident that occurred at the CSIRO last night’?” I hope, Mr Speaker, that you will immediately be presenting some form of admonishment to Ms Gallagher, Mr Corbell, Ms Hunter, Ms Le Couteur, Ms Bresnan, Mr Doszpot, Mrs Dunne, Mr Smyth and Mr Coe, because if we have committed a crime, if we have committed any breach of any standing order, if we have done anything wrong, so have those members.
I support Mr Seselja’s dissent motion. We can see what this is. This is hypocrisy. This is someone who has embarrassed themselves through their failure to condemn an activist group of which they are a member and then is deciding to sit in the chair and inconsistently apply certain rules of this place against those members that are standing up to try and point that out, ignoring his alliance partners and his own party members who did exactly the same thing in this place on 16 August.
MR SMYTH (Brindabella) (10.28): Mr Speaker, I suspect this all hinges on the word “discretion”, the discretion of the chair. To my mind, discretion cannot be retrospective. It is given; it is used; it is exercised. You cannot come back and say, “I should have been discreet; I should have exercised the power that I had.” What we can do is, after the fact, come back and say, “As Speaker I should have exercised this,” or say, “The Speaker of the day should have exercised the discretion at the time, either through the active participation of the Speaker at the time acting to rule the debate or through being called to the attention of the Speaker at the time by a member in this place.”
It is reasonable for any member to assume that, having not had a point of order called against them or the Speaker injecting the Speaker’s rights into the debate to actually say that the discretion was being exercised and therefore what occurred was acceptable—we can come back and say, “In hindsight, in retrospect, having viewed the facts, having had it brought to my attention after the event, perhaps that should not have happened.” But what you cannot do is reapply the discretion after the event. That is not possible. And more than that, it is not acceptable.
Discretion cannot be retrospective. A decision on the application or the use of the law can be brought to people’s attention afterwards, because discretion can only be exercised at the time. It leads to a member calling on the Speaker at the time to view resolution 10. The Speaker at the time was not awake, was not paying attention or actually thought that it was okay, because the Speaker who was in the chair at the time has that right. If it should not have happened, it is the action of the person in the chair at the time that perhaps should be brought into question today. Perhaps, Mr Speaker, you should go and talk to that person and counsel the Speaker at the time about the application of resolution 10—“I should have; it should have.” You cannot go back afterwards and apply this rule in this way. The horse has already bolted; it has left.
On page 507 of House of Representatives Practice, in the section on sub judice, it talks about the discretion of the chair, but at no time does it say that the chair can come back into this place and apply the discretion after the event. It is quite logical
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