Chapter 10 - Debate
Discussion
of court decisions
Reference was made (above, under Sub
judice convention) to the additional dimension of contempt of court, as
expounded by a justice of the Federal Court in Sharpe v Goodhew, which has not
been regarded as part of the basis of the sub judice convention. This is the
consideration of principle raised by comments on the decisions and judgments of
courts which do not affect the process by which those decisions and judgments
are reached but which may affect public confidence in judgments.
Remarks may be made in the Senate notwithstanding that, if made outside
the Senate, they could constitute contempt of court under the principle set out
in that part of the judgment. There is no restriction on debate in the Senate
involving critical comment on the decisions or judgments of courts; the only
relevant limitation is that contained in standing order 193, which prohibits
offensive words against a judicial officer (see below, under Rules of debate).
Thus in 1973 Acting Deputy President Marriott ruled that it is in order to
comment on a judgment but that no reflection can be made on the integrity of
the judiciary (SD, 5/4/1973, p. 887). This would apply to critical comment
before or after a decision or judgment, although what Justice Spender called
prejudgment would obviously make it more likely that the sub judice convention
could be applicable, and as a matter of comity between the legislature and the
judiciary, the Senate and senators should not seek to tell courts what
judgments they should make.
In 1969 the Senate debated a motion to censure a Senate minister on the
ground that he had suggested in debate in the Senate that a person was guilty
of an offence, a charge relating to which had been dismissed by a court. The
motion was negatived. During debate on the motion reference was made to
judicial authority to the effect that public criticism of the actions of courts
is not unlawful provided that such criticism is not made in malice or in an
attempt to impair the administration of justice (SD, 19-20/8/1969, pp 130-62,
177-201).
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