Chapter 10 - Debate
Sub
judice convention
The
sub judice convention is a restriction on debate which the Senate imposes upon
itself, whereby debate is avoided which could involve a substantial danger of
prejudice to proceedings before a court, unless the Senate considers that there
is an overriding requirement for the Senate to discuss a matter of public interest.
The convention is not contained in the standing orders, but is
interpreted and applied by the chair and by the Senate according to
circumstances.
The concept of prejudice to legal
proceedings involves an hypothesis that a debate on a matter before a court
could influence the court and cause it to make a decision other than on the
evidence and submissions before the court. A danger of prejudice would not
arise from mere reference to such a matter, but from a canvassing of the issues
before the court or a prejudgment of those issues.
This concept of prejudice was well explained in the context of contempt
of court by the Federal Court in a case before it in 1989, in which the court
restrained a state commission of inquiry from conducting a public inquiry into
matters before the court in a civil action. Justice Spender explained:
It seems to me that there are really
two aspects of the question of contempt in the context of a public prejudgment.
The first concerns whether the prejudgment will be likely to hinder the Court
in reaching a correct conclusion. Publicity which might taint the impartiality
of the jurors or which might inhibit witnesses from giving evidence are of this
kind; that is to say, they have a tendency to affect whether the right result
was achieved. Because jurors are less resistant than judges in resisting
improper influences, considerations of this kind are of much the greater
concern when there is a jury. This factor, as well as the concern of courts
when a person is in jeopardy of a criminal conviction, explains the
concentration of attention on the effect of public prejudgment on criminal
proceedings.
The justice referred to an additional reason for restraining public
prejudgment of a case:
The second aspect of
contempt in the context of public prejudgment relates not so much to whether
the process is likely to be poisoned, but to the judgment itself. The first, as
I said, affects whether the result obtained might not be the right result. Yet,
if the effect of a public prejudgment is to undermine public confidence in that
judgment, even though it does not affect the process by which that judgment is
reached, that equally is a contempt. It seems to me that a public prejudgment
of a central issue in the Federal Court proceedings would work a usurpation of
the function of the Federal Court and lower the respect and authority to which
its determination is entitled. (Sharpe v Goodhew 1989 90 ALR 221 at 240-1)
The first paragraph is a succinct statement of the rationale of the sub
judice principle, a rationale it shares with contempt of court. The second
paragraph is a statement of an additional dimension of contempt of court which
has not been regarded as part of the rationale of the parliamentary sub judice
convention; this aspect is further analysed, under Discussion of court
decisions, below.
As the court suggested, the danger of prejudice to court proceedings is
much greater where a jury is involved in the proceedings, because judges are
unlikely to be influenced in the formation of their judgments by public or
parliamentary debate (for an application of this principle, see the exchange in
the Senate, SD, 11/8/1999, p. 7275). There may also be a case for apprehending
a greater danger of prejudice if a matter is before a magistrate.
In earlier years there was a tendency for the chair to restrain debate
in the Senate on any matter which was before a court. In the 1960s and 1970s,
however, there was a change in emphasis and a greater focus on the question of
whether there was a danger of prejudice to proceedings.
In 1969 President McMullin ruled:
As
a general rule the Chair will not allow references to matters which are
awaiting or under adjudication in the courts if such reference may prejudice
proceedings. But it does not necessarily follow that just because a matter is
before a court every aspect of it must be sub judice and beyond the limits of
permissible debate in Parliament. That would be too restrictive of the rights
of Parliament. (SD, 20/5/1969, p. 1368)
In 1972 President Cormack stated that he had reviewed the sub judice principle,
which he thought had been too restrictive in the past, and indicated the
approach the Chair would take:
The prime question I must ask myself
is, I think: Is parliamentary debate likely to give rise to any real and
substantial danger of prejudice to proceedings before the court? (SD,
19/9/1972, pp 907-8)
An exposition of the sub judice convention was provided by the then
Minister for Justice, Senator Tate, in debate in the Senate on 30 May 1989 in
which a senator sought to discuss matters relating to the 1978 Sydney Hilton
Hotel bombing when a criminal prosecution was pending. (A person had been
arrested and charged with criminal offences in relation to the bombing.) Senator Tate said:
Mr President, you are faced with a very
difficult situation, as indeed is the Senate. In all questions of sub judice
you have to balance the absolute privilege of this place with the absolute
privilege of the courts. It is a contest between the two. I think in this
particular instance, the question of the Hilton bombing, the subsequent court
actions and, indeed, the public inquiry, the pardon, the compensation, and the
events surrounding the allegations are matters of very genuine public interest
of a greater scope than attends normal trials to do with the killing of persons
in our community. Unless this chamber were convinced that what Senator Dunn is
speaking about could cause real prejudice to the trial in the sense of either
creating an atmosphere where a jury would be unable to deal fairly with the
evidence put before it, or would somehow perhaps affect a future witness in the
giving of evidence, whether for the prosecution or the defence, and unless we
thought that the matters Senator Dunn was trying to speak about were likely to
cause real prejudice to the outcome of that committal proceeding or trial, I
think, on balance, given the nature of the matters surrounding this whole
incident over many years, that the public interest probably would allow her to
continue.
The President ruled:
I will allow Senator Dunn to continue but I would advise her that she cannot
question the merit or otherwise of likely evidence that could be used in the
prosecution case, because it is obvious that this would prejudice any case that
came before a jury. (SD, 30/5/1989, pp 3062-5)
On a subsequent occasion, the same senator was asked to reframe her
remarks when committal proceedings relating to the matter were in progress
before a magistrate (SD, 27/9/1989, pp 1472-3).
This treatment of this matter illustrates the three important
principles of the sub judice convention:
-
there
should be an assessment of whether there is a real danger of prejudice in the
sense explained by Senator Tate
-
the
danger of prejudice must be weighed against the public interest in the matters
under discussion
-
the
danger of prejudice is greater when a matter is actually before a magistrate or
a jury.
It would be an undue restriction on the freedom of the Senate to debate
matters of public interest if debate were to be restrained simply on the basis
that matters may come before a court in the future. Thus the fact that writs
have been issued, which does not necessarily mean that proceedings will ensue,
does not give cause for the sub judice convention to be invoked (ruling of
President Sibraa, SD, 10/5/1988, p. 2224).
In 1979 debate on a motion which sought an inquiry into prosecution
evidence in a case then before a magistrate was not permitted (SD, 13/11/1979,
pp 2162-7).
A point of order was taken on 15 August
1991
to the effect that a notice of motion given by a senator was contrary to the
principle relating to matters which are sub judice. The basis of the point
of order was that the notice of motion was making allegations against a person
who was the subject of criminal proceedings, which proceedings were mentioned
in the notice but which were not connected with the allegations. This point of
order raised an interesting question of principle, as it may be possible to prejudice
the trial of a person by making allegations against that person which are not
connected with the matters at issue in the criminal proceedings. The President,
in accordance with the less restrictive interpretation of the sub judice
principle in recent years, ruled that so long as the notice did not refer to
the merits of the legal proceedings it was in order (15/8/1991, J.1372).
A significant and
difficult case involving the sub judice convention was the Westpac documents
case.
On 12 February 1991 President Sibraa made a statement in response to conflicting submissions
which had been made to him by a senator and by Westpac Banking Corporation on
the question of whether the senator should be allowed to disclose in the Senate
documents belonging to Westpac. The question for determination was whether the
disclosure of the documents in Senate proceedings should be prevented under the
sub judice principle. The President stated that disclosure of the documents
could be prejudicial to legal proceedings, in that it could terminate
proceedings whereby Westpac was seeking the suppression of the documents on the
basis of legal professional privilege. He indicated that, having weighed the
contrary factors of prejudice to the legal proceedings and the right of the
Senate to debate a matter of public interest, he had determined that disclosure
of the documents in proceedings of the Senate should not be permitted. The
President stated:
The very subject matter of the case
immediately before the courts, and in respect of which the sub judice claim is
made, is the question as to whether the documents involved should be
suppressed: to disclose the documents now would ipso facto abort that case. No
clearer example of real and present danger to current legal proceedings could
be imagined: indeed, it is not merely a matter of the present proceedings being
prejudiced, but rather a particular litigant’s rights being denied absolutely
(SD, 12/2/1991, p. 356).
This ruling was disputed in debate on 14, 20 and 21 February and 5 March 1991. On 7 March 1991 the President
withdrew the prohibition on the disclosure of the documents after they had been
disclosed in the South Australian Parliament and subsequently published with
the concurrence of Westpac. The documents were tabled on that day and debated
on 13 March
1991.
Important features of the case were:
-
the
prejudice which was to be apprehended by disclosure of the documents in
proceedings in the Senate was of an unusual character: such disclosure could
render the court proceedings undertaken by Westpac ineffectual, in that the
court would be unlikely to order the suppression of documents which had been
tabled in the Senate and thereby made public
-
the
apprehension of prejudice, however, appeared to be greatly diminished by a
judgment of the New South Wales Supreme Court in continuing a temporary
suppression order on the documents, in that the court indicated that
publication of the documents in the Senate would not necessarily terminate the
action to have the documents permanently suppressed, and would not prevent
further publication of the documents by the press being treated as contempt of
court (For an explicit rejection of this approach in respect of documents
likely to be disclosed in Parliament, see New Zealand Post Ltd v Prebble 2001 NZLR 360.)
-
although
matters contained in the documents might also be prejudicial to future
proceedings, there were no such proceedings actually before the courts
-
the
matter was unquestionably one of great public interest, relating to the conduct
of a major bank and its treatment of many clients
-
any
restriction on debate in the Senate under the sub judice principle could have
been temporary only, in that when the court proceedings were concluded there
would no longer be any impediment to the disclosure in the Senate of the
documents in question, even if Westpac were successful and the courts
suppressed all future publication of the documents; a document which is the
subject of legal professional privilege and a document the suppression of which
has been ordered by a court may be disclosed in parliamentary proceedings with
complete impunity because neither the law nor any parliamentary rule prevents
such disclosure.
In the President’s ruling there was a suggestion that consideration
should be given to the question of whether the Senate should permit the
disclosure in its proceedings of a document which is the subject of legal
professional privilege. There is no parliamentary rule, in the Senate or in
other comparable Houses, that material which is the subject of legal
professional privilege cannot be disclosed in proceedings.
The ruling also referred to other proceedings which might be prejudiced
by the disclosure of the documents. No other proceedings were on foot at that
time. The sub judice principle hitherto has been strictly limited to
proceedings actually in progress, and to apply it to expected or possible
proceedings would be to restrict debate to a degree not previously
contemplated.
The ruling in this case was essentially based on balancing the
apprehended prejudice to court proceedings against the public interest in the
matter in question and the freedom of the Senate to debate matters of public interest.
Because of the peculiar circumstances of the case, the ruling is unlikely to
offer guidance in future cases.
In 1997 the Senate postponed an inquiry into the conduct of Senator Colston on the basis that
it might interfere with police inquiries and possible subsequent criminal
proceedings against him (7/5/1997, J.1855-6).
In 1998 the President prevented Senator Colston placing before the
Senate material which would have prejudiced the trial of charges of fraud laid
against him (ruling of President Reid, SD, 6/4/1998, p. 2134; 7/4/1998,
J.3649).
In response to an
order for production of documents relating to the waterfront dispute in 1998,
the government refused to produce the documents on the ground that the
documents were relevant to actions pending in the Federal Court between the
parties to the dispute (SD, 28/5/1998, pp 3378-9). Advice by the Clerk of the
Senate suggested that this apparent invocation of the sub judice convention was
not well founded (Economics Legislation Committee, estimates Hansard, 2/6/1998,
pp E124-8).
Debate should not be constrained under the sub judice convention in
relation to a matter concerning the internal affairs of the Senate (ruling of President Cormack, SD, 8/4/1974, pp 704-5). In 1998 the
President suggested that, while the sub judice convention was not applicable,
in that there was no trial before a jury and therefore little possibility of
prejudice to proceedings, debate should not canvass the merits of a petition
before the Court of Disputed Returns (SD, 3/12/1998, p. 1239). This suggestion
was based on the need for comity between the Senate and the Court.
The sub judice
convention does not have application to matters before royal commissions and other
commissions of inquiry. In the past rulings were made to the effect that
matters before royal commissions should not be canvassed, but these rulings are
not consistent with the subsequent emphasis on the danger of prejudice to court
proceedings. A royal commission is not a court, its proceedings are not
judicial proceedings, it does not try cases and it is unlikely that a royal
commissioner would be influenced by parliamentary debate. Criminal prosecutions
may arise from evidence taken before royal commissions, but the sub judice
convention should not be invoked until such time as such prosecutions are
before the courts. Thus it has been ruled that the sub judice convention does
not arise in relation to inquiries by a state commission (ruling of President Laucke, SD, 15/11/1978, p. 2079;
also SD, 19/10/1977, pp 1489-1505;
11/10/2000, p. 18288).
In 1983 a senator was allowed to comment directly on evidence presented to a
Commonwealth royal commission without any invoking of the sub judice convention
(SD, 20/9/1983, p. 763). Similarly, proceedings of, and evidence before the
Western Australian Royal Commission into Use of Executive Power were extensively
canvassed in debate in August and September 1995 without any attempt to
restrain that debate. (See
also the transcript of the estimates hearing of the Employment, Workplace
Relations and Education Legislation Committee, 3/6/2002, pp 63-5, 76-80;
references to the royal commission on the building industry, SD, 4/3/2003,
pp 9009-10.)
An inquest by a coroner, although an administrative inquiry and not a
judicial proceeding, is not in the same category as executive-government
appointed inquiries, and may be prejudiced by parliamentary debate,
particularly where a jury is involved. Although the sub judice principle as
such does not apply, the chair therefore discourages the canvassing in debate
of issues before a coroner (observations by President Sibraa, SD, 17/11/1993,
pp 3026, 3028). Extensive public discussion of a matter, however, may
weaken the case for restraint on the part of the Senate (observation by Acting
Deputy President McGauran, SD, 4/5/1994, p. 237).
The sub judice
convention is regarded as applying to proceedings in committees. If, however, a
committee has been directed by the Senate to inquire into a particular matter,
the convention cannot be invoked in the committee to prevent the inquiry.
Committees have the capacity to avoid any prejudice to legal proceedings by
hearing evidence in camera. See also Chapter 16, Committees, under Privilege of
proceedings. For judicial proceedings on matters which have been the subject of
parliamentary inquiry, see Chapter 2, Parliamentary Privilege, under Power to
conduct inquiries. (For a
committee refraining from an inquiry while a coroner concluded an examination
of a matter, see the case of the Rural and Regional Affairs and Transport
Legislation Committee’s inquiry into the search for the Margaret J,
Chapter 16, Committees, under Disclosure of evidence and documents.)
A factor in the future application of the sub judice principle by the
Senate may well be the changed attitude of the courts in recent times to public
discussion of matters pending in legal proceedings. The courts are now less
concerned about such public discussion, having concluded that “in the past too
little weight may have been given to the capacity of jurors to assess
critically what they see and hear and their ability to reach their decisions by
reference to the evidence before them” (R. v Glennon 1992 173 CLR 592 at 603; see
also John Fairfax v District Court of NSW, 2004 61 NSWLR 344).
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