Rules governing content of speeches
Relevancy in debate
General principles and exceptions
Of fundamental importance to the conduct of debate in the House is the rule that a Member should speak only on the subject matter of a question under discussion. At the same time the standing orders and practice of the House make provision for some major exceptions to this principle when debates of a general nature may take place. These exceptions are:
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on the question for the adjournment of the House to end the sitting, or for the adjournment of the Federation Chamber;
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on the debate of the address in reply to the Governor-General’s speech;
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on the motion for the second reading of the main appropriation bill, and appropriation or supply bills for the ordinary annual services of government, when public affairs may be debated; and
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on the question that grievances be noted, a wide debate is permitted.
The scope of a debate may also be widened by means of an amendment. There may also be a digression from the rule of relevancy during a cognate debate, when two or more items are debated together even though technically only one of the items is the subject of the question before the House.
Cognate debate
When two or more orders of the day are related, it frequently meets the convenience of the House to debate them together. A cognate debate is an informal practice, not covered by the standing orders, which is arranged behind the scenes by a process of which the Chair has no official knowledge. Cognate debates are usually agreed to by the Government and the Opposition as part of the programming process and the orders of the day then linked accordingly on the Daily Program. The Chair formally seeks the agreement of the House to the proposal when the first of the orders so linked is called on for debate. If there is no objection the Chair then allows the debate of the first of the orders to refer to the other related orders—thus in effect enabling a single debate. Upon the conclusion of the debate separate questions are then put as required on each of the orders of the day as they are called on.
Almost all cognate debates occur on bills—for further discussion of cognate debate in relation to bills see Chapter on ‘Legislation’. However, motions are on occasion debated cognately. A bill has been debated cognately with a motion to take note of documents on a related subject.A cognate debate has taken place on three committee reports on unrelated subjects (by the same committee).
The purpose of a cognate debate is to save the time of the House, but technically Members may still speak to the questions proposed when the other orders of the day encompassed in the cognate debate are called on. However, this action is contrary to the spirit of a cognate debate and is an undesirable practice except in special circumstances, for example, when a Member desires to move an amendment to one of the later cognate orders.
Persistent irrelevance or tedious repetition
Pursuant to standing order 75, the Speaker, after having called attention to the conduct of a Member who has persisted in irrelevance or tedious repetition, either of his or her own arguments or of the arguments used by other Members in debate, may direct the Member to discontinue his or her speech. The Speaker’s action may be challenged by the Member concerned who has the right to ask the Speaker to put the question that he or she be further heard. This question must be put immediately and resolved without debate. The action of the Chair in requiring a Member to discontinue a speech cannot be challenged by a motion of dissent from a ruling, as the Chair has not given a ruling but a direction under the standing orders. The Chair is the judge of the relevancy or otherwise of remarks and it is the duty of the Chair to require Members to keep their remarks relevant. Only the Member who has been directed to discontinue a speech has the right to move that he or she be further heard and must do so before the call is given to another Member.
On only two occasions has a Member been directed to discontinue a speech specifically on the ground of tedious repetition but on a number of occasions on the ground of persistent irrelevance. A Member has been directed to discontinue his speech following persistent irrelevance while moving a motion; in the former committee of the whole (although later the Member took his second turn, under the then prevailing standing orders, to speak to the question); and in the Main Committee (Federation Chamber). On two occasions the direction of the Chair has been successfully challenged by a motion that the Member be further heard.
This standing order has not been regarded as applying to a statement being made by leave, or to answers during Question Time.
Anticipation
The principle behind the anticipation rule is the orderly management of House business. Its intention is to protect matters which are on the agenda for imminent deliberative consideration and decision from being pre-empted by unscheduled debate.
Standing order 77 provides that ‘During a debate, a Member may not anticipate the discussion of a subject listed on the Notice Paper and expected to be debated on the same or next sitting day. In determining whether a discussion is out of order the Speaker should not prevent incidental reference to a subject.’
The rule applies only ‘during a debate’—that is, when there is a question before the House. It does not apply to questions and answers, to Members’ statements or discussions of matters of public importance. The words ‘a subject listed on the Notice Paper’ are taken as applying only to the business section of the Notice Paper and not to matters listed elsewhere—for example, under questions in writing or as subjects of committee inquiry.
The current wording of standing order 77 was recommended by the Procedure Committee in 2005. The anticipation rule was previously more restrictive.
Allusion to previous debate or proceedings
Unless the reference is relevant to the discussion, a Member must not refer to debates or proceedings of the current session of the House. This rule is not extended to the different stages of a bill. In practice, mere allusion to another debate is rarely objected to. However, debate on a matter already decided by the House should not be reopened. The Chair has stated that the basis of the rule is that, when a subject has been debated and a determination made upon it, it must not be discussed by any means at a later stage. The relevant standing order was far more strict in the past, the relevancy proviso being included when permanent standing orders were adopted in 1950. A previous restriction on allusions to speeches made in committee was omitted in 1963 on the recommendation of the Standing Orders Committee ‘as it appeared to be out of date and unnecessarily restrictive’.
The application of this standing order most often arises when the question before the House is ‘That the House do now adjourn’ or ‘That grievances be noted’. The scope of debate on these questions is very wide ranging and in some instances allusion to previous debate has been allowed, although the Chair has sometimes intervened to prevent it. Members may be able to overcome the restriction by referring to a subject or issue of concern without alluding to any debate which may have taken place on it. The problem of enforcing the standing order is accentuated by the fact that a session may extend over a three year period.
References to committee proceedings
Members may not disclose in debate evidence taken by any committee of the House or the proceedings and reports of those committees which have not been reported to the House, unless disclosure or publication has been authorised by the House or by the committee or subcommittee. Members have thus been prevented from referring to evidence not disclosed to the House or basing statements on matters disclosed to the committee. However, committee chairs and deputy chairs have regular opportunities to make statements to inform the House of matters relating to inquiries, and Members have, from time to time, made statements on the activities of a committee by leave of the House. The Chair has permitted reference in debate to committee proceedings which (although unreported) had been relayed throughout Parliament House on the monitoring system.
References to Members
In the Chamber and the Federation Chamber a Member must not be referred to by name, but only by the name of the Member’s electoral division (that is, as ‘the Member for … ’ or ‘the honourable Member for … ’), or by the title of his or her parliamentary or ministerial office. This restriction has also been extended to the terms of motions, amendments and matters of public importance. The purpose of this rule, in conjunction with the requirement to address the Chair (see page 504), is to make debate less personal and avoid the direct confrontation of Members addressing one another as ‘you’. A degree of formality helps the House remain more dignified and tolerant when political views clash and passions may be inflamed. However, it is the practice of the House that, when appointments to committees or organisations are announced by the Speaker or a Minister, the name of a Member is used.
Offensive or disorderly words
Good temper and moderation are the characteristics of parliamentary language. Parliamentary language is never more desirable than when a Member is canvassing the opinions and conduct of his opponents in debate.
The standing orders contain prohibitions against the use of words which are considered to be offensive (the two Houses of the Parliament, Members and Senators and members of the judiciary being specifically protected—see below). The determination as to whether words used in the House are offensive or disorderly rests with the Chair, and the Chair’s judgment depends on the nature of the word and the context in which it is used.
A Member is not allowed to use unparliamentary words by the device of putting them in somebody else’s mouth, or in the course of a quotation.
It is the duty of the Chair to intervene when offensive or disorderly words are used either by the Member addressing the House or any Member present. When attention is drawn to a Member’s conduct (including his or her use of words), the Chair determines whether or not it is offensive or disorderly.
Once the Chair determines that offensive or disorderly words have been used, the Chair asks that the words be withdrawn. It has been considered that a withdrawal implies an apology and need not be followed by an apology unless specifically demanded by the Chair. The Chair may ask the Member concerned to explain the sense in which the words were used and upon such explanation the offensive nature of the words may be removed. If there is some uncertainty as to the words complained of, for the sake of clarity, the Chair may ask exactly what words are being questioned. This action avoids confusion and puts the matter clearly before the Chair and Members involved. On other occasions, although not having heard words objected to, the Speaker has called for their withdrawal.
It always assists the House if a Member withdraws words objected to without waiting for the Speaker’s determination, when the Speaker may not have heard words objected to and thus may not be able to make a determination, or when the Chair indicates that it ‘would assist the House’ if the Member did so.
The Chair has ruled that any request for the withdrawal of a remark or an allusion considered offensive must come from the Member reflected upon, if present and that any request for a withdrawal must be made at the time the remark was made. This latter practice was endorsed by the House in 1974 when it negatived a motion of dissent from a ruling that a request for the withdrawal of a remark should be made at the time the remark was made. However, the Speaker has later drawn attention to remarks made and called on a Member to apologise, or to apologise and withdraw. Having been asked to withdraw a remark a Member may not do so ‘in deference to the Chair’, must not leave the Chamber and must withdraw the remark immediately, in a respectful manner, unreservedly and without conditions or qualifications. Traditionally Members have been expected to rise in their places to withdraw a remark. If a Member refuses to withdraw or prevaricates, the offence is compounded and the Chair may name the Member for disregarding the authority of the Chair. The Speaker has also directed, in special circumstances, that offensive words be omitted from the Hansard record.
The use of offensive gestures has been deprecated by the Speaker. It would be open to the Speaker to direct a Member to leave the Chamber or to name a Member for such behaviour.
Reflections on Members
Offensive words may not be used against any Member and all imputations of improper motives to a Member and all personal reflections on other Members are considered to be highly disorderly. The practice of the House, based on that of the UK House of Commons, is that Members can only direct a charge against other Members or reflect upon their character or conduct upon a substantive motion which admits of a distinct vote of the House. Although a charge or reflection upon the character or conduct of a Member may be made by substantive motion, in expressing that charge or reflection a Member may not use unparliamentary words. This practice does not necessarily preclude the House from discussing the activities of any of its Members. It is not in order to use offensive words against, make imputations against, or reflect on another Member by means of a quotation or by putting words in someone else’s mouth.
In judging offensive words the following explanation given by Senator Wood as Acting Deputy President of the Senate in 1955 is useful:
… in my interpretation of standing order 418 [similar to House of Representatives standing order 90 in relation to Members], offensive words must be offensive in the true meaning of that word. When a man is in political life it is not offensive that things are said about him politically. Offensive means offensive in some personal way. The same view applies to the meaning of ‘improper motives’ and ‘personal reflections’ as used in the standing order. Here again, when a man is in public life and a member of this Parliament, he takes upon himself the risk of being criticised in a political way.
It has been regarded as disorderly to refer to the lack of sobriety of a Member, to imitate the voice or manner of a Member and to make certain remarks in regard to a Member’s stature or physical attributes. Although former Members are not protected by the standing orders, the Chair has required a statement relating to a former Member to be withdrawn and on another occasion has regarded it as most unfair to import into debate certain actions of a Member then deceased.
May classifies examples of expressions which are unparliamentary and call for prompt interference as:
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the imputation of false or unavowed motives;
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the misrepresentation of the language of another and the accusation of misrepresentation;
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charges of uttering a deliberate falsehood; and
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abusive and insulting language of a nature likely to create disorder.
Australian Speakers have followed a similar approach. An accusation that a Member has lied or deliberately misled is clearly an imputation of an improper motive. Such words are ruled out of order and Members making them ordered to withdraw their remarks. The deliberate misleading of the House is a serious matter which could be dealt with as a contempt, and a charge that a Member has done so should only be made by way of a substantive motion.
In accordance with House of Commons practice, for many years it was ruled that remarks which would be held to be offensive, and so required to be withdrawn, when applied to an identifiable Member, did not have to be withdrawn when applied to a group where individual Members could not be identified. This rule was upheld by distinct votes of the House. This did not mean, however, that there were no limits to remarks which could be made reflecting on unidentified Members. For example, a statement that it would be unwise to entrust certain unnamed Members with classified information was required to be withdrawn, and Speaker Aston stated that exception would be taken to certain charges, the more obvious of which were those of sedition, treason, corruption or deliberate dishonesty. Speaker Snedden supported this practice when he required the withdrawal of the term ‘a bunch of traitors’ and later extended it:
The consequence is that I have ruled that even though such a remark may not be about any specified person the nature of the language [the Government telling lies] is unparliamentary and should not be used at all.
In the past there has been a ruling that it was not unparliamentary to make an accusation against a group as distinct from an individual. That is not a ruling which I will continue. I think that if an accusation is made against members of the House which, if made against any one of them, would be unparliamentary and offensive, it is in the interests of the comity of this House that it should not be made against all as it could not be made against one. Otherwise, it may become necessary for every member of the group against whom the words are alleged to stand up and personally withdraw himself or herself from the accusation … I ask all honourable members to cease using unparliamentary expressions against a group or all members which would be unparliamentary if used against an individual.
This practice has been followed by succeeding Speakers. Remarks that merely offend political sensitivities are not normally required to be withdrawn. However, comments that a group of Members are, for example, traitors, racist or corrupt are treated more seriously.
Reflections on the House and votes of the House
The standing orders provide that offensive words may not be used against the House of Representatives. It has been considered unbecoming to permit offensive expressions against the character and conduct of the House to be used by a Member without rebuke, as such expressions may serve to degrade the legislature in the eyes of the people. Thus, the use of offensive words against the institution by one of its Members should not be overlooked by the Chair.
A Member must not reflect adversely on a vote of the House, except on a motion that it be rescinded. Under this rule a proposed motion of privilege, in relation to the suspension of two Members from the House in one motion, was ruled out of order as the vote could not be reflected upon except for the purpose of moving a rescission motion. A Member, speaking to the question that a bill be read a third time, has been ordered not to reflect on votes already taken during consideration of the bill, and a Member has been ordered not to canvass decisions of the House of the same session. This rule is not interpreted in such a way as to prevent a reasonable expression of views on matters of public concern.
References to the Senate and Senators
A member of the Senate should be referred to as 'Senator … ' or by the title of his or her office. Offensive words cannot be used against either the Senate or Senators. It is important that the use of offensive words should be immediately reproved in order to avoid complaints and dissension between the two Houses. Leave has been granted to a Member to make a statement in reply to allegations made in the Senate, and to make a personal explanation after having been ruled out of order in replying in debate to remarks made about him in the Senate.
The former restriction on allusion in debate to proceedings of the Senate was omitted from the revised standing orders in 2004. The Senate had not had an equivalent standing order for many years. As the House Standing Orders Committee observed in 1970, it was probable that the principal reason for the rule was the understanding that the debates of the one House were not known to the other and could therefore not be noticed, but that the daily publication of debates had changed the situation.
References to the Queen, the Governor-General and State Governors
A Member must not refer disrespectfully to the Queen, the Governor-General, or a State Governor, in debate or for the purpose of influencing the House in its deliberations. According to May the reasons for the rule are:
The irregular use of the Queen’s name to influence a decision of the House is unconstitutional in principle and inconsistent with the independence of Parliament. Where the Crown has a distinct interest in a measure, there is an authorized mode of communicating Her Majesty’s recommendation or consent, through one of her Ministers; but Her Majesty cannot be supposed to have a private opinion, apart from that of her responsible advisers; and any attempt to use her name in debate to influence the judgment of Parliament is immediately checked and censured. This rule extends also to other members of the royal family, but it is not strictly applied in cases where one of its members has made a public statement on a matter of current interest so long as comment is made in appropriate terms.
Members have been prevented from introducing the name of the sovereign to influence debate, canvassing what the sovereign may think of legislation introduced in the Parliament and referring to the sovereign in a way intended to influence the reply to a question. The rule does not exclude a statement of facts by a Minister concerning the sovereign, or debate on the constitutional position of the Crown.
In 1976 Speaker Snedden prohibited in debate any reference casting a reflection upon the Governor-General, unless discussion was based upon a substantive motion drawn in proper terms. He made the following statement to the House based on an assessment of previous rulings:
Some past rulings have been very narrow. It has, for instance, been ruled that the Governor-General must not be either praised or blamed in this chamber and, indeed, that the name of the Governor-General must not be brought into debate at all. I feel such a view is too restrictive. I think honourable members should have reasonable freedom in their remarks. I believe that the forms of the House will be maintained if the Chair permits words of praise or criticism provided such remarks are free of any words which reflect personally on His Excellency or which impute improper motives to him. For instance, to say that in the member’s opinion the Governor-General was right or wrong and give reasons in a dispassionate way for so thinking would in my view be in order. To attribute motive to the Governor-General’s actions would not be in order.
Some previous rulings have been:
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it is acceptable for a Minister to be questioned regarding matters relating to the public duties for which the Governor-General is responsible, without being critical or reflecting on his conduct;
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restrictions applying to statements disrespectful to or critical of the conduct of the Governor-General apply equally to the Governor-General designate;
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reflections must not be cast on past occupants of the position or the office as such;
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the Governor-General’s name should not be introduced in debate in a manner implying threats;
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statements critical of and reflecting on the Governor-General’s role in the selection of a Ministry are out of order; and
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it is considered as undesirable to introduce into debate the names of the Governor-General’s household.
Petitions have been presented praying for the House to call on the Governor-General to resign, and remarks critical of a Governor-General made in respect of responsibilities he had held before assuming the office, and matters arising from such responsibilities, have been raised. The Chair has withdrawn the call from a Member who had referred to the Governor-General disrespectfully.
References to other governments and their representatives
Although there is no provision in the standing orders prohibiting opprobrious references to countries with which Australia is in a state of amity or to their leaders, governments or their representatives in Australia, the Chair has intervened to prevent such references being made, on the basis that the House was guided by UK House of Commons usage on the matter. However, from time to time, much latitude has been shown by the Chair and on the one occasion when the House has voted on the matter it rejected the proposed inclusion of this rule into the standing orders.
In more recent years the Chair has declined to interfere with the terms of a notice of motion asking the House to censure an ambassador to Australia ‘for his arrogant and contemptuous attitude towards Australia and … his provocative public statements’. A notice of motion asking the House to condemn a diplomatic representative for ‘lying to the Australian public’ has also been allowed to appear on the Notice Paper.
In 1986 the Procedure Committee recommended that restrictions relating to reflections in debate on governments or heads of governments, other than the Queen or her representatives in Australia, be discontinued. In practice, the latitude referred to earlier has continued to be evident. Even though the Procedure Committee recommendation has not been acted upon formally, the attitude of successive Speakers indicates acceptance of its views.
The standing orders and practice of the House do not prevent a Member from reflecting on a State Government or Member of a State Parliament, no matter how much such a reference may be deprecated by the Chair.
Reflections on members of the judiciary
Both standing orders and the practice of the House place certain constraints upon references in debate to members of the judiciary. Under the standing orders a Member may not use offensive words against a member of the judiciary. This provision was not included in the standing orders until 1950 but prior to then the practice, based on that of the UK House of Commons, was that, unless discussion was based upon a substantive motion, reflections could not be cast in debate upon the conduct, including a charge of a personal character, of a member of the judiciary. This practice still continues. Decisions as to whether words are offensive or cast a reflection rest with the Chair.
Rulings of the Chair have been wide ranging on the matter, perhaps the most representative being one given in 1937 that ‘From time immemorial, the practice has been not to allow criticism of the judiciary; the honourable member may discuss the judgments of the court, but not the judges’. In defining members of the judiciary, the Chair has included the following:
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a Public Service Arbitrator;
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an Australian judge who had been appointed to the international judiciary;
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a Conciliation and Arbitration Commissioner; and
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magistrates.
The Chair has also ruled that an electoral distribution commission is not a judicial body and that a judge acting as a commissioner is not acting in a judicial capacity. When judges lead royal commissions or special commissions, they are exercising executive power, not judicial power, and therefore do not attract the protection of standing order 89. The rule has not prevented criticism of the conduct of a person before becoming a judge.
Judges are expected, by convention, to refrain from politically partisan activities and to be careful not to take sides in matters of political controversy. If a judge breaks this convention, a Member may feel under no obligation to remain mute on the matter in the House.
Sub judice convention
Notwithstanding its fundamental right and duty to consider any matter if it is thought to be in the public interest, the House imposes a restriction on itself in the case of matters awaiting or under adjudication in a court of law. This is known as the sub judice convention. The convention is that, subject to the right of the House to legislate on any matter, matters awaiting adjudication in a court of law should not be brought forward in debate, motions or questions. Having no standing order relating specifically to sub judice matters the House has been guided by its own practice. Regard has also been had to that of the UK House of Commons as declared by resolutions of that House in 1963, 1972 and 2001.
The origin of the convention appears to have been the desire of Parliament to prevent comment and debate from exerting an influence on juries and from prejudicing the position of parties and witnesses in court proceedings. It is by this self-imposed restriction that the House not only prevents its own deliberations from prejudicing the course of justice but prevents reports of its proceedings from being used to do so.
The basic features of the practice of the House of Representatives are as follows:
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The application of the sub judice convention is subject to the discretion of the Chair at all times. The Chair should always have regard to the basic rights and interests of Members in being able to raise and discuss matters of concern in the House. Regard needs to be had to the interests of persons who may be involved in court proceedings and to the separation of responsibilities between the Parliament and the judiciary.
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As a general rule, matters before the criminal courts should not be referred to from the time a person is charged until a sentence, if any, has been announced; and the restrictions should again apply if an appeal is lodged and remain until the appeal is decided.
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As a general rule, matters before civil courts should not be referred to from the time they are set down for trial or otherwise brought before the court and, similarly, the restriction should again be applied from the time an appeal is lodged until the appeal is decided.
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In making decisions as to whether the convention should be invoked in particular cases, the Chair should have regard to the likelihood of prejudice to proceedings being caused as a result of references in the House.
The convention has also been applied, in some instances, in respect of royal commissions. The key feature is that decisions are made on a case by case basis, in light of the circumstances applying. For further discussion of sub judice in relation to royal commissions and similar bodies see page 524.
The sub judice convention can also be invoked in respect of committee inquiries, where sub judice considerations may influence a committee’s approach to seeking particular evidence or persuade it to take evidence in private—see ‘Sub judice convention’ in the Chapter on ‘Committee inquiries’.
Right to legislate and discuss matters
The right of the House to debate and legislate on matters without outside interference or hindrance is self-evident. Circumstances could be such, for example, that the Parliament decides to consider a change to the law to remedy a situation which is before a court or subject to court action.
Discretion of the Chair
The discretion exercised by the Chair must be considered against the background of the inherent right and duty of the House to debate matters considered to be in the public interest. Freedom of speech is regarded as a fundamental right without which Members would not be able to carry out their duties. Imposed on this freedom is the voluntary restraint of the sub judice convention, which recognises that the courts are the proper place to judge alleged breaches of the law. It is a restraint born out of respect by Parliament for the judicial arm of government, a democratic respect for the rule of law and the proper upholding of the law by fair trial proceedings. Speaker Snedden stated in 1977:
The question of the sub judice rule is difficult. Essentially it remains in the discretion of the presiding officer. Last year I made a statement in which I expanded on the interpretation of the sub judice rule which I would adopt. I was determined that this national Parliament would not silence itself on issues which would be quite competent for people to speak about outside the Parliament. On the other hand, I was anxious that there should be no prejudice whatever to persons faced with criminal action. Prejudice can also occur in cases of civil action. But I was not prepared to allow the mere issue of a writ to stop discussion by the national Parliament of any issues. Therefore I adopted a practice that it would not be until a matter was set down for trial that I would regard the sub judice rule as having arisen and necessarily stifle speeches in this Parliament. There is a stricter application in the matter of criminal proceedings.
The major area for the exercise of the Chair’s discretion lies in the Chair’s assessment of the likelihood of prejudice to proceedings.
The Select Committee on Procedure of the UK House of Commons put the following view as to what is implied by the word ‘prejudice’:
In using the word ‘prejudice’ Your Committee intend the word to cover possible effect on the members of the Court, the jury, the witnesses and the parties to any action. The minds of magistrates, assessors, members of a jury and of witnesses might be influenced by reading in the newspapers comment made in the House, prejudicial to the accused in a criminal case or to any of the parties involved in a civil action.
It is significant that this view did not include judges but referred only to magistrates, as it could be less likely that a judge would be influenced by anything said in the House. In 1976 Speaker Snedden commented:
… I am concerned to see that the parties to the court proceedings are not prejudiced in the hearing before the court. That is the whole essence of the sub judice rule; that we not permit anything to occur in this House which will be to the prejudice of litigants before a court. For that reason my attitude towards the sub judice rule is not to interpret the sub judice rule in such a way as to stifle discussion in the national Parliament on issues of national importance. I have so ruled on earlier occasions. That is only the opposite side of the coin to what is involved here. If I believed that in any way the discussion of this motion or the passage of the motion would prejudice the parties before the court, then I would rule the matter sub judice and refuse to allow the motion to go on; but there is a long line of authority from the courts which indicates that the courts and judges of the courts do not regard themselves as such delicate flowers that they are likely to be prejudiced in their decisions by a debate that goes on in this House. I am quite sure that is true, especially in the case of a court of appeal or, if the matter were to go beyond that, the High Court. I do not think those justices would regard themselves as having been influenced by the debate that may occur here.
The Chair has permitted comments to be made pertaining to a matter subject to an appeal to the High Court, a decision perhaps reflecting the view that High Court judges would be unlikely to be influenced by references in the House.
The Speaker has allowed a matter of public importance critical of the Government’s handling of an extradition process to be discussed, despite objection from the Attorney-General on sub judice grounds, on the basis that Members refrain from any comment as to the guilt or innocence of the person named in the proposed matter.
A matter before the courts has been brought before the House as an item of private Members’ business, the Speaker having concluded that the sub judice rule should not be invoked so as to restrict debate. It was noted that the matter was a civil one and that a jury was not involved.
Debate relating to the subject matter of a royal commission has been permitted on the grounds that the commissioner would not be in the least influenced by such remarks (and see page 524).
Civil or criminal matter
A factor which the Chair must take into account in making a judgment on the application of the sub judice convention is whether the matter is of a criminal or a civil nature. The practice of the House provides for greater caution in the case of criminal matters. First, there is an earlier time for exercising restraint in debate in the House, namely, ‘from the moment a charge is made’ as against ‘from the time the case is set down for trial or otherwise brought before the court’ in the case of a civil matter. In the case of a civil matter it is a sensible provision that the rule should not apply ‘from the time a writ is issued’ as many months can intervene between the issue of a writ and the actual court proceedings. The House should not allow its willingness to curtail debate so as to avoid prejudice to be convoluted into a curtailment of debate by the issue of a ‘stop writ’, namely, a writ the purpose of which is not to bring the matter to trial but to limit discussion of the issue, a step sometimes taken in defamation and other cases. Secondly, there is the greater weight which should be given to criminal rather than civil proceedings. The use of juries in criminal cases and not in civil matters and the possibility of members of a jury being influenced by House debate is also relevant to the differing attitudes taken as between civil and criminal matters.
Chair’s knowledge of the case
A significant practical difficulty which sometimes faces the Chair when application of the sub judice convention is suggested is a lack of knowledge of the particular court proceeding or at least details of its state of progress. If present in the Chamber, the Attorney-General can sometimes help, but often it is a matter of the Chair using his or her judgment on the reliability of the information given; for example, the Chair has accepted a Minister’s assurance that a matter was not before a court.
Matters before royal commissions and other bodies
Although it is clear that royal commissions do not exercise judicial authority, and that persons involved in royal commissions are not on trial in a legal sense, the proceedings have a quasi-judicial character. The findings of a royal commission can have very great significance for individuals, and the view has been taken that in some circumstances the sub judice convention should be applied to royal commissions.
The principal distinctions that have been recognised have been that:
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Matters before royal commissions or other similar bodies which are concerned with the conduct of particular persons should not be referred to in proceedings if, in the opinion of the Chair, there is a likelihood of prejudice being caused as a result of the references in the House.
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Matters before royal commissions or similar bodies dealing with broader issues of national importance should be able to be referred to in proceedings unless, in the opinion of the Chair, there are circumstances which would justify the convention being invoked to restrict reference in the House.
In 1954 Speaker Cameron took the view that he would be failing in his duty if he allowed any discussion of matters which had been deliberately handed to a royal commission for investigation. The contemporary view is that a general prohibition of discussion of the proceedings of a royal commission is too broad and restricts the House unduly. It is necessary for the Chair to consider the nature of the inquiry. Where the proceedings are concerned with issues of fact or findings relating to the propriety of the actions of specific persons the House should be restrained in its references. Where, however, the proceedings before a royal commission are intended to produce advice as to future policy or legislation they assume a national interest and importance, and restraint of comment in the House cannot be justified. Speaker Smith noted in relation to comment on a royal commission:
… it would be a ridiculous restriction of debate if matters that have been raised in public and reported in the media could not be aired in the national parliament.
However, in 1978 Speaker Snedden drew a Member’s attention to the need for restraint in his remarks about the evidence before a royal commission. Debate was centred on a royal commission appointed by the Government to inquire into a sensitive matter relating to an electoral re-distribution in Queensland involving questions of fact and the propriety of actions of Cabinet Ministers and others. The Speaker said:
I interrupt the honourable gentleman to say that a Royal Commission is in course. The sub judice rules adopted by the Parliament and by myself are such that I do not believe that the national Parliament should be deprived of the opportunity of debating any major national matter. However, before the honourable gentleman proceeds further with what he proposes to say I indicate to him that in my view if he wishes to say that evidence ABC has been given he is free to do so. The Royal Commissioner would listen to the evidence and make his judgment on the evidence and not on what the honourable gentleman says the evidence was. But I regard it as going beyond the bounds of our sub judice rules if the honourable gentleman puts any construction on the matter for the simple reason that if the Royal Commissioner in fact concluded in a way which was consistent with the honourable gentleman’s construction it may appear that the Commissioner was influenced, whereas in fact he would not have been. So I ask the honourable gentleman not to put constructions on the matter.
The question as to whether the proceedings before a royal commission are sub judice is therefore treated with some flexibility to allow for variations in the subject matter, the varying degree of national interest and the degree to which proceedings might be or appear to be prejudiced.
The application of the convention became an issue in 1995 in connection with a royal commission appointed by the Government of Western Australia. In this case, although the terms of reference did not identify persons, the Royal Commissioner subsequently outlined issues which included references to the propriety of the actions of a Minister at the time she had been Premier of Western Australia. In allowing Members to continue to refer to the commission’s proceedings, the Speaker noted that the terms of reference did not require the royal commission to inquire into whether there had been any breach of a law of the Commonwealth, that the issues had a highly political element, the publicity already given to the matter and the purpose of the convention. Nevertheless the Speaker rejected the view that the convention should not continue to be applied to royal commissions, and stated that each case should be judged on its merits.
When other bodies have a judicial or quasi-judicial function in relation to specific persons the House needs to be conscious of the possibility of prejudicing, or appearing to prejudice, their case. When the judicial function is wider than this—for example, a matter for arbitration or determination by the Industrial Relations Commission—there would generally be no reason for restraint of comment in the House. Not to allow debate on such issues would be contrary to one of the most important functions of the House, and the view is held that anything said in the House would be unlikely to influence the commissioners, who make their determinations on the facts as placed before them.
The discretion of the Chair, and the need to recognise the competing considerations, is always at the core of these matters.