Parliamentary Procedure

Sub Judice Rule

The SPEAKER (15:43): Before I call the Minister for Education, I wish to make a statement about the sub judice rule. In light of the reference in the house yesterday to the sub judice rule, I take the opportunity to bring to the attention of members the application of the rule.

The rulings by numerous Speakers of the House of Assembly clearly establish the existence and operation of the sub judice rule. Unlike other parliaments, where the sub judice rule is set out in standing orders or forms part of an ongoing resolution of the house, in the House of Assembly the sub judice rule is established by precedent and practice. I quote Speaker Lewis from Hansard of 27 November 2002, at page 2,010, where he sets out the application of the sub judice rule:

The restriction on debate which the house imposes on itself is to avoid substantial danger of prejudice to proceedings before a court. It is the chair’s view that such a restriction is a wise one…To the question of prejudice, it is unlikely to result from mere reference to a matter but from canvassing the issues or prejudgment of those issues in the parliament. The danger of prejudice is greater in cases where a jury is involved, or might be involved. Judges are less likely to be influenced by public or parliamentary debate…

In earlier years, the tendency was to restrict debate on any matter before a court, but in more recent time the focus has been on whether there was a danger of prejudice to proceedings. The extent to which the rule is applied by other parliaments, commissions, tribunals, and so on, varies considerably. Regard should be had to the interests of persons who may be involved in court proceedings and, as I have already pointed out, to the separation of responsibilities between the parliament on the one hand and the judiciary on the other.

The rules should not be applied to a generality of cases in such a way as to inhibit members in discussing penalties for offences and the like. The chair acknowledges that. For example, discussing penalties for drug offences is not ruled out simply because some cases are before the courts. However, after due consideration and consultation, I believe it more important that the right of the house to legislate on any matter is paramount and is therefore not prevented, even if it deals expressly with current litigation.

I now refer to the House of Representatives Practice, 6^th Edition, that succinctly captures the nuances of the application of the sub judice rule. I quote from page 521:

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. The application of the sub judice convention is subject to the discretion of the Chair at all times and as a general rule, matters before criminal courts should not be referred to from the time a person is charged until a sentence, if any, has been announced.

In respect of the operation of the sub judice rule, it is an assembly practice to accept the word of a minister that a matter is, in fact, sub judice if the Speaker has no other means of determining the matter. Other members' assurance may be relied upon, although the word of a minister with responsibility in the area would normally be regarded as more authoritative. Should a minister rise on a point of order to advise the house that a matter is in the courts, it is usually the case that, and I quote Speaker Oswald at page 163 of Hansard, 20 October 1999:

…based on custom, the chair is bound to accept the word of the minister that the matter is before the courts and is, in fact, sub judice. The chair is guided by the Minister in this regard, and the minister must stand by her advice to the chamber.