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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