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 (1989) 90 ALR 221, 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. 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.