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| Print this chapter (PDF 282KB) | < - Contents < - Chapter 13 : Chapter 15 - > |
The term ‘debate’ is a technical one meaning the argument for and against a question. The proceedings between a Member moving a motion and the ascertainment by the Chair of the decision of the House constitute a debate. A decision may be reached without debate. In addition, many speeches by Members which are part of the normal routine of the House are excluded from the definition of debate, because there is no motion before the House. These include the asking and answering of questions, ministerial statements, matters of public importance, and personal explanations. However, the word ‘debate’ is often used more loosely, to cover all words spoken by Members during House proceedings.
It is by debate that the House performs one of its more important roles, as emphasised by Redlich:
Without speech the various forms and institutions of parliamentary machinery are destitute of importance and meaning. Speech unites them into an organic whole and gives to parliamentary action self-consciousness and purpose. By speech and reply expression and reality are given to all the individualities and political forces brought by popular election into the representative assembly. Speaking alone can interpret and bring out the constitutional aims for which the activity of parliament is set in motion, whether they are those of the Government or those which are formed in the midst of the representative assembly. It is in the clash of speech upon speech that national aspirations and public opinion influence these aims, reinforce or counteract their strength. Whatever may be the constitutional and political powers of a parliament, government by means of a parliament is bound to trust to speech for its driving power, to use it as the main form of its action.1
The effectiveness of the debating process in Parliament has been seen as very much dependent on the principle of freedom of speech. Freedom of speech in the Parliament is guaranteed by the Constitution,2 and derives ultimately from the United Kingdom Bill of Rights of 1688.3 The privilege of freedom of speech was won by the British Parliament only after a long struggle to gain freedom of action from all influence of the Crown, courts of law and Government. As Redlich said:
. . . it was never a fight for an absolute right to unbridled oratory . . . From the earliest days there was always strict domestic discipline in the House and strict rules as to speaking were always enforced . . . the principle of parliamentary freedom of speech is far from being a claim of irresponsibility for members; it asserts a responsibility exclusively to the House where a member sits, and implies that this responsibility is really brought home by the House which is charged with enforcing it.4
The Speaker plays an important role in the control and conduct of debate through the power and responsibilities vested in the Chair by the House in its rules and practice. The difficulties of maintaining control of debate, and reconciling the need for order with the rights of Members, ‘requires a conduct, on the part of the Speaker, full of resolution, yet of delicacy . . .’.5
A Member may speak to any question before the Chair which is open to debate, when moving a motion which will be open to debate, and when moving an amendment.
A Member may speak during a discussion of a matter of public importance; he or she may make a statement to the House on the presentation of a committee or delegation report, during the periods for Members’ 90 second statements in the House and three minute statements in the Main Committee, and when introducing a private Member’s bill—in none of these instances is there a question before the Chair.
A Member may also speak when asking or answering a question, when raising a point of order or on a matter of privilege, to explain matters of a personal nature, to explain some material part of his or her speech which has been misquoted or misunderstood, when granted leave of the House to make a statement, and by indulgence of the Chair.
Pursuant to standing order 78, the following questions and motions are not open to debate, must be moved without comment and must be put immediately and resolved without amendment:
A Member may speak when moving a motion which is open to debate but loses the right to speak to the motion, except in reply, if he or she does not speak immediately. Similarly, a Member who moves an amendment must speak to it immediately, if wishing to speak to it at all. This rule does not apply during the consideration in detail stage of bills or during the consideration of Senate amendments and requests.
A Member who seconds a motion or amendment before the House may speak to it immediately or at a later period during the debate.6 It is common practice for seconders not wishing to speak immediately to state that they reserve the right to speak later. However, such action does not ensure that a Member will be able to speak later in the debate (if, for example, the debate is limited by time, or curtailed by the closure).
A Member may not speak a second or further time to a question before the House except:
Members may speak for an unlimited number of periods during consideration in detail of a bill or consideration of Senate amendments and requests.8 In special circumstances, a Member may speak again by leave—see below ‘Leave to speak again’.
The general rule that each Member may speak only once to each question places restrictions on Members moving and speaking to amendments (other than during consideration in detail or consideration of Senate amendments and requests). A Member who speaks to a question and then sits without moving an amendment that he or she intended to propose cannot subsequently move the amendment, having already spoken to the question before the House. If a Member has already spoken to a question, or has moved an amendment to it, the Member may not be called to move a further amendment or the adjournment of the debate, but may speak to any further amendment which is proposed by another Member. A Member who moves or seconds an amendment cannot speak again on the original question after the amendment has been disposed of, because he or she has already spoken while the original question was before the Chair and before the question on the amendment has been proposed. When an amendment has been moved, and the question on the amendment proposed by the Chair, any Member speaking subsequently is considered to be speaking to both the original question and the amendment and cannot speak again to the original question after the amendment has been disposed of. A Member who has already spoken to the original question prior to the moving of an amendment may speak to the question on the amendment, but the remarks must be confined to the amendment.9 A Member who has spoken to neither the motion nor the amendment may speak to the original question after the amendment has been disposed of. A Member who has spoken to the original question and the amendment may speak to the question on a further amendment, but must confine any remarks to the further amendment.10
In special circumstances, a Member may be granted leave to speak again.11 This most frequently occurs in a situation where a Member has moved but not spoken to a motion, but wishes to speak at a later time without closing the debate.12 A similar situation sometimes occurs when a Member’s earlier speech has been interrupted and he or she has not been present to continue the speech when the debate has been resumed. Leave to speak again in such cases in effect restores a lost opportunity rather than provides an additional one. The granting of leave to speak again in other circumstances is highly unusual.
The mover of a substantive motion or the second or third reading of a bill may speak on a second occasion in reply, but must confine any remarks to matters raised during the debate.13 The mover of an amendment has no right of reply as an amendment is not a substantive motion. The reply of the mover of the original question closes the debate. However, the mover may speak to any amendment moved without closing the debate, but his or her remarks must be confined to the amendment.14 The speech of a Minister acting on behalf of the mover of the original motion does not close the debate.15 The right of reply of the mover has been exercised even though the original question has been rendered meaningless by the omission of words and the rejection of proposed insertions.16
The Chair has ruled that a reply is permitted to the mover of a motion of dissent from a ruling of the Chair.17
The mover of a motion is not entitled to the call to close the debate while any other Member is seeking the call.18 When a mover received the call and stated that he was not speaking to an amendment before the House but to the motion generally and wished to close debate, he was directed by the Chair to speak to the amendment only, in order that the rights of others to be heard were not interfered with.19 In the absence of such circumstances a Minister speaking after an amendment has been proposed closes the debate.20 A Member closing the debate by reply cannot propose an amendment.21
The mover of a motion may speak a second time but avoid closing a debate by seeking ‘leave to speak again without closing the debate’22 (see above ‘Leave to speak again’). Such action is most appropriate in relation to a motion to take note of a document, which is moved as a vehicle to enable debate rather than with the intention of putting a matter to the House for decision.
A Member may speak again to explain some material part of his or her speech which has been misquoted or misunderstood. In making this explanation the Member may not interrupt another Member addressing the House, debate the matter, or introduce any new matter.23 No debate may arise following such an explanation. The correct procedure to be followed by a Member is to rise after the Member speaking has concluded and to inform the Chair that he or she has been misrepresented. The Chair will then permit the Member to proceed with the explanation. It helps in the conduct of the proceedings if Members notify the Chair in advance that they intend to rise to make an explanation. The Chair will seek to ensure that the Member confines himself or herself to correcting any misrepresentation and will not allow wider matters to be canvassed.
Pursuant to standing order 68, a Member may explain how he or she has been misrepresented or explain another matter of a personal nature whether or not there is a question before the House. The Member seeking to make an explanation must rise and seek permission from the Speaker, must not interrupt another Member who is addressing the House, and the matter must not be debated.
Although in practice the Speaker’s permission is freely given, Members have no right to expect it to be granted automatically.24 It is the practice of the House that any Member wishing to make a personal explanation should inform the Speaker beforehand.25 The Speaker has refused to allow a Member to make a personal explanation when prior notice has not been given.26
Personal explanations may be made at any time with the permission of the Chair, provided that no other Member is addressing the House.27 However, recent practice has been for them to be made soon after Question Time.28 Personal explanations claiming misrepresentation may arise from reports in the media, Senate debates, the preceding Question Time, and so on.29 A Minister has presented a list correcting statements made about him in the Senate, rather than go through all the details orally.30 One of the reasons for personal explanations being sought soon after Question Time is that, when a personal explanation is made in rebuttal of a statement made in a question or answer, the question and answer are excluded from any rebroadcast of Question Time. This exclusion is subject to the discretion that the Speaker has to refer a particular case to the Joint Committee on the Broadcasting of Parliamentary Proceedings.31
The fact that a Member has made a personal explanation about a matter does not prevent another Member from referring to the matter even if, for example, the Member has refuted views attributed to him or her.32
In making a personal explanation, a Member must not debate the matter, and may not deal with matters affecting his or her party or, in the case of a Minister, the affairs of the Minister’s department—the explanation must be confined to matters affecting the Member personally.33 A Member cannot make charges or attacks upon another Member under cover of making a personal explanation.34
A personal explanation may be made in the Main Committee,35 or it may be made in the House regarding events in the Main Committee. In making such an explanation the Member may not reflect on the Chair of the Committee.36 The indulgence granted by the Chair for a personal explanation may be withdrawn if the Member uses that indulgence to enter into a general debate.37 A Member has been permitted to make a personal explanation on behalf of a Member who was overseas.38
A personal explanation is not restricted to matters of misrepresentation. For example, Members have used the procedure to explain an action or remark, apologise to the House, clarify a possible misunderstanding, state why they had voted in a particular way, and correct a statement made in debate.39
If the Speaker refuses permission to a Member to make a personal explanation, or directs a Member to resume his or her seat during the course of an explanation, a motion ‘That the Member be heard now’ is not in order, nor may the Member move a motion of dissent from the Speaker’s ‘ruling’ as there is no ruling.40
Although the standing orders make provision for Members to speak with permission of the Chair only in respect of a matter of a personal nature (see above), the practice of the House is that, from time to time, the Speaker or Chair grants indulgence for Members to deal with a variety of other matters. The term ‘indulgence’, used to cover the concept of permission or leave from the Chair as distinct from leave of the House,41 is a reminder that its exercise is completely at the Chair’s discretion. It is, as the term suggests, a special concession. Indulgence has been granted, for example, to permit:
When the Prime Minister makes a statement by indulgence on an issue, the Leader of the Opposition is commonly also granted indulgence to speak on the same matter. On occasion, indulgence may be extended to a series of Members—for example, after a Member has made a statement to the House announcing his intention to resign, other Members have spoken to pay tribute to the Member or offer their best wishes for the future.67
A frequently used practice is to seek the leave of the House—that is, permission without objection from any Member present68—to make a statement when there is no question before the House. This procedure is used, in the main, by Ministers to announce domestic and foreign policies and other actions or decisions of the Government. A period is provided in the order of business for ministerial statements following Question Time and the presentation of documents on Tuesdays, Wednesdays and Thursdays.69 However, Ministers may make statements at other times as well—in all cases leave is required. Leave is also required for a Member to make a statement when presenting a committee or delegation report outside the period set aside for that purpose on Mondays.70
In the case of a ministerial statement, it is usual for a copy of the proposed statement to be supplied to the Leader of the Opposition or the appropriate shadow minister some minimum time before the statement is made. At the conclusion of the Minister’s speech, he or she may present a copy of the statement and a motion ‘That the House take note of the document’ may be moved. The shadow minister or opposition spokesperson may then speak to that motion, with, commonly, standing orders being suspended to permit a speaking time equal to that taken by the Minister. If a motion to take note is not moved it is usual for leave to be given for the opposition spokesperson to speak on the same subject.
Members seeking leave to make statements must indicate the subject matter in order that the House can make a judgment as to whether or not to grant leave. When a Member has digressed from the subject for which leave was granted, the Chair has:
If a Member does not indicate the subject matter of a proposed statement when responding to a statement just made, difficulties may arise for the Chair and these are exemplified by the following case. A Member having been granted leave to respond to a statement made by a Minister and the point having been made that he should remain relevant to the Minister’s statement, the Chair stated that whilst it may be argued that in spirit the leave to respond was related to the Minister’s statement, that was not specifically stated. The Chair had no authority to require the Member to be any more relevant than he saw fit, it being in the hands of the House through the standing orders to take the steps necessary to bring the Member’s remarks to a conclusion.74 Greater control over relevancy can be preserved if, where Members rise to seek leave to make statements following, for example, a ministerial statement, the Chair asks ‘Is the honourable Member seeking leave to make a statement on the same matter?’.
A request for leave cannot be debated, nor can leave be granted conditionally, for example, on the condition that another Member is allowed to make a statement on the same subject.
If leave is not granted, a Minister or Member, on receiving the call, may move ‘That so much of the standing (and sessional) orders be suspended as would prevent the Minister for . . . [the Member for . . . ] making a statement’. This motion must be agreed to by an absolute majority of Members. Alternatively, in the case of a Minister, the printed statement may be presented.
The fact that leave is granted or standing orders are suspended to enable a Member to make a statement only affords the Member an opportunity to do that which would not be ordinarily permissible under the standing orders—that is, make a statement without leave. The normal rules of debate, and the provisions of the standing orders generally, still apply so that if, for example, the automatic adjournment interrupts the Member’s speech, the speech is then terminated unless the adjournment proposal is negatived.
A Member cannot be given leave to make a statement on the next day of sitting in reply to a statement just made, but must ask for such leave on the next day of sitting.75 It is not in order for a motion to be moved that a Member ‘have leave to make a statement’76 or, when leave to make a statement is refused, to move that the Member ‘be heard now’,77 as the latter motion can only be moved to challenge the call of the Chair during debate.78 When a statement is made by leave, there is no time limit on the speech,79 but a motion may be made at any time that the Member speaking ‘be no longer heard’.80 Once granted, leave cannot be withdrawn.81
In the House of Commons leave is not required to make a ministerial statement. In 1902 Prime Minister Barton claimed that it was the inherent right of a leader of a Government to make a statement on any public subject without leave of the House. The Speaker ruled that no Minister had such a right under the standing orders of the House of Representatives.82
The requirement for leave has had the practical effect noted above, that traditionally an advance copy of a proposed ministerial statement is supplied to the Opposition, allowing its spokesperson time to prepare a considered response.
The Member who moved the motion for the adjournment of a debate is entitled to speak first on the resumption of the debate.83 If the Member does not take up that entitlement on the resumption of the debate, this does not impair his or her right to speak later in the debate.84 However, when a Member is granted leave to continue his or her remarks and the debate is then adjourned, the Member must take the entitlement to pre-audience on the resumption of the debate, otherwise he or she loses the right to continue.
Although the Chair is not obliged to call any particular Member, except for a Member entitled to the first call as indicated above, it is the practice for the Chair, as a matter of courtesy, to give priority to:
A Minister (or Parliamentary Secretary) in charge of business during the consideration in detail of a bill or consideration of Senate amendments (when any Member may speak as many times as he or she wishes) would usually receive priority over other government Members whenever wishing to speak.88 This enables the Minister to explain or comment upon details of the legislation as they arise from time to time in the debate. Speakers have also taken the view that in respect of business such as consideration of Senate messages, the call should, in the first instance, be given to the Minister or Parliamentary Secretary expected to have responsibility for the matter.89
If two or more Members rise to speak, the Speaker calls on the Member who, in the Speaker’s opinion, rose first.90 The Chair’s selection may be challenged by a motion that a Member who was not called ‘be heard now’, and the question must be put immediately and resolved without amendment or debate.91 A Member may move either of these motions in respect of himself or herself.92 It is not in order to challenge the Chair’s decision by way of moving that the Member who received the call ‘be no longer heard’.93 A motion of dissent from the Chair’s allocation of the call should not be accepted, as the Chair is exercising a discretion, not making a ruling.
Standing order 78 provides, among other things, that if a motion that a Member be heard now is negatived, no similar proposal shall be received if the Chair is of the opinion that it is an abuse of the orders or forms of the House or is moved for the purpose of obstructing business.94
Although the allocation of the call is a matter for the discretion of the Chair, it is usual, as a principle, to call Members from each side of the House, government and non-government, alternately. Within this principle minor parties and any independents are given reasonable opportunities to express their views.95 Because of coalition arrangements between the Liberal and National Parties, the allocation of the call between them has varied—for example, in the 30th Parliament, with the respective party numbers 68 and 23, the call was allocated on the basis of a 3:1 ratio; in the 38th Parliament, with the party numbers 76 and 18, the ratio was 4:1; and in the 41st Parliament, with the party numbers 75 and 12, the ratio was 6:1. Independent Members have been called with regard to their numbers as a proportion of the House.
Throughout the history of the House of Representatives a list of intending speakers has been maintained to assist the Chair in allocating the call. As early as 1901 the Speaker noted that, although it was not the practice for Members to send names to him and to be called in the order in which they supplied them, on several occasions when a group of Members had risen together and had then informed the Chair that they wished to speak in a certain order, they had been called in that order so that they might know when they were likely to be called on.96
By the 1950s the Chair was allocating the call with the assistance of a list of speakers provided by the party whips. Speaker Cameron saw this as a perfectly logical and very convenient method of conducting debates. He added that, if they were not adhered to or Members objected to the practice, the House would revert to a system under which there was no list whatsoever and the Chair would call the Member he thought had first risen in his place. He saw this procedure as awkward as some Members were more alert than others and for that reason he thought it better that the Chair be made aware of the intentions of the parties, each party having some idea of their Members best able to deal with particular subjects.97 Although he welcomed lists provided by the whips as useful guides, he stressed that he was not bound by them and indicated that, if it came to his knowledge that certain Members were being precluded from speaking, he would exercise the rights he possessed as Speaker.98 In essence this continues to be the practice followed by the Chair.
It is the responsibility of Members listed to speak to follow proceedings in order to ensure that they will be available at the appropriate time. It is discourteous to the Member speaking, and to the Chair and other participants in the debate, for the next speaker to leave his or her entry to the Chamber to the last minute. If no Member rises to speak there can be no pause in proceedings, and the Chair is obliged to put the question before the House to a vote. In practice, the whips or the duty Minister or shadow minister at the Table assume responsibility for chasing up errant speakers from their respective parties,99 and alert the Chair to any changes to the list.
A Member wishing to speak rises and, when recognised by the Speaker, addresses the Speaker.100 If a Member is unable to rise, he or she is permitted to speak while seated.101 It is regarded as disorderly for a Member to address the House in the second person and Members have often been admonished when they have lapsed into this form of address.102 As remarks must be addressed to the Chair, it is not in order for a Member to turn his or her back to the Chair and address party colleagues.103 A Member should not address the listening public while the proceedings of the House are being broadcast.104
Standing order 65(c) provides that when two or more Members rise to speak the Speaker shall call upon the Member who, in the Speaker’s opinion, rose first, and standing order 62(a) requires every Member, when in the Chamber, to ‘take his or her seat’. The implication is that a Member should address the House from his or her own seat. Ministers and shadow ministers speak from the Table. Parliamentary Secretaries are allowed to speak from the Table when in charge of the business before the House but at other times are required to speak from their allocated places. The same practice applies in respect of opposition Parliamentary Secretaries.105 An opposition Member who is not a member of the opposition shadow ministry but who is leading for the Opposition in a particular debate, is permitted to speak either from his or her allotted seat or from the Table.106
There is no longer a prohibition on Members reading their speeches. Until 1965 the standing orders provided that ‘A Member shall not read his speech’. In 1964, the Standing Orders Committee recommended that:
As Parliamentary practice recognizes and accepts that, whenever there is reason for precision of statement such as on the second reading of a bill, particularly those of a complex or technical nature, or in ministerial or other statements, it is reasonable to allow the reading of speeches and, as the difficulty of applying the rule against the reading of speeches is obvious, e.g. ‘‘reference to copious notes’’, it is proposed to omit the standing order.107
The recommendation of the committee was subsequently adopted by the House.108
Although there is no specific rule set down by standing order, the House follows the practice of requiring Members’ speeches to be in English. Other Members and those listening to proceedings are entitled to be able to follow the course of a debate, and it is unlikely that the Chair would know whether a speech is in order unless it is delivered in English. It is in order, however, for a Member to use or quote phrases or words in another language during the course of a speech.
In 2003 a meeting of the two Houses in the House of Representatives Chamber was addressed by the President of China in Chinese. Members and Senators used headphones to hear the simultaneous translation into English.109
In one form or another the House has always had procedures for the incorporation of unread material into Hansard but there were, until recent years, considerable variations in practice and the Chair from time to time expressed unease at the fact that the practice was allowed and in respect of some of the purposes for which it was used.
Answers to questions in writing are required to be printed in Hansard110 and Budget tables were in the past permitted to be included unread in Hansard.111 The terms of petitions have been incorporated since 1972,112 and the terms of notices not given openly in the House have been included since 1978; in more recent years all notices have been included. The terms of amendments moved are also printed in Hansard, despite the common practice being for Members moving them to refer to previously circulated texts of proposed amendments rather than to read them out in full.
Underlying the attitude of the Chair and the House over the years has been the consistent aim of keeping the Hansard record as a true record of what is said in the House. Early occupants of the Chair saw the practice of including unread matter in Hansard as fraught with danger113 and later Speakers have voiced more specific objections.114 For example, a ‘speech’ may be lengthened beyond a Member’s entitlement under the standing orders, or the incorporated material may contain irrelevant or defamatory matter or unparliamentary language; other Members will not be aware of the contents of the material until production of the daily Hansard next morning when a speech may be discovered to have matter not answered in debate and so appear more authoritative. Similarly, a succeeding Member’s speech may appear to be less relevant and informed than it would have been if he or she had known of the unspoken material before speaking.115
The modern practice of the House on the incorporation of other material, defined by Speakers Snedden and Jenkins in statements on the practice, is based on the premise that Hansard, as an accurate as possible a record of what is said in the House, should not incorporate unspoken material other than items such as tables which need to be seen in visual form for comprehension.116 It is not in order for Members to hand in their speeches as is done in the Congress of the United States of America,117 even when they have been prevented from speaking on a question before the House,118 nor can they have the balance of an unfinished speech incorporated.119 Ministerial statements may not be incorporated,120 nor may Ministers’ second reading speeches121 or explanatory memoranda to bills.122 Matter irrelevant to the question before the House is not permitted to be incorporated.123
Apart from offending against the principle that Hansard is a report of the spoken word, items may also be excluded on technical grounds. Thus, for example, photographs, drawings, tabulated material of excessive length and other documents of a nature or quality not acceptable for printing or which would present technical problems and unduly delay the production of the daily Hansard are not able to be incorporated. In cases where permission has been granted for such an item to be incorporated (usually with the proviso from the Chair that the incorporation would occur only if technically possible), it has been the practice for a note to appear in the Hansard text explaining that the proposed incorporation was omitted for technical reasons. However, in recent years developments in printing technology have made possible the incorporation of a wider range of material—for example, graphs, charts and maps—than was previously the case.
A Minister or Member seeking leave to incorporate material should first show the matter to the Member leading for the Opposition or to the Minister or Parliamentary Secretary at the Table, as the case may be,124 and leave may be refused if this courtesy is not complied with.125 Members must provide a copy of the material they propose to include at the time leave is sought,126 and copies of non-read material intended for incorporation must be lodged with Hansard as early as possible.127
The general rule is not interpreted inflexibly by the Chair. For example, exceptions have been made to enable schedules showing the progress on government responses to committee reports.128 Although other exceptions may be made from time to time, this is not a frequent occurrence and it is common practice of the Chair in such circumstances to remark on, and justify, the departure from the general rule, or to stress that the action should not be regarded as a precedent. The main category of such exceptions in recent years has been in relation to documents whose incorporation has provided information from the Government to the House.129 Other exceptions have been made to facilitate business of the House,130 or to allow the incorporation of material which in other circumstances could have been incorporated as a matter of routine.131 The contents of a letter stick from Aboriginal peoples of the Northern Territory have been incorporated.132
The House has ordered that matter be incorporated.133 Matter has been authorised to be incorporated by a motion moved pursuant to contingent notice, after leave for incorporation had been refused.134 A motion to allow incorporation has also been moved and agreed to following suspension of standing orders.135
On two occasions in 1979 standing orders were suspended to enable certain documents to be incorporated in Hansard, after leave had been refused.136 This action was procedurally defective. The incorporation of unspoken matter in Hansard is, by practice, authorised by the House by its unanimous consent. The unanimous consent is obtained by asking for leave of the House. If leave is refused the authority of the House can only be obtained by moving a positive motion. In order to move a motion without leave it is necessary to suspend the standing orders. The suspension of standing orders opens the way to move a motion for incorporation; it does not of itself allow incorporation as there is no standing order relating to the incorporation of matter in Hansard.
The fact that the House authorises the incorporation of unread matter does not affect the rule that the final decision rests with the Speaker.
Members have been permitted to display articles to illustrate speeches. The Chair has been of the opinion that unless the matter in question had some relation to disloyalty or was against the standing orders the Chair was not in a position to act but hoped that Members would use some judgment and responsibility in their actions.137 However, the general attitude from the Chair has been that visual props are ‘tolerated but not encouraged’.138 In 1980 the Chair ruled that the display of a handwritten sign containing an unparliamentary word by a seated Member was not permitted.139 Since then the Chair has more than once ruled that the displaying of signs was not permitted.140 Scorecards held up following a Member’s speech have been ordered to be removed.141 In 1985 the Speaker ordered a Member to remove two petrol cans he had brought into the Chamber for the purpose of illustrating his speech.142 It is not in order to display a weapon143or play a tape recorder.144
The wide range of items which have been allowed to be displayed has included items as diverse as a flag,145 photographs and journals,146 plants,147 a gold nugget,148 a bionic ear,149 a silicon chip,150 a flashing marker for air/sea rescue,151 a synthetic quartz crystal,152 superconducting ceramic,153 hemp fibres,154 a heroin ‘cap’,155 a gynaecological instrument,156 a sporting trophy,157 and ugh boots.158 Although newspaper headlines have been displayed for the purpose of illustrating a speech (but not if they contain unparliamentary language),159 more recent practice has been not to permit this.
If a Minister quotes from a document relating to public affairs, a Member may ask for it to be presented to the House. The document must be presented unless the Minister states that it is of a confidential nature.160 This rule does not apply to private Members.
A Member may quote from documents not before the House, but the quotation must be relevant to the question before the Chair.161It is not in order to quote words debarred by the rules of the House.162 It is not necessary for a Member to vouch for the accuracy of a statement in a document quoted from or referred to,163 but a Member quoting certain unestablished facts concerning another Member contained in a report has been ordered not to put those findings in terms of irrefutable facts.164 It is not necessary for a Member to disclose the source of a quotation165 or the name of the author of a letter from which he or she has quoted.166 The Chair has always maintained that Members themselves must accept responsibility for material they use in debate, and there is no need for them to vouch for its authenticity. Whether the material is true or false will be judged according to events and if a Member uses material, the origin of which he or she is unsure, the responsibility rests with the Member.167
Subject to the rules applying to relevance and unparliamentary expressions, it is not within the province of the Chair to judge whether a document declared to be confidential should be restricted in its use in the House. As the matter is not governed by standing orders, it must be left to the good sense and discretion of a Member to determine whether to use material in his or her possession.168 However, the Chair has ruled that confidential documents submitted to Cabinet in a previous Government must, in the public interest, remain entirely confidential.169
Of fundamental importance to the conduct of debate in the House is the rule that a Member must speak only on the subject matter of a question under discussion.170 At the same time the standing orders and practice of the House make provision for some important exceptions to this principle when debates of a general nature may take place. These exceptions are:
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.
When two or more related orders of the day are on the Notice Paper,175 it frequently meets the convenience of the House when debating the first of the orders to allow reference to the other related orders and one cognate debate takes place.176 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.177 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.178 A cognate debate has taken place on three committee reports on unrelated subjects (by the same committee).179
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.180 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.
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.181 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.182 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.183 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.184
On only two occasions has a Member been directed to discontinue a speech on the ground of tedious repetition185 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,186 and 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).187 On two occasions the direction of the Chair has been successfully challenged by a motion that the Member be further heard.188
The so-called anticipation rule involves two standing orders—one applying generally and one applying specifically to questions:
The intention behind the rule is to protect matters which are on the agenda for deliberative consideration and decision by the House from being pre-empted by unscheduled debate. The Speaker’s ‘reasonable time’ discretion is to prevent the rule being used mischievously to block debate on a matter.
The words ‘a subject which appears 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.
A notice of motion has been held to prevent its subject matter being discussed by means of an amendment to a motion or by means of a matter of public importance. A notice of motion has been withdrawn prior to discussion of a matter of public importance on the same subject.189 The rule has been applied to a personal explanation,190 a motion of censure or no confidence,191 the adjournment debate192 and grievance debate.193 During the course of a grievance debate the Chair has prevented a Member from debating a certain matter because it related to the subject of a notice of motion appearing on the Notice Paper in the Member’s name. On the basis that the notice had only been given three weeks previously, the Chair was not in a position at that stage to determine whether or not the matter would be brought before the House within a reasonable time.194
There has been a tendency in recent years for rulings concerning anticipation to be more relaxed. After a long period of sittings the Notice Paper may contain notices and orders of the day on many aspects of government responsibility, with the result that an overly strict application of the rule could rule out a large proportion of subjects raised in debate, Members’ statements or questions without notice, or topics proposed for discussion as matters of public importance. In a statement relating to matters of public importance Speaker Child, who had at the previous sitting accepted a matter which dealt with a subject covered in legislation listed for debate as an order of the day, indicated that, in her view, the discretion available to the Speaker should be used in a very wide sense.195
In general, the approach taken by the Chair has been that it is not in order while debating a question before the House to go into detailed discussion of other business on the Notice Paper. However, incidental reference is permissible.196 Where the topic of a matter of public importance has been very similar to the subject matter of a bill due for imminent debate, the discussion has been permitted, subject to the proviso that the debate on the bill should not be canvassed,197 or that the bill not be referred to in detail.198
The application of the anticipation rule was reviewed by the Procedure Committee in early 2005. The House adopted the committee’s recommendation that, as a trial for the remainder of the 41st Parliament, standing order 77 be amended to read as follows:
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.199
The House also adopted the recommendation that standing order 100(f), applying to the asking of questions, be suspended for same period. The effect of standing order 100(f) is discussed in the Chapter on ‘Questions’.
Unless the reference is relevant to the discussion, a Member must not refer to debates or proceedings of the current session of the House.200 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.201 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’.202
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,203 although the Chair has sometimes intervened to prevent it.204 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.
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.205 Members have thus been prevented from referring to evidence not disclosed to the House or basing statements on matters disclosed to the committee.206 However, Members have, from time to time, made statements on the activities of a committee by leave of the House.207 The Chair has permitted reference in debate to committee proceedings which (although unreported) had been relayed throughout Parliament House on the monitoring system.208
Offensive words cannot be used against either the Senate or Senators.209 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,210 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.211
The former restriction on allusion in debate to proceedings of the Senate212 was omitted from the revised standing orders in 2004. The Senate had not had an equivalent standing order for many years.213 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.214
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.215
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).216 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,217 or in the course of a quotation.218
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.219
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 apology220 and need not be followed by an apology unless specifically demanded by the Chair.221 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.
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 present222 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.223 However, the Speaker has later drawn attention to remarks made and called on a Member to apologise, or to apologise and withdraw.224 Having been asked to withdraw a remark a Member may not do so ‘in deference to the Chair’, must not leave the Chamber225 and must withdraw the remark immediately,226 in a respectful manner,227 unreservedly228 and without conditions229 or qualifications.230 Traditionally Members have been expected to rise in their places to withdraw a remark.231 If a Member refuses to withdraw or prevaricates, 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.232
In the Chamber and the Main Committee Members may not be referred to by name, but by the name of their electoral division, or by the title of their parliamentary or ministerial office.233 The purpose of this rule is to make debate less personal and avoid the direct confrontation of Members addressing one another as ‘you’.234 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 words may not be used against any Member235 and all imputations of improper motives to a Member and all personal reflections on other Members are considered to be highly disorderly.236 The practice of the House, based on that of the House of Commons,237 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.238 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.239 This practice does not necessarily preclude the House from discussing the activities of any of its Members.240 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 a useful guide:
. . . 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.241
It has also been regarded as disorderly to refer to the lack of sobriety of a Member,242 to imitate the voice or manner of a Member243 and to make certain remarks in regard to a Member’s stature244 or physical attributes.245 Although former Members are not protected by the standing orders,246 the Chair has required a statement relating to a former Member to be withdrawn247 and on another occasion has regarded it as most unfair to import into debate certain actions of a Member then deceased.248
May classifies examples of expressions which are unparliamentary and call for prompt interference as:
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.250
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.251 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,252 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.253 Speaker Snedden supported this practice when he required the withdrawal of the term ‘a bunch of traitors’254 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.255
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.256
This practice has been followed by succeeding Speakers.
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.257
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.258 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 when one of its members has made a public statement on a matter of current interest so long as comment is made in appropriate terms.259
Members have been prevented from introducing the name of the sovereign to influence debate,260 canvassing what the sovereign may think of legislation introduced in the Parliament261 and referring to the sovereign in a way intended to influence the reply to a question.262 The rule does not exclude a statement of facts by a Minister concerning the sovereign,263 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.264
Some previous rulings have been:
Petitions have been presented praying for the House to call on the Governor-General to resign,271 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.272
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.273 This provision was not included in the standing orders until 1950 but prior to then the practice, based on that of the 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’.274 In defining members of the judiciary, the Chair has included the following:
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.278 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.279
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.280
The standing orders provide that offensive words may not be used against the House of Representatives.281 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.282 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.283 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,284 and a Member has been ordered not to canvass decisions of the House of the same session.285 This rule is not interpreted in such a way as to prevent a reasonable expression of views on matters of public concern.
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 House of Commons usage286 on the matter.287 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 1962 the Standing Orders Committee recommended amendments to the standing orders to give effect to the House of Commons practice that questions should not contain discourteous references to a friendly country or its representative.288 The House rejected the recommendation.289
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’.290 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.291
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.292 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 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.293
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 House of Commons as declared by resolutions of that House in 1963 and 1972.294
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.295 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:
The convention has also been applied 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.297 The principal distinctions that have been recognised have been that:
The sub judice convention can also be invoked in respect of committee inquiries, although, having the ability to take evidence in private, committees are able to guard against any risk of prejudice to proceedings as a result of evidence given or the reporting of such evidence by the media. During the Transport, Communications and Infrastructure Committee inquiry into aviation safety in 1994–95, for example, the committee decided that it should not receive evidence in public concerning two particular matters, one being the subject of a coronial inquiry and the other the subject of a judicial inquiry.
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.
The discretion exercised by the Chair must be considered against the background of the inherent right and duty of the House to debate any matter 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.299
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 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.300
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.301
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.302
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.303
A matter before the courts has been brought before the House as an item of private Member’s business, the Speaker having concluded that the sub judice rule should not be invoked so as to restrict debate.304 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 below).305