Scott Ryan (President) Share this | Hansard source

I did foresee this matter when I saw the Notice Paper. I would raise a few matters if I could. Firstly, as Odgers points out on page 178:

Senators may be censured by the Senate for misconduct.

That is not an issue that is in question. It is well established, and I have a handful of examples here. What I will go onto with the sub judice issue is that the convention turns on a consideration where the debate in the Senate could involve 'a substantial danger of prejudice to proceedings before a court'. This is balanced against a consideration as to whether there is 'an overriding requirement for the Senate to discuss a matter of public interest'. As Odgers records:

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.

I have read the same sections of Odgers as a number of others have, and, with respect to this, I will also refer to page 262 of the current edition of Odgers, which outlines:

… 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.

That is a selection, and there is some context to it, I concede.

The section also talks about the different risks of the sub judice convention with respect to issues before judges or juries. It is difficult for me to see how the mere use of the word 'defamatory' in the motion, particularly as it appears in the sense of a Senate debate, could involve 'a substantial danger of prejudice to proceedings that may be on foot'. I will listen very closely to any debate on the motion, and, if I sense that there is a reason to invoke convention in relation to that debate, I shall do so. I'm not going to rule the motion out of order, Senator Bernardi. I hope that clarifies the issue of sub judice for the chamber in this regard. Senator Leyonhjelm?