Select Committee Establishment: Notice of Motion

The PRESIDENT: On Friday 13 June I received a letter from the Hon. Trevor Khan requesting the opportunity to make a further submission on the matter of a point of order taken on a notice of motion given by him concerning the establishment of a select committee. It is appropriate that any such submission should be subject to the normal process of debate in the House. Accordingly, the Hon. Trevor Khan may have the opportunity now to make a short verbal submission, after which I will invite other members to make a brief response. When that is done, the House will proceed to the next item of business.

The Hon. TREVOR KHAN: I thank you for the opportunity to make further brief submissions. Firstly, when the Hon. Amanda Fazio raised the issue of sub judice she did so during the debate to suspend standing and sessional orders, in other words, during the urgency debate. I submit that this was not the appropriate time to raise a point of order as to whether or not an issue of sub judice exists is a substantive point and not one to be dealt with during what is essentially a procedural motion. The question is whether the issue of sub judice goes to the constitution of the select committee—that is, if the issue is so fundamental to the constitution of the committee that it prohibits the formation, the taking of evidence and consideration of matters?

In essence, the point I make is that the question of sub judice is one for consideration by the Chair of the committee, who is capable of taking evidence and deciding whether there is an issue of substantial prejudice to the trial of the case. During the receipt of such evidence, a select committee is in the best position to know whether there are any proceedings before a court, the likes of which would rule that particular evidence to fall foul of the convention of sub judice. Even if legal proceedings are on foot, it does not in and of itself prevent a select committee from considering other matters that fall within its terms of reference.

Even if legal proceedings are on foot now, this does not mean that at the time of taking evidence those proceedings will still be on foot. It is for the Chair and the committee to determine issues of substantial prejudice to the trial of the case if and when they apply and not, with the greatest of respect, for you, Mr President, to determine at this time. I ask that you be guided by the ruling of President Johnston 16 May 1990, in which the following points were made:

The convention is much stricter in relation to criminal matters—possibly having to be applied from the moment a charge is made—than in civil cases—possibly having to be applied from the time the case has been set down for trial or otherwise brought before the court. In recognition of the fact that some time they elapse before a civil matter comes before a court, the additional test of "real and substantial danger of prejudice to the trial of the case" may be used by the Chair

The Chair must take a realistic attitude towards sub judice by not automatically excluding discussions in the House on matters of public interest which are already freely ventilated in the media.

The Chair should be guided in the first instance by a presumption for discussion rather than against it Because a matter is before a court it does not follow that every aspect of it must be sub judice and beyond the limits of permissible debate—this would be too restrictive of the rights of members.

If the Chair feels that the interests of individuals who are to appear before the court may be prejudiced, the Chair should intervene and warn the member speaking to temper his or her remarks.

And finally:

The convention applies equally with regard to select committee proceedings.

I therefore suggest that it is clear the sub judice rule should not be applied in this circumstance, at this time or in this manner. If an issue of sub judice should arise in the future, at a point when the select committee is established and hearing evidence, the Chair of the committee, guided by President Johnston's ruling, will be in the best position to deal with it.

The Hon. AMANDA FAZIO: My original point of order to the notice of motion of the Hon. Trevor Khan was twofold. The second of the two points I raised related to sub judice. The Hon. Trevor Khan has addressed that point at length today, and I will not make any further comment on it because I believe that that is a matter for you to rule on, Mr President.

I note with interest, however, that Hon. Trevor Khan did not address the first point that I raised, which related to the relationship between the Legislative Council and the Legislative Assembly. I believed then, and still believe, that that is the most crucial point for determining that the motion is out of order and that the matter should not be dealt with by way of an inquiry by a select committee. It is inappropriate for this Chamber to conduct an investigation into the dealings of the Legislative Assembly, particularly in relation to industrial relations issues and the protections that the Assembly provides to its employees. In saying that I am by no means attempting to canvass your recent ruling on the original notice of motion of the Hon. Trevor Khan and the redrafted motion subsequently presented by him. The issue of comity between the two Chambers is crucial, and I urge you to give that matter due consideration when ruling on my points of order.

The PRESIDENT: There being no further speakers, the House will deal with the next item of business.