|The word "sub judice" simply means under judicial consideration.|
The general rule is that matters still under adjudication by the courts should not be brought forward in debate in such a way as to prejudice court proceedings, but the public interest may be held to prevail over the sub judice doctrine. The rule only applies to debate and as such notices of motions cannot be ruled out of order on the basis of the sub judice convention until they are moved.
The application of what has been termed "the sub judice rule" in the New South Wales Legislative Assembly is not subject to a statute, Standing Order or set rule. Accordingly reference must be made to our own precedents and practice.
The origin of the sub judice rule (or convention) is detailed in a Report of a House of Commons Select Committee on Procedure entitled "Matters Sub Judice", as - the desire of Parliament to prevent comment and debate from exerting an influence on juries and prejudicing the positions of parties and witnesses in court proceedings. The Select Commitee recognised a difference between the sub judice convention and contempt of court - sub judice is imposed voluntarily by Parliament itself and is exercised subject to the discretion of the Chair with the object of forestalling prejudice of proceedings in the courts. Courts protect themselves from prejudicial comment outside Parliament by the exercise post hoc of the powers to punish contempts (4th Report HC 298 (1971-72) pages vii-viii).
In summary, the important matters the Chair has to take into consideration in applying the rule are that:
- the Parliament has a right to legislate on any matter -- therefore the restriction of debate on matters on the basis that they are sub judice is based on the House voluntarily restricting itself in debate in order not to influence the outcome of a court's deliberation and to protect the interests of litigants or other parties before the courts.
- the convention is much stricter in relation to criminal matters (taking effect the moment a charge is made) than in civil cases (where the filing of the relevant documents is the trigger).
- the onus falls upon the Chair and the Chair alone to adjudge whether a matter is sub judice. In order to make this assessment the Chair must be apprised of the specific matter before the Court and the Chair must be able to hear enough of the Member's contribution to decide whether the Member should be allowed to proceed.
- the Chair must take a realistic attitude in such matters by not automatically excluding discussion in the House on matters of public interest which have already been freely ventilated in the media.
Mr R.P. Meagher QC in an article published in Justice (Nov 1978 No. 7) makes the following comment on the modern sub judice rule - "It is of critical importance to appreciate that the rule is limited in its operation. It does not apply unless the necessity of its operation has become quite clear...It has to be applied prudently, and is not applied strictly. It applies, when it does, only to prevent discussion of the precise issue before the court, not to prevent general discussion of collateral or related matters."
Meagher gives the following quotation from the judgment of Sir Frederick Jordan, Chief Justice of NSW Supreme Court in Ex parte Bread Manufacturers Ltd; re Truth and Sportsman Ltd and another (1937) SR (NSW) 249-50 which relates to the public interest question:
"It is of extreme public interest that no conduct should be permitted which is likely to prevent a litigant in a court of justice from having his case tried free from all manner of prejudice. But the administration of justice, important though it undoubtedly is, is not the only matter in which the public is vitally interested; and if in the course of the ventilation of a question of public concern matter is published which might prejudice a party in the conduct of a law suit, it does not follow that a contempt has been committed. The case may be one in which as between competing matters of public interest the possibility of prejudice to a litigant may be required to yield to other and superior considerations. The discussion of public affairs and the denunciation of public abuses, actual or supposed, cannot be required to be suspended merely because the discussion or the denunciation may, as an incidental but not intended by-product, cause some likelihood of prejudice to a person who happens at the time to be a litigant.
It is well settled that a person cannot be prevented by process of contempt from continuing to discuss publicly a matter which may fairly be regarded as one of public interest, by reason merely of the fact that the matter in question has become the subject of litigation, or that a person whose conduct is being publicly criticised has become a party to litigation etiher as plaintiff or defendant, and whether in relation to the matter which is under discussion or with respect to some other matter."
Turning to substantial Rulings of Speakers in the Legislative Assembly, the follwing has been said:
(1) In 1973 Speaker Ellis stated in relation to Royal Commissions that the Royal Commissions Act 1923 (NSW) was substantially the equivalent to the English Tribunals of Enquiry (Evidence) Act 1921 to which the sub judice rule has been said to apply in that country - therefore the rule applied to proceedings of Royal Commissions.
(2) On 31 May 1988, Speaker Rozzoli said in such matters "the Chair always receives and gives maximum weight to the advice of the Attorney General on whether a matter is sub judice", and when the subject matter relates to matters of criminality the rule is appplied more strictly than it might otherwise be.
(3) On 25 August 1988 the Speaker reinforced past rulings that it is the action of lodging an appeal that brings about the initial ground upon which the sub judice rule can apply.
(4) On 19 April 1989 Speaker Rozzoli ruled, during debate on motion on the legal system, that a member should be allowed latitude in addressing the question of whether a matter involved sufficient public interest to weigh the scales in favour of not invoking the rule.
(5) On 3 April 1990, Speaker Rozzoli invoked the sub judice rule after a point of order was taken by the then Attorney General that a matter sought to be debated, was before the courts. Mr Speaker said that, in determining whether public interest outweighed all other interests, public interest was not necessarily to be equated with widespread interest. The interests of litigants must also be taken into account and in this regard he said-- "A longstanding arm of the sub judice rule provides that if a matter of a criminal nature proceeds before a jury...under almost every circumstance the sub judice rule should be invoked."
He said that the rule is closely aligned but not identical to the question of what constitutes contempt of court. "...the Parliament should not embark upon any course which is likely to prevent a litigant in a court of law from having his case tried free from all manner of prejudice, balanced by the competing freedom of the Parliament to debate matters which are deemed to be of extreme public interest." Mr Speaker then quoted the remarks of Jordan C.J. referred to above.
The Speaker went on to quote a former Commonwealth Attorney General, Dr H.V. Evatt who said on 17 April 1947 that
"What is said in Parliament is absolutely privileged by law. What is said in the courts of justice is absolutely privileged by law. We have those two great instruments of government, the legislative power exerted by one, and the judicial power exerted by another. As the years have gone by, the Parliament, having an absolute privilege and not being bound to the rules of contempt of court, or even the laws of defamation, both of which are applicable to comment outside the Parliament, has taken the view which I believe has been carried out in cases like the Jerger case. That is to say the Parliament does not ask - "Is there a proceeding pending at the moment?", but rather "In all the circumstances, should a debate on a particular matter be permitted at this particular moment?."
This aspect was mentioned in a ruling by Speaker Ellis on 22 August 1973 when he said it didn't necessarily follow that because a matter was before a court that every aspect of it must be sub judice. He said that the great difficulty was to determine what is, in fact, before the court.
Mr Speaker further said that
- the Chair must weigh the matters presented in terms of the rights of litigants against the public interest
- a member should not deal with the merits of matters currently before the courts in relation to which, to any specific degree, the courts must be the proper tribunal.
- the debate should address matters of broad public interest, to draw attention to wrongs and to determine matters of policy which may address those wrongs.
- The House should not try matters which should properly come before the courts.
- The subject of the debate must not be substantially associated with the proceedings before the court.
He said that in this particular case, the matter was a criminal one and was before the courts in the sense that a proceeding had been commenced and under those circumstances the rule should be invoked. He also said that he felt that it would be difficult to divorce from any debate the matters that may go to, and be brought into, evidence in a hearing of the matter.
(6) On 11 October 1995, Speaker Murray explained that the sub judice rule is only applied if it is determined by the Chair that reference to specific matters may influence the judgement of a court. He therefore did not apply the rule in that case where the coroner had already taken all evidence.
(7) On 16 May 1996, Speaker Murray did not apply the sub judice rule as he considered that as the matter was before a judge rather than a jury, it was unlikely that the House's debate would influence the judge's determination.
(8) On 8 April 1997, Speaker Murray confined debate to paragraph of a motion as he had received advice from the Attorney General that the matter was currently before the courts.
(9) On 16 April 1997, Speaker Murray read a letter from the Attorney General advising that civil proceedings had been commenced on a subject and that to debate the matter would infringe the sub judice rule. The Speaker advised that he was obliged to read the advice but that it was for the House to make its own decisions. No ruling of sub judice was made.
(10) On 22 October 1998, Speaker Murray allowed a question after being advised that charges had been alid related to the matter as the question was general rather than specific in nature but advised the Minister to be brief and avoid particular cases.
(11) On 22 September 1999, Speaker Murray, in response to a point of order that a question relating to an escaped prisoner was sub judice, asked for a copy of the question and undertook to decide before the conclusion of Question Time whether the question was in order. Later, the Speaker allowed the question on the understanding that the answer was not likely to influence any decision to be made by a judge or a jury and asked the Minister for Corrective Services to take care about the way in which he answered the question.
(12) On 22 March 2005, Speaker Aquilina made a considered ruling in relation to matters under consideration by the Independent Commission Against Corruption noting: "The rule that motions, debates and questions should not make reference to matters awaiting or under adjudication is intended to ensure that there is fairness, that there is no prejudice, and that Parliament does not prejudge findings or influence a jury or witnesses. The Independent Commission Against Corruption is not a court of law, and questions have been asked and answered in this House in relation to then current ICAC investigations.
However, if the Chair perceives that questions, debates or motions give rise to a real and substantial danger of prejudice to proceedings, those questions, debates or motions should not be allowed. In some instances the greater public interest may lie in restricting debate or questions if they clearly canvass evidence, prejudge proceedings or seek to influence the finding of the commission. Members enjoy freedom of speech in this House. That parliamentary privilege is expressly recognised in section 122 of the Independent Commission Against Corruption Act. However, members need to be aware that this privilege should be exercised with care so that, in the interests of justice, a witness does not feel inhibited or that his or her legal rights have been denied."
On all occasions before the sub-judice rule is invoked the individual circumstance of the matter must be considered by the Chair.
First Published: July, 1991
Updated: February 2012