Fact Sheet E3

Fact Sheet E3: Sub Judice Convention

 

Summary: Members debate many topical issues freely in the Chamber. There is an unwritten rule, called the sub judice convention, that they do not debate a current court case if it could prejudice the case. This avoids debates influencing what happens in court, or undermining confidence in judges. Several principles guide how the convention applies.

 

Sub judice's meaning Deciding a topic is sub judice
Need for a convention Convention's practical effect
Convention's development Example of the convention being used

 

Sub judice's meaning

Sub judice means 'before a judge or court of law' or 'under judicial consideration'. Members choose not to speak about current court cases during debates, if the debate could prejudice the cases. This practice is called the sub judice convention.

 

Need for a convention

Members can speak freely in the Chamber with the benefit of parliamentary privilege. This means they can talk about issues, and mention people by name, without fearing litigation. It is very important that members can speak freely, so they can debate any matter in the public interest.

However, if an issue relates to a current court case, members may agree not to speak about it. There is no law or rule setting this restriction, it is something members do voluntarily. The reasons were explained by Speaker Plowman in 1980:

  • the media might report the debate, influencing a judge and jury
  • Parliament should not try and take over the role of judges, who study the facts of cases and interpret the law.

 

Convention's development

We can trace the convention back to 1889 in the United Kingdom. Speakers from that time decided when members should not discuss court cases. This became more formal in 1963, when the House of Commons agreed to a set of rules.

The House of Commons later refined the rules and agreed to a completely new set in 2001. The Legislative Assembly uses the House of Commons' procedures as a guide.

 

Deciding a topic is sub judice

The Speaker decides if a court case could be prejudiced by members' speeches. He or she has to balance members' right to freely debate issues, with the risk of prejudice. If the Speaker feels a topic is sub judice, he or she interrupts the member and tells them not to speak about it.

Even if the Speaker does not intervene, a member can take a point of order and ask the Speaker to rule a matter sub judice. The Speaker listens to members debate the point of order, and then rules.

 

Convention's practical effect

General references to court cases are allowed

The key point is if a reference to a court case could affect justice. The convention does not automatically prevent members making broad references to cases.

Parliament can still change the law

The convention does not stop Parliament from passing bills about an issue before a court. Therefore, debate can take place on a bill that covers the same subject as a court case.

Difference between criminal and civil cases

The convention applies to criminal matters from when the police lay charges until the verdict and sentence are announced.

It applies later in civil matters. Members cannot discuss cases when parties have arranged a hearing, which is usually when the case is set down for trial. It applies until the end of the case, either through a judgement or it being discontinued.

Appeals

The convention applies when there is an appeal pending. However, it does not apply where an appeal is still possible, but has not been made at the time of the debate.

Tribunals, commissions and other investigations

The Speaker has applied the convention to debate on cases before the Victorian Electoral Commission, and the Conciliation and Arbitration Commission, but not to the Administrative Appeals Tribunal. The Speaker saw the commissions as judicial bodies and different from a tribunal.

There is a difference between matters before courts and issues more generally under investigation. For example, debate on something a government department is investigating is not sub judice.

 

Example of the convention being used

In 1971 the opposition moved a motion to debate the Royal Commission report into the collapse of the West Gate Bridge, and condemn the government for the accident.

Although the Royal Commission had finished its work, a court case had also started. The Speaker let members debate the motion, but stopped them discussing issues actually before the court.

 

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