Mr EDE - 1994-10-13
My Question refers to his refusal to answer the previous Question. The honourable Chief Minister says that he has been here longer than I, and I accept that. That is fine. The Chief Minister should concede that, during that period, he would have been aware that it has been the practice of this House, when issues have arisen in respect of civil proceedings ...
Members interjecting.
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Mr SPEAKER: Order!
Mr STONE: A point of order, Mr Speaker! It is quite clear where the Leader of the Opposition is heading. It is a matter of discretion for the Chair, based on past practice, but it is quite clear that it has been the practice in this House, and it is the practice in the House of Representatives and in the House of Commons, that matters ...
Mr Ede: You are wrong.
Mr STONE: You may say that I am wrong ...
Mr Ede: I will.
Mr STONE: We are both working off the same reference. I refer you to page 491 of House of Representatives Practice which makes it clear that it is a matter of discretion for yourself, Mr Speaker. You are able to rule that Questions such as this are quite improper, particularly where matters are on foot, whether they be in the civil or the criminal jurisdiction. Currently, a coronial inquiry is running. The outcome of that inquiry has still to be established.
Mr Ede: Is it civil or criminal?
Mr STONE: Is it civil or is it criminal? The important point is that the coroner may make certain recommendations that could lead to certain charges being made.
The other important aspect of all of this is that, where people are summonsed on subpoena, documents have been subpoenaed from government and it is not inconceivable that the Chief Minister could find himself subpoenaed, it is quite improper for the Leader of the Opposition to attempt in this Chamber to pre-empt any cross-examination that might occur in a coronial inquiry.
Mr EDE: Mr Speaker, speaking to the point of order, the Leader of Government Business should have read a little further. At page 493, Pettifer states in regard to matters criminal and civil that the preclusion in terms of sub judice does not cover even the whole area of civil proceedings. What we have at the moment is not even a start of civil proceedings. If you accept what the Leader of Government Business is saying, Mr Speaker, we would not be able to ask Questions if a police investigation was occurring. That is the nature of what we are talking about now.
Mr Speaker, I refer you to where it says, for example, that 'in the case of a civil matter, as a sensible provision, the rules should not apply from the time the writ is issued'. Thus, it is not even from the time of the issue of the writ which members opposite have attempted to enforce in the past. He should also read D.B. Blake, who was the Deputy Clerk of the House of Representatives, on the doctrine of sub judice. There is a reference that Speaker Snedden informed the House in 1976 that the sub judice rule would not apply in civil actions merely because a writ had been issued. He said that he would set down a different test when the matter was set down for trial. We have a situation here where a writ has not even been issued.
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Mr Stone: But subpoenas have.
Mr EDE: A subpoena is issued in regard to a police investigation. This is in regard to a coronial inquiry.
A member: Subpoenas have been issued.
Mr EDE: It is an inquiry, and nothing to do with civil proceedings. Mr Speaker, I referyou also to the statement of Sir Magnus Cormack, then President of the Senate, who said: 'The primary Question I ask myself is - is parliamentary debate likely to give rise to any real and substantial danger of prejudice to proceedings before the court?' I refer also to the concluding comment by Speaker Snedden who said that there was 'a long line of authority in the courts which indicates the courts and the judges do not regard themselves as delicate flowers that are likely to be prejudiced in their decisions by debate in the House'.
Attempting to use the sub judice convention on this is simply an attempt to stifle free speech in this House.
Members interjecting.
Mr EDE: Mr Speaker, that is what it is.
There is no point of order. The Chief Minister has been asked a Question in relation to a matter which has been talked about, which has been in the press, which was mentioned on the radio yesterday and on television last night and, if it was proper and in order that it be discussed on radio and television, it is quite proper that it be discussed here.
Mr BELL: Speaking to the point of order, Mr Speaker, I want to add a couple of words to the Leader of the Opposition's comments. It is an important point. Basically, the sub judice convention should not be introduced ...
A member interjecting.
Mr SPEAKER: Order!
Mr BELL: The sub judice convention should not be used to restrict the basic freedom of speech of members of the Legislative Assembly unless there is an important social purpose for doing so. In the terms that the Leader of the House introduced here today, he said that, where there were civil or criminal proceedings on foot, the sub judice convention should apply here. That has never been the application of the sub judice convention in Westminster parliaments. Let us look at the reason for it. The reason for the sub judice convention is to ensure that, where particularly a criminal trial before a jury is on foot, parliaments do not unreasonably prejudice proceedings, do not scandalise the court, do not put a stumbling block in the way of the jury hearing only what is going on in the court and being able to apprehend only what is being led and what is decided to be presented to them.
Page 248
In the case of a coronial inquiry, the purpose is exactly the opposite. It is to get into the public arena as many facts as possible, and it is quite appropriate that there be extensive ...
Mr Stone: There is a coronial inquiry.
Mr BELL: Yes, that is right. There is a coronial inquiry on foot and it is very appropriate that there be full and open public debate in order that the facts may be brought to light as far as is possible.
The Leader of the Opposition's point is that it is simply absurd that this parliament should be prevented from debating what the press may debate freely. It is an absurd use of the sub judice convention. Mr Speaker, I urge you not to accept the point of order raised by the Leader of Government Business.
Mr PERRON: Mr Speaker, speaking to the point of order, I wish to pick up a couple of points made by members opposite. In refusing to provide the answer that the Leader of the Opposition was looking for to the first Question asked of me, I do not think that I said other than that I believed that it was improper that I should answer the Question. He may disagree on whether it is improper, but let me pick up his point that a coronial inquiry is like a police investigation and that means that Questions can be answered if a police investigation is under way. I can assure him that there would be occasions when answering Questions while a police investigation was under way would be highly improper. If he had asked the Minister for Police Questions about the $250m drug haul in the harbour the other day, while investigations were under way and whilst stakeouts and various things were in play, I think he would have found that the Minister for Police might have declined to answer, not on the grounds that the matter was sub judice but on the grounds that it would have been improper for him to give any information in that regard at that time.
Mr Speaker, I have a discretion as to how and if I answer Questions in this House, and it is a discretion that I am prepared to use often.
Mr SPEAKER: Order! I believe that an answer could have been given to this without the prolonged debate on the point of order. In fact, there is no point of order. Discretion lies with the Chief Minister as to whether or not he answers the Question. I believe the Question is not inappropriate, but certainly the Chief Minister has the option. I call on the Leader of the Opposition.
Mr EDE: Mr Speaker, if I may now finish my Question without interruption, you will see that it relates actually to the point that we have been debating here, but only to the extent that I am asking the Chief Minister whether he will allow free debate on this issue during the period after the coronial inquiry's results are brought down, even if civil writs have been issued, to the point when the trial date is set. That was the Question that I was attempting to ask and that is the point that we have just debated. Speaker Snedden and others have ruled that that is a time when debate should be allowed because not to allow it - and this is why I am asking the Chief Minister this Question - would mean that the public would not have an opportunity to hear that debate in this House for at least 2 years, and possibly 5 years.
Page 249
ANSWER
Mr Speaker, obviously, the Leader of the Opposition knows something that I do not know about what the coroner may find at the end of his inquiry. He assumes - in fact, he places a high level of probability on it - that, for a period of 2 to 5 years, there will be legal action following the coroner's findings.
Mr Ede: Civil proceedings and appeals.
Mr PERRON: Legal proceedings, be they civil or criminal.
Mr Ede: It is important to know the difference.
Mr PERRON: He goes much further than I would be prepared to go in speculating on a hypothetical outcome of the coroner's inquiry. I believe he has just given an example of why, in my opinion, the matter ought to be left at least until the coroner reports.
Mrs Hickey: And thereafter?
Mr Bailey: What about after that?
Mr Ede interjecting.
Mrs Hickey: The time-line is not important, but the principle is.
Mr Stirling interjecting.
Mr PERRON: If you shut up for a minute, you will have a response. The Leader of the Opposition asks whether I will allow free debate in this Assembly on matters relating to the Cannonball Run inquiry after the coroner's hearing. Firstly, it is not really for me to decide whether there will be free debate or not. It may be for me to decide whether I participate in it, but members are entitled to be in this House and enjoy the powers and privileges they have to hold debates, particularly adjournment debates etc, and to say whatever they want.
Mr Ede: And have you use your numbers to knock them off on the grounds that the matter is sub judice.
Mr PERRON: Come on!
Mr Bailey: Ask the Chairman of the Public Accounts Committee what we are allowed to talk about here. We have been gagged 3 times in the last 2 weeks.
Mr SPEAKER: Order!
Mr Coulter: You ought to be gagged permanently.
Mr SPEAKER: Order! The Chief Minister has the floor.
Page 250
Mr PERRON: I had nearly resumed my seat, Mr Speaker.
The only constraint on that free debate is that members are required to comply with standing orders. If the Chair rules that a Question is improper because its subject is sub judice, then and rightly, the Speaker would prevent a member from speaking.
Mr Ede: No.
Mr PERRON: You know the rules as well as I do even if you have not been here as long as I have.
Page 251
Members interjecting.
Page 246
Mr SPEAKER: Order!
Mr STONE: A point of order, Mr Speaker! It is quite clear where the Leader of the Opposition is heading. It is a matter of discretion for the Chair, based on past practice, but it is quite clear that it has been the practice in this House, and it is the practice in the House of Representatives and in the House of Commons, that matters ...
Mr Ede: You are wrong.
Mr STONE: You may say that I am wrong ...
Mr Ede: I will.
Mr STONE: We are both working off the same reference. I refer you to page 491 of House of Representatives Practice which makes it clear that it is a matter of discretion for yourself, Mr Speaker. You are able to rule that Questions such as this are quite improper, particularly where matters are on foot, whether they be in the civil or the criminal jurisdiction. Currently, a coronial inquiry is running. The outcome of that inquiry has still to be established.
Mr Ede: Is it civil or criminal?
Mr STONE: Is it civil or is it criminal? The important point is that the coroner may make certain recommendations that could lead to certain charges being made.
The other important aspect of all of this is that, where people are summonsed on subpoena, documents have been subpoenaed from government and it is not inconceivable that the Chief Minister could find himself subpoenaed, it is quite improper for the Leader of the Opposition to attempt in this Chamber to pre-empt any cross-examination that might occur in a coronial inquiry.
Mr EDE: Mr Speaker, speaking to the point of order, the Leader of Government Business should have read a little further. At page 493, Pettifer states in regard to matters criminal and civil that the preclusion in terms of sub judice does not cover even the whole area of civil proceedings. What we have at the moment is not even a start of civil proceedings. If you accept what the Leader of Government Business is saying, Mr Speaker, we would not be able to ask Questions if a police investigation was occurring. That is the nature of what we are talking about now.
Mr Speaker, I refer you to where it says, for example, that 'in the case of a civil matter, as a sensible provision, the rules should not apply from the time the writ is issued'. Thus, it is not even from the time of the issue of the writ which members opposite have attempted to enforce in the past. He should also read D.B. Blake, who was the Deputy Clerk of the House of Representatives, on the doctrine of sub judice. There is a reference that Speaker Snedden informed the House in 1976 that the sub judice rule would not apply in civil actions merely because a writ had been issued. He said that he would set down a different test when the matter was set down for trial. We have a situation here where a writ has not even been issued.
Page 247
Mr Stone: But subpoenas have.
Mr EDE: A subpoena is issued in regard to a police investigation. This is in regard to a coronial inquiry.
A member: Subpoenas have been issued.
Mr EDE: It is an inquiry, and nothing to do with civil proceedings. Mr Speaker, I referyou also to the statement of Sir Magnus Cormack, then President of the Senate, who said: 'The primary Question I ask myself is - is parliamentary debate likely to give rise to any real and substantial danger of prejudice to proceedings before the court?' I refer also to the concluding comment by Speaker Snedden who said that there was 'a long line of authority in the courts which indicates the courts and the judges do not regard themselves as delicate flowers that are likely to be prejudiced in their decisions by debate in the House'.
Attempting to use the sub judice convention on this is simply an attempt to stifle free speech in this House.
Members interjecting.
Mr EDE: Mr Speaker, that is what it is.
There is no point of order. The Chief Minister has been asked a Question in relation to a matter which has been talked about, which has been in the press, which was mentioned on the radio yesterday and on television last night and, if it was proper and in order that it be discussed on radio and television, it is quite proper that it be discussed here.
Mr BELL: Speaking to the point of order, Mr Speaker, I want to add a couple of words to the Leader of the Opposition's comments. It is an important point. Basically, the sub judice convention should not be introduced ...
A member interjecting.
Mr SPEAKER: Order!
Mr BELL: The sub judice convention should not be used to restrict the basic freedom of speech of members of the Legislative Assembly unless there is an important social purpose for doing so. In the terms that the Leader of the House introduced here today, he said that, where there were civil or criminal proceedings on foot, the sub judice convention should apply here. That has never been the application of the sub judice convention in Westminster parliaments. Let us look at the reason for it. The reason for the sub judice convention is to ensure that, where particularly a criminal trial before a jury is on foot, parliaments do not unreasonably prejudice proceedings, do not scandalise the court, do not put a stumbling block in the way of the jury hearing only what is going on in the court and being able to apprehend only what is being led and what is decided to be presented to them.
Page 248
In the case of a coronial inquiry, the purpose is exactly the opposite. It is to get into the public arena as many facts as possible, and it is quite appropriate that there be extensive ...
Mr Stone: There is a coronial inquiry.
Mr BELL: Yes, that is right. There is a coronial inquiry on foot and it is very appropriate that there be full and open public debate in order that the facts may be brought to light as far as is possible.
The Leader of the Opposition's point is that it is simply absurd that this parliament should be prevented from debating what the press may debate freely. It is an absurd use of the sub judice convention. Mr Speaker, I urge you not to accept the point of order raised by the Leader of Government Business.
Mr PERRON: Mr Speaker, speaking to the point of order, I wish to pick up a couple of points made by members opposite. In refusing to provide the answer that the Leader of the Opposition was looking for to the first Question asked of me, I do not think that I said other than that I believed that it was improper that I should answer the Question. He may disagree on whether it is improper, but let me pick up his point that a coronial inquiry is like a police investigation and that means that Questions can be answered if a police investigation is under way. I can assure him that there would be occasions when answering Questions while a police investigation was under way would be highly improper. If he had asked the Minister for Police Questions about the $250m drug haul in the harbour the other day, while investigations were under way and whilst stakeouts and various things were in play, I think he would have found that the Minister for Police might have declined to answer, not on the grounds that the matter was sub judice but on the grounds that it would have been improper for him to give any information in that regard at that time.
Mr Speaker, I have a discretion as to how and if I answer Questions in this House, and it is a discretion that I am prepared to use often.
Mr SPEAKER: Order! I believe that an answer could have been given to this without the prolonged debate on the point of order. In fact, there is no point of order. Discretion lies with the Chief Minister as to whether or not he answers the Question. I believe the Question is not inappropriate, but certainly the Chief Minister has the option. I call on the Leader of the Opposition.
Mr EDE: Mr Speaker, if I may now finish my Question without interruption, you will see that it relates actually to the point that we have been debating here, but only to the extent that I am asking the Chief Minister whether he will allow free debate on this issue during the period after the coronial inquiry's results are brought down, even if civil writs have been issued, to the point when the trial date is set. That was the Question that I was attempting to ask and that is the point that we have just debated. Speaker Snedden and others have ruled that that is a time when debate should be allowed because not to allow it - and this is why I am asking the Chief Minister this Question - would mean that the public would not have an opportunity to hear that debate in this House for at least 2 years, and possibly 5 years.
Page 249
ANSWER
Mr Speaker, obviously, the Leader of the Opposition knows something that I do not know about what the coroner may find at the end of his inquiry. He assumes - in fact, he places a high level of probability on it - that, for a period of 2 to 5 years, there will be legal action following the coroner's findings.
Mr Ede: Civil proceedings and appeals.
Mr PERRON: Legal proceedings, be they civil or criminal.
Mr Ede: It is important to know the difference.
Mr PERRON: He goes much further than I would be prepared to go in speculating on a hypothetical outcome of the coroner's inquiry. I believe he has just given an example of why, in my opinion, the matter ought to be left at least until the coroner reports.
Mrs Hickey: And thereafter?
Mr Bailey: What about after that?
Mr Ede interjecting.
Mrs Hickey: The time-line is not important, but the principle is.
Mr Stirling interjecting.
Mr PERRON: If you shut up for a minute, you will have a response. The Leader of the Opposition asks whether I will allow free debate in this Assembly on matters relating to the Cannonball Run inquiry after the coroner's hearing. Firstly, it is not really for me to decide whether there will be free debate or not. It may be for me to decide whether I participate in it, but members are entitled to be in this House and enjoy the powers and privileges they have to hold debates, particularly adjournment debates etc, and to say whatever they want.
Mr Ede: And have you use your numbers to knock them off on the grounds that the matter is sub judice.
Mr PERRON: Come on!
Mr Bailey: Ask the Chairman of the Public Accounts Committee what we are allowed to talk about here. We have been gagged 3 times in the last 2 weeks.
Mr SPEAKER: Order!
Mr Coulter: You ought to be gagged permanently.
Mr SPEAKER: Order! The Chief Minister has the floor.
Page 250
Mr PERRON: I had nearly resumed my seat, Mr Speaker.
The only constraint on that free debate is that members are required to comply with standing orders. If the Chair rules that a Question is improper because its subject is sub judice, then and rightly, the Speaker would prevent a member from speaking.
Mr Ede: No.
Mr PERRON: You know the rules as well as I do even if you have not been here as long as I have.
Page 251
Last updated: 09 Aug 2016