Garrett David: Privilege — Consideration of Report of Privileges Committee Freedom of Speech of Members of Parliament—Court Orders 
Garrett David: Privilege — Consideration of Report of Privileges Committee Freedom of Speech of Members of Parliament—Court Orders 
[Volume:654;Page:4070] 
DAVID GARRETT (ACT) 
: 
 I rise on behalf of the ACT Party to support the Privileges Committee’s report and its recommendations. It is somewhat trite to note that free speech of MPs is an absolutely vital part of our democracy. It is also important that there be a balance against or with the potential damage that can be caused to reputations. The phrase “Say it outside the House.” is often heard and it is an important check on MPs who may choose to make unsubstantiated allegations as some members have found to their cost. 
Charles Chauvel referred to the sub judice rule as the “much-misunderstood sub judice rule” and I note that the previous speaker Kennedy Graham seems a little confused even as to the pronunciation of it. As previous speakers have said it is an important part of our law. It is clearly important that Parliament should not interfere with the courts and vice versa as conveyed in the comity principle. However in my view it is wrong for anyone—the police or MPs included—to wrongly sit behind the so-called sub judice rule as an all-embracing smokescreen in all circumstances. It is not a smokescreen and it ought not to be. The report addresses the present lack of clarity of the sub judice rule and it correctly points out the difficulty MPs have of knowing the boundary of comity which relates to the mutual respect relationship between the courts and Parliament. The committee’s report refers to a need for a clear statement of principle on the comity rule and we agree entirely with that view. The committee has recommended that the rule be amended and made clear and crucially it has recommended that the rule preserves the discretion of the Speaker to decide on a case by case basis whether a breach of privilege in that regard is justified. I also believe it is important that the committee acknowledged that it always remains open for a member of this House knowing that he or she must bear the consequences to breach the rule. It is imaginable that in some circumstances that action may well be justified and may be the duty of a member. But like everything else such an action would come with a cost and that is recognised in the committee’s report. 
This party has more reason than most to agree with previous speakers on the unsatisfactory nature of the law with regard to effective repetition. I do not believe that it is breaching any kind of rule of comity to say that most commentators and many if not most lawyers believe that  
Buchanan v Jennings  
was bad law. It cannot be either sensible or right for a member of this House who says in the hallway “I do not resile from what I said in the House” to then become liable for what he or she said in the Chamber. That is bad law badly decided and it sets a bad precedent. As Mr Chauvel noted it was recommended in the Privileges Committee of the forty-seventh Parliament that the effective repetition rule be abolished. Here we are 4 years and two Parliaments later and the recommendation has been made as clearly as it possibly could be. The committee in my view quite rightly expressed its disappointment that the change recommended in 2005 had not been actioned and said that it expected action to be taken on that point as soon as possible. The ACT Party completely concurs with that statement but notes that it is in the hands of the National Party as the majority party in the House to place that change on the legislative programme. It would receive the full support of the ACT Party. It is hoped that the Hon Simon Power’s reference to “in due course” is sooner rather than later and that the Privileges Committee of the next Parliament is not forced to again say that it is long past time for this rule to be abolished. Thank you.