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Title

Ch14 Control and conduct of debate / RULES GOVERNING CONTENT OF SPEECHES / Reflections on members of the judiciary

Database

House Practice

Date

01-05-2005

Source

House of Reps

Parl No.

41

Chapter

Control and conduct of debate

Chapter No.

Chapter 14

Page

503

Section No.

 

System Id

procedural/practcer/chapter14.31.doc


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Ch14 Control and conduct of debate / RULES GOVERNING CONTENT OF SPEECHES / Reflections on members of the judiciary



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House of Representatives                                Ch 14                                                 p 503

 

Control and conduct of debate / RULES GOVERNING CONTENT OF SPEECHES

 

Reflections on members of the judiciary

Both standing orders and the practice of the House place certain constraints upon references in debate to members of the judiciary. Under the standing orders a Member may not use offensive words against a member of the judiciary. 1 This provision was not included in the standing orders until 1950 but prior to then the practice, based on that of the House of Commons, was that, unless discussion was based upon a substantive motion, reflections could not be cast in debate upon the conduct, including a charge of a personal character, of a member of the judiciary. This practice still continues. Decisions as to whether words are offensive or cast a reflection rest with the Chair.

Rulings of the Chair have been wide ranging on the matter, perhaps the most representative being one given in 1937 that ‘From time immemorial, the practice has been not to allow criticism of the judiciary; the honourable member may discuss the judgments of the court, but not the judges’. 2 In defining members of the judiciary, the Chair has included the following:

  • a Public Service Arbitrator; 3

  • an Australian judge who had been appointed to the international judiciary; 4

  • a Conciliation and Arbitration Commissioner; 5 and

  • magistrates.

    • The Chair has also ruled that an electoral distribution commission is not a judicial body and that a judge acting as a commissioner is not acting in a judicial capacity. 6 When judges lead royal commissions or special commissions, they are exercising executive power, not judicial power, and therefore do not attract the protection of standing order 89. The rule has not prevented criticism of the conduct of a person before becoming a judge. 7

    Judge s are expected, by convention, to refrain from politically partisan activities and to be careful not to take sides in matters of political controversy. If a judge breaks this convention, a Member may feel under no obligation to remain mute on the matter in the House. 8



    S.O. 89.



    H.R. Deb. (28-9.6.37) 577; see also H.R. Deb. (18.3.80) 836.



    H.R. Deb. (7.12.21) 13924.



    H.R. Deb. (2.10.57) 1005.



    H.R. Deb. (4.6.52) 1399.



    H.R. Deb. (24.5.65) 2076.



    H.R. Deb. (12.4.2000) 15883.



    H.R. Deb. (28.11.95) 3964.