Senator DI NATALE (Victoria—Leader of the Australian Greens) (16:33): I ask that general business notice of motion No. 950, relating to a censure motion, standing in my name for today be taken as a formal motion. The PRESIDENT: Is there any objection to this motion being taken as formal? There is an objection, Senator Bernardi? Senator Bernardi: Mr President, I'm seeking your advice before you accept this as a formal motion. In my lonely evenings as a senator for the Australian Conservatives, I happen to read Odgers. The PRESIDENT: It's a good read, Senator Bernardi! Senator Bernardi: Page 262 of chapter 10 of the 14th edition deals with the matter of sub judice. This motion, in the way it's worded, simply using the term 'defamatory', presumes an element of guilt for a matter that is actually before the courts. So, whilst there is no standing order in this respect, Odgers does give some guidance. It suggests that, if a matter is before the court and debate could perhaps prejudice the outcome of a court case, the matter should be deemed inappropriate for debate in this chamber. The PRESIDENT: If senators are happy for me to rule on this, I have given the matter some thought. But I'm happy to take submissions. Senator Di Natale? Senator DI NATALE: The visual image of what Senator Bernardi does in his private evening is not something that should be inflicted on any of us. The reality here is—after discussion with you, Mr President—we believe the motion is in order, given that proceedings have not commenced. However, if it would assist in deliberations, we are happy to insert the word 'potentially' before 'defamatory' where it appears in the motion. The PRESIDENT: Can I take that as you seeking leave to amend the motion in those terms, Senator Di Natale? Senator DI NATALE: Yes. The PRESIDENT: Leave is not granted. I will take submissions then. Senator Patrick, you were on your feet. Senator Patrick: Just to make the point that the Federal Court is a chapter III court in the Constitution. There is a very clear separation of roles between the Senate and a chapter III court, and we should be mindful of that. Senator Bernardi: In recognition that Senator Di Natale, by seeking to amend the motion, has effectively acknowledged the merit behind the argument that I and Senator Patrick have put, it hasn't been amended and so, in its current form, it should absolutely be deemed to be inappropriate. The PRESIDENT: I did foresee this matter when I saw the Notice Paper. I would raise a few matters if I could. Firstly, as Odgers points out on page 178: Senators may be censured by the Senate for misconduct. That is not an issue that is in question. It is well established, and I have a handful of examples here. What I will go onto with the sub judice issue is that the convention turns on a consideration where the debate in the Senate could involve 'a substantial danger of prejudice to proceedings before a court'. This is balanced against a consideration as to whether there is 'an overriding requirement for the Senate to discuss a matter of public interest'. As Odgers records: The concept of prejudice to legal proceedings involves an hypothesis that a debate on a matter before a court could influence the court and cause it to make a decision other than on the evidence and submissions before the court. A danger of prejudice would not arise from mere reference to such a matter, but from a canvassing of the issues before the court or a prejudgment of those issues. I have read the same sections of Odgers as a number of others have, and, with respect to this, I will also refer to page 262 of the current edition of Odgers, which outlines: … the fact that writs have been issued, which does not necessarily mean that proceedings will ensue, does not give cause for the sub judice convention to be invoked. That is a selection, and there is some context to it, I concede. The section also talks about the different risks of the sub judice convention with respect to issues before judges or juries. It is difficult for me to see how the mere use of the word 'defamatory' in the motion, particularly as it appears in the sense of a Senate debate, could involve 'a substantial danger of prejudice to proceedings that may be on foot'. I will listen very closely to any debate on the motion, and, if I sense that there is a reason to invoke convention in relation to that debate, I shall do so. I'm not going to rule the motion out of order, Senator Bernardi. I hope that clarifies the issue of sub judice for the chamber in this regard. Senator Leyonhjelm? Senator Leyonhjelm: Have you accepted the motion as formal? The PRESIDENT: No, I was about to put that. Senator Di Natale has asked for the motion to be accepted as formal. Is there any objection to the motion being taken as formal? There being none, I call Senator Di Natale. Senator DI NATALE: I move: That the Senate censures Senator Leyonhjelm for: (a) humiliating and intimidating a fellow female senator by making derogatory, defamatory and sexist statements about her during a formal division in the Senate; (b) inflaming the situation by publishing and republishing further derogatory, defamatory and sexist statements concerning the fellow female senator in the media and on social media; (c) refusing to apologise for his derogatory, defamatory and sexist statements; and (d) failing to uphold the dignity of the chamber and ensure it is a place where all senators are able to freely and respectfully contribute to debate and deliberations, as expected of senators by the Australian people.