YEMINI, AVRAHAM SHALOM	Plaintiff
v
THE HONOURABLE NAZIH ELASMAR, WHO IS SUED AS PRESIDENT OF THE LEGISLATIVE COUNCIL OF THE PARLIAMENT OF VICTORIA	First Defendant
THE HONOURABLE COLIN BROOKS, WHO IS SUED AS THE SPEAKER OF THE LEGISLATIVE ASSEMBLY OF THE PARLIAMENT OF VICTORIA	Second Defendant
PAUL GROENEWEGEN, WHO IS SUED AS THE SERJEANT-AT-ARMS OF THE PARLIAMENT OF VICTORIA	Third Defendant

JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 and 16 March 2022; Final written submissions 28 March 2022
DATE OF JUDGMENT:	16 December 2022
CASE MAY BE CITED AS:	Yemini v Elasmar
MEDIUM NEUTRAL CITATION:	[2022] VSC 788

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CONSTITUTIONAL LAW – Judicial review – Parliament – Media accreditation scheme – Journalist’s application for media accreditation not approved – Whether challenge to that decision justiciable – Identity of decision-maker – Whether decision made by the Speaker or by authorised officer or agent – Whether decision within exclusive cognisance of Parliament – Whether decision an exercise of privilege to control access to Parliamentary precincts – Area of Parliamentary precincts – Whether decision invalidly delegated – Whether decision involved a grant of licence – Whether a journalist is a ‘stranger’ for purpose of obtaining access to Parliament – Whether decision-maker obliged to accord procedural fairness – Whether decision-maker a tribunal obliged to provide reasons – Bill of Rights 1689 art 9; Administrative Law Act 1978 ss 2, 3, 4, 8; Parliamentary Precincts Act 2001 ss 3, 4, 9, 10.

EVIDENCE – Onus of proof as to identity of decision-maker – Inferences to be drawn as to the identity of decision-maker – Whether Jones v Dunkel inference should be drawn.

PRACTICE AND PROCEDURE – Application to amend originating motion – Identity of decision-maker – Amendment leaving open the identity of decision-maker – Prejudice to the defendants – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr W T Houghton KC Mr A Anderson	Thomson Geer
For the Defendants	Mr C J Horan KC Mr G Ayres	Maddocks

HIS HONOUR:

Introduction

The plaintiff, Mr Avraham Shalom Yemini, is a journalist who works for Rebel News. He applied for a media accreditation pass to gain access to the Parliament of Victoria for his work. He sent his application to Mr Paul Groenewegen, who is Serjeant-at-Arms of the Legislative Assembly of the Parliament of Victoria and who he sues as the third defendant.

Mr Yemini’s application was not approved and his requests for reasons for refusal were denied. He seeks judicial review of the decision to reject his application contending that the decision misconstrued the provisions of the Parliamentary Precincts Act 2001 (‘the Act’) and involved jurisdictional error, denied him natural justice and that his entitlement to reasons for the decision was denied. He seeks the quashing of the decision and the remittal of his application to be determined according to law. An important issue to be determined is whether…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Yemini v Elasmar

Details

AGLC: Yemini v Elasmar [2022] VSC 788
Case: [2022] VSC 788
Decision Date: 16 December 2022

CaseChat Overview and Summary

In Yemini v Elasmar, the applicant sought judicial review of a decision to deny him media accreditation to access Parliament. The High Court was tasked with determining whether the decision was justiciable, and if so, whether the decision-maker was the Speaker, an authorised officer, or an agent, and whether the decision was within Parliament's exclusive cognisance. The Court also had to consider whether the decision was an exercise of privilege to control access to Parliament, the scope of the precincts, whether the decision was invalidly delegated, and whether it involved a grant of licence. Additionally, the Court needed to determine whether the applicant, as a journalist, was a 'stranger' for the purposes of obtaining access to Parliament, and whether the decision-maker was obliged to accord procedural fairness and provide reasons.

The Court held that the decision was justiciable and that the Speaker was the decision-maker, as evidenced by the terms of the media accreditation scheme. The Court found that the decision was not within Parliament's exclusive cognisance and was not an exercise of privilege to control access to Parliament, but rather a decision to grant or refuse access to the Parliamentary precincts. The Court held that the decision was not invalidly delegated, and that the decision did not involve a grant of licence. The Court also found that the applicant, as a journalist, was a'stranger' for the purposes of obtaining access to Parliament, and that the decision-maker was obliged to accord procedural fairness and provide reasons.

The Court held that the applicant had not discharged the onus of proof as to the identity of the decision-maker, and that the inference drawn in Jones v Dunkel should not apply. The Court also held that the application to amend the originating motion was refused, as it would have prejudiced the defendants.

The Court ordered that the application for judicial review be dismissed.

Orders