Yemini v Elasmar
[2022] VSC 788
•16 December 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2021 04268
| 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 the identity of the person who made the decision not to approve Mr Yemini’s application has been established by evidence.
When this proceeding was commenced, the first defendant, Mr Nazih Elasmar, was the President of the Legislative Council of the Parliament of Victoria and the second defendant, Mr Colin Brooks, was the Speaker of the Legislative Assembly.
Summary of decision
For the reasons given in this judgment, I have concluded that Mr Yemini has not established that the decision not to approve his media accreditation application was made by a person unknown who acted beyond power and made jurisdictional errors. On the evidence, I find that the Speaker or his authorised officer made the decision. That decision was an exercise of Parliament’s privilege to control access to the Parliamentary precincts and the decision was within the exclusive cognisance or jurisdiction of Parliament. The decision was therefore not justiciable and Mr Yemini’s claims made in this proceeding cannot succeed. The proceeding is dismissed.
What does media accreditation permit?
Members of the public are able to enter the Parliamentary precincts. However, they are subject to security and identity checks and are restricted to the Public Galleries adjacent to the Legislative Assembly and Legislative Council Chambers, or to Committee rooms, unless they are escorted to another area by someone with a security pass.
Media accreditation entitles persons to greater access to the Parliamentary precincts. They may enter and remain in the precincts, which extend beyond Parliament House to its Gardens and its gated surrounds. They may enter Parliament House without going through security screening and can access media facilities within Parliament House, including the Press Galleries overlooking the Chambers and various rooms set aside for media reporting. They may access and use facilities such as the dining rooms without being accompanied by another passholder. They also have the right to register a guest and accompany that guest around Parliament House, and while that guest must go through security screening, they are not required to present identification. Media accreditation is also a precondition to a media organisation transmitting, publishing on the internet, or broadcasting the proceedings of the Legislative Assembly or the Legislative Council.
Applications for media accreditation are made to the Serjeant-at-Arms’ office using a standard form. The Serjeant-at-Arms is responsible for dealing with these applications at first instance on behalf of the Speaker and the President. Media accreditation is made subject to an individual’s compliance with media accreditation guidelines. A person who receives media accreditation will be issued a security access pass that enables them to access other parts of the precinct.
Mr Groenewegen explained in his affidavit that the President of the Legislative Council leaves media accreditation to the Speaker but may become involved if it is necessary to do so. The Speaker’s practice has been to leave operational decisions concerning applications for media accreditation to the Serjeant-at-Arms and, when the applicant is employed by an organisation with a history of media accreditation, the application is approved. But when an application is from an individual who is employed by an organisation without such a history, the application can be referred to the Speaker for decision.
Facts
On 6 September 2020, Mr Yemini was appointed as the Australian Bureau Chief for Rebel News Network Ltd (‘Rebel News’). Rebel News publishes its media content online. It has a significant online viewership, which includes over six million page views of its website from 2,293,649 users in Australia. Mr Yemini’s YouTube channel has over 600,000 subscribers. Mr Yemini also publishes content on Facebook and Twitter and posts new videos most days. Some of his most popular YouTube videos have millions of views and in October 2021 videos on his YouTube channel were watched 11,340,142 times. Rebel News has a Facebook page titled ‘Rebel News Australia’. Between 27 September 2021 and 24 October 2021, that Facebook page had 177,468 page views and post engagement of 2,882,060, being any action that an individual takes on that page, such as leaving a comment. Mr Yemini has a Twitter account on which he regularly shares news content approximately 5 times a day, primarily relating to his employment as a journalist for Rebel News. He has approximately 190,500 Twitter followers and has posted 19,500 Tweets.[1]
[1]Affidavit of Avraham Shalom Yemini affirmed 15 November 2021 (‘First Yemini Affidavit’), [35]-[38].
On 14 September 2020, Mr Yemini registered the company The Yemini Report Pty Ltd and he is its sole director.[2]
[2]Exhibit ASY-1 to the First Yemini Affidavit, 17.
At this time, Mr Yemini obtained a National Visits Media Card (‘NVMC’) issued by the Department of Home Affairs,[3] which he used on ‘approximately 20 occasions for identification during the course of [his] employment as a journalist’.[4]
[3]Affidavit of Avraham Shalom Yemini affirmed 11 February 2022 (‘Second Yemini Affidavit’), [3].
[4]Ibid [7].
Mr Yemini works as a journalist for Rebel News under an agreement it made with The Yemini Report Pty Ltd and his work included making short videos ‘on news of the day surrounding political and cultural topics’.[5]
[5]Exhibit ASY-1 to the First Yemini Affidavit, 23.
On 17 February 2021, Mr Yemini visited the Victorian Parliament to attend a press conference to be given by Mr D Andrews, the Premier of Victoria, which was to be held in the Parliamentary Gardens. Entry to the Gardens is through a locked security gate and, using his NVMC, Mr Yemini was allowed entry.[6] But soon, security officers escorted him out of the Gardens and thus the Parliamentary precincts and he was banned from seeking re-entry for seven days.[7]
[6]Second Yemini Affidavit, [9].
[7]Ibid [13]-[19].
On 4 March 2021, Mr Yemini’s solicitor, Mr C Shamsabad, emailed Mr Groenewegen, the Serjeant-at-Arms, enquiring how Mr Yemini could obtain media accreditation to the Parliament of Victoria. Mr Groenewegen sent him an application form, and informed him:[8]
…
We only provide media passes to employees of accredited media organisations and we need the applicant to have their manager sign the form to confirm their employment with that particular organisation.
We have no particular timeframe for processing of these forms.
…
[8]First Yemini Affidavit, [13].
In response to the solicitor’s query about what ‘accredited media organisation’ meant, Mr Groenewegen explained:[9]
…
An accredited media organisation would be something such as a television station like Channels 7, 9, 10, etc. or a newspaper such as The Age or Herald Sun. I realise there are a number of different media organisations, including online ones, and we may occasionally provide media passes for employees of those organisations too. As a general rule, we don’t provide media passes to freelance journalists, we need proof that they are employees or a media organisation.
We are quite strict about to whom we provide media passes. We only have limited space in our press gallery and we are obviously a building that requires stringent security protocols. Members of the public are always able to watch the proceedings of the Houses online or can sit in our visitor galleries once they re-open when it is deemed safe to do so.
…
[9]Ibid [14]-[15].
On 9 March 2021, Mr Yemini sent his completed application to the Serjeant-at-Arms’ office.[10]
[10]Ibid [16].
On 10 March 2021, Mr Groenewegen referred the application to the Speaker’s office for the Speaker’s consideration, because Rebel News’ journalists had not previously received media accreditation and because he was aware of the incident involving Mr Yemini on 17 February.
In March, April and again in June 2021, Mr Yemini’s solicitor asked Mr Groenewegen what had happened to Mr Yemini’s application.
In June 2021, Mr Groenewegen enquired of the Speaker’s office whether the Speaker had decided to approve or not approve Mr Yemini’s application. Mr J McDonald, the Speaker’s advisor, told him that the Speaker had not approved it.[11] I allowed that last item of evidence in Mr Groenewegen’s affidavit to be admitted not to establish the truth of its contents, i.e. that the Speaker had made that decision, but as being capable of establishing that, after Mr Groenewegen received information in response to his enquiry from the Speaker office, he informed Mr Yemini’s solicitor that his media accreditation application had not been approved.[12] Mr Groenewegen said that he did not make the decision not to approve Mr Yemini’s application for accreditation.
[11]Affidavit of Paul Groenewegen affirmed 20 January 2022 (‘Groenewegen Affidavit’), [17].
[12]Transcript of Proceeding (S ECI 2021 04268, Yemini, Avraham Shalom v The Honourable Nazih Elasmar, who is sued as President of the Legislative Council of the Parliament of Victoria & Ors, Ginnane J, Supreme Court of Victoria, 15 and 16 March 2022) 159 (‘T’).
On 19 July 2021, Mr Groenewegen informed Mr Yemini’s solicitor ‘that Mr Yemini’s application for a Parliament of Victoria media pass has not been approved’ (‘the Decision’).[13]
[13]First Yemini Affidavit, [21].
On 8 August 2021, the solicitor requested reasons for the Decision from Mr Groenewegen pointing out that:[14]
…
Given that the granting of this Pass has an impact upon a journalist’s capacity to attend press conference on Parliamentary grounds, and therefore raises questions on matters of public importance with members of Parliament and the Executive, we believe there is a public interest in understanding the reasons for the decision. The accountability of the government to the people, it has long been accepted, arises not only through regular elections but also through ongoing and fair media reporting.
…
I would also raise with you the importance of providing reasons as a matter of procedural fairness to my client. Given the lengthy amount of time (132 days to be exact) which had elapsed since Mr Yemini made his application, we believe it is only fair that some reasons be given in support of the outcome.
[14]Ibid [22].
On 13 October 2021, Mr J Quill, who had become Mr Yemini’s solicitor, wrote to Mr Groenewegen about the request for reasons for the Decision, pointing out the delays in providing them and contending that the Serjeant-at-Arms of the Legislative Assembly was a tribunal as defined in the Administrative Law Act 1978 and therefore must provide reasons for the Decision.
The defendants’ solicitor, Mr M Hayes, responded stating that the Serjeant-at-Arms was not obliged to provide reasons.[15]
[15]Ibid [25].
On 15 November 2021, Mr Yemini commenced this proceeding.
Extension of time
Mr Yemini’s proceeding was commenced 59 days after the expiration of the 60 days allowed for judicial review proceedings.[16]
[16]Rule 56.02 of the Supreme Court (General Civil Procedure) Rules 2015.
Mr Yemini explained that his proceeding was commenced late because he was waiting for the reasons for decision not to grant him media accreditation.[17]
[17]T 14.
The defendants did not address Mr Yemini’s application for an extension of time, save to argue that there was no point in granting it if his application was to be otherwise dismissed.
I am satisfied that Mr Yemini has explained his delay in commencing this proceeding as he was seeking reasons for the Decision. Whether he was entitled to reasons is an issue to be decided in this proceeding. While this is a judicial review proceeding, the time for commencing analogous proceedings under the Administrative Law Act 1978 extends to 30 days after reasons are given.[18] That recognises that the provision of a decision-maker’s reasons are necessary to enable the consideration of judicial review remedies that may be available. Mr Yemini was waiting for the reasons. Therefore, I consider that special circumstances exist justifying the grant to Mr Yemini for an extension of time in which to commence the proceeding until 15 November 2021.[19]
[18]Section 4(1).
[19]Rule 56.02(3) of the Supreme Court (General Civil Procedure) Rules 2015.
Mr Yemini’s amendment application
Near the end of the hearing, Mr Yemini sought to amend his originating motion, which described the Decision as ‘purportedly made by the third defendant’, Mr Groenewegen, as the Serjeant-at-Arms. After receiving Mr Groenewegen’s affidavit, Mr Yemini conceded, during the hearing, that Mr Groenewegen had not made the Decision and sought to amend his claims and grounds that alleged that he had. Mr Yemini submitted that these amendments would regularise how his case had been run at the hearing. His submissions and proposed amended originating motion did not identify an alternative decision-maker. Instead, he submitted that the decision-maker was an ‘unknown person’ or ‘unknown official’. Paragraph 16 of the originating motion, as a result of Mr Yemini’s proposed amendment, would state:
16.Accordingly, the Presiding Officers, being respectively, the first and second defendants, had no power to delegate
to the third defendant being the Serjeant-at-Armsthe power to grant or not grant licences to enter upon the Parliamentary precincts.
The relief that Mr Yemini would seek in the proposed amended originating motion includes:
1. An order in the nature of certiorari quashing the decision
purportedly made by the third defendantto refuse approval for the plaintiff’s application for a Parliament of Victoria media pass.
The defendants opposed the proposed amendments. They argued that Mr Yemini’s case was that Mr Groenewegen had made the Decision not to approve his application and they had met that case by filing evidence that proved otherwise. The parties had joined issue on whether that Decision had been made by Mr Groenewegen, as Mr Yemini argued, or the Speaker, as the defendants argued. Mr Yemini’s proposed amendments raised a different case, which had been raised too late, with no good explanation for the delay. It would prejudice them as they had not had the opportunity to call evidence from the Speaker, or to tender evidence, about the composition and operation of his office, which might have shown that he, or an authorised officer, had made the Decision. Mr Yemini had changed his case as to the identity of the decision-maker and relied on the defendants’ failure to provide evidence that the Speaker had made the decision in circumstances where he sought to put a new case that the Decision had been made by an unknown person. Mr Yemini bore the onus of establishing that the Decision was made invalidly and they did not have to establish who made the Decision. Their case was that whoever made the Decision made it on behalf of the Speaker. Even if the Decision was made by persons unknown, it was still an exercise of the privilege to control access to Parliament. That privilege was Parliament’s and did not have to be exercised personally by the Speaker. Even if the Court were to accept that the Decision had been made by an ‘unknown person’, that person had obviously not been joined to the proceeding. For these reasons, Mr Yemini’s proposed new case would have no prospects of success.
Mr Yemini argued that the decision-maker would have to be a recognised officer of the Parliament in order to exercise the privilege. The defendants bore the onus of proving that the doctrine of exclusive cognisance applied, which required that the Decision was made by a person acting under the authority of the Parliament. The defendants were not taken by surprise, as Mr Yemini made clear early in the hearing that he accepted that the Decision was not made by the Serjeant-at-Arms, but also that he did not accept that it was made by the Speaker. There would be no prejudice to the defendants if the amendments were allowed.
Conclusion on amendment application
In my opinion, the amendments should not be allowed as they have no reasonable prospects of success. Mr Yemini bore the onus of proving that the Decision was invalidly made and that case could not be established by alleging that the Decision was made by a person unknown. Mr Yemini’s principal ground is:[20]
[20]Originating motion filed 15 November 2021, [18].
In making the Decision, the decision maker misconstrued the provisions of the Parliamentary Precincts Act 2001 (Vic) as referred to above and fell into jurisdictional error.
Mr Yemini therefore had to establish that the person who made the Decision made a jurisdictional error. To do so, he had to establish that the approach adopted by the decision-maker:[21]
‘manifest[ed] a legally erroneous view as to what it was about which [he] needed to be satisfied’, so that the Delegate lacked legal authority to make the decision that was made.
[21]Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173, 185 [24] (authorities omitted).
The timing of the change to Mr Yemini’s case limited the defendants’ ability to call evidence about the organisation of the Speaker’s office and about whether an authorised officer of the Speaker might have made the Decision.
Issues in the proceeding
The issues to be decided are:
(a) first, who made the Decision and could it be challenged. Originally, the first issue raised the issue of whether, if Mr Groenewegen, in his capacity as Serjeant-at-Arms, made the Decision, he had the power to do so. That issue, so expressed, ceased because Mr Yemini accepted Mr Groenewegen’s affidavit evidence that he did not make the Decision. Instead the replacement issue became who made the Decision, including whether the Speaker, either personally or by authorised delegate or agent, made the Decision. Mr Yemini argued that it had been made by a person unknown. The defendants argued that the Decision was made by the Speaker and was within the exclusive jurisdiction or cognisance of the Victorian Parliament, or was the exercise of Parliament’s privilege to control access to its precincts. If so, Mr Yemini’s case would not be justiciable. Before I consider the issues of justiciability, I will consider the evidence about who made the Decision not to approve Mr Yemini’s media accreditation application.
(b) secondly, whether the decision-maker, whoever it was, was required to accord Mr Yemini procedural fairness in making the Decision.
(c) thirdly, whether Mr Yemini was entitled to reasons for the Decision.
Issue 1 – who made the Decision?
I first consider who, if anyone, the evidence establishes made the Decision to refuse Mr Yemini’s media accreditation application because that question is, or may be, relevant to whether the Decision attracts Parliamentary privilege or was within the exclusive cognisance of Parliament.
As mentioned, Mr Yemini’s case on this issue altered during the hearing. Initially, he argued that the Serjeant-at-Arms made the Decision but acted beyond power in doing so. The defendants’ case was that the Speaker made the Decision. During the hearing, Mr Yemini conceded that the Serjeant-at-Arms did not make the Decision, but argued that the defendants had not proved that the Speaker did, or that anyone else with authority to make the Decision had made it.
Issue 1(a) – was the Decision made by a delegate?
The question of who made the Decision gives rise to related issues. One such issue would arise if a delegate of the Speaker had made the Decision. Mr Yemini argued that a decision by a delegate would have been invalid because media accreditation was the grant of a licence and s 10 prevented the Speaker delegating that power or function. I will consider that question next.
Section 9 states:
9 Powers of presiding officers over Parliamentary precincts
(1)The presiding officers have all the powers necessary and expedient for the control and management of the Parliamentary precincts.
(2)Without limiting the generality of subsection (1), the presiding officers—
(a)may grant leases or licences in respect of any part of the Parliamentary precincts;
(b)may enter into agreements or arrangements in respect of –
(i)works to be performed in the Parliamentary precincts; or
(ii)any other matter in respect of any part of the Parliamentary precincts.
(3)A lease, licence or other agreement granted or entered into under this section is subject to the terms, conditions and covenants determined by the presiding officers.
(4)Subject to subsection (2), nothing in this section permits the mortgage, sale or disposal of any part of the Parliamentary reserve.
Section 10 prohibits a presiding officer delegating any of his or her powers or functions under s 9(2) and (3).
In law, a delegate is a person who has been given the power of another and makes a decision themselves and not as an agent.[22] The short answer to the argument that a delegate may have made the Decision is that there is no evidence that the Speaker delegated his powers to a delegate to make the Decision or that a person purporting to be a delegate made the Decision.
[22]Re Reference under Section 11 of Ombudsman Act 1976 for an Advisory Opinion; Ex parte Director-General of Social Services (1979) 2 ALD 86, 94 (Brennan J).
Issue 1(b) – is the grant of media accreditation the grant of a licence under s 9(2)(a)?
If the Decision had been made by a delegate, then it would have been necessary to decide another related issue, whether media accreditation was the grant of a licence within the meaning of s 9(2)(a) and therefore was a decision that could not be delegated. As this matter was argued, I will state the parties’ submissions and my conclusions on that question.
Mr Yemini argued that the word ‘licence’ in s 9(2)(a) was to be read with its ordinary common law meaning as a contractual right to occupy land revocable at will, a permission to enter land which would otherwise be unlawful. Mr Yemini argued that media accreditation authorises journalists to access parts of the Parliamentary precincts for their work and confers on them an important advantage over the general public and other journalists who are not accredited. In his affidavit evidence, Mr Yemini stated that a journalist who did not have media accreditation not only could not broadcast proceedings of the Legislative Assembly, he or she could not gain access to the Parliamentary precincts and attend media conferences held there, gain entry to the media gallery, gain access to members of Parliament for media-related activities or gain access to the Premier’s press conferences.[23]
[23]First Yemini Affidavit, [32].
The defendants argued that a media accreditation was not the grant of a licence within the meaning of s 9(2)(a). When read in context, the words ‘leases or licences’ and the reference to ‘any part of the Parliamentary precincts’ refer to the grant of permission that carries a right to occupy or use a part of the precincts on a relatively permanent or ongoing basis. An example would be a licence given to a proprietor of a coffee shop to set up a business in a room or area of the Garden, or to provide services to Parliament. At its broadest, the word licence can mean any ‘dispensation’ that ‘makes an action lawful, which without it had been unlawful’.[24] But, in other contexts, ‘licence’ refers to more enduring and substantial permissions, including those permissions that confer a right of occupation, but not a right to exclusive possession, because such permission would be a lease.[25]
[24]Radaich v Smith (1959) 101 CLR 209, 218 (Taylor J), quoting Thomas v Sorrell (1673) Vaugh 330, 351; 124 ER 1098, 1109 (Vaughan CJ).
[25]See Western Australia v Ward (2002) 213 CLR 1, 222-3 [501]-[504] (McHugh J) and Swan v Uecker (2016) 50 VR 74, 85-6 [31] (Croft J).
If it had been necessary to consider the question, I would have decided that a media accreditation was not the grant of a licence for the purposes of s 9(2)(a). The grant of permission to a person including to enter premises, including Parliament House, can be a licence,[26] but it is not a licence to which s 9(2)(a) applies. While the position on this issue is not as clear as the legislation in comparable Australian jurisdictions,[27] the words ‘in respect of any part of the Parliamentary precincts’ suggest the licence to which the provision intends to refer is something different than a right to enter the Parliamentary precincts. I consider that the word ‘licences’ refers to rights granted in connection with the operation of the Parliamentary precincts extending beyond the right to entry, or, in this case, to carry on media activities. Some guidance can be gained from the matters that cannot be delegated that are listed in s 10. They include the determination of terms, conditions and covenants to which leases, licences or other agreements entered into under s 9 are subject. Also listed in s 10 are the presiding officers’ powers or functions under s 15 and s 16(5). The former, s 15, concerns directions of the presiding officers to an authorised officer, including a police officer, or protective services officer exercising powers under Part 3 of the Act, which is titled ‘Security of the Parliamentary precincts’ not to exercise or to cease the exercise of that power of function. The latter, s 16(5), is a part of a section that permits an authorised officer to give a direction to a person or persons to leave or not to enter the Parliamentary precincts if the authorised officer believes on reasonable grounds that the direction is necessary for the good order and security of the Parliamentary precincts. Section 16(5) provides:
During the period that a direction under subsection (1) applies, a presiding officer may, by written notice to the person to whom that direction applies, further direct the person not to enter the Parliamentary precincts during the period specified in that written notice, without the leave of the presiding officer.
[26]See e.g. Payson v Hubert (1903) 34 SCR 400 at 417.
[27]See e.g. Parliamentary Precincts Act 1988 (Cth) s 7(1)(a).
These provisions suggest that the matters not to be delegated are significant and not every day matters, such as the right to enter the Parliamentary precincts. As the defendants submitted, it is unlikely that Parliament intended that every pass to allow visitors, including media, to enter the Parliamentary precincts must be decided by the Speaker.
The defendants argued that s 9(2)(a) would not apply to a decision not to approve a licence. I do not accept that submission as its application may present practical difficulties. It would involve the delegate, or authorised officer, first deciding whether or not to grant a licence and only if he or she concluded that it should not be refused then transferring the decision to the presiding officers. That would create an unwieldy process and is unlikely to have been Parliament’s intention.
Issue 1(c) – who made the Decision?
Having decided that there is no evidence that a delegate made the Decision, I return to the question of whether Mr Yemini has established that the decision-maker lacked authority to decide his application or otherwise made a jurisdictional error.
Mr Yemini argued that, in the absence of any evidence from the Speaker, the Court should draw a Jones v Dunkel[28] inference that his evidence would not have assisted in establishing that he made the Decision. Rather, the Court should conclude that the Decision was made by a person unknown.[29]
[28](1959) 101 CLR 298.
[29]T 72.18-24. Mr Yemini relied on Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125, 131 and O’Donnell v Reichard [1975] VR 916, 929.
The defendants argued that the Speaker had the power to make the Decision to refuse media accreditation and the evidence indicated that he, or his authorised agent, had done so. At the least, Mr Yemini had not established that the Speaker, or his authorised agent, had not done so. They relied on Mr Groenewegen’s evidence that he referred Mr Yemini’s application to the Speaker’s office for the Speaker’s consideration.[30]
[30]Groenewegen Affidavit, [14] and [17].
The defendants explained that the Speaker had not given evidence because the proceeding was regarded as not justiciable and an intrusion into Parliament’s privileges. In any event, they argued that a Jones v Dunkel inference could not fill gaps in a party’s case and Mr Yemini had not led evidence that the Decision was made by someone else other than the Speaker and had conceded that the Sergeant-At-Arms had not done so. The defendants relied on the High Court’s statement in Australian Securities and Investments Commission v Hellicar that:[31]
Disputed questions of fact must be decided by a court according to the evidence that the parties adduce, not according to some speculation about what other evidence might possibly have been led. Principles governing the onus and standard of proof must faithfully be applied.
[31](2012) 247 CLR 345, [165]. See also T 131. The defendants also relied on Morley v Australian Securities and Investments Commission (2010) 247 ALR 205, [634].
The defendants argued in the alternative, that if the Court found that the Speaker had not made the Decision, it should find that he had validly authorised another person to decide applications for media accreditations. Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd[32] accepted that in the case of statutory power, such an implied power would be recognised:[33]
The cases in which the principle has been applied are cases in which the nature, scope and purpose of the function vested in the repository made it unlikely that Parliament intended that it was to be exercised by the repository personally because administrative necessity indicated that it was impractical for him to act otherwise than through his officers or officers responsible to him.
[32](1986) 162 CLR 24; Defendants’ Outline of Submissions, 26 [75].
[33]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, [12] (Mason J).
The defendants argued that there was a ‘practical administrative necessity’ for the presiding officers to exercise the power to grant media accreditation, including to exercise the powers in s 9(2) and (3) if applicable, through the Speaker’s officers responsible to him. If the presiding officers had to grant permission to everyone who wanted to enter the Parliamentary precincts, their ability to perform other duties would be impaired.[34] Instead, s 10, if applicable, should be read as requiring the presiding officers to retain ultimate control of the functions set out in s 9(2), but as permitting officers under their authority to exercise them.
[34]Reliance was placed on O’Reilly v State Bank of VictoriaCommissioners (1983) 153 CLR 1, 11-12 (Gibbs CJ), 32 (Wilson J) and Northern Land Council v Quall (2020) 94 ALJR 904, 921 [83] (Nettle and Edelman JJ).
Mr Yemini submitted that there was no evidence as to the identity of any authorised officer had made the Decision. No inference could be drawn that a person authorised by the Speaker made the Decision, either under s 9(2)(a) or in the exercise of the privilege to control access to the Parliamentary precincts.
Analysis of issue 1(c) – who made the Decision?
Mr Yemini is seeking judicial review orders based on jurisdictional errors which he contends invalidated the Decision to refuse him media accreditation. He alleges that the person who made the Decision lacked authority to make it. That allegation requires him to prove who made the Decision, because he bore the onus of proving the jurisdictional errors made by that the decision-maker.[35] Mr Yemini did not produce any evidence as to who made the Decision, rather he sought to argue that a person unknown had made it. In my opinion, the fact that his case, as ultimately argued, did not identify a decision-maker, by itself, means that it cannot succeed.
[35]MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441, [39].
The defendants’ case was that the Speaker, or an authorised agent, made the Decision. I should state my conclusion that the evidence before the Court does support the finding that the Speaker made the Decision to refuse Mr Yemini’s accreditation application. That evidence is that Mr Yemini’s application was sent to the Speaker’s office for consideration. No approval of the application was given. After he enquired of the Speaker’s office about the application, Mr Groenewegen wrote to Mr Yemini informing him that his application had not been approved. The inference arises that the Decision not approving the application was made in the Speaker’s office, either by the Speaker or, as was permitted, by the Speaker’s authorised officer. There is no evidence that the Decision was made in writing, nor did it have to be. It was not suggested that a decision was not made and that Mr Yemini’s application remains undecided. Mr Yemini has not provided any evidence that any other person made the Decision.
The defendants’ submission that this proceeding is non-justiciable and an intrusion into the privileges of Parliament provides an explanation as to why the Speaker did not give evidence.
Issue 1(d) – Parliament’s exclusive cognisance and privilege to control access to the Parliamentary precincts
The parties made detailed submissions about whether Mr Yemini’s proceeding is justiciable, meaning whether it is a dispute which the Court will hear and determine. The defendants raised this issue. I have left consideration of it until this point in the judgment, because logically it follows the determination of who made the Decision not to approve Mr Yemini’s application.
The defendants argued that Mr Yemini’s claims were not justiciable because the accreditation of journalists, and decisions not to approve their accreditation, involved the exclusive cognisance or jurisdiction of the Parliament and its privilege to control access to its precincts and exclude strangers. It did not, as Mr Yemini wrongly assumed, involve a decision made under the Act.
As the defendants raised these issues, I will summarise their submissions first. They described the Court’s task as deciding whether Parliament’s privilege to exclude strangers extends to the control and management of the Parliamentary precincts and, if so, what areas the precincts include.
The defendants submitted that the Speaker’s Decision was not amenable to judicial review even though the Parliamentary privilege to control access to the Parliamentary precincts may overlap with provisions of the Act, which gives the presiding officers all the powers necessary and expedient for the control and management of the Parliamentary precincts. Thus, in Bradlaugh v Gosset, Stephen J said of a resolution that prevented a member of the House of Commons from taking an oath that he was entitled to take under the Parliamentary Oaths Act 1866 (UK):[36]
I think that the House of Commons is not subject to the control of Her Majesty’s Courts in its administration of that part of the statute-law which has relation to its own internal proceedings…
[36](1884) 12 QBD 271, 278. See also O’Sullivan v Andrews (2016) 50 VR 600, 611 [26].
The defendants argued that this was not a case about ‘questions concerning the internal proceedings of Parliament arise incidentally to a justiciable controversy under the general law’.[37] Rather it was an exercise of Parliament’s longstanding privileges, including to control access to Parliament. It was among the privileges of the House of Commons on 21 July 1855, which was about the date on which the Constitution Act 1855 for Victoria received Royal Assent. Section 19 of the current Constitution Act 1975, states:
[37]O’Sullivan v Andrews (2016) 50 VR 600, 610 [20].
19 Privileges powers etc. of Council and Assembly
(1) The Council and the Assembly respectively and the committees and members thereof respectively shall hold enjoy and exercise such and the like privileges immunities and powers as at the 21st day of July, 1855 were held enjoyed and exercised by the House of Commons of Great Britain and Ireland and by the committees and members thereof, so far as the same are not inconsistent with any Act of the Parliament of Victoria, whether such privileges immunities or powers were so held possessed or enjoyed by custom statute or otherwise.
(2) The Parliament may by Act legislate for or with respect to the privileges immunities and powers to be held enjoyed and exercised by the Council and the Assembly and by the committees and the members thereof respectively.
(3)Any copy of the Journals of the House of Commons printed or purporting to be printed by the order or printer of the House of Commons shall be received as prima facie evidence without proof of its being such copy, upon any inquiry touching the privileges immunities and powers of the Council or the Assembly or of any committee or member thereof respectively.
The right to control the entry of ‘strangers’ to Parliament and its precincts was an ancient privilege of the United Kingdom Parliament. In Australia, Canada and elsewhere, Westminster-style Parliaments have the power to determine who may access their precincts, which allows the Parliament, or its presiding officers, to decide who may enter and remain in the Parliamentary precincts.[38] The Standing Orders of both Victorian Houses of Parliament provide for the control of strangers in Parliament.[39]
[38]T 178-9; Erskine May, A Practical Treatise on the Law, Privileges, Proceedings and Usage of Parliament (2nd ed, 1851) 205-6; See Payson v Hubert (1904) 34 SCR 400; New Brunswick Broadcasting Co v Nova Scotia [1993] 1 SCR 319.
[39]Legislative Council of Victoria, Standing Orders (August 2021) Ch 22; Legislative Assembly of Victoria, Standing Orders (2022) Ch 22.
The defendants referred to a report of a Joint Committee of the United Kingdom Parliament for the following description of the longstanding privilege:[40]
The large measure of control exercised by the two Houses over the premises where they meet has symbolic as well as practical importance. The Palace of Westminster is a royal palace, and used to be controlled on the Sovereign’s behalf by the Lord Great Chamberlain. Control of the use of the precincts of the two Houses is now vested in their presiding officers on behalf of the House. Rules made by the two Houses determine who may enter the precincts and the conditions on which the premises may be used. The police on duty in the two Houses are under the direction of the Serjeants-at-Arms. Both Serjeants have power given them by their respective Houses to deal with misconduct by non-members.
The position of the two Houses in this regard, and the powers of their presiding officers, are not set out in any statute. Nor are ‘precincts’ statutorily defined. The extent of the precincts has never been a matter of dispute in court. The two Houses assume that precincts include, and that the courts would accept they include, in addition to the Palace itself and its immediately surrounding areas such as Old Palace Yard and New Palace Yard, various buildings adjacent to the Palace occupied for parliamentary purposes…
[40]United Kingdom, Joint Committee on Parliamentary Privilege, Parliamentary Privilege - First
Report (1999) [260]-[261] (footnotes omitted).
The defendants also referred to the following passage in a 2014 report of the Commonwealth Senate Committee of Privileges:[41]
To understand the limits of the Presiding Officers’ power to authorise such dealings [with CCTV footage captured in the precincts], it is necessary to understand the authority under which the CCTV system operates. That authority arises from the Presiding Officers’ powers to control and manage the parliamentary precincts. Control and management of the precincts is vested by the Houses of Parliament in their Presiding Officers by a long thread of tradition, Constitutional authority, resolution and legislation. This is a crucial point: the power belongs to the Houses and is exercised on their behalf by the Presiding Officers.
[41]Commonwealth Parliament, Senate, Committee of Privileges, The Use of CCTV Material in
Parliament House (Report 160, December 2014, PP429/2014) 23 [3.12]-[3.13].
Both parties addressed the significance of the Act for this proceeding. The Parliamentary precincts, which include land beyond that occupied by Parliament House, are defined in s 3 as:
Parliamentary precincts means—
(a) the Parliamentary reserve; and
(b)any other land or premises for the time being declared to be part of the Parliamentary precincts under section 6;
In turn, ‘Parliamentary reserve’ is defined in s 3 as ‘the land shown in the plan in the Schedule’ of that Act.
Counsel for the defendants described the Parliamentary reserve as follows:
Under s 6, the parliamentary reserve is then shown in a schedule, and the relevant map in the schedule I think makes clear that that reserve includes both the building, but also the enclosed gardens within Parliament House at Spring Street. But there also is relevantly a power under s 6 whereby the governor and council can, on the recommendation of the presiding officers, declare other land or premises to be part of the parliamentary precincts if they are required for the purposes of the Parliament. So there is an ambulatory ability to extend the precincts to another building that is used.
The defendants described the Act as legislation made under, or which falls within, s 19(2) of the Constitution Act 1975, and which:
(a) confirms the precise extent of the ‘Parliamentary precincts’;
(b) states that the presiding officers are ‘jointly and severally responsible for the control and management of the Parliamentary precincts’;[42]
(c) provides for the powers of the presiding officers over the Parliamentary precincts, including a power to delegate certain powers and a power to enter into a memorandum with the Chief Commissioner of Police relating to the exercise of police functions within the Parliamentary precincts;[43] and
(d) empowers ‘authorised officers’, including police officers and protective services officers, to direct persons to ‘leave or not to enter the Parliamentary precincts’ and to remove persons from the Parliamentary precincts or prevent them from entering, with the provisos that: (i) such directions do not apply to members of Parliament; and (ii) authorised officers are subject to directions of the presiding officers in the exercise of those powers.[44]
[42]Section 8(1).
[43]Sections 9-12.
[44]Sections 14–15, 16(1), 19.
Section 4 provides that the Act does not affect privileges and states:
4 Act does not affect privileges etc.
Nothing in this Act derogates from the privileges, immunities and powers held, possessed or enjoyed by custom, statute or other law or otherwise of—
(a) the Parliament; and
(b) each House; and
(c) the President of the Legislative Council; and
(d) the Speaker of the Legislative Assembly; and
(e) the members and Committees of each House; and
(f) the joint Committees of the Parliament; and
(g) the Usher of the Black Rod of the Legislative Council; and
(h) the Serjeant-at-Arms of the Legislative Assembly; and
(i) the staff, employees, agents or delegates of the Parliament or of the presiding officers.
In the second reading speech for the Bill for the Act, the Premier, Mr S Bracks, stated that ‘[t]he existing parliamentary privilege will be modified only to the extent that this bill gives additional powers to the police and protective services officers’.[45]
[45]Victoria, Parliamentary Debates, Legislative Assembly, 22 March 2001, 434.
The defendants relied on the discussion of the privilege to exclude strangers from Parliament precincts by the Supreme Court of Canada in New Brunswick Broadcasting Co v Nova Scotia (‘New Brunswick’),[46] in which a media company sought a court order allowing it to film the proceedings of the Nova Scotia House of Assembly with its own cameras. The Speaker refused the application and the Supreme Court upheld that decision. I will refer to that decision in more detail later.
[46][1993] 1 SCR 319.
The defendants also relied on the Supreme Court of Canada’s decision in Payson v Hubert,[47] that no action for assault lay where the plaintiff had been removed, on the order of the Speaker, from ‘the smoking room and corridor of the House, and from the stair-case leading up to the corridor’ and the staircases leading into the street entrance. Justice Davies, giving the leading judgment, said that:[48]
I cannot think that any one or number of people could gather either in this corridor or on this staircase and so conduct themselves as to hinder if not prevent the carrying on of public business and justify themselves on the ground that they were not within the precincts of the House.
[47](1904) 34 SCR 400.
[48]Ibid 410.
Davies J also stated that ‘[t]he powers and duties of the officers of the House with respect to the preservation of order and decorum within its precincts are as applicable to the intervals of time of adjournments between the sessions as to the sessions themselves’.[49]
[49]Ibid 415.
The defendants also relied on other Canadian cases to similar effect.[50] In Zündel v Liberal Party of Canada the Court of Appeal for Ontario held that a decision of the Speaker of the House of Commons, to deny the appellant admittance to the precincts of the House of Commons during and for the remainder of the present session, was not justiciable. The appellant had sought to hold a press conference in a room within the Parliament Buildings.[51] The Court of Appeal affirmed the decision at first instance to strike out the appellant’s challenge to the decision, as a violation of his rights under the Canadian Charter of Rights and Freedoms, on the basis that the respondents ‘had acted in the exercise of the parliamentary privilege to exclude strangers’.[52] The Court regarded it as ‘self-evident that control over the premises occupied by the House of Commons for the purpose of performing the Members’ parliamentary work is a necessary adjunct to the proper functioning of Parliament’.[53]
Mr Yemini’s submissions about Parliament’s exclusive cognisance and privilege to control access to the Parliamentary precincts
[50]See Gauthier v Canada (Speaker of the House of Commons) 25 CRR (2d) 286 (1994) [9]. The decision was later affirmed in National Capital News Canada v Canada (Speaker of the House of Commons), 2004 FCA 27 and Gauthier v Milliken, 2006 FC 596.
[51]The summary of the facts of the case is taken from the defendants’ submissions.
[52](1999) 181 DLR (4th) 463, 465 [3], 466 [11], 469 [19] (Charron JA, for the Court).
[53]Ibid 468-9 [18] (Charron JA, for the Court).
Mr Yemini accepted the validity of the media accreditation scheme, but argued that decisions under it were reviewable by the Court.
He argued that his case was never about the exclusion of ‘strangers’ or regulation of the internal workings of Parliament. Media accreditations were not matters within the exclusive cognisance of Parliament. The test of exclusive cognisance was what was necessary to the existence of such a body and the proper exercise of the functions which it is intended to execute.[54] A media accreditation scheme was not necessary to the existence and the proper exercise of the functions which it is intended to execute.[55] The Decision to refuse Mr Yemini media accreditation did not have a close connection to the proceedings of Parliament, and the intervention of the Court to review accreditation decisions would not inhibit or obstruct Parliament’s functions. The Act contains Parliament’s description of the presiding officers’ powers to manage the Parliamentary precincts. Mr Yemini distinguished cases such as New Brunswick, on the ground that journalists are not ‘strangers’ for the purposes of Parliament’s privilege to exclude strangers.
[54]Relying on Egan v Willis (1998) 195 CLR 424, [30]-[34], [48], [54] (Gaudron, Gummow and Hayne JJ), [138]-[141] (Kirby J); [189] (Callinan J) and Obeid v R (2017) 96 NSWLR 115, [120] (Bathurst CJ).
[55]T 4–5.
Mr Yemini relied on the United Kingdom Supreme Court’s decision in R v Chaytor,[56] which concerned charges for false accounting arising from allegedly dishonest claims for expenses and allowances made by serving Members of Parliament. The defendants unsuccessfully claimed that criminal proceedings could not be brought against them since their claims for expenses and allowances, by which they were enabled to carry out parliamentary business, were protected by parliamentary privilege as part of ‘proceedings in Parliament’ for the purposes of article 9 of the Bill of Rights 1689 and under the exclusive cognisance of Parliament to regulate its own affairs. Lord Phillips of Worth Matravers PSC described Parliament’s exclusive cognisance in these terms:[57]
The exclusive cognisance of Parliament was originally based on the premise that the High Court of Parliament had its own peculiar law which was not known to the courts. Blackstone’s Commentaries on the Laws of England, 17th ed (1814) observed, at p 175:
‘It will be sufficient to observe, that the whole of the law and custom of Parliament has its original from this one maxim; ‘that whatever matter arises concerning either House of Parliament, ought to be examined, discussed, and adjudged in that House to which it relates and not elsewhere’.’
[56][2011] 1 AC 684 (‘Chaytor’).
[57]Ibid 712 [64] (Lord Phillips).
Lord Phillips explained the ambit of article 9 of the Bill of Rights 1689 as follows:[58]
The jurisprudence to which I have referred is sparse and does not bear directly on the facts of these appeals. It supports the proposition, however, that the principal matter to which article 9 is directed is freedom of speech and debate in the Houses of Parliament and in parliamentary committees. This is where the core or essential business of Parliament takes place. In considering whether actions outside the Houses and committees fall within parliamentary proceedings because of their connection to them, it is necessary to consider the nature of that connection and whether, if such actions do not enjoy privilege, this is likely to impact adversely on the core or essential business of Parliament.
If this approach is adopted, the submission of claim forms for allowances and expenses does not qualify for the protection of privilege. Scrutiny of claims by the courts will have no adverse impact on the core or essential business of Parliament, it will not inhibit debate or freedom of speech. Indeed it will not inhibit any of the varied activities in which Members of Parliament indulge that bear in one way or another on their parliamentary duties. The only thing that it will inhibit is the making of dishonest claims.
[58]Ibid 706-7.
I note at this point that the defendants submitted that while the decision in R v Chaytor, on which Mr Yemini relied, was of assistance in describing the principle of exclusive cognisance, it dealt with the different questions of whether the ordinary law applies to matters involving the Parliament and its members as well as the identification of the core and essential business of Parliament. It did not deal with Parliament’s right to control access to its precincts.
Analysis of defendants’ reliance on Parliament’s exclusive cognisance and the privilege to control access to the Parliamentary precincts
I will first consider the extent of Parliament’s privilege to control access to the Parliamentary precincts, which is part of the privilege to exclude strangers.
The Court has jurisdiction about whether a Parliamentary privilege exists and its content, whereas the exercise of a privilege in a particular instance is not justiciable. As Dixon CJ said in R v Richards; Ex Parte Fitzpatrick and Browne:[59]
The question, what are the powers, privileges and immunities of the Commons House of Parliament at the establishment of the Commonwealth, is one which the courts of law in England have treated as a matter for their decision.
[59](1955) 92 CLR 157, 162. John Dixon J considered extensively the issue of Parliament’s exclusive cognisance and the Court’s jurisdiction in respect of Parliament’s privileges in O’Sullivan v Andrews (2016) 50 VR 600.
In New Brunswick, Lamer CJ stated:[60]
The general rule which has developed from the above and subsequent case law is that courts will inquire into the existence and extent of privilege, but not its exercise. This rule does not always provide a clear guide, however, as the existence, extent and exercise of privilege tend to overlap.
[60][1993] 1 SCR 319, 350.
The power to exclude strangers was a recognised privilege of the House of Commons in 1855 and by virtue of s 19 of the Constitution Act 1975, is a privilege that is ‘held, enjoyed and exercised by the Council and Assembly of the Parliament of Victoria’. The privilege to control the access of strangers entering the Parliamentary buildings and precincts is usually exercised through the presiding officers, in the case of the Victorian Parliament, by the Speaker of the Legislative Assembly and the President of the Legislative Council. The exercise of the privilege to exclude strangers and control access to Parliament is within the exclusive cognisance or jurisdiction of Parliament.
The existence and purpose of the Parliamentary privilege to exclude strangers was discussed in New Brunswick, on which the defendants relied. Justice McLachlin[61] accepted that ‘the House of Assembly of Nova Scotia has the constitutional power to exclude strangers from its chamber on the basis of the preamble to the Constitution, historical tradition, and the pragmatic principle that the legislatures must be presumed to possess such constitutional powers as are necessary for their proper functioning.’[62] Justice McLachlin explained that the ejection of strangers from the House and its precincts was one of the specific privileges which arose in the United Kingdom and stated:[63]
As for the right to exclude strangers from the galleries, Erskine May cites ancient usage that any member could require the exclusion of any person from the gallery at any time, without debate or reason. This power has now been referred to the Speaker, who alone has the power, whenever he or she sees fit, to order the withdrawal of strangers from any part of the House.
…
The fact that this privilege has been upheld for many centuries, abroad and in Canada, is some evidence that it is generally regarded as essential to the proper functioning of a legislature patterned on the British model.
…
… this privilege is as necessary to modern Canadian democracy as it has been to democracies here and elsewhere in past centuries…. Strangers can, in a variety of ways, interfere with the proper discharge of that business. It follows that the Assembly must have the right, if it is to function effectively, to exclude strangers.
[61]Delivering the judgment of L’Heureux-Dubé, Gonthier, McLachlin and Iacobucci JJ.
[62]Ibid 374-5.
[63]Ibid 386-7.
In my opinion, Parliament’s exercise of the privilege to control access of persons into it does not have to satisfy the test of reasonable necessity as Mr Yemini submitted was required.
Parliament’s precincts extend beyond the buildings in which it meets. Prior to statutes providing definitions of Parliament’s precincts, the boundaries of the precincts were not precisely defined, but extended to buildings that Parliament used for its purposes. It always included the Parliament House, for instance in London, the Palace of Westminster.
As previously mentioned, in 1904, the Canadian Supreme Court decided that the precincts included ‘the smoking room and corridor of the House, and from the stair-case leading up to the corridor’.[64] In 1974, the Australian Capital Territory Supreme Court stated in Rees v McCay:[65]
Parliament, through the President of the Senate and the Speaker of the House of Representatives, and the officers of the Parliament, controls the use of the buildings which it has for its purposes. Doubtless, it can also control the use of the immediate precincts of those buildings, but arrangements about such matters are made in a sensible and practical way, bearing in mind the reasonable requirements of Parliament.
[64]Payson v Hubert (1904) 34 SCR 400, 408.
[65](1975) 7 ACTR 4, 7.
The House of Representatives Practice for the Commonwealth Parliament in its 1989 edition stated:[66]
[66]A.R. Browning (ed), House of Representatives Practice (Australian Government Publishing Service, 2nd ed, 1989) 157-8 (references omitted).
Until 1988 there was no precise definition of the precincts of Parliament over which exclusive jurisdiction is exercised by the Presiding Officers. One definition advanced was that any place de facto occupied by Members for their parliamentary duties is part of the precincts of the parliamentary building.
The House of Commons has exercised its authority over what it regarded as its de facto precincts from the earliest times, the House having adjudicated in connection with cases of disturbances, assaults, offensive language, and so on. These cases, extending back to the 17th century and other more recent examples, make it clear that the House has treated as its precincts such premises as may be occupied corporately by its Members for the purposes of their parliamentary duties.
Following the Commons’ precedents, the two Houses of the Commonwealth Parliament and their chief officers, the President and the Speaker, for most practical purposes, traditionally exercised exclusive jurisdiction in the provisional Parliament House so as to enable the Parliament to conduct its business without interference or pressure from any outside sources…
In practice, in the provisional Parliament House the Presiding Officers exercised jurisdiction over the provisional Parliament House building, the front steps, open verandahs and the enclosed gardens situated on either side of Parliament House. These arrangements were applied but not without difficulty, as illustrated by the following comment made by the Joint Select Committee on the New and Permanent Parliament House in its 1969 report:
At present various Commonwealth Departments are concerned with aspects of the Parliamentary area and several statutes have application to it. Over time, much correspondence has flowed between the Parliament and the Departments in the matters of traffic control, parking facilities, police activities, control of demonstrations, public access to the building, roadway design, etc. It is felt that many of the problems which have arisen could have been avoided by having the whole area placed under the control of the Parliament through its Presiding Officers.
The question of the extent of the precincts of the provisional Parliament House was never resolved definitively, despite recommendations for an authoritative delineation. The Joint Standing Committee on the New Parliament House recommended in 1985 that the area of the parliamentary precincts for the new Parliament House be defined by legislation.
The Parliamentary Precincts Act 1988 (Cth) now defines the Parliamentary precincts of the new larger Commonwealth Parliament House.
The Victorian Parliament followed suit with the Parliamentary Precincts Act 2001, which in s 3 defines Parliament’s precincts and gives control of them to the presiding officers.
Although journalists may be granted media accreditation passes, they remain a stranger to the Houses of Parliament. That is because the term ‘stranger’ is traditionally given to any person present in the Parliamentary Chamber, including the galleries, who is neither a Member nor an employee of the Parliament performing official duties.[67] Members of the media come within that use of the term ‘stranger’.
[67]D.R. Elder (ed), House of Representatives Practice (Australian Government Publishing Service, 7th ed, 2018) 115.
I agree with the defendants’ submissions that this proceeding is about the exercise by the Speaker, as an officer of the Parliament, of the privilege to control access to the Parliamentary precincts. The media accreditation scheme is not created by statute, nor resolution of the Houses, it is an exercise of that privilege which has existed from ancient times. The exercise of that privilege is within the exclusive cognisance of the Parliament and can be exercised by the Speaker acting on its behalf or acting through an authorised officer.
Conclusion
I conclude that this proceeding is not justiciable, because it falls within the exclusive cognisance of the Parliament of Victoria as it involves the exercise of the privilege to control access to Parliamentary precincts. For those reasons, the grounds that Mr Yemini wishes to raise in this proceeding are not justiciable. However, as the remaining grounds were argued, I will express my views about them. Although, the defendants submitted that such a course was not appropriate if I found that the proceeding was not justiciable, I consider that I should state my conclusions on all issues argued.
Issue 2 – do the rules of nature justice and procedural fairness apply to a decision whether to grant media accreditation?
Mr Yemini argued that the defendants were obliged to accord him procedural fairness in deciding his media accreditation application and had not done so. They had taken into account the incident of 17 February 2021 without informing him and providing him with a reasonable opportunity to respond to its relevance. The determination of the media accreditation involved the exercise of a statutory power as a media pass falls within the scope of the term ‘licence’ under s 9(2)(a) of the Act. The Decision affected his livelihood as a journalist, ‘particularly a political journalist wishing to cover more fully the activities of the Victorian Parliament’.[68] As the High Court stated in Saeed v Minister for Immigration and Citizenship:[69]
Brennan J in Kioa v West said that, in the ordinary case, an opportunity should be given to a person affected by a decision to deal with any adverse information that is ‘credible, relevant and significant’. … Mason J in Kioa v West went further. In His Honour’s view the common law would require the decision-maker to bring the critical issue or factor on which the decision was likely to turn to the attention of the person. Brennan J’s approach would not deny that this may be necessary in a particular case.
[68]T 17.27-8.
[69](2010) 241 CLR 252, 261 [19] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ).
In submitting that the decision-maker took into account the incident in which he was ejected from the Parliamentary precincts, Mr Yemini referred to the following passage from Mr Groenewegen’s affidavit:[70]
Knowing that the media organisation for which the Plaintiff worked was not one in respect of which there had previously been media accreditation, and aware that the Plaintiff had been subject of the incident referred to in paragraph 12, on 10 March 2021 I referred the Plaintiff’s Application for Media Accreditation to the Speaker’s Office for the Speaker’s consideration.
[70]Groenewegen Affidavit, [14].
Mr Yemini relied on Mr Groenewegen’s awareness of the incident at the time he received his media accreditation application. Mr Groenewegen therefore departed from general practice and referred the application to the Speaker’s office for consideration.[71] The Court should draw an inference that whoever made the Decision, including the Speaker, knew of the incident. However, Mr Yemini had not been notified that the incident would be taken into account.
[71]Ibid [13]–[14].
The defendants submitted that the Speaker was not obliged to act judicially and observe the principles of procedural fairness in deciding not to approve Mr Yemini’s media accreditation application. He was not exercising statutory power in deciding Mr Yemini’s application. The nature of the repository of the power in this case and the nature of the Mr Yemini’s application all pointed against the decision-maker being required to act in a judicial manner and observe the requirements of procedural fairness.
If procedural fairness was applicable, Mr Yemini had been provided it. The Speaker was deciding an application made under an application process which satisfied the hearing process. Although Mr Groenewegen, in his capacity as Serjeant-at-Arms, might have taken the incident into account, the Speaker was the decision-maker and there was no evidence that he did.
Analysis of issue 2
I consider that the power to grant, or refuse to grant, a media accreditation application is not a statutory power and does not fall within the scope of s 9(2)(a) of the Act.
I accept the defendants’ submission that the Speaker can exercise Parliament’s privilege to control access to the Parliamentary precincts. The Speaker, or the Serjeant-at-Arms or another authorised officer, can exercise that privilege on behalf of the Parliament. The power to control access to the Parliamentary precincts is the exercise of a Parliamentary privilege which is not justiciable and does not attract the requirements of natural justice and procedural fairness. The exercise of that privilege is not the exercise of a power under the Act which, by s 4, does not derogate from the privileges, immunities and powers held, possessed or enjoyed by custom, statute or other law or otherwise of the Parliament, each House, the President, the Speaker or the Serjeant-at-Arms.
Issue 3 – is Mr Yemini entitled to reasons for the Decision?
Mr Yemini relied on s 8(1) of the Administrative Law Act 1978 (‘the AL Act’) which provides that ‘a tribunal shall, if requested to do so by any person affected by a decision made or to be made by it, furnish him with a statement of its reasons for the decision.’
The question of whether, the decision-maker is a ‘tribunal’ as defined by s 2 of the AL Act, is determined by whether they are bound to observe one or more of the rules of natural justice. The reference to acting in a judicial manner does not add any further element to the statutory definition of ‘tribunal’. Mr Yemini submitted that the decision-maker was obliged to give reasons, whereas the defendants submitted that he was not.
Analysis of issue 3
For the reasons outlined in the analysis of issue 2, I do not consider that the principles of natural justice and procedural fairness applied to the Speaker’s Decision of whether to approve Mr Yemini’s application for media accreditation. It follows that s 8 of the AL Act did not require the defendants to provide reasons for the Decision.
Conclusion
The proceeding is dismissed. Costs would usually follow the event, but if either party wishes to make submissions about costs, I will consider such submissions before deciding the issue.
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