Parliamentary privileges and precincts: judicial review of parliamentary media accreditation

Yemini v Elasmar [2022] VSC 788

In Yemini v Elasmar [2022] VSC 788, Ginnane J of the Supreme Court of Victoria considered whether a media accreditation decision of the Parliament of Victoria was subject to judicial review. In deciding that it was not, his Honour relied on the parliamentary privilege “to exclude strangers” and control access to the parliamentary precincts, which was held to be within the “exclusive cognisance” of Parliament. The decision is of interest for its application of longstanding constitutional principles at some remove from what most Australian lawyers would call to mind when reflecting on constitutional law.

Facts

The plaintiff was the Australian Bureau Chief for an online news publisher. He had applied to the Serjeant-at-Arms of the Legislative Assembly of the Parliament of Victoria for media accreditation, which would entitle him to greater access to the parliamentary precincts than members of the public.

The Serjeant-at-Arms, who was the third defendant, had referred the application to the Speaker of the Legislative Assembly, who was the second defendant. The first defendant was the President of the Legislative Council, who generally left media accreditation to the Speaker. The Speaker had not approved the plaintiff’s application for media accreditation, and the Serjeant-at-Arms had informed the plaintiff’s solicitor that his application had not been approved.

Issues

Justice Ginnane identified (at [34]) three issues for decision. Issue 1 was who had made the decision. This was comprised of four sub-issues:

a.     “was the Decision made by a delegate?” ([37]-[40]);

b.     “is the grant of media accreditation the grant of a licence under s 9(2)(a)” of the Parliamentary Precincts Act 2001 (Vic), which provided that the presiding officers “may grant leases or licences in respect of any part of the Parliamentary precincts”? ([41]-[46]);

c.     “who made the Decision?” ([47]-[57]); and

d.     “Parliament’s exclusive cognisance and privilege to control access to the parliamentary precincts” ([57]-[91]).

Issue 2 was whether the rules of natural justice and procedural fairness applied to a decision whether to grant a media accreditation: [93]-[99].

Issue 3 was whether the plaintiff was entitled to reasons for the decision: [100]-[102]. The plaintiff relied on s 8(1) of the Administrative Law Act 1978 (Vic), which provided 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.”

Decision

The first three sub-issues within Issue 1 were disposed of relatively straightforwardly. Justice Ginnane held as follows:

a.     There was 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: [40].

b.     If it had been necessary to consider the question, his Honour would have decided that a media accreditation was not the grant of a licence for the purposes of s 9(2)(a): [44].

c.     The evidence before the Court supported the finding that the Speaker made the decision to refuse the plaintiff’s accreditation application: [55].

The fourth sub-issue — Parliament’s exclusive cognisance and privilege to control access to the parliamentary precincts — was the crux of the decision. Justice Ginnane began by noting (at [80]) that “[t]he 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.” His Honour identified (at [82]) the relevant parliamentary privilege as the “power to exclude strangers” and noted that “[t]he exercise of the privilege to exclude strangers and control access to Parliament is within the exclusive cognisance or jurisdiction of Parliament.”

Justice Ginnane considered (at [90]) that journalists, even if they held media accreditation passes, remained strangers to the Houses of Parliament. This was 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.” (citation omitted)

His Honour agreed (at [91]) “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.”

Having reached this view, Ginnane J decided Issue 1 by concluding (at [92]) “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.”

The conclusions on Issues 2 and 3 followed from the conclusion on Issue 1. As “[t]he power to control access to the Parliamentary precincts is the exercise of a Parliamentary privilege which is not justiciable”, it did not “attract the requirements of natural justice and procedural fairness”: [99]. Section 8 of the Administrative Law Act 1978 (Vic) did not therefore require the defendants to provide reasons for the decision: [102].

Comment

Several points of interest arise from this decision. First, it confirms that Parliament retains significant powers that are not subject to judicial review, including the grant of media accreditation.

Secondly, it demonstrates the resilience of ancient parliamentary privileges in the face of statutory interventions dealing with related subject matter. Despite the enactment of the Parliamentary Precincts Act 2001 (Vic), Ginnane J confirmed that the power to control access to the parliamentary precincts was not an exercise of power under that Act.

Thirdly, the decision in Yemini demonstrates the continuing relevance of Anglo-Commonwealth constitutional law in Australia, despite the existence of the federal Constitution and the increasing codification of State constitutional law. Justice Ginnane, like the parties before him, drew on authorities from, and practice in, the United Kingdom and Canada, as well as other Australian jurisdictions.