Opinion Number. 27



Key Legislation

20 VIC. No. 1 (VIC), s. 1

The Prime Minister

The question of law, as to which the Right Honourable the Prime Minister desires my opinion, apparently is whether the President of the Legislative Council and the Speaker of the Legislative Assembly of Victoria have any rights of precedence conferred upon them by section 1 of the Victorian Act of 1857 [20 Vic. No. 1 ] defining the privileges, immunities and powers of those Houses.

That section declares that the privileges, immunities and powers of the Legislative Council and Legislative Assembly of Victoria shall be the same as were at that date enjoyed by the Commons House of Parliament, 'whether such privileges immunities or powers were so held . . . by custom statute or otherwise'.

I do not think that a ceremonial matter, such as the order of precedence of the Speaker at a public function, can be regarded as a privilege of the House within the meaning of that Act.
Both Houses of Parliament enjoy various privileges in their collective capacity, as constituent parts of the High Court of Parliament; which are necessary for the support of their authority, and for the proper exercise of the functions entrusted to them by the Constitution. Other privileges, again, are enjoyed by individual members; which protect their persons and secure their independence and dignity. Some privileges rest solely upon the law and custom of Parliament, whilst others have been defined by statute. Upon these grounds alone all privileges whatever are founded. (May, Parliamentary Practice, p. 57)

A privilege of the nature suggested is certainly no part of the lex et consuetudo Parliamenti-which is only to be collected, according to Sir Edward Coke, 'out of the rolls of Parliament and other records, and by precedents and continued experience'. Nor has such a privilege ever been conferred by statute. The privileges enumerated by May, in Chapter III, do not include any right of precedence, and mostly consist of privileges which have a definite legal basis, and are enforceable by law. The right of members of the Houses, to have 'freedom of access to His Majesty' is described by May (p. 58) as a matter of courtesy rather than privilege. It is not enjoyed by individual members of the House of Commons, but by the House at large, with their Speaker; and is only exercised when an address is presented to His Majesty by the whole House. This right of access, which is alluded to by Sir Henry Wrixon(1), is not in question, and has nothing to do with the order of precedence at public functions.

The above view of the nature of parliamentary privilege is borne out by Todd, Parliamentary Government in the British Colonies, pp. 689-695.

[Vol. 1, p. 194]

(1) President of the Legislative Council of Victoria.