Information Sheet 12 - Parliamentary Privilege and the Right of Reply

Members of Parliament are granted parliamentary privilege, a right that enables them to speak freely within the debating chamber on a wide range of matters, some of which might otherwise not be raised for fear of legal repercussions. Freedom of speech is fundamental to Parliament's primary roles, which include considering proposed legislation, scrutinising government performance and raising matters of concern on behalf of constituents. Members have been given the ability, within certain restrictions Parliament imposes on itself, to speak freely during parliamentary proceedings without the normal legal constraints.

On occasions, this freedom has allowed parliamentarians to refer to members of the public or organisations in a manner to which they have objected. Prior to the right of reply, individuals or organisations who believed that their reputation had been harmed in this manner were not only unable to take legal action, but could not defend themselves in the forum in which the original comments were made.

Introduction of the Right of Reply

A right of reply was introduced by the Australian Senate in February 1988. This established a procedure giving individuals or organisations who believed that they had been adversely affected by the words of a Senator the opportunity to formally respond and to have that response incorporated in the parliamentary record.

The right of reply process followed by Victoria's Legislative Council was based on the Senate's approach, although the Council did not adopt the procedure as a Sessional Order until October 1998. It was applied for the first time on 3 April 2001, when the President announced that he was presenting a right of reply from a conservation group in response to statements that had been made in the Council on three separate occasions by a particular Member.

The right of reply was first incorporated into the Council's Standing Orders when they were revised in 2003, and remains a part of the current Standing Orders. By the end of 2010, this procedure had been invoked on nine occasions, with all nine replies being incorporated into Hansard.

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Bruce Chamberlain – President, introduced the first right of reply into the Council

Legislative Assembly: A Different Practice

Victoria's Legislative Assembly also has the right of reply. Its application preceded the Council's by a month, introduced by an amendment to the Sessional Orders in September 1998. The Assembly's right of reply procedure differs from that of the Council's, largely due to the involvement of the Privileges Committee, which examines the submission in detail. The Council involves no such committee in the process with the matter being determined solely by the President. There are other minor procedural differences between the Houses, but in essence the system is comparable (For further details on the Assembly's practice, see 'Right of Reply by Persons Referred to in the House', Fact Sheet 11).

The Right of Reply: A Procedural Overview

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The Legislative Council's right of reply procedure is a relatively straightforward process, beginning with an individual seeking the right and concluding with either:

  • The aggrieved person's submission being published by the Council and included in Hansard; or
  • The submission not being published on the basis of the President's decision.

Step by step account


A Person's Right of Reply

Persons or organisations who have been referred to in the Legislative Council by name or in a manner in which they can be easily identified, are entitled to seek the right of reply.

Written Submission to the President

A person or organisation wishing to exercise this right must make a written submission to the President. The submission must contain:

1. A claim that due to a reference made in the Council they have:

  • Been adversely affected in reputation or in respect of dealings or associations with others; or
  • Been injured in occupation, trade, office or financial credit; or
  • Experienced an unreasonable invasion of their privacy due to the reference made.


2. A request that they be granted the right and opportunity to incorporate an appropriate response in the parliamentary record.

President will consider the submission

After receiving the submission, it is the President's role to consider the written evidence presented. In doing so, the Standing Orders state that it is not the President's responsibility to "consider or judge the truth of any statements made in the Council or the submission." However, the President must be satisfied that the subject of the submission is not obviously trivial, and that the submission itself is not "frivolous, vexatious or offensive in character."
During this stage of the process, the President has the option, if so desired, of speaking with the person or organisation that has made the submission. At this point, the President may reach an agreement with the aggrieved party to exclude expressions considered to be in conflict with the spirit of the right of reply.

Notification to Member who made comments in question

The President is required to provide written notice of the submission to the Member whose comments in the Council are the subject of the right of reply. The President then consults with the Member prior to any response being presented to the Council.

Deciding between further or no further action

If the President determines that the submission has been framed in an acceptable manner, he or she must choose between two approaches:

  1. to take no further action in relation to the submission; or
  2. to allow a response made by the person or organisation who wrote the submission to be published by the Council as a Parliamentary Paper and incorporated in Hansard.

Council informed of decision

Once decided, the President informs the Council of his or her decision and proceeds accordingly.

Responses presented to the Council

Under the Standing Orders, the response presented to the Council must be relevant to the issue at hand, succinct and not contain anything offensive in character. In addition, the content should not be of a kind that, if published, would unreasonably cause or aggravate adverse affects towards a person or invade their privacy.

Member's right to respond

In certain circumstances, it may be permissible for the relevant Member to offer a short personal explanation regarding the submission that has been made in response to his or her comments. However, at this point the process must cease: neither the person nor organisation making the submission, nor the relevant Member, is granted another opportunity to raise the matter.

 

Prepared by: Table Office
Department of the Legislative Council
Parliament of Victoria
Reissued: March 2011