PM Morrison Wins NSW Preselection Supreme Court Case
PM Morrison Wins NSW Preselection Supreme Court Case
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Court of Appeal
Supreme Court
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Representation: Counsel:
S Robertson / A R Langshaw / B May (Plaintiff)
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Solicitors:
Pryor Tzannes & Wallis Solicitors (Plaintiff)
Thomson Geer Lawyers (First, Second, Third and
Eighth Defendants)
Clayton Utz (Fourth, Fifth and Sixth Defendants)
Harpur Phillips (Seventh Defendant)
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the
Court otherwise orders, a judgment or order is taken to be entered when it is
recorded in the Court's computerised court record system. Setting aside and
variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and
36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
HEADNOTE
[This headnote is not to be read as part of the judgment]
Clause 12.3(a) provided that, where the Federal Executive believes that a
specified ground for intervention existed, it “may resolve to take over the
management of that Division in accordance with this clause.” Clause 12.3(b)
conferred broad powers of management but provided that “neither the Federal
Executive nor the … committee shall have power to amend the Divisional
Constitution”.
On 15 March 2022, the plaintiff, a member of the State Council and State
Executive of the NSW Division, applied to the Supreme Court for a declaration
that the committee’s resolution was invalid. The plaintiff submitted that the
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(2) if so, whether the committee exceeded its power under the Party’s Federal
Constitution.
The Court (Basten, Leeming and Payne JJA) held, dismissing the
proceedings:
Issue 1 – justiciability
(1) Cameron v Hogan is binding authority that disputes arising from the
application of the rules of an unincorporated political party are not justiciable.
The role and manner of operation of political parties has not changed materially
since Cameron was decided. The provisions in the current Electoral Act
providing for party registration, candidate nomination and endorsement, and
public funding do not purport to affect the general internal operations of political
parties. Accordingly, it is not correct to state at a high level of generality that
the statutory changes have now taken political parties “beyond the ambit of
mere voluntary associations”. The public interest in the operation of major
political parties does not justify judicial intervention in internal party disputes
generally. Whether a dispute within a political party is justiciable must be
determined in each case with respect to relevant provisions of the Electoral
Act: [43]-[44], [46], [48]-[49], [52], [56], [64], [66].
Cameron v Hogan (1934) 51 CLR 29; [1916] HCA 70; Setka v Carroll (2019)
58 VR 657; [2019] VSC 571; Asmar v Albanese (No 4) [2021] VSC 672,
followed;
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Edgar and Walker v Meade (1916) 23 CLR 29; [1916] HCA 70; Mulholland v
Australian Electoral Commission (2004) 220 CLR 181; [2004] HCA 41; Butler v
Mulholland (No 2) [2013] VSC 662; considered.
(2) The provisions under the Electoral Act relating to the nomination and
endorsement of candidates do not create justiciable statutory rights or interests
based on internal party processes of pre-selection. The Electoral Act requires
registered parties to nominate registered officers. A person only enjoys a
particular status under the Electoral Act when the registered officer
communicates the party’s endorsement of that candidate to the Electoral
Commission. The registered officer merely conveys decisions of the political
Party with respect to nomination and endorsement to the Electoral
Commission. The Electoral Act requires the Electoral Commissioner to look to
written communications from the registered officer as determinative statements
of the outcome of the party’s processes. The nomination and endorsement
provisions do not confer statutory rights upon candidates at the anterior stage
of preselection: [52]-[54], [59]-[62].
(3) The dispute is not justiciable because the Liberal Party Federal
Constitution does not have contractual force: [65].
Cameron v Hogan (1934) 51 CLR 29; [1916] HCA 70, applied; Johnson v The
Greens NSW [2019] NSWSC 215, referred to.
(5) The phrase “management and control” can be taken as a singular concept
to express the scope of a power. Alternatively, the Federal Constitution may
refer to “management” with respect to the affairs of the organisation and
“control” with respect to a person or organisation: [72]-[77].
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(6) The effect of the exercise of the intervention power is to bypass the
Divisional Constitution, which does not amount to an amendment of the
Divisional Constitution. In any event, the powers and procedures in the
Divisional Constitution that govern pre-selection are subject to the Federal
Constitution under cl 8.2 of the Federal Constitution: [79], [81]-[82].
JUDGMENT
1 THE COURT: This matter has been heard as a matter of urgency in the face of
an impending Federal election. The plaintiff, who is a member of the State
Council and State Executive of the NSW Division of the Liberal Party of
Australia, sought to impugn the validity of steps taken by the Federal Executive
which, by resolution of 4 March 2022, established a committee with power to
endorse three incumbent Liberal members of the Parliament as Liberal
candidates to recontest their seats. The plaintiff challenged the validity of the
resolution of Sunday, 6 March 2022 exercising the power of pre-selection. The
substantive argument turned on the correct construction of the Party’s Federal
Constitution and, in particular, cl 12.3.
1
(1934) 51 CLR 358; [1934] HCA 24.
2
The eighth defendant (the National President) had common representation with the committee defendants;
the seventh defendant (the State President) and the fourth-sixth defendants (the sitting members) were
separately represented but did not take an active role in the proceedings.
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Procedural Issues
Parties
3 In proceedings which have been heard as urgently as the present (the
statement of claim was filed barely a fortnight ago) it is unsurprising that there
are unresolved procedural issues. In accordance with what has occurred in
other comparable cases, the plaintiff sought orders appointing persons to
represent (a) members of the New South Wales Division of the Party who were
not already joined, and (b) members of the Federal Executive who were not
already joined. This was opposed. Further, although the statement of claim
sought only declaratory relief, at the hearing the plaintiff proposed an
amendment seeking injunctive relief preventing the registered officer
requesting the Electoral Commissioner to print the names of the purportedly
endorsed candidates on the ballot papers. (The significance of this, which
turns on s 169 and s 169B of the Commonwealth Electoral Act 1918 (Cth) (the
Electoral Act) will be explained below.) This had not hitherto been flagged,
although it was said to be a response to the events of the previous 48 hours,
when there were two applications under s 40 of the Judiciary Act 1903 (Cth) to
remove this proceeding into the High Court. We dismissed an application for
what was candidly acknowledged to be ex parte injunctive relief against a non-
party, and advised that we would deal with the substantive issues urgently, and
allow the parties (and others) to be heard as to further procedural orders and
relief to the extent necessary.
4 Ordinarily, questions of parties, the form of the pleadings and the nature of the
relief sought would be resolved prior to a final hearing. In the exigencies of the
present litigation, and in circumstances where there was a clear dispute
between two capably represented parties who had co-operated to achieve a
highly expedited final hearing, this was a clear case for promoting the
command in s 56 of the Civil Procedure Act 2005 (NSW) to resolve the real
issues in the proceedings justly, quickly and cheaply.
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arose from the contention that the operation of the Federal Constitution was
justiciable because the relevant provisions engaged the operation of Pt XIV of
the Electoral Act. The second step turned on the fact that the Court, in dealing
with the Electoral Act, would be dealing with an issue arising under a federal
law and would therefore be exercising federal jurisdiction. 3 Further, while the
issue of justiciability in relation to state law would not involve a constitutional
issue, where federal jurisdiction was engaged the issue was said to give rise to
a question as to the scope of the term “matter”, being the source of jurisdiction
of the High Court under ss 75, 76 and 77 of the Constitution. Section 78B(1) of
the Judiciary Act provides that where a cause pending in a State court involves
a matter arising under the Constitution or involving its interpretation, the court
is not to proceed unless and until notice has been given to the Attorneys
General of the Commonwealth and of the States specifying the nature of the
matter, and the Attorneys have had a reasonable time to consider the question
of intervention in the proceedings or removal of the cause to the High Court.
7 It is true, as counsel for the committee defendants submitted, that the time
allowed for consideration of the notice was unusually brief. Nevertheless, the
Court was satisfied that the Attorneys had had a reasonable opportunity to
consider the matter. The Court was told without objection that five State
Attorneys General, including the New South Wales Attorney, had received the
notice and advised that they would not intervene. The prospect of an
intervention by the Attorney General of a Territory in those circumstances was
remote. The Commonwealth Attorney-General was evidently conscious of the
litigation and the date it was listed for final hearing because of her application
to remove it to the High Court which was made and determined on 31 March
2021. Further, the underlying issue as to the role of the Electoral Act in creating
a justiciable issue for disaffected members of political parties had already been
raised in a number of cases, which will be discussed below. In particular, the
3
See LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575; [1983] HCA 31.
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matter had been the subject of an appeal in the Victorian Court of Appeal, and
an urgent special leave application filed in the High Court in the previous week.
It might therefore be assumed that the Attorneys, and in particular the Victorian
and Commonwealth Attorneys-General, to the extent that they were interested
in intervening in such proceedings before they reached the High Court, were
already on notice of the issues being raised.
9 On the same day that Justice Ward handed down her judgment, the Victorian
Court of Appeal handed down judgment in the matter of Asmar v Albanese.5 It
was arguable that statements in that matter, though not determinative,
favoured the conclusion that the present matter would be justiciable. A single
judge in a Division might properly have considered that conclusion binding. As
the committee defendants sought to challenge that conclusion, it was
appropriate to remove the matter to this Court, so that a full consideration of
the reasoning of the Victorian Court of Appeal could be permitted. 6
4
Camenzuli v Hawke [2022] NSWSC 168.
5
[2022] VSCA 19 (T Forrest, Whelan JJA, Forbes AJA).
6
On 31 March 2022 the High Court refused special leave to appeal this decision: Asmar v Albanese [2022]
HCASL 71. The reasons for the refusal did not include a finding on justiciability, which the leave applicant did
not challenge because it was favourable to her.
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11 As it turned out, the removal application was heard by the High Court on
31 March 2022. The Commonwealth Attorney General made her own
application to remove the matter which, pursuant to s 40(1) of the Judiciary Act,
she was entitled to do as of right. Chief Justice Kiefel therefore ordered that the
whole matter before this Court be removed (while noting that the constitutional
issue sought to be raised might be described as “tenuous”), but proceeded
immediately to remit the matter to this Court. Accordingly, the jurisdiction of this
Court derives from either the general investment in s 39(2), or the specific
investment following the making of the remittal order in s 44(3)(a), of the
Judiciary Act, or both. There was no dispute that, the whole matter having been
removed, it was the whole matter which was remitted. It is clear that this Court
is exercising federal jurisdiction.
Evidence
12 At the hearing, the committee defendants tendered two volumes of written
material comprising 583 pages. The material was admitted as Exhibit A subject
to relevance. Some documents were referred to by both parties. Most of the
material comprised emails between various officers and entities within the
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Liberal Party, together with the Constitutions of each State Division of the
Party. While the bulk of the material was not addressed, it was said to be
potentially relevant to discretionary matters as to relief and costs. As no party
objected to any of the material, the convenient course is to allow the admission
of the bundles marked Ex A to stand and remove the qualification.
“(a) For the purposes of this clause, the following constitute Intervention
Grounds in respect of a Division:
…
(iii) the existence of circumstances that, in the opinion of the Federal
Executive, substantially prejudice the ability of the Party to effectively
contest or win a federal election.”
There was no factual issue concerning the opinion of the Federal Executive as
to satisfaction of that ground. The plaintiff accepted that the powers in cl 12.3
were engaged.
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Electoral legislation
Victorian legislation – as in force in 1934
18 Cameron v Hogan was concerned with the exclusion of Mr Hogan as a
candidate endorsed by the Australian Labor Party for a Victorian State election.
It was decided when the Electoral Act 1923 (Vic) and The Constitution Act
Amendment Act 1915 (Vic) governed State elections. The plaintiff must
demonstrate a material change in the legislative framework governing elections
in order to found an argument that the ruling of the High Court no longer
governs the internal affairs of unincorporated political parties.
19 The Electoral Act 1923 made no reference to political parties, nor indeed to the
process of nominating candidates. The Constitution Act Amendment Act 1915
included brief provisions relating to the qualifications of members (and by
inference candidates) and the need to be nominated by 10 electors. Political
parties were not referred to.
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21 Like the Victorian legislation, the Electoral Act then made no provision for
political parties. Part XI dealt with nomination of candidates, both for the
Senate and the House of Representatives elections. It prescribed qualifications
and provided for nominations to be in accordance with a prescribed form and to
be signed by not less than six persons entitled to vote at the election for which
the candidate was nominated: s 71(b). Candidates for election to the Senate
were able to have their names grouped in the ballot papers “in the manner
prescribed in this Act”: s 72A. Grouping was by consent of the candidates. At
that stage, the Act did not provide for any particular order in which grouped
names were to be listed. By an amendment in 1940, a new s 72B provided for
the candidates in a group to notify the electoral officer for the State of the order
in which their names were to appear on the ballot papers.
24 Part XI was inserted in 1983. It provides for the registration of political parties
for the purposes of the Act: s 124. A “political party” is defined to mean “an
organization the object or activity, or one of the objects or activities, of which is
the promotion of the election to the Senate or to the House of Representatives
of a candidate or candidates endorsed by it”: s 4. An “organization” may be an
association or other body of persons, or it may be a body corporate: s 4. An
“eligible political party” is a political party that either has a member of
Parliament as a member or has at least 1,500 members and is established “on
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the basis of a written constitution (however described) that sets out the aims of
the party”: s 123(1). The significance of the departure in s 123 defining an
eligible political party by reference to its “aims” from the definition of political
party (by reference to objects or activity) is unclear.
25 There are procedural provisions for dealing with applications, and there are
criteria on the basis of which the Electoral Commission may refuse to enter
either a name or a logo on the register: ss 129, 129A. There are provisions for
deregistering a registered political party, including in circumstances where the
party has not endorsed candidates for an election over a specified period:
s 136(1).
27 Part XIV deals with nomination of candidates, and states that no person shall
be capable of being elected as a Senator or Member of the House unless duly
nominated: s 162. It specifies qualifications of candidates by reference to age,
citizenship and entitlement to be an elector: s 163. Section 166 provides the
procedures for nomination:
7
It may also be included on a “Transparency Register” created under Part XX dealing with election funding and
financial disclosures: s 125(2).
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31 The plaintiff’s submissions placed weight on the fact that s 169 of the Electoral
Act now provides for the party name to be printed on the ballot paper next to a
candidate endorsed by that party. Section 169 reads as follows:
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35 Having determined that of two interpretations of the rules relied upon by the
plaintiff in that case neither was warranted, the joint reasons continued:11
8
Cameron at 384.
9
Cameron at 372.
10
Edgar and Walker v Meade (1916) 23 CLR 29 at 43 (Isaacs J); [1916] HCA 70; Cameron at 372.
11
Cameron at 376.
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“Hitherto rules made by a political or like organization for the regulation of its
affairs and the conduct of its activities have never been understood as
imposing contractual duties upon its officers or its members. Such matters are
naturally regarded as of domestic concern. The rules are intended to be
enforced by the authorities appointed under them. In adopting them, the
members ought not to be presumed to contemplate the creation of enforceable
legal rights and duties so that every departure exposes the officer or member
concerned to a civil sanction.”
36 The subsequent case law over more than 50 years has been referred to by
Dr JRS Forbes and need not be addressed.12 The plaintiff’s basis for
distinguishing Cameron v Hogan was the changed statutory scheme for the
regulation of political parties. The issue, however, is not whether the Electoral
Act has changed significantly since 1934 (which it clearly has), but whether the
changes warrant intervention in a particular case. The applicant asserted that
because the legislation now gave political parties a statutory status, he had an
interest within the reasoning in Cameron v Hogan.
37 The starting point for this analysis was the judgment in Baldwin v
Everingham.13 As in the present case, Baldwin concerned a pre-selection
decision. Dowsett J concluded that the level of statutory recognition of political
parties led to the conclusion “that disputes concerning the rules of political
parties registered under the Commonwealth Electoral Act are now also
justiciable.” That was because the Parliament “in conferring legislative
recognition upon political parties has taken them beyond the ambit of mere
voluntary associations.”14
38 Twenty years later, in a Victorian case, Butler v Mulholland (No 2),15 Robson J
addressed a dispute within the Democratic Labor Party as to who was the
secretary of the party and the person responsible for providing details to the
electoral officer for registration under the Victorian legislation. Robson J stated:
“[104] It can be seen, therefore, that the identity of the secretary and his
authority to make an application to the Commission for registration of the
political party are important issues for the proper working of the Victorian Act.
[105] In my opinion, the issue of who is the Secretary of the DLP in the
Victorian State branch is a justiciable issue. Similarly, the Secretary can only
act with the authority given to him under the Constitution of the DLP and in
12
JRS Forbes, Justice in Tribunals (The Federation Press, 5th ed, 2019) at [3.54]-[3.56].
13
[1993] 1 Qd R 10.
14
Baldwin at 20.
15
[2013] VSC 662.
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“[139] Under the Act, there is no requirement that the registered officer be
any particular member of the State Executive or member of the party. The
application for registration is made by the party. Applications for a change to
the Register of Political Parties under s 51 of the Act are also made by the
party. The Act does require the applications to be signed by the Secretary.
Nevertheless, in my opinion, it is a matter for the State Executive as to who
should be registered as the registered officer. In my opinion, the Secretary
should obtain a decision from the State Executive as to who the registered
officer should be. The Secretary’s function is to carry out the decisions of the
State Executive, save where the Constitution otherwise provides.”
41 Baldwin has been subjected to critical analysis in some subsequent cases.
Setka v Carroll 16 involved a challenge to the expulsion of the plaintiff from the
Australian Labor Party by resolution of the National Executive. Riordan J, in the
Victorian Supreme Court, held that the dispute was non-justiciable.17 The judge
noted that both Cameron and Edgar were expulsion cases. He rejected the
reasoning in Baldwin that political parties were now to be equated with
industrial organisations registered under the Commonwealth Conciliation and
Arbitration Act 1904 (Cth). Having referred to the relevant provisions of that Act
in force when Edgar was decided, Riordan J continued:18
“[39] Dowsett J considered that his conclusion was consistent with the
rationale adopted by Isaacs J in Edgar and Walker v Mead, being that disputes
concerning the rules of a voluntary organization became justiciable when the
voluntary association attained (what Dowsett J described as) ‘significance in
public affairs’. As a ‘matter for judgment’, he decided that ‘the current
legislative recognition of registered political parties confers such significance’.
[40] With respect to Dowsett J, I am unable to agree that Isaacs J found that
the rules of a voluntary organization became justiciable when it attained
significance in public affairs. Isaacs J expressly found that the justiciability
arose from the following:
(a) The incorporation of the organization under the statute.
16
(2019) 58 VR 657; [2019] VSC 571.
17
Setka at [68].
18
References omitted.
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19
References omitted.
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“[160] The Electoral Acts do not seek to regulate the internal affairs of
political parties, for example, they do not require the Electoral Commissions to
approve amendments to their Constitutions or Rules nor do they prescribe
procedures for resolution of disputes between branches and members and
between branches and the National Executive. The registration procedures
applying to political parties are quite different from those contained in
Commonwealth industrial legislation and applying to industrial organisations.
[161] The funding of, and conferral of rights and imposition of obligations on
political parties required a legislative scheme to ensure that the applicant for
registration was a genuine political party, to gain legislative authority for
providing funding for them and to ensure accountability for that funding. But
those measures do not make internal disputes in the political party justiciable. I
accept that where a dispute exists of the kind presented by Butler v Mulholland
(No 2), as to the identity of the political party’s authorised agent, a court is
20
Forbes, fn 12 above, at [5.11].
21
[2021] VSC 672.
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“[154] The constitution of a registered political party has a very limited role
under the Commonwealth Electoral Act. A political party must have a written
constitution which sets out its aims (s 123(1)). A copy of that constitution must
accompany an application for registration (s 126(2)). Nothing more is required
or provided for. There is no requirement to register amendments or to request
a change in registration if the constitution is changed. …
[155] The Electoral Acts are important in determining the justiciability
question to which we will turn below. But, in our view, they do not assist in
determining the question of whether the Branch Rules and, if applicable, the
National Constitution empower the National Executive to act as it did. …”
48 The lack of relevance of the statutory amendments to the construction of the
rules of a party does not necessarily entail the conclusion that the statutory
provisions do not give the rules a particular status. However, it does draw
attention to the possibility that the registration provisions, while recognising the
existence of political parties and their relevance to the electoral process,
nevertheless do not purport to affect their internal operations. As noted by
Gleeson CJ in Mulholland v Australian Electoral Commission:23
“The scheme for registration was first introduced in 1983, and later amended
in 2000 and 2001. It was introduced in the context of legislative provision for
22
Asmar at [215].
23
(2004) 220 CLR 181; [2004] HCA 41 at [1].
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direct funding of political parties, ‘list’ voting for the Senate, and references to
party affiliations on the ballot paper.”
49 The Chief Justice further observed that the scheme adopted a
recommendation of a Joint Select Committee on Electoral Reform. Chapter 3
of the Report concluded that its own recommendation concerning the “list”
system for Senate ballot papers “presupposes the inclusion of political party on
the Senate ballot paper at least”, and would “require the adoption of a system
for the registration of political parties”.24 As recently explained in Ruddick v
Commonwealth of Australia,25 the other contextual factor relating to the
registration of political parties was the provision of direct funding for political
parties.26 Again it is possible in theory that funding could be made conditional
upon compliance with the constitution of a party, perhaps in specified respects.
However, no such linkage was suggested in the present case and none is
obviously applicable.
24
Parliament of the Commonwealth of Australia, Joint Select Committee on Elector al Reform, First Report,
September 1983, at [3.43]; Mulholland at [2].
25
[2022] HCA 9 at [6] (Kiefel CJ and Keane J).
26
Both Mulholland and Ruddick challenged the constitutional validity of statutory limits on registration of
political parties.
27
Asmar at [211].
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53 Secondly, while it is true that the role of the registered officer is created by the
legislation, it is also true that he or she plays no necessary part in the internal
processes of the party in preselecting candidates. The “central role” of the
registered officer in the legislative scheme is limited to conveying decisions of
the political party with respect to nomination and endorsement. That role is
aptly described as a “conduit” in relation to communications between the
political party and the Electoral Commission.
54 Thirdly, there is a sense in which the last and critical step involves an element
of circularity. It is true that the legislative provisions relating to nomination and
endorsement of candidates by political parties could be subverted if the ballot
paper contained incorrect information. However, the ballot paper, it may be
assumed, will contain the information conveyed to the Electoral Commission by
the registered officer. To raise the possibility that that information may be
incorrect because it is “invalid” is to assume that there is an avenue for
challenging the validity of the content of the communication from the registered
officer. But that is to assume the conclusion to the critical question rather than
to answer it.
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“[217] The identity of the registered officer may not be in dispute here, but the
validity of the pre-selection process which is the necessary precursor to the
nomination and endorsement of candidates by the registered officer under the
Act is in dispute.”
56 The existence of a dispute does not enliven the jurisdiction of the Court to
determine the dispute. There was a dispute in Cameron v Hogan, but the Court
did not have power to determine it.
60 However, the difficulty confronting the plaintiff’s submission is that the Electoral
Act makes elaborate provision to introduce certainty in an area which is, by
28
Asmar at [213] at [51] above.
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61 The plaintiff invited the Court to find that the concluding words of s 169(1) (“a
candidate who has been endorsed by that party”) were to be understood as
referring to a candidate who has been endorsed by that party in accordance
with the party’s constitution. The plaintiff said that that construction was
strengthened by s 169B(1)(c) which authorises the Electoral Commissioner to
make inquiries in order to be satisfied that a candidate is endorsed by the
party. We do not accept this submission. It is impossible to reconcile the
plaintiff’s construction with the effect of s 169B(1) as a whole, which deems a
person to be taken to have been endorsed as a candidate in an election by a
registered political party if any of its three paragraphs is made out, the first two
of which involve communications by the party’s registered officer. Contrary to
the plaintiff’s submission, the scheme of these provisions is to entitle the
Electoral Commissioner to look to the registered officer as the authoritative
source of information as to the candidates endorsed by the party. The
Commissioner may look further if neither of the first two conditions is satisfied.
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62 Another way of making this point is to observe that while the “status” of being
an endorsed candidate may be a convenient label, it tends to obscure two quite
different things. It is one thing for the registered officer to advise the Electoral
Commissioner that a person is the party’s endorsed candidate. It is another
thing entirely for a person to be treated by a party as an endorsed candidate at
some anterior stage. The latter, in the case of an unincorporated political party
with a constitution which gives rise to no enforceable rights between members,
cannot be treated as giving rise to any enforceable entitlement in the future
merely because of a hope that the registered officer will in due course advise
the Electoral Commission of the endorsement. In such a case, until and unless
the registered officer has engaged the provisions of the Electoral Act, the
person who has been treated as the party’s endorsed candidate is subject to
the possibility that the members of his or her party might change their minds.
That is an inherent incident of membership of an unincorporated association
with a non-enforceable constitution.
63 The reasoning in earlier cases, including Baldwin, which treated the fact that
the issue was one of public importance as sufficient to render all questions as
to the internal processes justiciable, provides an inadequate basis for
distinguishing Cameron v Hogan. However, the need to determine who is the
officer responsible for taking steps within the statutory scheme may render that
issue justiciable. It need not be addressed in this case.
Justiciability – conclusion
64 The broad reasoning in Baldwin has been followed by single judges in
Supreme Courts in several jurisdictions. However, the correct principle cannot
be expressed at such a high level of generality. There was, in 1934, and still is,
no provision in the Electoral Act requiring that rules be registered with the
Commissioner, nor that changes in rules be notified to the Commissioner.
There is, therefore, no general regulation of the rules of political parties which
might warrant the court intervening whenever a dispute arises with respect to
the operation of those rules.
65 Furthermore, there are rules and rules. Some political parties have rules which
have contractual force. An example may be seen in Johnson v The Greens
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66 The general public interest in the operation of major political parties provides
no basis for not applying Cameron v Hogan. Indeed, there is no reason to
suppose that, other than statutory changes (which provide no generic
expression of a public interest beyond their specific terms), the role, or manner
of operation, of political parties has changed materially since 1934. If this
conclusion creates immunities from control in matters of significant import for
the operation of a democratic political system, the ability to prevent abuse and
regulate the institutions concerned must lie with the Parliament. Where
deemed appropriate, Parliament has acted, and will no doubt continue to act.
Indeed, the fact that it has so acted underlies those cases which have
concluded that intervention is possible in circumstances not envisaged in
Cameron v Hogan.
67 The question in this case turns upon whether the Federal Constitution requires
that a committee appointed by the Federal Executive with respect to the
management of a particular Division must follow the processes for selection of
candidates identified in the Divisional Constitution. That raises an objective
question of construction. Other questions could arise of quite a different kind.
There could be, for example, a potential challenge to the existence of proper
grounds for intervention. There might be a question as to whether there was
any basis on which the Federal Executive could be satisfied of a matter upon
which it purported to rely. There could be a question as to whether it could rely
upon a matter where it had created the circumstances giving rise to the need
for intervention. These questions do not arise in the present case, but it must
be doubted whether a court, consistently with the principles established in
Cameron v Hogan, could treat such issues as properly raised for judicial
determination in an unincorporated association which did not create contractual
rights between members.
29
[2019] NSWSC 215 at [18].
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71 Again the plaintiff’s submissions were put with clarity and concinnity.
Expressed in general terms, the plaintiff’s submissions raised an issue as to
the extent to which the Federal Executive is empowered to intervene in the
management of a Division. Whilst it is correct to have close regard to the text of
the Party’s Federal Constitution, it is also important to read the document as a
whole and with regard to the structure of the political party which it establishes.
72 First, the plaintiff submitted that cl 12.3 spoke of taking over the “management”
of a Division, and not of taking over “management and control” of the Division.
It was said, correctly, that in some places the Federal Constitution uses both
terms and in others it refers only to management. Because the document is
carefully drawn, it was submitted that effect should be given to these linguistic
differences. However, there are other ways of reading the document. One is
that the phrase “management and control” is a hendiadys, providing two words
to express the result of an exercise of power. If precise grammatical structure
is significant, it supports that use of the phrase. Thus, cl 8, providing that
“[t]here shall be a Division of the Party in each State and the Australian Capital
Territory consisting of the members of the Party resident in that State or
Territory” (cl 8.1), continues:
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“8.2 Subject to this Federal Constitution, the management and control of the
affairs of a Division is vested in the State Council of the Division.”
(Emphasis added.)
73 Similarly cl 9.2, dealing with the powers of the Federal Council, states:
“9.2 Powers
Save as expressly provided in this Federal Constitution, and without
limiting the powers of each Division, the management and control of
the federal affairs of the Party is vested in the Federal Council ….”
(Emphasis added.)
74 The use of the singular “is” in reference to the phrase “management and
control” tends to support the view that the phrase engages a single concept.
75 On the other hand, the two words may, in ordinary parlance, involve different
objects. Thus, it makes sense to speak of management of the affairs of a
person or organisation, but to speak of controlling the person or organisation.
This usage appears to be reflected in some provisions. Thus, in dealing with
the Divisions and the powers of executives and officers of the Divisions, cl 8.5
states:
“8.5 Subject to this Federal Constitution and to the control of the State
Council of the Division, the management of the affairs of the Party in each
Division is vested in the Executive of the Division.”
76 In cl 11, dealing with the Federal Executive, power is conferred to “do all things
necessary and essential to the efficient management of the affairs of the
Council”: cl 11.2(b). Whether or not control is exercised over persons or
bodies, whereas affairs are managed, the semantic point provides little
assistance with respect to the proper construction of cl 12.3 upon which the
plaintiff’s case turns.
77 Further, it is tolerably plain that cl 12.3(b) identifies three express powers which
are conferred upon the Federal Executive in the event of the exercise of the
power in cl 12.3(a). One of those powers is the power to “rescind or amend any
decision made by the relevant Division’s Executive or governing or other body
of that Division”. That power is expressed in general terms. It extends to any
decision of any body of the Division. If, as the plaintiff submitted, there is a
distinction between powers of management and powers of control, with only
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the former being conferred by cl 12.3, that distinction sits ill with the generality
of cl 12.3(b)(ii).
78 Secondly, the plaintiff placed emphasis on the fact that the Divisional
Constitution includes powers and procedures for pre-selecting candidates and
cl 12.3(b) expressly provides that neither the Federal Executive nor the
administrator or committee “shall have power to amend the Divisional
Constitution”. It therefore follows, the argument proceeded, that a committee
appointed to take over the management of the Division must operate in
accordance with the Divisional Constitution.
79 On the one hand, it is clear that the powers and procedures in the Divisional
Constitution which govern the selection of candidates are themselves subject
to the Federal Constitution, in accordance with cl 8.2, set out above. On the
other hand, there are specific powers in the Federal Constitution which
expressly engage with the divisional powers to select candidates. For example,
cl 12.5 provides for the Federal Executive to exercise powers in relation to
candidates already chosen by a Division. In effect, if the personal
circumstances of the candidates were “not taken sufficiently into account in the
preselection process” and “are likely to jeopardise the Party’s prospects of
electoral success” then the Federal Executive may “request the relevant
Division to review the preselection or endorsement of that candidate in
accordance with the appropriate procedures of that Division”: cl 12.5(a).
Following a review and after hearing from the candidate, the Federal Executive
may revoke the selection “and require the Division to take such steps as are
necessary to select or appoint a new candidate”: cl 12.5(b). No similar powers
are identified where the Federal Executive intervenes prior to a pre-selection
process having been concluded, but it does not follow that cl 12.5 is an
exclusive basis of intervention in the selection of candidates.
80 Further, the Federal Constitution expressly deals with limitations on the powers
of Divisions in the selection of candidates. Clause 23 is headed “Selection of
Candidates by Divisions”. The first subclause provides:
“23.1 The Divisional Constitution of each State Division shall provide for
selection of candidates for the Senate and for Federal and State electorates
within that Division, but subject always to the powers reserved to the Federal
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Conclusions
84 The plaintiff’s statement of claim should be dismissed on the basis that the
question identified by the plaintiff is not justiciable. If the Court were entitled to
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rule on the validity of the resolution of 6 March 2022 it would reject the
challenge.
Dismiss the statement of claim filed on 15 March 2022 in the Equity Division,
removed into this Court by order made on 30 March 2022 and remitted by the
High Court of Australia on 31 March 2022.
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