Appellant v First Respondent

**1 The issue in this appeal is as to whether, because their residential addresses did not match their addresses on the Commonwealth Electoral Roll on 13 September 2008, Mr Domenic Farrell and Ms Claire Lindorff were not members of the Democratic Labor Party and were, therefore, ineligible to vote in the election of the party's State Secretary at its Victorian State Conference held on that day.

2 The issue turns on the construction of r 4 of the Democratic Labor Party Constitution and Rules ('DLP Rules'), the relevant part of which is and was in these terms:**

The members shall be those eligible to vote in Commonwealth elections who are deemed by the Democratic Labor Party to be of like spirit and to identify with the principles, objectives and platform of the DLP. ... (emphasis added)

**3 The appellant, Mr Mulholland, has been given leave to appeal to the Court, under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 ('the VCAT Act'), on the question of law as to Mr Domenic Farrell and Ms Lindorff's eligibility to vote under r 4.

4 The appeal is from a 3 December 2009 decision of a Deputy President of the Victorian Civil and Administrative Tribunal. In a review under s 60 of the Electoral Act 2002 ('the Victorian Act'), the Tribunal affirmed a determination made on 18 December 2008 by Mr Steve Tully, the Victorian Electoral Commissioner, exercising the powers of the first respondent, the Victorian Electoral Commission. The Commissioner's decision was to change the Register of Political Parties, kept by the Commission under the ('the Victorian Act'), to show Mr Mark Farrell as the DLP's 'registered officer' in place of Mr Mulholland.**

**5 There is an ongoing dispute between two factions in the DLP. One group is led by Mr Mulholland and the other supports Mr Butler, the second respondent. At the DLP's 13 September 2008 State Conference, Mr Butler was elected the Victorian State President of the party in place of Mr Pat Keelen, a supporter of Mr Mulholland and the Conference chairman. Mr Mark Farrell, (a Butler associate) defeated Mr Mulholland by one vote for the position of State Secretary: Mr Farrell securing 24 votes, whilst 23 delegates voted for Mr Mulholland.

6 Under the DLP Rules, the party is organised on the basis of one Local Branch of 10 or more members per Federal Electorate (r 21). Individuals not formally constituted as Local Branches may be deemed Local Branches by the State Executive for the purpose of representation at State Conferences (r 22).

7 It would appear that the credentialing process for all delegates at the start of the 13 September 2008 State Conference involved them being asked where they lived and being given a card indicating the Federal Electoral Division in which they resided. (It would seem that those members were really being credentialed as delegates for the Local Branch or Deemed Local Branch in that electorate under the DLP Rules.) Mr Pat Crea was responsible for checking the credentials of delegates to the 13 September 2008 State Conference. Mr Crea was another associate of Mr Mulholland.

8 After the State Conference, Mr Mulholland discovered that Mr Domenic Farrell and Ms Lindorff had declared residential addresses for credentialing purposes at the State Conference which were different from those recorded as their addresses on the Commonwealth Electoral Roll. Their residential addresses and their enrolled addresses were in different Federal electoral Divisions. They had been credentialed as delegates at the State Conference in respect of Local Branches in the Divisions in which they lived and not in the Divisions in respect of which they were enrolled. There were already the maximum permissible number of three other delegates representing the Division in which Mr Domenic Farrell lived.

9 Mr Mulholland argued and continues to maintain that r 4 has the effect that DLP membership will be automatically terminated if a member's residential address ceases to match that in respect of which they are enrolled on the Electoral Roll kept under the Commonwealth Electoral Act 1918 ('the Commonwealth Act'). Because of the discrepancy between their enrolled and actual addresses, Mr Domenic Farrell and Ms Lindorff were not 'eligible to vote in Commonwealth elections' and therefore were not members of the DLP under r 4 and, so, were not eligible to vote in the election for the State Secretary of the DLP at the 13 September 2008 State Conference.**

10 Section 93 of the Commonwealth Act couples enrolment on the Commonwealth Electoral Roll for a Division with entitlement to vote:

93 Persons entitled to enrolment and to vote

(1) ... all persons:

(a) who have attained 18 years of age; and

(b) who are:

(i) Australian citizens; or ...

shall be entitled to enrolment.

(2) ... an elector whose name is on the Roll for a Division is entitled to vote at elections of Members of the Senate for the State that includes that Division and at elections of Members of House of Representatives for that Division.

Section 3 defines an 'elector' as a person whose name appears as an elector on an electoral roll under the Commonwealth Act.

**11 A qualified person who has lived at an address for one month is entitled to have their name placed on the roll for the Federal Subdivision in which that address is located, under s 99(1). If an elector whose name is on the roll for a Subdivision has lived for more than one month at an address in another, they are entitled to have their name transferred to the roll for the Subdivision in which they live, under s 99(2). The electoral rolls for a Division are made up of those for a Subdivision (s 82(3)).

12 It is compulsory, under s 101(1), for a qualified elector to claim a transfer after living for one month at an address different from that at which the elector is enrolled under s 101. Section 101(4) makes it an offence not to be enrolled for the correct Subdivision 21 days after becoming qualified, unless the reason is one other than the elector's own failure to claim the transfer. There is also a statutory process for the removal of an elector's name from the Roll.[1]

13 According to s 221(3), the electoral roll in force at the time of an election is conclusive evidence of the right to vote, except if an elector answers questions put under s 229(1) as to their name, address or prior voting in the election, in a manner which shows that they are not entitled to vote. The purpose of the questions would appear, from s 229(4), to be the satisfaction of the presiding officer that the person claiming to vote is a particular person on the certified list of voters prepared for each electoral Division. A claim to vote will be rejected under s 229(5) if the claimant refuses to answer fully or says that they have already cast a vote.

14 After the State Conference, Mr Mulholland purported to carry on as the State Secretary of the DLP, whilst Mr Farrell was doing the same. Mr Mulholland signed an application for the re-registration of the DLP in Victoria and submitted it to the Commission.**

**15 The DLP was required by s 58A of the Victorian Act to apply for re-registration on the Victorian Register of Political Parties during a two month period commencing 27 months before the next scheduled Victorian election. Section 58B(a) requires a re-registration application to be signed by the registered party's secretary. The secretary is 'the person who holds the office (however described) the duties of which involve responsibility for the carrying out of the administration, and for the conduct of the correspondence, of the party', according to the definition in s 3.

16 The secretary must also make and submit a statutory declaration that the party has at least 500 members who are electors and not members of another party. A list of those members must accompany the DLP's re-registration application. An 'elector' is defined in s 3 as a person whose name appears on the register of electors kept by the Commission under s 21 of the Victorian Act.

17 Mr Mulholland adverted to the dispute about the outcome of the election of the State Secretary in his covering letter to the Commission. He wrote that he had signed the application in his capacity 'as continuing Secretary and Registered Officer pending the resolution of an internal party dispute pertaining to the election and installation of party office-bearers at a recent Conference'.

18 Mr Tully responded that he accepted the re-registration application in good faith and informed Mr Mulholland that he had written to the only DLP member of Parliament, Mr Peter Kavanagh MLC, informing him of his approach.

19 Mr Kavanagh MLC responded to Mr Tully on 24 September 2008. He advised the Commissioner that Mr Mulholland was no longer secretary of the DLP as he had been replaced by Mr Farrell at the State Conference. Mr Farrell also wrote to the Commission on the same day, claiming to have been elected and installed as secretary of the party on 13 September 2008.

20 The Commissioner met Mr Kavanagh, Mr Farrell and Mr Butler on 26 September 2008. He was given copies of the minutes of the 13 September 2008 State Conference and a statutory declaration from Mr Farrell, asserting his proper election as secretary. The minutes recorded that, upon arrival, 'delegates were accredited to vote on the basis of the Federal electorate in which they resided'.

21 The Commissioner subsequently met Mr Mulholland who told him that he had called another DLP conference for 15 November 2008. (Rule 125 of the DLP Rules provides for disputes between Local Branches, Support Groups or Affiliated Organisations to be dealt with by the State Executive, subject to appeal to the State Conference. The State Conference is the supreme governing body of the DLP in each state and must meet annually or as otherwise required by the State Executive or requested by a majority of State Branch divisions under r 27).

22 Mr Mulholland suggested that the Commission accept him as the State Secretary for the purposes of the re-registration process. The Commissioner wrote to Mr Farrell informing him of Mr Mulholland's proposal. He indicated that the Commission did not want to become involved in internal party matters and that its concern related to the re-registration of the party. He advised that the Commission would be required to de-register the DLP if it did not receive the correct application by 27 October 2008. The party would not be able to re-apply for re-registration again until 27 April 2009.

23 More submissions were made. Mr Farrell disputed Mr Mulholland's authority to convene another party conference to resolve the matter.**

24 On 17 October 2008, Mr Tully wrote to Mr Mulholland, advising him of the Commission's determination that the re-registration application was invalid because he was not the DLP secretary at the time it was made. The Commissioner said that he had taken into account the minutes of the State Conference and the DLP Rules. His letter continued:

Prima facie I recognise Mr Mark Farrell as the secretary of the DLP, as chosen by the party conference. I am not prepared to engage in further discussions on this matter. You would need to go through party and/or legal channels in relation to any dispute over who is the legitimate party secretary.

25 Mr Mulholland wrote enquiring about the decision. Mr Tully responded on 20 October 2008:

My decision to recognise Mr Farrell prima facie as the secretary of the DLP was based on minutes of the party conference, read in light of the DLP Constitution. The purpose of s 58B of the Electoral Act 2002 is to specify the various requirements for making a re-registration application. It is not my role under s 58B to become involved in internal party matters and to make a determination on your right to be secretary with the DLP, beyond what is necessary for processing the re-registration application.

If there is a dispute, as there appears to be, then this is a matter which you ought to resolve under the DLP Constitution, or through the courts. In the interim, I have requested that Mr Farrell provide the documents necessary for me to proceed with the re-registration application.

26 The DLP was subsequently re-registered on an application signed by Mr Farrell as its secretary. Mr Farrell also signed the DLP's written application for the change to the registered officer which is the subject of the appeal.

**27 Those associated with the Butler group commenced proceedings in the Court against Mr Mulholland and Mr Crea. Hollingworth J made interlocutory orders on 17 November 2008 restraining Mr Mulholland from holding himself out as State Secretary of the DLP. Her Honour ordered Mr Mulholland to return a computer, other items and documents relating to the party. Mr Crea was restrained from signing cheques on its behalf.

28 There was a settlement of the proceeding but, for reasons irrelevant to this appeal, it is once again on foot in the Court.**

29 On 18 December 2008, Mr Tully wrote advising Mr Mulholland that he had granted Mr Farrell's application for the change of the registered officer. In his letter, Mr Tully referred again to the role of the Commission. His letter said:

The VEC has no desire to become involved in internal party matters. However, under s 58B of the Electoral Act 2002 (the Act), an application for re-registration of a political party must be signed by the party's secretary. In the event of a dispute within the party about who is the legitimate secretary, it puts the VEC in a position of ultimately needing to decide.

...

In this case I decided to recognise Mr Farrell prima facie as the secretary in light of the information I had at that time.

...

If the party as a whole or a court had determined otherwise, I would have accepted that determination. In the event, the Supreme Court ordered that you cease to represent yourself as the secretary of the DLP and that you hand over the party's assets to Mr Farrell. I consider that the Court order only reinforces my decision to recognise Mr Farrell as the party's secretary.

My decision on the registered officer of the DLP flows from that on the secretary. Under s 51 of the Act, an application to change the registered officer of a party must be made by the secretary. Mr Farrell has applied as secretary of the DLP to change the registered officer. The nature of the registered officer's position is significant here. The registered officer is the primary point of contact between the VEC and the party, and has prescribed functions under the Act, including lodging nominations for an election, submitting how to vote cards for registration, requesting enrolment information, and applying for public funding. A registered officer who is not recognised by the party organisation would be unable to carry out these functions. It appears to me that this is your position in relation to the current organisation of the DLP and therefore I consider I should grant the application to change the registered officer.

**30 Mr Mulholland sought a review of the Commission's decisions at VCAT. He argued in the review proceeding that the Commission had erred in rejecting the re-registration application signed by him and in acceding to the application for change of the registered officer signed by Mr Farrell as secretary.

31 When the Tribunal is reviewing a decision of the Commission under s 60 of the Victorian Act, s 51(1)(a) of the VCAT Act gives it all the functions of the Commission. Section 51(2) provides it with the power to affirm, vary or set aside its decision, either making one in its place or remitting it for re-consideration. The VCAT decision is deemed to be that of the Commission under s 51(3)(a).

32 In the review, the Deputy President addressed the question as to the validity of the election, which the Commissioner had answered for the purpose of dealing with the application for a change to the registered officer. The Deputy President accepted that Mr Mulholland might have been correct in his contention that Mr Domenic Farrell and Ms Lindorff would not have been able to vote in a Commonwealth election held on 13 September 2008.

33 The Deputy President also apparently proceeded on the premise that r 4 would have operated to terminate the two delegates' DLP membership, if they had not met its description of the criteria for membership.

34 The Deputy President concluded that the construction of r 4 did not involve a determination as to whether Mr Domenic Farrell and Ms Lindorff would have been eligible to vote in a hypothetical Commonwealth election held on 13 September 2008. He noted that there were no elections that day in the electoral Divisions in which Mr Domenic Farrell and Ms Lindorff were enrolled, nor in those in which their residential addresses were located.

35 He went on to decide that they remained members of the party, even though their right to vote in a Commonwealth election might have been conditional upon them successfully claiming transfers of their enrolments from the rolls for one Federal Electoral Division to another, at their new residential addresses. He also stated that they were credentialed as delegates for the appropriate Federal Electoral Divisions: being those in which they lived.

36 Mr Mulholland had not only challenged Mr Farrell's election by querying the two delegates' eligibility to vote, but he had also argued that the newly elected members of the State Executive had not been 'installed' before the end of the State Conference in accordance with the DLP Rules. The Deputy President rejected the 'installation' argument as well. Mr Mulholland did not obtain leave to appeal on that question of law and I do not address it in the appeal.

37 The Deputy President referred to authority cited by Mr Mulholland in support of the proposition that the election of the State Secretary could be invalidated if the two delegates had not been eligible to vote.[2] There is no contest relating to that proposition.

38 In construing r 4, the Deputy President noted evidence from Mr Tully that voters were 'typically less than punctilious' in complying with s 23(4) of the Victorian Act which contained the State equivalent requirement that a person enrolled on the Victorian register of electors should notify the Commissioner within 21 days after becoming entitled to be enrolled in respect of living at a different address. Entitlement to enrol hinges on residence for at least one month at an address 'that is the person's principal place of residence' (under s 22). Mr Tully said that these matters were frequently attended to just before an election, after advertising by electoral authorities had invited people to regularise their enrolments.

1. ... In those circumstances, I believe that a person could be regarded as eligible to vote in Commonwealth elections [under r 4] if that person's eligibility was conditional upon completion of the formal step required to transfer enrolment from one subdivision to another under Section 99(2) of the Commonwealth Electoral Act 1918. This is the situation in which both of the challenged delegates found themselves at the time. They were credentialed as delegates for the appropriate electoral division in which they in fact resided.

1. It follows that both grounds relied upon by Mr Mulholland to challenge the validity of the Butler executive generally and the election of Mr Mark Farrell as State Secretary of the Democratic Labor Party, Victorian branch, at the party conference in 2008 failed. The respondent's determinations in the two proceedings should be affirmed.

40 The Deputy President did not otherwise address the issue as to whether, if they were indeed party members under r 4, Mr Domenic Farrell and Ms Lindorff were properly accredited, or credentialed, as delegates by reference to their respective residential addresses under the DLP Rules.

**41 The Court granted Mr Mulholland leave to appeal only from the Deputy President's affirmation of the Commission's 18 December 2008 decision to grant the application signed by Mr Farrell for the change to the registered officer.

42 Leave was granted in relation to a question of law as to the two delegates' eligibility to vote. J Forrest J characterised that question as one turning on the interpretation of r 4 of the DLP Rules.[3] His Honour said:**

17 True it is that the question of the eligibility of the delegates turned upon on interpretation of Rule 4 of the DLP's rules; however there can be no doubt that the Deputy President's determination in his review of the decision of the Commission turned, at least in part, on the application of provisions of the Act, on the construction of the Commonwealth Electoral Act 1918 as well as an analysis of several decisions of the High Court and of this Court.

18 I am satisfied ... that there is a genuine question of law to be tried notwithstanding that it forms the substratum of the decision made by the Commission.

**43 Leave to appeal was given, even though the Court assumed that the reversal of the decision would only affect the register for the period from 7 December 2008 to 3 August 2009, when Mr Butler became registered officer in place of Mr Farrell. (That further change had not been challenged.) The Court held that there was utility in having the public record correct, albeit for even such a short period. Leave to appeal was granted 'but confined to the issue of the decision of the [Commission] of 18 December 2008'.

44 The leave granted was said by J Forrest J to turn on the construction of r 4 of the DLP Rules. Mr Mulholland's challenge to the delegates' membership of the party under r 4 was based upon the discrepancy between their residential and enrolled addresses. As a result, I have taken it to be the case that leave to appeal was granted in relation then to the issue I identified at the outset: whether Mr Domenic Farrell and Ms Lindorff could have been members of the DLP on 13 September 2008 when their residential and enrolled addresses were not the same.**

**45 In the amended notice of appeal dated 17 June 2010, Mr Mulholland challenges the Deputy President's decision on grounds which include that he misconstrued the Commonwealth Act in relation to its requirements in respect of enrolment at an elector's residential address and consequently misconstrued r 4 (grounds 5 and 6).

46 Mr Mulholland contends that the Deputy President erred in concluding that Mr Domenic Farrell and Ms Lindorff were eligible to vote in a Commonwealth election when the transfer of their enrolment was a condition precedent to that eligibility (ground 8).

47 The grounds allege that the elections of the State Secretary and State Vice-President were null and void or voidable as a result of Mr Farrell and Ms Lindorff not being members of the DLP at the time (ground 9).

48 There are grounds apparently dealing with alleged ramifications of the invalidity of the elections, in terms of the newly elected executive not being able to constitute a quorum (ground 10), the Tribunal's failure to determine that there was only one subsequently elected State Executive validly elected on 9 May 2009 (ground 15) and the Commissioner's departure from the 'status quo' representing a breach of natural justice (ground 12).

49 Despite the statement of the question of law in the Court's reasons, the amended Notice of Appeal dated 17 June 2010 included not only the grounds of appeal relating to the construction of r 4, but also others which alleged:**

(a) 'undue interference in the DLP's internal affairs by the Commissioner (ground 11);

(b) the 'contamination' of the Commission's decision by reference to the prior recognition of Mr Farrell as 'prima facie' secretary (ground 13).

**50 I indicated to the parties that the Court would only deal with the question of law in relation to which leave had been granted. That question was expressed to be as to the correctness of the Commissioner's 18 December 2008 decision to reject Mr Mulholland's challenge to the validity of the State Secretary's election on the basis that Mr Domenic Farrell and Ms Lindorff had not been eligible to vote in that election because their residential and enrolled addresses did not match.

51 Whilst a number of the grounds of appeal might be thought to raise the question in relation to which leave was granted, there was no leave to appeal granted in relation to the question of any effect of the Commission or the Tribunal's decisions on the DLP or its affairs. Further, the 'contamination' ground appears to challenge the way in which the Commissioner went about making his decision. The Tribunal exercised the Commissioner's powers but did not deal with the manner in which they were exercised.

52 There was no leave granted to appeal on the additional grounds which do not raise the question of the eligibility of Mr Domenic Farrell and Ms Lindorff to vote in the election of the State Secretary.**

**53 Mr Mulholland first of all maintains that Mr Domenic Farrell and Ms Lindorff would not have been eligible to vote in a hypothetical Federal election held on 13 September 2008 because their residential addresses did not match those in respect of which they were enrolled on the Federal electoral roll. As the Deputy President noted, there was no evidence that there was any Federal election in any relevant Division on that day.

54 The two delegates' eligibility to vote in any Commonwealth election is not the issue for the Court in this appeal. The issue is as to the meaning of r 4 of the DLP Rules and the meaning of the phrase 'eligible to vote in Commonwealth elections' in that context only.

55 I will nevertheless refer to the recent High Court decision in Rowe & Anor v Electoral Commissioner & Anor.[4] The Court was alerted to Rowe as potentially bearing upon the issue of eligibility to vote in Federal elections. Orders in that case had been made on 6 August 2010 and the reasons for them were published on 15 December 2010, after submissions in this appeal. The parties subsequently made further submissions in relation to that decision.

56 In my view, contrary to Mr Mulholland's submissions, it appears implicit in the High Court's conclusions in Rowe that the second plaintiff, whose name was on the electoral roll in one Federal electoral Division but who had failed to claim for a transfer to the electoral roll for the Division in which he lived, was still eligible to vote in the Federal electoral Division for which he was enrolled.[5] I note that neither the Deputy President nor the Court in the leave application had the benefit of the High Court's decision in Rowe.

57 Mr Mulholland relied upon the High Court's earlier decision in Snowdon v Dondas,[6] relating to the entitlement to vote of electors whose names had been removed from the electoral rolls in the Districts of the Federal Electoral Division constituted by the Northern Territory. Mr Mulholland cited the following passage in particular :**

There can be no right to vote without enrolment and enrolment depends upon being on the Roll for the District in which the person lives.[7]

**58 The facts in Rowe differed from those in Snowdon in that the second plaintiff in Rowe was enrolled, whilst those whose provisional votes had been rejected in Snowdon had had their names removed from the electoral rolls. They needed to apply for enrolment, not a transfer of enrolment like Mr Domenic Farrell and Ms Lindorff.

59 The question to be answered is, however, as to whether those two delegates could have been members of the DLP, within the meaning of r 4 of the DLP Rules, on that day if their residential addresses and those at which they were enrolled differed.

60 The constitution and rules of a political party are to be interpreted in a commonsense way to give them and its other rules a practical effect.[8]

61 Adopting that approach, I would, first of all, not construe r 4 as operating to terminate or even suspend that membership without any process, whatever the rule meant. I note in this regard that r 127 provides for the party's State Executive to deal with matters of discipline, with a right of appeal to the State Conference under r 133. The DLP Rules contemplate membership suspension and expulsion for their breach. Automatic suspension or termination of membership would be likely to result in uncertainty about membership status with the potential to reduce the effectiveness of the party's governing State and Federal Conferences, as a consequence of the increased opportunity provided for challenging their decisions.

62 Secondly, even if Mr Farrell and Ms Lindorff were not 'eligible to vote in Commonwealth elections' because of the mismatch between their residential and enrolled addresses and r 4 did operate automatically to suspend or terminate membership, I would agree with the Deputy President that the definition of membership in r 4 would extend to a person who was enrolled to vote, but had yet to have their enrolled address changed and their name transferred to the appropriate Federal Electoral Divisional or Subdivisional Roll. To adopt the Deputy President's words: 'eligibility conditional upon completion of the formal step required to transfer enrolment' would satisfy the r 4 requirement of 'eligibility to vote'.

63 Mr Mulholland's construction of r 4 (based on asserted ineligibility to vote in a Commonwealth election on the relevant day) would appear to entail automatic termination or suspension of membership upon any change of residential address, even though transfer of enrolment could not be claimed under s 99(1) of the Commonwealth Act for a month after that change. If membership were only suspended, the period of suspension would also include any subsequent interval during which a transfer claim was being processed.

64 Such consequences would not appear to be in the best interests of the DLP whose survival and effective operation depends to a significant extent upon it retaining registration as a political party. Re-registration under the Victorian Act depends in part upon the party having at least 500 members. Re-registration applications must be made some 27 to 25 months before a scheduled election. The Commissioner's evidence before the VCAT was to the effect that electors were often tardy in complying with their statutory obligations to claim transfers of enrolment. Assuming that to remain the case, Mr Mulholland's construction of r 4 would tend to reduce rather than increase membership numbers when an election is not imminent and the party must re-register.**

**65 In addition to his conclusion that Mr Domenic Farrell and Ms Lindorff were members of the DLP under r 4, the Deputy President also found that they were 'credentialed as delegates for the appropriate electoral division in which they in fact resided'.[9]

66 The Court did not refer to the issue of the delegates' credentialing when granting leave to appeal. Nor did any ground of appeal expressly address that issue. I do not consider that leave was given to Mr Mulholland to appeal against the Deputy President's conclusion about the credentialing of Mr Domenic Farrell and Ms Lindorff. In case I am wrong, I will address the matter.

67 If the issue was raised by implication, it was in the context of Mr Mulholland's challenge to membership based on the discrepancy between enrolled and residential addresses.

68 If he would seek to argue that the Tribunal's conclusion, as stated, would have resulted in the delegates not having been properly credentialed for the Divisions in which they lived, but for which they were not yet enrolled, there would appear to be no logical basis for his contention and no support for it in the DLP Rules.

69 If he were rather contending that the Deputy President was right because the two delegates were entitled to vote in a Commonwealth election that day in the Divisions for which they were enrolled and that it followed that they could only represent Local Branches in those Divisions, my response would be the same.

70 The Commonwealth Act and the Victorian Act both contemplate the 'regular' situation being that of a match between residential and enrolled addresses. Each contains measures to encourage and indeed enforce that regularisation. They would appear to be aimed at obtaining representative legislative bodies.[10]

71 The DLP Rules are silent as to any requirement related to residential or enrolled addresses for membership of a Local Branch. Truly 'local' representation in party affairs would seem likely to be promoted by allowing DLP members to belong to branches that were 'local' in terms of the residential addresses at which the legislation demanded they be enrolled. In all the circumstances, it would not seem sensible to construe the DLP Rules in a way that would prevent a member from joining and then representing such a branch.

[1] See Part IX of the Commonwealth Electoral Act 1918.

[2] _Chanter v Blackwood (No 2) (_the Riverina by-election case) [1904] HCA 48; (1904) 1 CLR 121, 129 (Griffith CJ).

[3] Mulholland v VEC & anor [2010] VSC 130 [17]-[18] (J Forrest J).

[4] [2010] HCA 46.

[6] [1996] HCA 27; (1996) 188 CLR 48.

[7] Ibid, 74 (Brennan CJ, Dawson, Toohey, Gaudron and Gummow JJ).

[8] Coleman v Liberal Party of Australia NSW Division (No 2) [2007] NSWSC 736; (2007) 212 FLR 271, 283 (Palmer J).