The respondents' justification defence
9 The very detailed particulars of justification and contextual truth appear over in an annexure to the defence consisting of 61 pages. The solicitor for the respondents, Justin Quill, described the defence as one of the most complex with which he had ever been involved as a lawyer. That appears to reflect the work put into the formulation of the particulars.
10 Importantly, the particulars assign pronounced roles to both Michael Sukkar and Ms Jayakumaran in the branch-stacking allegations. Mr McKenzie approached each of them without any prior notice for an interview and used footage of those contacts in the 2021 broadcast. The particulars assert that at all relevant times between 2016 and 2018, Mr Bastiaan, in conjunction with other members of the Victorian division of the Liberal Party's right faction, including Michael Sukkar, and the Hon Kevin Andrews MP, another member of the Liberal Party, devised, coordinated and implemented a scheme actively to recruit new members to of the Liberal Party in large volumes over a comparatively short period. Michael Sukkar and Mr Bastiaan are alleged to be the persons who oversaw the scheme. The particulars asserted (par 35):
The Scheme was implemented by a secretariat of Liberal Party members (Secretariat), all or most of whom were members of the right faction, and which included: the applicant, Stephanie Bastiaan (the applicant's wife), Josh Bonney, Thilaga 'Jessy' Jayakumaran, David Lau, Nigel Lau, Alex Lisov, Cameron Manassa, Paul Mitchell, Camillus O'Kane, Karina Okotel, Marijke Rancie, Ivan Stratov, Paul Sukkar, Matthew Verschuur, Cynthia Watson and Elliot Watson.
(emphasis in original)
11 The particulars alleged that elements of the scheme included (par 36):
a. conducting large membership drives for the Liberal Party in Victoria in a manner consistent with the Recruitment Phase of branch stacking and the Volume Indicium of branch stacking, resulting in the recruitment of large numbers of non-genuine members - as further particularised in Part D of this Schedule;
b. the conducting of renewal drives for large numbers of non-genuine members whose memberships were due for renewal, in a manner consistent with the Renewal Phase of branch stacking and the Renewal Indicium of branch stacking - as further particularised in Part D of this Schedule;
c. the mobilisation of non-genuine members to vote at FEC and SEC annual general meetings in a manner consistent with the Conference Mobilisation Phase of branch stacking - as further particularised in Part D of this Schedule;
d. the mobilisation of non-genuine members to vote at State Council annual general meetings, and the direction of how those members should exercise their votes, in a manner consistent with the State Council Mobilisation Phase of branch stacking and the Voting Indicium of branch stacking - as further particularised in Part D of this Schedule;
e. recruiting non-genuine members from the Mormon Church in a manner consistent with the Recruitment Phase of branch stacking and the Volume and Harvesting Indicia of branch stacking - as further particularised in Part D.11 of this Schedule;
f. recruiting non-genuine members from the Indian community in Victoria in a manner consistent with the Recruitment Phase of branch stacking and the Volume and Harvesting Indicia of branch stacking - as further particularised in Part D.12 of this Schedule;
g. Warehousing non-genuine members within the Deakin FEC and the Ringwood SEC - as further particularised in Parts D.13 and D.14 of this Schedule;
h. in some cases, paying membership fees, or membership renewal fees, for non-genuine members introduced to the Liberal Party via the Scheme, in a manner consistent with the Payment Indicium of branch stacking - as further particularised in Part E of this Schedule; and
i. installing members of the Secretariat as Electorate Officers in the electorate of Menzies (positions which attracted a salary or wage from the Commonwealth Department of Finance), ostensibly to perform the work of an Electorate Officer but, instead, carrying out the party-political work of the Scheme, in a manner consistent with the Government Staff Indicium of branch stacking - as further particularised in Part G of this Schedule.
12 The particulars then alleged that the secretariat operated at various times in the federal electorate conferences of the Liberal Party for the seats of Deakin and Menzies, being those held by Michael Sukkar and Mr Andrews. They alleged that at various times between 2017 and 2018 at least the following members of the secretariat worked in either Michael Sukkar's electorate office or that of Mr Andrews, namely Stephanie Bastiaan, who was Mr Bastiaan's wife, Josh Bonney, who was a member of the secretariat and an electoral officer in Michael Sukkar's electorate office, Ms Jayakumaran, Nigel Lau, Cameron Manassa, Marijke Rancie, and Michael Sukkar's brother, Paul.
13 Importantly, par 46 of the particulars alleged:
The work of the Secretariat, as particularised in paragraphs 41 to 45 of this Schedule, was consistent with:
a. the Recruitment and Renewal Phases of branch stacking;
b. the Active Recruitment and Volume indicia of branch stacking; and
c. in the case of work performed for the Scheme from time to time by at least Paul Sukkar, Jessy Jayakumaran and Marijke Rancie, each of whom were employed at relevant times as Electorate Officers in the Menzies Electorate Office of Kevin Andrews MP, the Government Staff Indicium of branch stacking - as to which the respondents refer to and rely on the matters particularised in Part G of this Schedule.
14 The particulars alleged that, on 7 August 2017, Mr Bastiaan directed members of the secretariat by email to perform work in the lead-up to a forthcoming annual meetings of the federal electorate conferences and then the State electorate conferences, at the latter of which voting would occur for delegates to the Victorian State Council in a scheduled meeting in April 2018, (the April 2018 State Council Meeting) as follows (par 63):
a. the applicant directed Jessy Jayakumaran to transfer existing Liberal Party members recruited through the scheme to their 'home electorate';
b. the applicant directed Jessy Jayakumaran, Paul Sukkar, Cameron Manassa, Matthew Verschuur, Alex Lisov and Marijke Rancie to update the Liberal Party database;
c. the applicant directed the lead organisers (Alex Lisov, Ivan Stratov, Cynthia Watson, Elliot Watson, Stephanie Bastiaan, Camillus O'Kane, Cameron Manassa, Marijke Rancie, Matthew Verschuur, Paul Sukkar and Paul Mitchell) to contact all primary organisers, support organisers and new organisers in the Scheme's network to enlist their assistance in preparing for forthcoming annual meetings; and
d. the applicant directed the lead organisers to update the Google Spreadsheet with the results of their enquiries with all primary organisers, support organisers and new organisers.
15 Next, the particulars alleged that, on or about 27 February 2018, Mr Bastiaan directed members of the secretariat by email to perform tasks, including directing Ms Jayakumaran to enter new members into the Liberal Party database, support Ivan Stratov in his recruitment of new members and take a leading role in turning out members' proxies for the April 2018 State Council meeting. The particulars made similar allegations in respect of Mr Bastiaan directing the activities of other persons whom he identified as other potential witnesses in respect of whom the interlocutory relief he seeks is directed.
16 The particulars asserted that in about June 2017, Mr Bastiaan, Michael Sukkar and Mr Bonney formed an agreement to install members of the secretariat as electorate officers in Mr Andrews' electorate office "ostensibly to perform the work of Electorate Officers, but who would instead predominately perform party-political work for the Scheme" (par 121). The particulars alleged that this agreement was arrived at orally over numerous conversations between the three men to that effect.
17 The particulars dealt in pars 136 to 148 with Ms Jayakumaran's activities from about January 2018 in the lead-up to the April 2018 State Council meeting allegedly in furtherance of the June 2017 agreement. They alleged that Michael Sukkar and Mr Bonney arranged for her, as a member of the secretariat, to be employed by Mr Andrews on a casual basis as an electorate officer in his electorate office and that she remained employed there at least until March 2018, working up to five days a week. The particulars alleged that she performed very little work as an electorate officer during that period, but from time to time received a salary or wage from the Commonwealth Department of Finance as an electorate officer for working up to five days a week under the Members of Parliament (Staff) Act 1984 (Cth). The particulars alleged that (par 139):
In the premises of paragraphs 136 to 138 of this Schedule, it is to be inferred that, throughout the Jayakumaran Period of Employment, Jayakumaran:
a. performed party-political work for the Secretariat when employed as an Electorate Officer in the Menzies Electorate Office, which she was not permitted to do so by ss 13 and 20 of the MOPS Act and Determination 2016/15; and
b. performed such work at the ultimate direction of the applicant (in his capacity as the co-ordinator of the Scheme as alleged herein) rather than that of her employing Member of Parliament, which she was not permitted to do by ss 13 and 20 of the MOPS Act and Determination 2016/15.
18 The particulars alleged that, on 28 February 2018, Mr Bastiaan sent an email to, among others, Ms Jayakumaran, requiring her to follow up the work previously alleged in par 65 (the February 2018 directions).
19 Paragraph 143 alleged that, on 1 March 2018, Ms Jayakumaran conducted work during business hours in accordance with Mr Bastiaan's February 2018 directions by attempting to access the Liberal Party's member database and entering new members into it. Paragraph 144 alleged that:
In the premises of paragraphs 136 to 143 of this Schedule, it is to be inferred that Jayakumaran:
a. performed the party-political work particularised in paragraphs 141 and 143 of this Schedule during the Jayakumaran Period of Employment;
b. performed such work when she was employed as an Electorate Officer in the Menzies Electorate Office, which she was not permitted to do by ss 13 and 20 of the MOPS Act and Determination 2016/15; and
c. performed such work at the direction of the applicant rather than that of her employing Member of Parliament, which she was not permitted to do by ss 13 and 20 of the MOPS Act and Determination 2016/15.
20 Paragraph 145 referred to a further direction that Mr Bastiaan gave in an email to, among others, Ms Jayakumaran, on 6 March 2018, to engage in political work in the lead-up to the April 2018 State Council meeting. And par 148 suggested that the inference should be drawn that she obeyed that directive.
21 The particulars make numerous allegations in respect of conduct of Michael Sukkar, including that he conceived of a plan to create two advertising flyers to support Mrs Bastiaan's bid for preselection for a Liberal Party State seat. The plan proposed that the flyers would have the effect of appearing to denigrate her opponent based on Ms Bastiaan's support for socially conservative views, and painting the opponent as being aligned with socially progressive elements of the Liberal Party. The particulars alleged that Mr Bastiaan and Michael Sukkar directed Mr Bonney to carry out that advertising plan and that he did so.
22 There is no doubt that the issues that the matters complained of raised and that are traversed by the defence can fairly be described as of significant public interest and importance in the political life of both Victoria and country.