The plaintiffs, Mr Daryl Lindsay Johnston and Mr Christopher David Harris, are members of the first defendant, which is the political party with the formal title of The Greens NSW.
The Greens NSW is an association incorporated under the Associations Incorporation Act 2009 (NSW) (Associations Incorporation Act). It is also a political party registered in New South Wales under Part 6 of the Electoral Act 2017 (NSW) (Electoral Act).
The only other active defendant is the fifth defendant, Ms Abigail Boyd. Ms Boyd is also a member of The Greens NSW, and is interested in these proceedings because she has been preselected to be nominated by The Greens NSW as a candidate in the forthcoming New South Wales Legislative Council elections. If the relief sought by the plaintiffs is granted, that would jeopardise her chances of retaining her pre-selection for nomination in the current order of candidates, which will affect her chances of election.
Various other parties are, as I understand it, office holders in The Greens NSW and the members who have been preselected to be nominated as candidates for the Legislative Council elections on behalf of The Greens NSW.
All of the defendants other than The Greens NSW and Ms Boyd either formally submitted to the order of the Court or did not appear to contest the proceedings. As I understand it, it is only the fourth defendant, Mr David Shoebridge, who has not appeared. In the circumstances in which leave was given to file the plaintiffs' summons and the proceedings were determined, Mr Shoebridge could not have formally been served with the summons, though he may have been given notice of the intention of the plaintiffs to commence the proceedings.
All of the parties that did appear, who did not submit to the order of the Court, were content to proceed, although Ms Boyd resisted the Court dealing with the claims for relief in the summons. The absence of Mr Shoebridge should not have any real consequences, because his position as the first person preselected by The Greens NSW will not be disturbed whether the plaintiffs' claim succeeds or fails.
[3]
Nature of the dispute
The present dispute has arisen because on 20 December 2018, Mr Jeremy Buckingham MP resigned his membership of The Greens NSW. As will be seen, Mr Buckingham had earlier been preselected for nomination for the Legislative Council, with the third position in the list of nominees. As a result of Mr Buckingham's resignation, a question arose as to what the effect was of that event on the order of the remaining preselected members.
The plaintiffs assert that the constitution of The Greens NSW requires that there be a full recount using the ballot papers submitted by electors as part of the original preselection process. This would involve treating the ballot papers of voters who marked Mr Buckingham first by moving the second person into first and all subsequent persons up one, and then repeating the counting process required by the constitution. The Greens NSW and Ms Boyd take the view that the effect of Mr Buckingham's resignation from The Greens NSW was simply that the person who was fourth in the list of candidates, who is the sixth defendant, Ms Dawn Walker, should become the third candidate on the list. The expression used by the parties was that she would be "bumped up".
[4]
Course of the proceedings
These proceedings are exceptional in that the plaintiffs were given leave to file their summons in the Duty List on the morning of 1 March 2019, and the proceedings were heard and determined on a final basis on that day. That was done with the consent and cooperation of the plaintiffs and The Greens NSW, but against the qualified resistance of Ms Boyd, as I have mentioned.
As will appear in more detail below, the reason for the extreme expedition was that the election for the New South Wales Legislative Council is to be held on 23 March 2019 and, under the Electoral Act, nomination papers in the approved form for the election may only be lodged with the Electoral Commissioner between Monday, 25 February 2019 and 12 noon on Wednesday, 6 March 2019. The latter date is what the parties described as a "hard deadline" in the sense that, if The Greens NSW does not lodge the nomination papers in the approved form by that time, then no candidates of The Greens NSW will be included on the ballot-paper for the election for the Legislative Council. Consequently, the dispute between the parties had to be resolved in a time that would not jeopardise the lodgement of the nomination papers.
The plaintiffs first approached the Court to deal with this matter by appearing in the Duty List on Thursday, 28 February 2019. The Greens NSW and Ms Boyd were evidently given notice of the application because they also appeared by counsel. One other defendant was represented but subsequently was given leave to file a submitting appearance. The summons that the plaintiffs sought leave to file in Court sought orders for the expeditious determination of the proceedings, including that there be substituted service on the defendants by 4 PM that day, and that the summons be made returnable on Monday 4 March 2019 for final hearing. A timetable was proposed that would have the plaintiffs serve their evidence by 2 PM on the Thursday and the defendants file their evidence by 5:30 PM on the Friday.
The plaintiffs also sought an order that The Greens NSW and the defendants who were officers of the party be restrained from lodging an endorsed candidate ticket for The Greens NSW for the New South Wales Legislative Council elections until 11:30 AM on Tuesday 5 March 2019.
In light of the urgency of the application, the Court heard the parties' counsel for case management purposes without the summons being filed.
In short, senior counsel for The Greens NSW informed the Court that his client would voluntarily abstain from lodging the endorsed candidate ticket until 6 PM on Friday, 1 March 2019, provided that the plaintiffs' claim for relief was determined by the Court on that day. The Greens NSW took that position because of its view that, if the proceedings were not determined on the Friday there was a very real risk that The Greens NSW would not be able to meet the noon, Wednesday 6 March 2019 deadline, whether by incapacity or misadventure. I made informal suggestions in respect of the steps that the parties would need to take in order for the Court to be in a position to hear the dispute the next day, and invited the plaintiffs to approach the Court with an application for leave to file their summons in Court. I preserved the right of all parties to make submissions as to how the proceedings should then proceed.
On 1 March 2019, the plaintiffs advised the Court that they did not propose to seek leave to file their statement of claim until Monday, 4 March 2019. I required the parties to appear in order to enable me to deal with the management of the proceedings, as it was most uncertain that the Court would be able to deal with the proceedings on a final basis on the Monday, and delay would likely jeopardise the capacity of The Greens NSW to respond to the outcome of the proceedings, and to meet the deadline imposed by the Electoral Act. It is not necessary to record the reasons, but after some deliberation the plaintiffs accepted the need for the proceedings to be determined on the Friday. All parties who contested the claim accepted that the Court should deal with the plaintiffs' claim immediately on a final basis, although as I have already mentioned Ms Boyd's position was that the proceedings should in effect be summarily dismissed because of the injustice imposed upon her by reason of the plaintiffs' delay in bringing their claim to Court.
It will be appropriate to make a number of observations on the manner in which the proceedings were conducted.
First, there was no issue that the plaintiffs as members of The Greens NSW had standing to bring the proceedings.
Secondly, the defendants accepted that the claims made by the plaintiffs, based as they were on the constitution of The Greens NSW, are justiciable. On The Greens NSW's part, the acceptance that the plaintiffs' claims are justiciable depended upon the application of s 26(1) of the Associations Incorporation Act, which provides: "Subject of this Act, an association's constitution binds the association and its members to the same extent as if it were a contract between them under which they each agree to observe its provisions." It is therefore not necessary for the Court to decide whether in the circumstances of this case the judgment of the High Court in Cameron v Hogan (1934) 51 CLR 358 at 370-376 is distinguishable. The parties in effect accepted that the decision of Palmer J in Coleman v Liberal Party of Australia, NSW Division (No 2) [2007] NSWSC 736; 212 FLR 271 applies. See also Luen Fook Tong Inc v Lowe [2011] NSWSC 1004 at [32]; Ehiozee v EDO Nigerian Association of New South Wales Inc [2012] NSWSC 239 at [22]-[26]; Faehrmann v Vucht [2018] NSWSC 397 at [5]; and also the recent judgment of Lindsay J in James v Wilson [2019] NSWSC 17.
Even though the justiciability of the plaintiffs' claim is not in issue, Lindsay J's observation in James v Wilson at [76] that the Court might withhold relief on discretionary grounds in an appropriate case because declaratory and injunctive orders are by their nature discretionary must be remembered.
Finally, the extreme expedition with which the proceedings were determined imposed upon the parties the need to conduct the hearing in a manner that abandoned some of the conventional approaches to the receipt of evidence. The parties allowed the affidavits of the witnesses to be read and the exhibits tendered without objection. That was done on the basis that the Court would use its judgment concerning the admissibility of the evidence and act on the evidence accordingly. Some of the evidence that was received was relatively voluminous and complex. The parties did not demur when I advised them that I proposed only to take into account the direct evidence of relatively uncontroversial events together with the documentary material that was of direct relevance to the resolution of the plaintiffs' claims.
[5]
Determination
At the end of the hearing I announced that my decision was that I would dismiss the plaintiffs' summons, and I made an order accordingly. At the request of counsel for the plaintiffs, I agreed to defer dealing with the question of costs. I indicated that I would deliver my reasons as soon as possible. These are those reasons.
[6]
Relief sought
By their summons, the plaintiffs claimed the following final relief (prayers 10 and 13 being as amended by leave of the Court):
…
9. A declaration that the motion PO1 passed by the State Delegates Council on 26 May 2018 [is] void or invalid.
10. A declaration that the decision made by the co-conveners and the secretary of the first defendant at or about 11 AM on 28 February 2019 is void or invalid.
11. An order restraining the first, second, third, seventh and eighth defendants from lodging a Greens NSW endorsed candidate ticket for the New South Wales Legislative Council elections to be held in March 2019 with an order of preferences in accordance with motion PO1 passed by the State Delegates Council on 26 May 2018.
12. A declaration that, on their proper construction, the Charter of the Australian Greens, the Constitution of the Greens NSW and the Preselection Rules operate so that, where a preselection ballot has occurred, and a candidate in that preselection is no longer eligible for preselection, a vote indicated on a ballot-paper opposite the name of that candidate shall be counted to the candidate next in order of the voter's preference and the numbers indicating subsequent preferences shall be deemed to be altered accordingly.
13. A declaration that, on their proper construction, the Charter of the Australian Greens, the Constitution of the Greens NSW and the Preselection Rules operate so that, where a preselection ballot has occurred, and a candidate in that preselection is no longer eligible for preselection, the preselection returning officer and any deputy returning officers are to conduct a special count of the ballots in accordance with order 12.
…
It is necessary to explain in some more detail the approach taken by the plaintiffs to these prayers for relief at the hearing.
As will be seen, the State Delegates Council (State Delegates Council, Council or SDC) is the paramount body within the constitution of The Greens NSW with the responsibility for dealing with matters arising under the constitution and for ratifying the results of internal elections. Motion PO1, which was passed by the State Delegates Council on 26 May 2018, was the motion by which the Council ratified the results of the original preselection that included Mr Buckingham. The subsequent resignation of Mr Buckingham from The Greens NSW and the cessation of his eligibility to be on The Greens NSW ticket could not have any effect on the validity of the passing of the motion by the Council. The plaintiffs put no submissions in support of the making of the declaration sought in prayer 9, and logic requires that the claim be dismissed in any event.
The decision referred to in prayer 10 was made, in circumstances that will be described below, by the officers of The Greens NSW as a matter of practical necessity, in order to enable The Greens NSW to lodge the appropriate nomination papers with the Electoral Commissioner before the deadline imposed by the Electoral Act. The nomination papers have been prepared on the basis that, Mr Buckingham having become ineligible, Ms Walker was moved from number 4 to number 3 on the ticket, and Mr Shoebridge and Ms Boyd maintain their first and second places.
There may have been doubt about the validity of the decision referred to in prayer 10 if that decision had been the operative administrative act whereby The Greens NSW had determined what the order on the ticket would be after the resignation of Mr Buckingham. The doubt arises out of the constitutional limitations on the powers of the officers referred to. For reasons that I will consider below, it is unlikely that this decision by the three officers was the effective administrative act whereby The Greens NSW decided to lodge the nomination papers that are proposed to be lodged. More importantly, however, the plaintiffs made clear at the hearing that they only asked for the declaration in prayer 10 to be made if they succeeded on their application for declarations in terms of prayers 12 and 13. That is, the claim in prayer 10 is in reality only consequential on the success of prayers 12 and 13. Were it otherwise, even if the Court found that the existing nomination papers had been properly prepared, the making of the declaration sought in prayer 10 might have the effect of preventing The Greens NSW from nominating candidates for election to the Legislative Council. At the hearing, the plaintiffs confirmed that this was not their intention.
In a similar way to prayer 10, the plaintiffs advised the Court that they only sought the injunction in prayer 11 if they succeeded in obtaining the declarations sought in prayers 12 and 13, and thereby established that the ticket prepared in accordance with the State Delegates Council resolution on 26 May 2018 was not compliant with the requirements of the constitution.
The essence of the plaintiffs' case is found in prayers 12 and 13. The first of these prayers sets out the plaintiffs' contention as to the proper construction of the relevant constituent documents of The Greens NSW in the event that a preselected candidate becomes ineligible, and the second prayer sets out their contention as to the process required by the constituent documents following that event.
In the result, the issue required to be determined by the Court is whether the plaintiffs were entitled to the declarations claimed in prayers 12 and 13 of their summons.
[7]
Background
It will be convenient to set out the background facts in order to facilitate the necessary examination of the effect of the constituent documents of The Greens NSW. It will be remembered that I will confine my statement of facts to the basic, uncontroversial events that are disclosed by the evidence. I have primarily adopted the evidence given in the affidavit of Ms Sylvia Phyllis Hale, who is a Co-Convener of The Greens NSW and is the only witness who was cross-examined during the hearing.
Between 19 April 2018 and 11 May 2018, preselection voting occurred for the purpose of determining the ticket order of The Greens NSW candidates for the Legislative Council in the forthcoming election. In that preselection, 2,565 votes were cast.
There was a Returning Officer and a Deputy Returning Officer for the 2018 preselection.
On 26 May 2018, the returning officers presented their report on the preselection voting for the Legislative Council ticket. Relevantly, the report listed the ticket order as: (1) Mr Shoebridge; (2) Ms Boyd; (3) Mr Buckingham; and (4) Ms Walker.
On 26 May 2018, the State Delegates Council, by consensus, adopted the returning officers' report and ratified the 2018 ticket order.
It is not necessary to go into the detail, but The Greens NSW intend to add the names of additional members as candidates in the nomination papers so that there will be a total of 21 candidates nominated by The Greens NSW. Under s 86 of the Electoral Act, it is necessary that a party have at least 15 candidates before their names will be included in a group with an above the line "…group voting square…" on the ballot-paper. The inclusion of the names of additional candidates in the nomination papers is not material to the present dispute.
Mr Buckingham resigned his membership of The Greens NSW on 20 December 2018, and consequently became ineligible for inclusion on The Greens NSW ticket for the Legislative Council election.
In December 2018, the Byron member group of The Greens NSW (where member group has a meaning somewhat akin to a branch of other political parties) submitted a late proposal (known as LP02) to the State Delegates Committee. In substance, the proposal sought a ruling of the Council that the constitution required a recount following the resignation of Mr Buckingham, and an instruction to the Returning Officer to conduct the recount. It further sought a ruling that the candidates were to be placed on the electoral ticket for the 2019 Legislative Council election in the order in which they are elected in the recount.
The present plaintiffs are not members of the Byron member group.
Proposal LP02 was not considered by the State Delegates Council in December 2018 because of a consensus decision that the proposal was not urgent. The proposal was instead held over until the Council meeting scheduled for 23 and 24 February 2019.
On 23 February 2019, the Byron member group withdrew proposal LP02 before it could be considered by the State Delegates Council.
On 23 February 2019, the State Delegates Council by consensus adopted a separate proposal known as LP04. Relevantly, this proposal stated:
To ensure that the Greens NSW lodge a Legislative Council ticket for the 2019 NSW state election:
1. All upper house candidates must submit their completed nomination forms to the party by 6 PM Thursday, 28 February 2019. Person [sic] receiving forms needs to acknowledge receipt of forms to candidate. Once received the campaign Manager will acknowledge receipt of candidate forms.
2. If the candidate fails to meet the above-mentioned deadline it is assumed they have withdrawn their candidacy.
3. Consequently the remaining candidates will be moved up on the ticket.
4. If [L]PO2 or any other decision of the SDC regarding the ticket order is successful it will be taken into account in determining the ticket order in point 3
…
As appears from this resolution of the State Delegates Council, the Council did not deal in a substantive way with the constitutional issue that is raised by these proceedings. Indeed, by resolution 4 the Council recognised that the issue raised by the Byron member group remained to be considered, and if considered and accepted, it may be necessary for the ticket order to be adjusted. However, for The Greens NSW's administrative purposes, LP04 had a practical effect. If no adjustment was required following the consideration of proposal LPO2, then when Mr Buckingham failed to meet the deadline for submitting a completed nomination form (by reason of his acceptance of his not being eligible), the effect of LP04 would be that Ms Walker and all candidates listed after her on the ticket would be moved up one. The officers of The Greens NSW would be authorised to act accordingly.
As will be seen below when the constitution of The Greens NSW is considered, the Committee of Management for the State Delegates Council is a subsidiary organ of The Greens NSW to the State Delegates Council, with certain powers to make decisions for The Greens NSW between meetings of the State Delegates Council. On 25 February 2019 at 6:58 PM, an urgent meeting of the Committee of Management was called for 7:30 AM on 26 February 2019, to consider a number of proposals intended to resolve the constitutional issue now before this Court. The members of the Committee of Management who were present did not deal with the proposals, because a two-day notice period under the constitution for the calling of the meeting had not been satisfied, and resolved to reconvene on the evening of 27 February 2019, so that proper notice of the meeting could be given.
The Committee of Management met at 6 PM on 27 February 2019 and considered a number of proposals. Proposal 7.3 was that the Committee determine that the ticket order, as ratified by the State Delegates Council on 25 May 2018 be maintained, save that Mr Buckingham be removed from position 3 and from the ticket entirely, that Ms Walker be moved from position 4 to position 3 on the ticket, and that the remaining candidates be moved up sequentially on the ticket. Five members of the Committee supported the proposal; one abstained and two opposed it. Consequently, 71.42% of the members of the Committee who were present supported the proposal. As will be seen, the constitution required the support of 75% of the members of the Committee of Management for the proposal to be effective.
Proposal 7.4 was in substance in accordance with the approach to the construction of the constitution contended for by the plaintiffs in the present case. The proposal was supported by two members of the Committee; two abstained, and four members opposed the proposal. It was therefore marked "No consensus" in the draft minutes of the meeting.
As the Committee of Management did not effectively endorse either proposal, the officers referred to in prayer 10 of the summons met at 11 AM on 28 February 2019 in order to decide how to proceed so as to enable The Greens NSW to meet the deadline for lodging the nomination papers imposed by the Electoral Act. Ms Hale, as a Co-Convener, met with the other Co-Convener and the Secretary of The Greens NSW, and decided that, given the 26 May 2018 decision of the State Delegates Council, and the vacancy that had occurred in position 3, positions 1 and 2 should remain unchanged, and position 4 and subsequent candidates should be moved up in order on the ticket.
It is not necessary to enter upon the detail, but Ms Hale gave evidence of the urgent arrangements that were made from about 25 February 2019 for the sending of nomination papers to candidates, which included a SE.203 form listing the proposed order of the 21 candidates in the group. The order of the candidates was in accordance with the agreement reached between the two Co-Conveners and the Secretary. As at the time of the making of Ms Hale's affidavit, 20 of the 21 candidate nomination papers had been returned to The Greens NSW; the only outstanding nomination paper being that for Ms Walker. It is necessary to note that, in order for The Greens NSW to successfully lodge the nomination papers in the approved form, all candidate nomination papers must be properly prepared and signed in a manner that stipulates the order of candidates on the ticket. If that order is changed, the entire process of sending out revised nomination papers, receiving those papers properly completed and signed and lodging the nomination papers with the Electoral Commissioner must be repeated.
Ms Hale also gave evidence of what would happen if The Greens NSW was required to conduct a recount as contended for by the plaintiffs. That process would include printing out the 2,427 electronic ballot papers (there is also incidentally a small risk that the integrity of the 138 paper ballot papers has not been preserved); obtaining and instructing the returning officers; verification of the ballot papers; arranging scrutineers; the conducting of the recount by the returning officers; the convening of a Committee of Management meeting to confirm the recount; and then (if the result of the recount was different to the order of candidates on the existing form SE.203) repeating the process of arranging for 21 candidates to sign the new form. Ms Hale estimated that the process at best would take four days and may take up to six and a half days.
The second plaintiff, Mr Harris, gave evidence that in 2011 he was the campaign manager for the present member of the Legislative Assembly for the seat of Balmain, and that the whole process of lodging the nomination form for that candidate with the Electoral Commissioner took only 2 to 3 hours including travel time. I do not consider that evidence to be of much assistance in estimating the time that may be required for a recount for The Greens NSW Legislative Council ticket.
Ms Hale was cross-examined by counsel for the plaintiffs, with the object of establishing that the time for completion of the process would be less than had been estimated by Ms Hale, and that Ms Hale had relied in making her estimate on unreliable information provided to her by others. It is sufficient to say that Ms Hale maintained her opinion.
The only issue of fact that the Court cannot avoid considering is the likely time it would take The Greens NSW to complete a recount and repeat, if necessary, the process of preparing and lodging completed nomination papers with the Electoral Commissioner.
The Court's approach to determining this question is rightly influenced by the seriousness of the consequences of the Court's making a mistake. As deposed to by Ms Hale, The Greens NSW is confident that at least two of its candidates will be elected to the Legislative Council. If the necessary nomination papers are not lodged in time, that opportunity will be lost. Further, valid nomination papers for at least 15 candidates have to be submitted by the deadline, or The Greens NSW will not be able to contest the election for the Legislative Council as an above the line group. There is evidence that approximately 90% of voters voted above the line in the 2015 State election. Ms Hale gave evidence of further consequential harm to The Greens NSW if the nomination papers for the Legislative Council election are not lodged in time.
To these considerations must be added the fundamental one that, if The Greens NSW candidates for election to the Legislative Council are not included on the ballot-paper, a substantial number of voters who would wish to vote for those candidates at the election will be adversely affected.
It is also necessary to bear in mind that Ms Hale has not been able to allow for what is sometimes called Murphy's Law. Ms Hale has explained in outline the process involved in The Greens NSW's officers managing the process of lodging the nomination papers of 21 Legislative Council candidates as well as 93 Legislative Assembly candidates by the statutory deadline, and the possible need to liaise with officers of the Electoral Commissioner. In short, given the obvious need for meticulous compliance with the requirements of the Electoral Act, there is scope for administrative error and delay.
The evidence given by Ms Hale concerning the likely time that will be lost if a recount is required is credible, even if as is conceded by Ms Hale her estimation is necessarily inexact. The Court cannot safely or responsibly ignore or arbitrarily reduce Ms Hale's estimate of the range of times necessary to complete the process. Ms Hale is as close to an expert on the question as is available. The Court has no expertise on the question. The Court does not have a sufficient basis on which to reject her estimation.
The Court pronounced judgment at about 5 PM on Friday 1 March 2019. At that time, some 115 hours remained until the 12 noon deadline on Wednesday 6 March 2019. That is about 4.8 days. The first two days and seven hours would effectively be the weekend. No doubt The Greens NSW's officers would work feverishly to complete the process, if the Court had effectively ordered that the recount sought by the plaintiffs should occur. However, it is obvious that there would be a real and substantial risk that the process might miscarry with the consequences outlined above.
[8]
Constitutional provisions
I will now consider the relevant provisions of the constitution of The Greens NSW. I will start with the provisions that govern the preselection process, and then consider the relevant provisions dealing with internal governance in relation to the resolution of any constitutional uncertainties and disputes such as that which is before the Court. I will then consider the relevant aspects of The Greens NSW's preselection rules, which the parties accepted regulated the conduct of preselections under the constitution.
There was no disagreement between the parties as to the principles that are required to be applied in construing the constituent documents of The Greens NSW. In fact, the parties put their submissions on the basis of the wording of the documents as if they had been ordinary contractual instruments.
I accept the submission of The Greens NSW that, just as the constitution of a company is to be construed according to the rules of construction applicable to contracts generally, the same approach should be applied to the construction of the constitution of an incorporated association, provided that any "special characteristics" of incorporated associations which are of contextual relevance are taken into account in the construction task: Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd (2006) 156 FCR 1; [2006] FCAFC 144.
It may be noted that clause 10.4 of the constitution requires that candidates for pre-selection for the New South Wales Legislative Council must be members of The Greens NSW, which is the reason why Mr Buckingham has been excluded from the party's ticket.
Part 11 of the constitution governs the preselection process, and clause 11.1 relevantly provides:
The preselection of an electoral ticket for the political party The Greens NSW for the NSW Legislative Council and Commonwealth Senate, or to fill a casual vacancy being created by the departure from office of a MLC or Senator who is a member of the political party The Greens NSW, will be conducted according to the preselection rules agreed to by the Delegates Council in respect of that preselection (the "Preselection Rules"). The Preselection Rules must include provisions specifying that:
…
b. An optional preferential count (similar to the method used in counting House of Representatives and NSW Legislative Assembly elections) of all valid votes is performed for the election to the top position on the electoral ticket, or to fill the casual vacancy. All valid votes are then counted by a proportional representation (PR) method (similar to the method of counting used in Senate elections) to elect the number of members required on the ticket.
c. The order in which candidates are placed on the electoral ticket shall be the order in which they are elected in the PR count, except if, in counting each even-numbered sub-group of candidates from the top (that is; the top two, the top four, the top six, and so on up to the number of candidates to be elected), a sub-group is found where less than half of the sub-group are women, the next most successful woman candidate (if any) shall be promoted to the lowest ranked position of that sub-group.
…
The most significant aspect of this term is that part of clause 11.1(c) which states: "The order in which candidates are placed on the electoral ticket shall be the order in which they are elected in the PR count…" (emphasis added). Those words support a submission made by the defendants, which I accept, and which ultimately will be seen to be a simple basis for resolving the present dispute. That is, that constitutionally the order in which candidates are placed on the electoral ticket for the forthcoming Legislative Council election must be the order in which they were elected, after applying the exception that is intended to make special provision for women candidates. The constitutional provision is concerned solely with the order of the candidates. Once that order has been established, the effect of any particular candidate who is eligible to be placed on the ticket resigning or becoming ineligible is that that person cannot be placed on the ticket, but the order of the remaining persons remains the same; the only practical consequence being that candidates who are preselected after the candidate who has ceased to be eligible will be moved up one on the ticket, but they will remain collectively in the same order as they were originally preselected. Put another way, clause 11.1(c) is concerned with order and not place on the ticket.
The State Delegates Council is given sole responsibility for the administration of The Greens NSW by clause 3.2 of the constitution. Consequently, the resolutions of the Council, including those made on 26 May 2018 and 23 February 2019 as referred to above, have effect according to their terms.
Clause 7.9 of the constitution provides:
The Delegates Council will interpret this constitution should a dispute arise over the meaning of any provision. The Delegates Council may pass resolutions that clarify arrangements contained within this constitution.
As I have explained above, the State Delegates Council did not exercise this power in relation to the constitutional dispute raised by the plaintiffs, although it did give the administrative directions contained in the 23 February 2019 resolution.
Clause 7.13 of the constitution creates a Committee of Management for the State Delegates Council on the basis, provided for in clause 7.13.1, that "…it is recognised that for practical purposes there may be a need from time to time to make decisions between meetings of the Delegates Council…", and the body charged with this responsibility will be a Committee of Management. Put shortly, the Committee of Management "…may exercise all such functions as may be exercised by the Delegates Council, which the Committee deems essential for the proper functioning of The Greens NSW between meetings of the Delegates Council…", other than excluded matters. Clause 7.13.1(c) provides that the Committee of Management "…has the power to perform all such acts and do all such things as appear to the Committee to be necessary or desirable for the proper management of the affairs of The Greens NSW between meetings of the Delegates Council."
That power would have authorised the Committee of Management to resolve the constitutional dispute at its meeting on 27 February 2019, were it not for the fact that clause 7.14.1(d) of the constitution provides that decisions of the Committee "…will be made on a consensus basis preferably but if necessary by majority 75% vote amongst those present and voting." Consequently, as only 71.4% of the members of the Committee of Management present at the meeting voted in favour of proposal 7.3, that proposal did not resolve the constitutional dispute.
The officers of The Greens NSW who met on 28 February 2019 did not have authority under the constitution to resolve the constitutional issue. The evidence does not make their authority clear, as the constitution in clauses 9.1 and 9.2 in respect of the Convener and the Secretary respectively only gives an inclusive list of duties. I would infer that those officers have some general authority to implement the resolutions of the State Delegates Council, including those made on 26 May 2018 and 23 February 2019.
The result is that the constitutional dispute that is now before the Court has not been resolved internally in accordance with the procedures available for that purpose under the constitution of the Greens NSW.
The constitution provides in clause 7.14.1(k) that at least two days' notice must be given of meetings of the Committee of Management, although the members may unanimously agree to some other period. Clause 7.14.1(l) has the effect that the notice must specify the agenda and where possible the specific motions or proposals to be considered at the meeting. These provisions may have been relevant to the consequences if the Court had ordered The Greens NSW to conduct the recount sought by the plaintiffs.
[9]
Preselection rules
Part 9 of the preselection rules governs voting and results. Relevantly, clause 9.7 requires that: "An optional preferential count (similar to the method used in counting House of Representatives and NSW Legislative Assembly elections) of all valid votes is performed for the election to the top position on the electoral ticket." There is no issue about the effect of this rule in this case.
Clause 9.8 relevantly provides, in relation to the election to subsequent positions on the electoral ticket:
All valid votes are then counted by a proportional representation (PR) method (similar to the method of counting used in Senate elections) to elect the number of members required on the ticket, which will be pre-determined by the SDC.
…
Clauses 9.8.1 to 9.8.3 then set out in detail the process of counting, which is a complicated process involving quotas and the distribution of votes in order to ascertain which candidates have been preselected and in which order.
Clause 9.8.3 is of particular relevance to the plaintiffs' argument, and provides: "The count in each stage of the preselection balloting will follow the system used to elect Senators other than that, in the distribution of preferences when there is a surplus, transfer weight factors will be applied multiplicatively to the current vote value of each ballot." The significant aspect of this sub-clause is the requirement that the count at each stage of the preselection follow the system used to elect Senators. I will return to this matter below.
Clause 9.9 deals with the order in which candidates are placed on the electoral ticket. It must be set out in full:
The order in which candidates are placed on the electoral ticket will be the order in which they are elected in the PR count, with the following exceptions:
9.9.1 The top position on the ticket is decided by an optional preferential count, conducted prior to the PR count (ref 10.3).
9.9.2 If in counting each even numbered sub-group of candidates from the top (that is, the top two, the top four, the top six, and so on up to the number of candidates to be elected), a sub-group is found where less than half of the sub-group are women, the next most successful woman candidate (if any) will be promoted to the lowest ranked position of that sub-group. For these purposes, 'woman' shall be interpreted to mean a woman or someone who otherwise does not identify as a cisgender male.
9.9.3 The Preselection RO will prepare a report of the preselection process, including details of the counts and the outcome, to the next meeting of the SDC. Should the SDC accept the result as set out in the RO report, the ticket as assembled is endorsed and the registered officer will nominate this ticket for the Legislative Council or Senate election. In the case of a casual vacancy, should the SDC accept the result as set out in the RO report, the winner of the ballot is endorsed and the registered officer or Secretary (as applicable) will make the necessary arrangements for the endorsed candidate to take up their position in the Senate or the NSW Legislative Council, as applicable.
9.9.4 The result of the preference ballot is preliminary until ratification by the SDC. Public announcement of the preliminary result is at the discretion of the Committee of Management but in the ordinary course will be announced within 3 hours of the conclusion of the ballot draw. The SDC retains the ability to set aside the result of a ballot if the preselection process is considered to be flawed in a way that would significantly affect the outcome of the ballot.
The initial words of the chapeau to clause 9.9 repeat the words in clause 11.1(c) of the constitution, and have the same meaning and effect as I have set out above in relation to that provision.
Clause 9.9.3 requires that, if the State Delegates Council accepts the result as set out in the Returning Officer's report "…the ticket as assembled is endorsed and the registered officer will nominate this ticket for the Legislative Council…election." That provision has a straightforward meaning. By operation of the preselection rules, given force by clause 11.1 of the constitution, the ticket that is accepted by the State Delegates Council is endorsed and it is that ticket that must be nominated by the registered officer.
As a matter of the ordinary meaning of the wording of the provision, if some provision of the constitution, such as clause 10.4, causes a candidate on the ticket to become ineligible, or a candidate resigns or dies, so that the candidate cannot be nominated, the fact that the candidate's name must be removed from the ticket does not have the necessary consequential effect of invalidating the endorsement of the ticket by the State Delegates Council, or the effect of clause 9.9.3 in-so-far as it is a requirement that mandates how the registered officer is to nominate the ticket for the election.
As clause 9.9 governs the order in which candidates are placed on the electoral ticket, the effect will be that any candidate who ceases to be eligible to be included on the ticket will simply be removed, and even though that will change the places of subsequent candidates on the ticket, their order will remain as required by clause 9.9.
The effect of the first sentence of clause 9.9.4 is that the result of the preference ballot is preliminary until ratified by the State Delegates Council. The necessary implication is that once ratified, the result is permanent. Any subsequent event that prevents a candidate on the endorsed ticket from being nominated does not affect the fact that the State Delegates Council has ratified the ballot. The Council retains an ability to set aside the result of the ballot, but only where the preselection process is considered to be flawed.
In my view, the relevant parts of the constitution and the preselection rules work effectively and simply according to the natural meaning of the words used. The reason that the ineligibility, resignation or death of a candidate after the ratification of the ballot by the State Delegates Council does not cause a problem is that the event only changes the place of the remaining candidates and not their order.
If the Court were to order the recount sought by the plaintiffs, it would appear to follow from rule 9.9.3 that the returning officer would have to present a report of the preselection process involving the recount. It would be necessary for the State Delegates Council to ratify the recount, although that could be done as a matter of urgency by the Committee of Management. The meeting of that committee would have to be called in accordance with clauses 7.14.1(k) and (l) of the constitution that have been discussed above.
[10]
Further discussion of plaintiffs' arguments
This is an appropriate point to examine the arguments put by the plaintiffs as to why the constitution and the preselection rules should be construed to require the conducting of a recount, where a preselected candidate becomes ineligible, retires or dies.
The plaintiffs placed emphasis on the fact that Part 9 of the preselection rules repeatedly require that "all valid votes" be counted. They submit that, if the vacation of a place on the ticket by one candidate leads to subsequent candidates being bumped up the list, the electors who voted for the vacated candidate will effectively be disenfranchised, compared to the position where there is a recount and those electors are treated as having voted first for their second preference candidate and so on.
The defendants accepted that in principle the constitution of the ticket as nominated to the Electoral Commissioner may be different depending upon which process of dealing with the vacation from the ticket of an ineligible candidate is adopted. However, it does not follow that, in the absence of a recount, the electors who voted for the vacated candidate will be disenfranchised. Their original vote was counted. The real position is that their exercise of their vote may have been rendered ineffective by reason of an event occurring after the ratification of the original preselection process. It is not a question of the electors' votes not being counted, but whether the constitution requires that the whole process be repeated so that those electors are given a second opportunity to vote in light of the unexpected ineffectiveness of their first vote.
The concept of a second opportunity points to the decisive flaw in this argument as to the proper construction of the constitution and the preselection rules, because it would give rise to a real and repeated risk of the constitution being ineffective in respect of the paramount objective of The Greens NSW to enter candidates to contest elections for the Senate and the New South Wales Legislative Council.
First, this construction of the constitution and the preselection rules would require a new recount every time a preselected candidate dropped off the ticket for any reason. Secondly, a recount would be required at whatever time a candidate ceased to be eligible for inclusion in the ticket, even at a time when it was practically impossible for the recount to be undertaken within a time and in a manner which enabled The Greens NSW to lodge nomination papers with the Electoral Commissioner. That would subject The Greens NSW's electoral aspirations to fatal risk by misadventure and even sabotage, and would therefore be rejected as a proper construction of the documents except in the face of clear wording, which is not present.
The plaintiffs also argued that the requirement in rule 9.8 of the preselection rules that all valid votes be counted by a method similar to the method of counting used in Senate elections, and that counting will follow the system used to elect Senators, imports the application of subs 27 of s 273 of the Commonwealth Electoral Act 1918 (Cth) (Commonwealth Electoral Act). That subsection provides:
(27) In any case to which subsection 239(4) applies, a vote indicated on a ballot paper opposite the name of a deceased candidate shall be counted to the candidate next in the order of the voter's preference, and the numbers indicating subsequent preferences shall be deemed to be altered accordingly.
Section 239 deals with how votes are to be marked on the ballot paper in Senate elections, and subs (4) provides:
Candidates who die before polling day
(4) Where a candidate dies between the date of nomination and polling day, and the number of candidates remaining is greater than the number of candidates to be elected, a ballot paper shall not be informal by reason only:
(a) of the inclusion on the ballot paper of the name of the deceased candidate;
(b) of the marking of any consecutive number opposite that name; or
(c) of the omission to place any number opposite that name, or of any resultant failure to indicate in consecutive order the voter's preferences.
There are a number of answers to the plaintiffs' reliance upon these provisions of the Commonwealth Electoral Act. First, the plaintiffs' argument does not, in reality, involve the construction of the wording of the constitution or the preselection rules, but rather the submission that a wholly new provision should be imported into those provisions because of the reference to the preselection balloting following the system used to elect Senators.
The two sections of the Commonwealth Electoral Act relied upon apply to the counting of votes in a Senate election and have nothing to do with a recount. The sections contain nothing that compels a conclusion that, when Part 9 of the preselection rules speaks of the counting of votes, anything is to be implied about the requirement for a recount in any circumstances.
If it were proper to imply anything into the preselection rules from these sections of the Commonwealth Electoral Act, it would only be that, if in the original preselection process a candidate on the ballot paper died before voting was complete, then votes for that candidate would be given to candidates listed below that candidate by the relevant electors in order of preference. That is an issue that does not arise in this case. The sections say nothing about what should happen if, for instance, a senator who was validly elected died before being sworn in.
In any event, there is no warrant for equating candidates for election to the Senate who die before the election is completed to candidates who are preselected by The Greens NSW for nomination to the ballot paper for elections for the Senate or the New South Wales Legislative Council but who become ineligible, resign or die before being formally nominated.
In my view, the resolution of this aspect of the dispute is relatively straightforward. When the relevant provisions in Part 9 of the preference rules speak of "counting" the votes in the preselection, they mean "counting" and say nothing about the circumstances in which there could, or should, be a re-counting. Neither the constitution nor the preselection rules provide for a recount. A recount is not necessary because, if a preselected candidate drops out for any reason, the order in which candidates are placed on the electoral ticket can be maintained by simply moving the places of candidates up to fill the gap.
[11]
Conclusion
It was incumbent upon the plaintiffs to prove that the constitution of The Greens NSW and the preselection rules had the combined effect, on their proper construction, of requiring a recount of the type contended for by the plaintiffs, following the resignation of Mr Buckingham. I have concluded that the constituent documents had the contrary effect. The plaintiffs' claims in prayers 12 and 13 of their summons should be dismissed, and consequently the summons should be dismissed.
[12]
Alternative discretionary considerations
Had I been unsure of the proper construction of the constitution and the preselection rules that should be adopted, or even if I had been inclined to the view that the construction proposed by the plaintiffs was correct, I would nonetheless in the exercise of my discretion have declined to make the declarations and to grant the injunction sought by the plaintiffs.
There was considerable dispute during the hearing as to whether the plaintiffs were at fault, or should be deprived of any relief to which they would otherwise have been entitled, because of their delay in commencing these proceedings. The position taken by the plaintiffs was that the course that The Greens NSW would take in response to the constitutional dispute did not crystallise until the officers made the decision on the morning of 28 February 2019 to proceed by way of bumping up the candidates on the ticket. The defendants responded by submitting that there was a real conflict concerning the effect of the constitution and the preselection rules from shortly after Mr Buckingham's resignation from The Greens NSW, and that as time passed and the issue was not resolved to the plaintiffs' satisfaction, the plaintiffs had the opportunity to commence proceedings for declarations to establish the validity of the construction of the constitution and the preselection rules for which they contend.
It is a matter for speculation whether, if the plaintiffs had commenced these proceedings earlier, they would have been able to satisfy the Court that it was proper for the Court to entertain an application for declarations as to the proper construction of the constitution and the preselection rules, so long as time remained for The Greens NSW to resolve the dispute by its internal processes. As the Court will often refuse to review a determination of disputes between members of a voluntary association by an internal tribunal (see, for example, Australian Football League v Carlton Football Club Ltd [1998] 2 VR 546, at 549-550), the Court may have declined for discretionary reasons to resolve the constitutional dispute between the members of The Greens NSW, given that the constitution provided that the State Delegates Council had express power to resolve the issue. I do not consider that the issue of delay in commencing the proceedings is determinative.
However, I do consider that the consequences of the delay, being the extremely limited time left for The Greens NSW to conduct a recount and to effectively process the preparation and lodgement of the necessary nomination papers is decisive. As I have stated above, it is impossible for the Court to know, if it ordered a recount, whether the recount could be carried out and the nomination papers effectively lodged before the deadline imposed by the Electoral Act.
The risk that the Greens NSW will miss the deadline if a recount is required is increased by certain other constitutional requirements that I have analysed above, including the need for a report by the returning officer.
Even if there were a risk that the constitutional arrangements of The Greens NSW had not properly been followed, I would have considered that to be a consequence of interested members, including the plaintiffs, not taking the steps available in a timely way to have the relevant organs of The Greens NSW resolve the dispute in the manner provided for in the constitution. While it is possible that Ms Walker may have consequently lost an opportunity to occupy a higher and more readily electable position on The Greens NSW ticket, the significance of that lost opportunity must be measured against the risk that The Greens NSW will not effectively nominate candidates for the Legislative Council election, or may lose the opportunity to have their candidates voted for above the line. I would take into account not only the interests of the parties to these proceedings, but also the interests of all members of The Greens NSW, and the interests of all persons in this State who may wish to vote for the party. As the proceedings were required to be determined with the swiftest dispatch that is possible for this Court to exercise, the risk of human error on my part would have caused me to exercise my discretion to stay my hand and decline to grant the relief sought by the plaintiffs, and instead to leave the affairs of The Greens NSW to operate in accordance with the internal arrangements that have in fact been put in place. That will involve the relevant officers implementing the terms of the resolutions made by the State Delegates Council on 27 February 2019, in such manner as they may deem appropriate.
[13]
Final matters
In the circumstances it has not been necessary for me to deal with the arguments put on behalf of Ms Boyd as to why it would have been procedurally unfair for her, if the Court had proceeded to hear the case in the extreme circumstances that have occurred and granted the relief sought by the plaintiffs.
I mention also that there was evidence as to how The Greens NSW had resolved similar problems in the past, when candidates had dropped out for one reason or another. I do not consider that evidence to be relevant to the interpretation of the constitution or the preselection rules, although I acknowledge that in the latter case there is a theoretical argument as to their relevance. I have not found this evidence necessary to be taken into account in coming to my view as to the proper construction of the constitution and the preselection rules.
[14]
Order
I record that I have already made an order dismissing the plaintiffs' summons. I will hear the parties on the issue of costs.
[15]
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Decision last updated: 06 March 2019