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[2021] VSC 671
General information, not legal advice.
Supreme Court of Victoria
2021-10-19
Ginnane J
Original judgment source is linked above.
ASSOCIATIONS - Political parties - Australian Labor Party - National Executive - Media allegations of branch stacking - Intervention in Victorian Branch - Administrators appointed - Whether intervention valid - Powers of the National Executive - ALP structure - Relationship between the National Constitution and Branch Rules - Branch Rules - Amendment by Administrators - Whether amendments valid - Disciplinary charges brought in respect of alleged branch stacking - Whether charges valid - Whether issues raised justiciable.
TRUSTS - Whether beneficiaries can bring claim for unlawful interference with the administration of trusts by third party - Whether special circumstances existed.
For the 1st - 11th, 13th and 16th - 26th Defendants
Mr P G Willis SC with Mr A D Lang, Mr J H Kirkwood and Mr G Jegatheesan
1 Ms Marlene Kairouz is a member of the Australian Labor Party (the 'ALP'), the member for Kororoit in the Victorian Parliament and a former Minister in the current Victorian Government. She has brought this proceeding to challenge the validity of the National Executive's intervention in the Victorian Branch, amendments made to the Branch Rules and the disciplinary charges alleging involvement in, or knowledge of, branch stacking brought against her by the Administrators of the Branch. The Administrators were appointed as part of the intervention, which followed a television program and subsequent media coverage in June 2020 containing allegations of branch stacking in the Victorian Branch.
2 Ms Kairouz challenges resolutions passed by the National Executive providing for the intervention and the appointment of the Administrators and the amendment of the Victorian Branch Rules.
3 I immediately state that it is not the role of this Court to decide whether the disciplinary charges brought against Ms Kairouz have substance. I note that she denies them.[1]
4 The defendants are the Administrators, the members of the National Executive and the trustees of trusts under which the Victorian Branch's property is held.
5 This case raises three particular questions that bear on the challenges to the National Executive's Resolutions. The first question is whether Ms Kairouz's case is of the kind with which a court will become involved. Using the legal term, is it justiciable? The defendants say that it is not justiciable because a court will not become involved in an internal dispute of a political party, which is an unincorporated association. They rely on Cameron v Hogan,[2] a decision of the High Court in 1934, in which Mr Edmond Hogan, the Labor Premier of this State, sought unsuccessfully to challenge his expulsion from the ALP following a disagreement about economic and employment policies during the Great Depression. I must apply the decision in Cameron v Hogan as there is no subsequent High Court decision which questions it. Legislation now exists enabling political parties and other associations to obtain incorporation and thereby bring some of their internal disputes within the jurisdiction of courts, but most major political parties have not taken advantage of it. However, Ms Kairouz relies on exceptions to the general principle in Cameron v Hogan and also submitted that it could be distinguished from the facts or circumstances of this case.
6 The second question is whether the Victorian Branch of the ALP is a separate entity to what was described as the Federal ALP. Both of them are unincorporated associations. If the Victorian Branch is a separate entity, that might influence the interpretation of the National Executive's powers in respect of Branches conferred by the National Constitution and also influence the interpretation of the Victorian Branch Rules.
7 The third question is whether the disciplinary charges brought against Ms Kairouz are valid. In particular, the question is whether the charges, which rely on Branch Rules as amended by the National Executive on 14 September 2020, are able to apply to Ms Kairouz's conduct alleged to have occurred prior to the amendments.
8 I have decided that Ms Kairouz's claim that the National Executive's intervention by the Administration Resolution was an unlawful interference with the trusts upon which the Victorian Branch property is held is justiciable. I also consider that she has the legal standing to bring that claim. This claim comes within one of the exceptions recognized in Cameron v Hogan. Having decided that the Court can and will hear that claim, I next had to decide whether the claim has been proved or established. My conclusion is that Ms Kairouz has not proved or established her claim that the National Executive has interfered with the administration of the Branch trusts by passing and implementing the Administration Resolution.
9 I have decided that Ms Kairouz's other grounds for challenging the National Executive's Resolutions and the disciplinary charges are not justiciable, meaning that they are not claims with which the Court will become involved, or will decide, because they are internal disputes within a political party, which is an unincorporated association. The claims do not fall within any of the exceptions recognized in Cameron v Hogan nor do I consider that any grounds have been established for distinguishing that decision from the facts or circumstances of this case.
10 However, as I am required to do, I have considered Ms Kairouz's other grounds of challenge to the National Executive's Resolutions. Having done so, I have reached the conclusion that, even if they were justiciable, none of her grounds of challenge would have succeeded in establishing that the Resolutions were invalid.
11 In answering the second question, I have decided that the Victorian Branch of the ALP is not a separate legal entity, but as the word Branch, which is part of its name, indicates, it is part of the ALP.
12 In answering the third question, so far as the disciplinary charges against Ms Kairouz are concerned, if contrary to my conclusion, I had found that her challenge to the charges was justiciable, I would have found that Charges One and Two were invalid and that Charge Three was valid. For reasons that I give in the judgment, I would have expressed no opinion about Charge Four.
14 The plaintiff, Ms Marlene Kairouz, has been a member of the ALP since 1997 and the member for Kororoit in the Victorian Legislative Assembly since 2008. Between December 2014 and 16 June 2020, she was Cabinet Secretary and then Minister in the Victorian Government. Under ALP practice, as an MP, Ms Kairouz was required to pay, and has paid, to the Victorian Branch 6.28% of her salary since her election to Parliament.
15 On 16 June 2020 the National Executive of the ALP ('the National Executive') appointed the first and second defendants, Mr Steve Bracks, formerly the Premier of Victoria and Ms Jenny Macklin, previously a member of the House of Representatives and a Minister in the Australian Government, as Administrators of the Victorian Branch ('the Administrators'). On 31 January 2021, the final day of their appointment, the Administrators, purporting to act under rr 26.4.2 and 26.6.5 of the Amended Rules, charged Ms Kairouz with alleged contraventions of the Amended Rules relating to branch stacking. The Acting State Secretary served the charges on Ms Kairouz at 10:53pm on that day.
16 Ms Kairouz seeks an injunction restraining the defendants from proceeding with the charges brought against her by its Disputes Tribunal. She challenges the National Executive's resolution to appoint the Administrators to control the Victorian Branch, its making of amendments to the Victorian Branch Rules, including those under which she was charged, the action of the Administrators in laying the charges and their validity. She also challenges other resolutions of the National Executive.
17 The third to twentieth, twenty-second and twenty-third defendants constituted the National Executive as at 16 June 2020, and remain members of it. After 16 June 2020, the twenty-first defendant was appointed to the National Executive to fill the vacancy occasioned by the resignation of Mr Adem Somyurek.
18 The twenty-second to twenty-sixth defendants constitute the Interim Governance Committee of the Victorian Branch appointed by the National Executive with effect from 1 February 2021 to replace the Administrators ('the Interim Governance Committee'). The twenty-seventh and twenty-eighth defendants, Mr James McWhinney and Labor Services & Holdings Pty Ltd, who are trustees of Victorian Branch trusts, were joined as defendants during the trial and are sued in their capacity as trustees.
19 The twelfth, fourteenth and fifteenth defendants in this proceeding, all of whom were members of the National Executive, and who were also the tenth, twelfth and thirteenth defendants in S ECI 2021 01465 Asmar v Albanese ('the Asmar Proceeding'), were separately represented and made separate submissions on a number of issues, some of which were to similar effect as the other defendants. I will refer to them, where it is necessary to distinguish their submissions or their claims, as the Three Defendants. Otherwise, I will refer to all defendants, including the Three Defendants, as the defendants.[4] Although the Three Defendants had chosen to be separately represented in both proceedings, they said 'for the avoidance of doubt... their participation in, and role on, the National Executive is not relevantly different to that of the other members of the National Executive named as defendants in the Asmar Proceeding and the Kairouz Proceeding'.[5]
Connection between this case and the Asmar Proceeding
20 This proceeding was heard immediately after the Asmar Proceeding, which includes a challenge to the National Executive's Preselection Resolution of 4 May 2021 to take over the preselections of candidates for safe Victorian ALP seats in the House of Representatives. The Asmar plaintiffs also challenged the validity of the other resolutions of the National Executive, which Ms Kairouz challenges in this proceeding.
21 The first of these is the Administration Resolution of 16 June 2020 ('the Administration Resolution'), whereby the National Executive intervened in the Victorian Branch, took over and directed the conduct of its affairs and appointed Administrators to it. The second is the Rule Amendment Resolution of 14 September 2020 ('the Rule Amendment Resolution') by which the National Executive amended the Victorian Branch Rules, particularly those prohibiting branch stacking. The third is the Further Amendment Resolution of 29 January 2021 ('the Further Amendment Resolution'), by which the National Executive made further amendments to the Victorian Branch Rules and appointed the Interim Governance Committee.
22 Because of common issues in the proceedings, I allowed the parties in the Asmar Proceeding to participate in this proceeding as appropriate and allowed Ms Kairouz to participate in the Asmar Proceeding. I later made an order that the proceedings be heard together and that evidence in one be evidence in the other. Many issues and submissions were common to both proceedings. Where issues overlapped I have considered all the submissions about them made in both proceedings, although I have only recorded the submissions in the proceeding in which they were made. However, some issues only arose in one proceeding, for example the issue of the disciplinary charges in the Kairouz Proceeding or the Preselection Resolution in the Asmar Proceeding. I have determined those issues in the proceeding in which they arose.
23 The main issues for decision in this proceeding are as follows:
1. The justiciability of Ms Kairouz's claims, requiring consideration of:
(a) the decision in Cameron v Hogan;
(b) exceptions to the principle in Cameron v Hogan,
(i) the proprietary interest, trust, exception,
(c) grounds for distinguishing the decision in Cameron v Hogan - the statutory recognition of political parties.
2. The validity of the following resolutions of the National Executive:
3. The validity of the Administrators' disciplinary charges against Ms Kairouz.
24 On 14 June 2020, Channel 9 broadcast a report on its 60 Minutes program titled 'The Faceless Man'. The report contained allegations of branch stacking within the Victorian Branch, focusing on the activities of the then Victorian Minister for Local Government and Small Business within the Victorian Labor Government, Mr Adem Somyurek.
25 The defendants[6] described the program's report as including video and audio recordings and depicting a significant branch stacking operation within the Victorian Branch. Among the principal speakers in the recording were Mr Somyurek and Ms Kairouz. Among other things, the recordings were said to depict the funding of party memberships for other individuals who were apparently unwilling to pay for their own subscriptions, the recruitment of members who did not live at, and were not enrolled to vote at, their claimed addresses, and attempts to procure the forgery of branch members' signatures. Those activities were alleged to have been engaged in to gain advantage in local party meetings or ballots. The recordings included statements alleged to have been made by Ms Kairouz about the renewal of memberships.
26 The defendants tendered a copy of the 60 Minutes program and played it as part of their case. The defendants described the events that it addressed and depicted as including: Mr Somyurek making efforts to stack branches in the south-eastern suburbs of Melbourne; Mr Somyurek meeting with a person who was said to be branch stacking for him and who was his preferred candidate to replace a sitting Labor MP; Mr Somyurek's efforts to enlist the Indian community; Mr Somyurek's use of a parliamentary employee 'to deliver Indians' for him; and that persons use of fake addresses to deliver new members for him. They said that it also addressed payments for membership including payments made by Mr Somyurek himself for memberships and handing cash payment and membership forms to a staff member of Ms Kairouz.[7]
27 Ms Kairouz was described in the program as Mr Somyurek's 'trusted left hand' and the program made allegations that she helped him 'take over the Labor Party branch by branch'.[8] In one audio recording Ms Kairouz is said to be 'directing Labour staffers to find even more fake members to join the party'[9] when stating:
Marlene Kairouz: You guys have come in now. We are in charge. We're it. Everyone looks to us now for leadership, like whether it's in the Parliament. People come to Adem and I, particularly Adem, and they don't know anything. So, we are in charge now, and I think - I mean you guys know that, but I think you need to show that we are as well.
Adem Somyurek: We need to strut around town.
Marlene Kairouz: Yeah. Yeah. No. Don't be arrogant about it. But I'm just saying we're it. People don't do things without us. But we don't want to treat people disrespectfully as well, because we're very big. But if we can continue to grow, well why not.[10]
28 On the evening of 14 June 2020, following the broadcast of the 60 Minutes report, The Age newspaper published a number of articles on its website relating to the matters covered in it. The Age also published further reports on these matters on its website and in its print editions on 15 and 16 June 2020. For example, one article published 15 June 2020 in The Age stated:
Victorian minister Adem Somyurek handed over thousands of dollars in secret cash drop-offs and used political advisers meant to be working for other MPs to stack branches with fake members and amass significant political power inside the Australian Labor Party.[11]
29 That evening and the following morning, The Age published extensive reports on its website covering the matters in the 60 Minutes report, and providing further detail from the audio and video recordings. The defendants referred by way of example to the following statements in one article:
The Age and 60 Minutes have obtained more than 100 audio and video surveillance files...
"Our people have been putting like industrial-scale numbers, you know, just
f---ing masses for a year," [Mr Somyurek] says on one recording in which he describes his state-wide activities...
He claims that across Victoria, his operation involves placing fake members into branches every month. "We've got f---ing massive numbers" being stacked in seats, he tells several young Labor operatives on one tape. He describes stacking in the federal seat of Calwell...and putting "massive numbers in Lalor"...
Somyurek is dismissive of the idea that some of the members he's signing up are actually interested in joining the ALP, scoffing at the prospect that "by some stroke of amazingness, that some people joined [the ALP] of their own accord".
He can easily "rock up f---ing 50 people to a branch meeting" and discusses with zeal how to cover up branch stacking through a practice called "warehousing". This involves getting members to sign up with false addresses, only to later move them to different branches in different locations after their membership addresses have been accepted as genuine.
"I think we do need to do some warehousing. So you put some people in now. And in about a year later, put them in...another area," he says in one recording...
[Ms Kairouz] complains on one recording that renewing the membership of hundreds of party members takes forever and "my staff were just working on that, it was terrible.
...
Somyurek is forced to dip into his own pocket to pay for other fake members, including his Somali recruits. "I'll have to pay for them," he says of Somalis. "They didn't want to do it because they were stretched. ..."[12]
30 The article contended that some of the audio and video captured what appears 'to be attempted falsification of documents.'[13]
31 The article also referred to Ms Kairouz, stating:
Kairouz, who did not respond to efforts to contact her, is taped having discussions about using staffers on the public purse, including her adviser Nick McLennan, for political work. She complains on one recording that renewing the membership of hundreds of party members takes forever and 'my staff were just working on that, it was terrible'.[14]
32 Between 14 and 16 June 2020, the matters reported by 60 Minutes and The Age were also reported extensively by other media outlets, both in print and online, across Australia, including the ABC, The Sydney Morning Herald, The Australian Financial Review, The Australian and other News Ltd publications, The Guardian, The Canberra Times and The New Daily.[15]
33 On 15 June 2020, Mr Daniel Andrews, the Premier of Victoria, wrote to the National Secretary of the ALP, stating:
I write to notify you of my intention to charge Mr Adem Somyurek with offences under the Australian Labor Party Victorian Branch Rules, and to request that the National Executive hear and determine those charges and, if satisfied that offences have been committed, expel Mr Adem Somyurek as a member of the Australian Labor Party.
Reports broadcast on 60 Minutes on 14 June 2020 and published in The Age newspaper on 15 June 2020, show Mr Somyurek making threats about a Cabinet Minister, and derogatory remarks about Members of Parliament, Young Labor members and others. The reports also identify significant evidence of offences relating to party memberships. In my view, the ALP should not have as a member someone who conducts himself in this manner.
I will write to you further shortly in relation to the charges.
I also advise you that the Victorian Attorney General has referred all of these matters to Victoria Police and the Independent Broad-based Anti-corruption Commission for investigation.[16]
34 At 10:26am on 15 June 2020, Mr Andrews' Chief of Staff, Ms Lissie Ratcliff, sent an email attaching his letter to Mr Tim Gartrell, the Chief of Staff of Mr Anthony Albanese, the Federal Parliamentary Leader of the ALP, requesting that it be brought to Mr Albanese's attention.[17] At 11:15am, Mr Gartrell replied to Ms Ratcliff's email stating 'He's got it'.[18]
35 At 10:53am on 15 June 2020, Mr Somyurek resigned his membership of the ALP.[19]
36 At 7:03pm on 15 June 2020, Ms Susie Byers, the President of the Victorian Branch sent an email, authorised by the State Secretary Ms Clare Burns, to Victorian Branch members stating:
Many Labor members will have watched recent media reports with a sense of dismay and betrayal. Adem Somyurek's behaviour has no place in our party and the Premier has acted swiftly to ensure that he has no future in our party.
The types of behaviour that were reported in the media are serious and will be dealt with through the appropriate channels as outlined by the Premier.
So many Labor members work tirelessly to see our party succeed and help elect Labor Governments. So many of us are disappointed when actions like these cast a shadow over that hard work. We can't let these actions undermine the progressive change we see out Labor Government create every day.
How we run our party matters. Our members deserve a party that is open, transparent and democratic. Where we treat each other with respect, and build the respect and trust of the wider community.
Members need to have a voice, and I will work with all Victoria Labor members - individuals, and affiliated unions - to ensure that the most progressive government is Australia is backed by the most progressive and democratic party. Our members - and the Victorian community - deserve no less.[20]
37 At 8:58am on 16 June 2020, Paul Erickson, the ALP National Secretary, sent an email attaching a document he described as 'my understanding of the discussions between the Federal Leader and the Victorian Leader'.[21] That document stated:
DRAFT Victorian Branch matters
Objectives
Restructure the Victorian branch of the ALP.
Reconstitute the branch membership so that it comprises genuine, consenting, self-funding party members.
Break the business model of the branch stackers.
Principles of action
The structures and processes of the Victorian branch will not be capable of achieving these objectives.
An extended period of national oversight is required.
There must not be any bias - actual or perceived - towards or against any one faction or group.
The requirement for a National Executive involvement is not a reflection on any current or former Party officials.
Intervention
ALP National Executive exercises its powers under Rule 16(f)(ii) to appoint Steve Bracks and Jenny Macklin as administrators of the Victorian Branch.
In doing so, ALP National Executive is taking over the affairs of the Victorian Branch.
The National Executive administrators are appointed for an initial term extending to 31 January, 2021.
For the term of the National Executive intervention:
Administration Roadmap
National Executive directs the administrators provide an initial report setting out an Administration Roadmap to the National Executive by 31 July 2020.
The Roadmap will include recommendations to the National Executive on integrity measures for the Victorian Branch membership, including a membership audit.
The Roadmap should also include processes for consulting with the Party membership.
The Administrators should develop the Roadmap in consultation with the Victorian State Secretary and the Victorian Branch President.
Reform plan
The National Executive requests that the administrators report back by 1 November, 2020, with a Victorian Branch Reform Plan.
The Reform Plan will include recommendations on how the Victorian Branch should be restructured and reconstituted so that the branch membership comprises genuine, consenting, self-funding party members.
Suspension of voting rights
National Executive notes the request of the Victorian Labor Leader that all voting rights in the Victorian Branch be suspended until at least 2023.
National Executive will exercise its powers under Rule 16(f)iii to conduct all preselections for the next federal and state elections.
Administration support
For the term of the National Executive intervention, officials and staff of the Victorian Branch shall report to the Administrators.
National Executive will consider the need for an Executive Director, to support the work of the Administrators.
Should the Administrators require special advice or professional services, these shall be appointed with the approval of the National Executive Committee.[22]
38 On 16 June 2020, Mr Andrews wrote again to the National Executive stating:
I write to request your endorsement of a process for reform of the Victorian Branch of the Australian Labor Party to guarantee integrity and probity in all of our affairs.
This plan has my full support as both leader of the Victorian Parliamentary Labor Party and Premier of Victoria.
I have no confidence in the integrity of any voting rolls that are produced for any internal elections in the Victorian Branch. Accordingly, we must suspend those elections and begin a long and critical process of validating each and every member of the Labor Party in Victoria as genuine, consenting and self-funded.
I cannot accept yet another review that, while well intentioned, cannot and will not deliver the profound reform that is required.
I have asked Steve Bracks and Jenny Macklin to serve as administrators of the Victorian Branch while this process is undertaken and I ask that you appoint them to those roles. I have full confidence that they are best placed to undertake this work.
I seek your agreement to the detailed plan attached to this correspondence and I look forward to your support and assistance in making these fundamental reforms so that we can, in all ways, be a party that lives its values.[23]
39 Mr Andrews attached to his letter a document titled 'National Executive oversight of reforms to the Victorian ALP' which stated:
National Executive Oversight
ALP National Executive exercises its powers under Rule 16(f)(ii) to appoint Steve Bracks and Jenny Macklin as administrators of the Victorian Branch.
The administrators are appointed for an initial term extending to 31 January, 2021.
For the term of the National Executive oversight:
Initial scoping report
National Executive directs the administrators provide an initial scoping report by 31 July 2020.
The scoping report will include recommendations to the National Executive on integrity measures for the Victorian Branch membership.
The scoping report should also include processes for consulting with the Party membership.
The administrators should develop this scoping report in consultation with the Victorian State Secretary and the Victorian Branch President.
Final Report
The National Executive requests that the administrators report back by 1 November 2020, with a final report.
The final report should include recommendations on how the Victorian Branch should be restructured and reconstituted so that the branch membership comprises genuine, consenting, self-funding party members.
Suspension of voting rights
National Executive notes the request of the Victorian Labor Leader that all voting rights in the Victorian Branch be suspended at least until 2023.
National Executive will exercise its powers under Rule 16(f)iii to conduct all preselections for the next federal and state elections.
Administration support
For the term of the National Executive oversight, officials and staff of the Victorian Branch shall report to the administrators.
National Executive will consider the need to further support the work of the administrators.
Should the administrators require special advice or professional services, these shall be appointed with the approval of the National Executive Committee.[24]
40 At 5:42pm on 16 June 2020, the agenda for the meeting together with Attachments A and B, were emailed to the members of the National Executive. The agenda for the meeting referred to meetings of the National Executive Committee[25] occurring on 15 and 16 June 2020. Mr Andrews' correspondence of 15 and 16 June and an email from Mr Somyurek to the State Secretary resigning his membership were also attached.
41 The National Executive met via telephone between 7:00pm and 7:28pm and passed the Administration Resolution which in effect implemented the 'oversight' requested by Mr Andrews. The steps which were taken under the National Executive 'oversight' might also be described as the National Executive's intervention in the Victorian Branch.
42 The Administration Resolution was in the following terms, which were very similar to the attachment to Mr Andrews' letter sent earlier that day:
National Executive notes the correspondence from the Premier of Victoria in relation to necessary reform of the Victorian Branch.
National Executive resolves to exercise its powers under Rule 16(f)(ii) to appoint Steve Bracks and Jenny Macklin as administrators of the Victorian Branch. The administrators are appointed for an initial term extending to 31 January, 2021.
For the term of the National Executive oversight:
National Executive directs the administrators to provide an initial scoping report by 31 July 2020. The scoping report will include recommendations to the National Executive on integrity measures for the Victorian Branch membership. The scoping report will include recommendations on how to maintain affiliate representation in the Victorian ALP. The scoping report should also include processes for consulting with the Party membership and affiliated unions. The administrators should develop this scoping report in consultation with the Victorian State Secretary and the Victorian Branch President.
The National Executive requests that the administrators report back by 1 November 2020, with a final report. The final report should include recommendations on how the Victorian Branch should be restructured and reconstituted so that the branch membership comprises genuine, consenting, self-funding party members.
National Executive notes the request of the Victorian Labor Leader that all voting rights in the Victorian Branch be suspended at least until 2023. National Executive will exercise its powers under Rule 16(f) iii to conduct all preselections for the next federal and state elections.
For the term of the National Executive oversight, officials and staff of the Victorian Branch shall report to the administrators. National Executive will consider the need to further support the work of the administrators. Should the administrators require special advice or professional services, these shall be appointed with the approval of the National Executive Committee.[26]
43 On 31 July 2020, the Administrators provided a 'Scoping Report' to the National Executive, which included details on the progress of an audit of the Party's membership in Victoria by Deloitte and feedback from members to the Administrators regarding rule changes and other matters. It also recommended the adoption of a revised resolution that would include amending the existing Victorian Branch Rules to prohibit cash and cash like payments for memberships and membership renewals.
44 On 14 September 2020, the National Executive resolved that the 'Victorian Branch Rules be adapted in order to confirm the Administrators' powers'[27] which included r 26 titled 'Temporary Rules Applicable During the Period of the Administration'.[28] These new rules gave the Administrators powers during the period of the administration to 31 January 2021, including the power to charge a member with a breach of the branch stacking rules and to revoke the membership of a member.
45 By the Rule Amendment Resolution, the National Executive amended the existing rules by:
(a) changing the definition of 'branch stacking' from:
5.17.1.1 Branch stacking is conduct unacceptable to the Party. Branch stacking is defined as the enrolling of persons to the Party by offering inducement or enrolling persons for the principal purpose of influencing the outcome of ballots of members within the Party.
5.17.1.2. Branch stacking is conduct unacceptable to the Party. Branch stacking means any activity relating to enrolling members, renewing memberships or transferring members between branches:
5.17.1.2.1 Engaged in for the predominant purpose of influencing the outcome of ballots of members within the party; or
5.17.1.2.2. That has the effect, or is likely to have, or intended to have, the effect of enrolling a member, or retaining as a member, a person who is not a genuine member.
(b) adding r 26.4 'Breach of branch stacking rules' in the following terms:
26.4.1. This Rule applies when the Administrators allege that a member has breached the branch stacking rules.
26.4.2. The Administrators may, in their absolute discretion, charge a member with a breach of the branch stacking rules.
26.4.3. In the event that the Administrators charge a member under sub-rule 26.4.2, the charge will be dealt with by the Disputes Tribunal in accordance with Rule 20 of these Rules, subject to sub-rules 26.4.4 and 26.6.
26.4.4. For the purposes of sub-rule 26.4.3, a member charged with branch stacking is presumed to have engaged in the activity or activities in question;
26.4.4.1. for the predominant purpose of influencing the outcome of ballots of members within the Party; and/or
26.4.4.2. with the intention of enrolling as a member, or retaining as a member, a person who is not a genuine member;
26.4.5. Despite anything in these Rules to the contrary, the Administrators may suspend the membership of a member who has been charged under sub-rule 26.4.2 pending a decision by the Disputes Tribunal in accordance with sub-rule 26.4.3.'
(c) adding rr 26.6.4 and 26.6.5 empowering the Administrators to charge members with breaches of the branch stacking rules and other disciplinary offences; and
(d) adding r 26.6.7 to the effect that '[a] decision made by the Administrators in relation to the administration is not subject to review by the Disputes Tribunal' constituted under the Rules of the Victorian Branch.
46 On 20 November 2020, Mr Bracks and Ms Macklin wrote to Ms Kairouz, notifying her that, as the appointed Administrators of the Victorian Branch of the ALP, they were 'tasked with ensuring all members of the Victorian branch are genuine, consenting, and self-funding'.[29] The Administrators also asked questions about Ms Kairouz's alleged involvement in branch stacking. Extensive correspondence and communication followed. Some of the Administrators' questions concerned statements by Ms Kairouz when she took part in a meeting in early 2020 held in a Ministerial conference room, at which Mr Somyurek and staff were present. The discussion at that meeting was covertly recorded by a person unknown and an ALP employee later prepared a transcript of the discussion by listening to that recording. The recording is said to have been destroyed. The charges that Ms Kairouz now faces appear, in part, to be based on the recording of that discussion. Many of the questions the Administrators posed to Ms Kairouz sought her explanation of terms that she and others were alleged to have used in the meeting.[30]
47 Ms Kairouz responded to the Administrators in a number of letters. She initially said that as she was surreptitiously recorded, unless she knew the context of the conversation, she could not recall what she meant by some terms that she was said to have used.[31] She requested access to the recording. In later correspondence, Ms Kairouz corrected and clarified some of the words attributed to her by the Administrators and confirmed that her reference to 'checklists' at the first meeting was for the purpose of good administration and organisation and not because of any plans made with Mr Somyurek.[32] She denied involvement in, or knowledge of, any branch stacking. She described the role that her office and staff performed in processing membership applications in accordance with the prescribed rules. She denied being involved in membership renewal processes, stating that this was left to voluntary activists and that it was common for paid staffers also to be party activists. She clarified the role that one member of her staff performed and denied any knowledge of membership transfers between different branches. She explained her attendance at the meeting as occurring by chance when, while walking past the conference room, she was invited into a meeting that was taking place there.[33]
48 On 23 November 2020, the Administrators provided their Final Report to the National Executive. It contained 37 recommendations to rebuild the Branch, including that the National Executive amend the Victorian Branch Rules in relation to membership, the payment of membership fees, renewal of memberships, and to establish a Party Monitor. The Administrators also recommended that the National Executive appoint an Interim Governance Committee, to stand in the stead of the Administrative Committee and be responsible for good governance until a new Administrative Committee was elected. The Final Report also described the Administrators' investigation into Branch Stacking, stating:
In addition to cleansing the membership roll of non-genuine members, we considered it was critical to investigate the actions of some members in the Party, including those identified in the media, in order to hold them to account for the damage they inflicted on the Branch.[34]
The National Executive's Resolutions of 27 November 2020
49 On 27 November 2020, the National Executive passed two resolutions. In the first resolution, the National Executive:
(a) accepted the Administrators' Final Report and adopted their recommendations;
(b) confirmed that the appointment of the Administrators would cease after 31 January 2021 and that, with effect on 1 February 2021, the affairs of the Victorian Branch would be managed by an Interim Governance Committee appointed by the National Executive, until the election of a new Administrative Committee;
(c) gave effect to recommendations 29 and 30 by making changes to the Victorian Branch Rules relating to membership by amending rr 5.7.6 and 5.12.2 and inserting new rr 5.3.6 and 5.3.7; and
(d) noted that, in order to give effect to recommendations requiring further changes to the Victorian Branch Rules, the National Executive would receive the Administrators' recommended rules changes as an exposure draft to be considered by the National Executive no later than 31 January 2021.[35]
50 In the second resolution, the National Executive appointed Victorian Branch President Susie Byers, Ben Davis, Michael Donovan and National Executive member Linda White to the Interim Governance Committee, and referred the matter of the appointment of a further member to the National Executive Committee for decision prior to 31 January 2021.[36]
51 On 29 January 2021, the National Executive resolved to further amend the Amended Rules by:
(a) rescinding r 26 of the Amended Rules;
(b) providing for the appointment by the National Executive of the Interim Governance Committee to replace the Administrators and perform all the functions of the Administrative Committee and Party Officers of the Victorian Branch and to facilitate the progression of the Victorian Branch from the control of the Administrators from 31 January 2021 to the Interim Governance Committee; and
(c) adding r 26.8.1 in the following terms:
Notwithstanding that the appointment of the Administrators ceased as at midnight on 31 January 2021, charges laid by the Administrators during the period of the administration shall be heard and determined by the Disputes Tribunal in accordance with rule 26 as it applied during the administration and any suspension of the member in question shall continue.
Events following the Further Amendment Resolution
52 On their last day as Administrators, Mr Bracks and Ms Macklin charged Ms Kairouz with several contraventions of the Amended Rules relating to alleged branch stacking.
53 At 10:53pm, the Acting State Secretary, Mr Chris Ford, wrote to Ms Kairouz informing her of the charges. His letter stated:
I write to advise that a formal complaint has been made against you by the Party Administrators for allegedly breaching the Rules of the Party, namely:
Engaging in conduct that amounts to a disciplinary offence under Rule 20.5.1.4; and
Engaging in conduct that amounts to a disciplinary offence under Rule 20.5.1.3.1.
Please find attached a copy of the complaint containing the charges, the Statement of Facts, and the documents relied upon.
In accordance with Rule 20.8.5 you must respond to this complaint in writing by 5:00pm Friday 12th February.
Please note you are entitled to request an extension.[37]
54 The complaint states that the Administrators, exercising their powers under rr 26.4.2 and 26.6.5 of the Victorian Branch Rules, charged Ms Kairouz with four breaches of the Australian Labor Party Victorian Branch Rules relating to branch stacking.
55 The particulars of each charge described things alleged to have been said and done prior to the broadcasting of the 60 Minutes program and the National Executive's intervention in the Victorian Branch.
56 In a letter of 3 February 2021 to Mr Ford, Ms Kairouz requested an extension of time until 8 March 2021.
57 On 8 February 2021, Ms Kairouz commenced this proceeding and on 19 March 2021 I granted her an interlocutory judgment which prevented the hearing of the charges until the hearing and determination of this proceeding, or further order.[38]
58 The charges are to be heard by the Disputes Tribunal constituted by a former judge. It is established by r 20 of the Victorian Branch Rules and is 'specifically responsible' for hearing and deciding charges relating to disciplinary offences. If it is satisfied that the member charged has committed an offence, it may impose penalties ranging from a reprimand to expulsion.
59 Clause 30 of the National Constitution establishes a National Appeals Tribunal, which is responsible on behalf of the National Executive for hearing all appeals by members that relate to compliance with the National Constitution or enforcement of the rights and obligations of members, affiliated unions and constituent units of the Party and making recommendations to the National Executive in relation to those appeals. The National Executive must promptly consider all recommendations of the Tribunal and may make any decision in relation to the appeal it thinks fit. But no appeal may be heard by the Tribunal until all practicable avenues of appeal have been exhausted under the rules of the relevant State Branch.
60 The term justiciability describes whether a claim for relief is appropriate and capable of being settled or decided by a court of law.[39] The defendants argued that Ms Kairouz's claims were not justiciable because of the High Court decision in Cameron v Hogan. They relied on it for the proposition that, as Ms Kairouz could not establish a proprietary or contractual claim, her claims were not justiciable because Courts do not become involved in internal disputes in voluntary associations, including political parties. Ms Kairouz relied on exceptions to this principle and also sought to distinguish Cameron v Hogan because of developments including the statutory recognition of political parties.
61 Accordingly, much of the debate on justiciability concerned the High Court's decision of Cameron v Hogan in 1934 and whether it made the plaintiff's claims non-justiciable. That decision is of course binding on me as it is on all judges of courts below the High Court. In Cameron v Hogan the plaintiff was Mr Edmond Hogan, who was Premier of Victoria as Parliamentary Leader of the ALP in 1927 and 1928 and again between 1929 and 1932. In 1932 he was excluded from the ALP and not preselected as its candidate in the election of that year. His exclusion followed his refusal to oppose the 'Premiers' Plan', which was an economic plan proposed during the Great Depression. Mr Hogan was re-elected as an Independent. He commenced proceedings in this Court seeking declarations that he was still a member of the ALP and that his exclusion was wrongful, alleging that he had suffered loss and damage by not being the leader of the Parliamentary Labor Party. At first instance Gavan Duffy J did not grant him an injunction but found that his contractual rights had been infringed, entitling him to nominal damages of one shilling.[40]
62 On appeal, the High Court decided that Mr Hogan's claims were not justiciable. This was because at common law, as well as in equity, no actionable breach of contract was committed by an unauthorised resolution expelling a member of a voluntary association, or by the failure of its officers to observe the rules regulating its affairs, unless the members enjoyed some civil right of a proprietary nature under them.[41 ]The High Court found that, first, Mr Hogan's membership of the ALP did not establish any legal or equitable interest that entitled him to the grant of a declaration or an injunction in respect of his exclusion from it, and secondly, that as the ALP was a voluntary unincorporated association, members were not in a contractual relationship and had no proprietary rights or interests in its property.[42 ]On the contract point, the plurality stated:
Hitherto rules made by a political or like organization for the regulation of its affairs and the conduct of its activities have never been understood as imposing contractual duties upon its officers or its members. Such matters are naturally regarded as of domestic concern. The rules are intended to be enforced by the authorities appointed under them. In adopting them, the members ought not to be presumed to contemplate the creation of enforceable legal rights and duties so that every departure exposes the officer or member concerned to a civil sanction. The matter has not been the subject of much, if any, discussion in English cases. For American authority it is enough to refer to McKane v Adams.[43]
63 Other relevant passages in Cameron v Hogan include the following. Starke J said that:
As a general rule, the Courts do not interfere in the contentions or quarrels of political parties, or, indeed, in the internal affairs of any voluntary association, society or club.[44]
Judicial statements of authority are to be found to the effect that, except to enforce or establish some right of a proprietary nature, a member who complains that he has been unjustifiably excluded from a voluntary association, or that some breach of its rules has been committed, cannot maintain any action directly founded upon that complaint.
There are, however, reasons which justify the statement that, at common law as well as in equity, no actionable breach of contract was committed by an unauthorised resolution expelling a member of a voluntary association, or by the failure on the part of its officers, to observe the rules regulating its affairs, unless the members enjoyed them under civil right of a proprietary nature.[45]
The foundation of the jurisdiction to grant an injunction is the existence of some civil right of a proprietary nature proper to be protected. The property under the control of the central executive and that under the control of the branches might, if all the members concurred in dissolving the association, be distributed among them, but if so, it would be by reason of a decision under the rules authorising that distribution. Except for this, the respondent has no interest capable of enjoyment.[46]
The organisation is a political machine designed to secure social and political changes. It furnishes its members with no civil right or proprietary interest suitable for protection by injunction. Further, such a case is not one for a declaration of right. The basis of ascertainable and enforceable legal right is lacking. The policy of the law is against interference in the affairs of voluntary associations which do not confer upon members civil rights susceptible of private enjoyment.
For these reasons the respondent is not entitled to invoke the jurisdiction of the Courts of law in reference either to his complaint that his nomination for selection was improperly withheld from ballot, or that a resolution for his expulsion was adopted without authority or justification under the rules. In these circumstances the question, whether, upon the true meaning of the rules, the central committee acted in accordance with or contrary to them is not one of which the Court takes cognisance.[47]
65 Cameron v Hogan was recently applied by Riordan J in Setka v Carroll,[48] which concerned actions by the National Executive to expel a member from the ALP pursuant to its 'plenary powers'.
66 Ms Kairouz contended that her claims were justiciable and that she did have standing. She sought to bring her claims within the 'exceptions' to the principle in Cameron v Hogan of a proprietary or contractual claim. She also sought to distinguish Cameron v Hogan on the ground that its ratio did not extend to disputes in a political party registered under the Electoral Act 2002(Vic) ('the Victorian Electoral Act') or the Commonwealth Electoral Act 1918 (Cth) ('the Commonwealth Electoral Act') (together, 'the Electoral Acts'), or to disputes between members of the Victorian Branch and the National Executive of the ALP. The ALP is registered under the Commonwealth Electoral Act and the ALP, Victorian Branch, is registered under both Electoral Acts.
Ms Kairouz's reliance on her proprietary interest in the trusts as an exception to Cameron v Hogan
67 As previously mentioned, I am bound by the High Court decision in Cameron v Hogan. Ms Kairouz sought to bring her claim within the proprietary interest exception recognized by the High Court_,_ by relying on her rights under, or in respect of, the trusts upon which the Victorian Branch's property is held. She claimed that the Administration Resolution had interfered with the due administration of the trusts and sought remedies to deal with that interference.[49 ]I will next describe the trusts under the Victorian Branch Rules.
68 The parties generally agreed that the Victorian Branch's property is held under a number of trusts, the rules of which were contained in the Victorian Branch Rules, and in the case of the LSH trust, in a trust deed.
The trusts created by r 21.1 of the Victorian Branch Rules
69 The first trust is created by r 21.1 which provides:
21.1. General
21.1.1. Subject to Rule 21.3, all property including all moneys, all books, stationary, furniture, office equipment and all other assets, whether of a like kind or not, of the Party shall be vested in three Trustees ("The Trustees"). The Trustees shall be the Officers of the Party for the time being, as elected in accordance with the Rules. The funds of the Party shall be banked in the name of the Party and no funds shall be drawn from the bank except by a cheque signed by a trustee or other person designated by the Administrative Committee, and counter-signed by the State Secretary. All such funds shall be applied to the management and conduct of the Party and furtherance of its aims and objectives. The Trustees shall be empowered to give indemnities on behalf of the Party.
70 The second trust, or possibly a sub-trust of the first trust, is created by r 21.1.2 which provides:
21.1.2. Subject to Rule 21.3, all property of any Branch, Conference or Assembly shall vest in the Trustees referred to, who shall hold such property on behalf of and for the purposes of the members of such Branch, Conference or Assembly. The income and property of the Party whensoever derived shall be applied solely towards the promotion of the objects of the Party as set forth in these Rules and no portion thereof shall be paid or transferred directly or indirectly by way of profit to members of the Party provided that nothing hereunder contained shall prevent the payment in good faith of remuneration to any Officers or employees of the Party in return for any services actually rendered to the Party nor for good supplied in the ordinary way of business nor prevent the payment of interest at a market rate on money borrowed from any member of the Party or reasonable or proper rent for premises demised or let by any member of the Party.
21.1.3. The Administrative Committee may, for any purpose set out in existing Rules and subject to any terms and conditions the Administrative Committee thinks fit to impose, authorise the Trustees to raise and borrow money and secure the repayment of that money by granting a mortgage, charge or other security over property belonging to the Party. Without limiting the generality of the foregoing, the Administrative Committee may authorise the Trustees to borrow money using a bill facility provided by a bank.
71 A further trust, the Capital Investment Fund, is created by r 21.2 which provides:
21.2. Capital Investment Fund
21.2.1. There shall be a fund of the Party to be known (subject to Rule 21.2.2) as the "Capital Investment Fund" (in this Rule "the Fund").
...
21.2.3. Subject to Rule 21.3, the Fund shall comprise:
21.2.3.1. all bequests made to the Party or its Trustees; and
21.2.3.2. all other donations made to the Party or its Trustees where the donor has expressed a wish that the donation be held in the Fund; and
21.2.3.3. interest earned on the Fund.
21.2.4. Subject to Rule 21.3, the Fund shall be vested in the Trustees.
21.2.5. The Trustees may use interest earned on the assets of the Fund but only for the purposes contemplated by these Rules. The Trustees must not use or apply, nor allow, permit or enable the use or application of, interest earned on the assets of the Fund for any other purpose.
...
21.2.10. Each Trustee of the Party shall on taking office make a declaration of trust that they will:
21.2.10.1. hold the Fund on the terms of this Rule; and
21.2.10.2. in particular, not permit any amount to be withdrawn from the Fund except in accordance with this Rule.
72 The parties differed as to the number of trusts created by rr 21.1 and 21.2 and their proper characterisation, but I do not think the differences matter. Insofar as the trusts were objects trusts, then the Court would identify beneficiaries who would include the members of the Victorian Branch.[50 ]
73 The trustees of the rr 21.1 and 21.2 trusts were Susie Byers, Shannon Threlfall-Clarke and James McWhinney, who are the President, Senior Vice-President and Junior Vice-President of the Victorian Branch.
74 A further trust, the Labor Services & Holdings Trust ('the LSH Trust'), is provided for in r 21.3 as follows:
21.3. Labor Services & Holdings Trust
21.3.1. There shall be a trust to be known as the Labor Services & Holding Trust ("LSH Trust") and established to:
21.3.1.1. provide all necessary services, support and infrastructure to the Party and any other entity established and controlled by the Party; and
21.3.1.2. as determined by the Officers, to hold the property (including all monies, books, stationery, furniture and office equipment) and other assets of the Party on trust for all of the Members.
21.3.2. The trustee of the LSH Trust must be a proprietary limited company incorporated in Victoria and called "Labor Services & Holdings Pty Ltd" ("LSH Trustee").
21.3.3. The shareholders and directors of the LSH Trustee must at all times be the Officers and 2 other nominees of the Administrative Committee determined with 22 votes in favour of the nomination (being a total of 5 persons).
21.3.4. Each director of LSH Trustee will hold one ordinary share in LHS Trustee. A person who ceases to be an Officer or whose nomination is withdrawn or cancelled by the Administrative Committee must promptly following his or her retirement or the withdrawal or cancellation of his or her nomination, do everything necessary to:
21.3.4.1. retire as a director of the LSH Trustee; and
21.3.4.2. transfer his or her share in the LSH Trustee to the person appointed as a director of the LSH Trustee in his or her stead.
21.3.5. Neither the trust deed constituting the LSH Trust nor the constitution of LSH Trustee may be changed in any way without the approval of a resolution of the Administrative Committee passed with 22 votes in favour of the resolution.
21.3.6. The Administrative Committee may at any time by resolution passed with 22 votes in favour of the resolution require the trust deed constituting the LSH Trust to be varied to limit the rights and powers of the LSH Trustee as trustee of the trust in respect of:
21.3.6.1. any change to the purpose of the LSH Trust; or
21.3.6.2. the creation or acquisition of any sub-trust or the acquisition of securities in or of any corporation; or
21.3.6.3. the sale or disposition of any assets of the LSH Trust; or
21.3.6.4. the acquisition of any asset having a value of over $100,000 by or for the LSH Trust; or
21.3.6.5. the incurrence of any liability of over $100,000 by the LSH Trustee; or
21.3.6.6. the giving of any security over the assets of the LSH Trust or the provision of any guarantee by the LSH Trustee either in its own right or as trustee of the LSH Trust.
21.3.7. Subject to Rule 21.3.5, the LSH Trustee has all the powers and may do anything necessary for the purposes of providing all necessary services, support and infrastructure to the Party, and any other entity established or controlled by the Party, including, without limitation, the power to employ such persons as may be necessary to provide those services, support and infrastructure.
21.3.8. The Officers may direct the Trustees to transfer any property or assets of the Party held by them including, but not only, assets held in or as part of the Fund to the LSH Trustee.
...
21.3.10. The LSH Trustee will hold all property and assets transferred or given to or acquired by the LSH Trustee on trust for the Members and for no other person and solely for the purposes of the promotion of the objects of the Party as set out in these Rules.
21.3.11. The LSH Trustee may use and apply all income derived from any property or assets held by it to fund the cost for providing services, support and infrastructure to the Party and any other entity controlled by the Party.
21.3.12. The LSH Trustee may at any time donate any surplus income (being income that is not required to fund the provision of services, support and infrastructure as contemplated by Rule 21.3.10) to the Party.
...
21.3.16. The LSH Trustee may charge the Party (and any other entity controlled by the Party to whom it provides services) a fee for the provision of those services. Any fee charged must be on a cost recovery basis only and limited to an amount equal to the actual cost (including any on-costs and indirect costs) of providing those services.
75 A significant feature of r 21.3 is that the LSH Trust holds all property and assets on trust for members for the sole purpose of promoting the objects of the Party as set out in the Rules. The beneficiaries of the LSH Trust are all members of the Australian Labor Party, Victorian Branch, at the relevant time. Furthermore, it gives the Administrative Committee and Officers powers in respect of the shareholders and directors of the trustee company and other aspects of the operation of the LSH Trust. For example, it provides a role to the Administrative Committee and the Officers concerning the variation of the Trust Deed and the transfer of trust property.
76 Clause 3 of the Trust Deed contains the purposes of the Trust:
PURPOSE OF TRUST
(a) The purposes of the Trust are to:
(i) provide all necessary services, support and infrastructure to the Association and any other entity established and controlled by the Association; and
(ii) as determined by the Officers, to hold the property (including all monies, books, stationery, furniture and office equipment) and other assets of the Association on trust for all of the Beneficiaries.
77 Clause 3 of the Trust Deed also gives the Trustee broad powers to give effect to the purpose of the Trust.
78 Ms Kairouz alleged that the Administration Resolution constituted unlawful interference with the trusts, and their administration, by:
(a) requiring the Trustees of the trusts created by r 21.1 and 21.2 of the Victorian Branch Rules and the Fund to report to the Administrators rather than act independently as trustees in administering the affairs of the Trusts;
(b) removing the Administrative Committee's powers to authorise the Trustees of the trust created by r 21.1 of the Victorian Branch Rules to raise and borrow money, approve the making of advances by the Trustees of the Fund, nominate shareholders and directors of LSH Trustee, withdraw or cancel the nomination of a director of LSH Trustee, or change or vary the trust deed constituting the LSH Trust and the constitution of LSH Trustee;
(c) requiring the State Secretary to report to the Administrators in performance of her duties with respect to the trust created by r 21.1 of the Victorian Branch Rules;
(d) removing the power of the Officers to direct the Trustees to transfer property or assets without first reporting to the Administrators; and
(e) changing the governance and administration of the trusts created by r 21 of the Victorian Branch Rules, the Trustees and the LSH Trustee.
The Administrators' actions in changing the LSH shareholders and directors
79 At the time the Administration Resolution was passed, the directors and shareholders of LSH Trustee were Ms Byers, Ms Threlfall-Clarke, Mr McWhinney, Ms Clare Burns, the branch secretary and Mr Mathew Hilakari. On 6 July 2020, the Administrators wrote to Ms Burns cancelling her nomination as a director and shareholder and stating:
As you are aware we have been appointed, by a resolution of the National Executive of the Australian Labor Party dated 16 June 2020, as administrators of the Victorian Branch of the Australian Labor Party. The resolution suspends the operation of all committees of the State Conference as defined in the Rules of the Victorian Branch, including the Administrative Committee.
In our position as administrators, all officials and staff of the Victorian Branch report to us. We are required to direct the conduct of the affairs of the Victorian Branch, including carrying out the functions that would otherwise be exercised by the Administrative Committee.
You will be aware that the powers of the Administrative Committee, under the Rules of the Victorian Branch, include nominating and cancelling the nominations of two of the Directors of the Trustee of the Labor Services & Holdings Trust, Labor Services & Holdings Pty Ltd (LSH Trustee).
We understand you were nominated by the Administrative Committee to serve as a Director of the LSH Trustee in 2019 and were formally appointed as a Director and Secretary of the LSH Trustee on 10 October 2019.
In the present circumstances, and in order to carry out our functions as administrators of the Branch, we hereby notify you that we are exercising our powers to cancel the nominations of the two current Directors of the Trustee nominated by the Administrative Committee being you and Mathew Hilakari. The cancellation is effective immediately.
In accordance with rule 21.3.4 of the Victorian Branch Rules, please promptly, and by no later than Tuesday 7 July 2020, complete and return to us the documents enclosed with this letter to retire as a Director of the LSH Trustee and transfer your appointed shareholding in the LSH Trustee to Steve Bracks.
80 A similar letter was sent to Mr Hilakari. The attached documents for Ms Burns and Mr Hilakari to sign recorded that they were 'retiring' as directors and shareholders. Upon their retirement as directors, and the transfer of their relevant shareholdings, the Administrators, Ms Macklin and Mr Bracks, became directors and shareholders of the trustee company in their place.
Ms Kairouz's submissions about her interests in the Victorian Branch trusts
81 Ms Kairouz submitted that her case falls under the proprietary interest exception recognized in Cameron v Hogan, because, as a member of the Victorian Branch, she has a cause of action as a beneficiary to sue to restrain the unlawful interference with the trusts provided for in the Victorian Branch Rules. She alleged that the Administration Resolution constituted unlawful interference with these trusts, and that once the Court was able to consider the validity of the Administration Resolution, it could go further to consider the validity of the branch stacking charges.
82 Ms Kairouz referred to the following passage in the joint judgment in Cameron v Hogan as describing the trust exception to the principle in that case:
For example, in Forbes v. Eden ... Lord Cranworth said: 'Save for the due disposal and administration of property, there is no authority in the Courts either of England or Scotland to take cognizance of the rules of a voluntary society entered into merely for the regulation of its own affairs.[51]
83 Ms Kairouz submitted that her proprietary interest based on her trust claim fell squarely within this passage. The Victorian ALP is possessed of property and, by its rules, expressly gives its members equitable interests in that property.
84 To support her submission that her claims were justiciable under the trusts exception, Ms Kairouz referred to the judgment of Lucas J in Rendall-Short v Grier.[52 ]In that case, his Honour referred to Cameron v Hogan, and the right of members of an association to see that its rules were observed, including in respect of the application of its property and income in promotion of its objects. Such a right was 'a right of a proprietary nature'. Lucas J's judgment has additional significance because he applied it when deciding Burton v Murphy,[53] at first instance, to explain why he was distinguishing Cameron v Hogan. Burton v Murphy, which I discuss later in this judgment, concerned the ALP Federal Executive's intervention in the Queensland Branch in 1980 and is relevant to the issues to be decided in this case. In Burton v Murphy, Lucas J stated with reference to Cameron v Hogan:
The case has been distinguished many times, and I need only refer to what I said in [Rendell-Short v Grier]. In that case I distinguished Cameron v Hogan on the ground that what was sought was the due administration of the property of a voluntary association according to its rules, and the same considerations apply here, since one of the declarations and one of the injunctions sought by the plaintiffs are directed towards the receipt of moneys and the entitlement to property of the Interim Administrative Committee. The defendants did not rely on Cameron v Hogan to oust my jurisdiction, and I am content to distinguish it upon the basis which I have indicated. The right of the defendants to receive and deal with money and property of the Queensland body cannot be established unless the resolution of 1st March 1980 is held to be binding upon the Queensland body.[54]
The defendants' submissions about Ms Kairouz's interests in the Victorian Branch trusts
85 The defendants accepted that in circumstances where property of a voluntary association is held on trust, members have a right as beneficiaries to seek remedies from the court if the trust fund is misapplied. However, that principle does not apply where, as in the present case, the dispute, in reality, only concerns who controls an association or political party, as that is a matter to be settled internally in accordance with the association's rules.
86 The Victorian Branch trusts provide for the trust property to be applied solely towards the objects of the ALP and preclude any distribution of that property to members. Any right or interest of the plaintiff as a beneficiary of the trusts relating to branch property, for example, to compel the trustees to perform the terms of the trusts, is irrelevant to Ms Kairouz's present claim. The joint judgment in Cameron v Hogan recognised that the property under the control of the central executive of the Victorian Branch could be distributed among its members if all the members agreed to dissolve the association, but regarded such an interest to be insufficient to support injunctive relief. That was because the organisation was a 'political machine designed to secure social and political changes'; it was 'reasonably clear that membership of the association carried with it no tangible or practical proprietary right' to the assets belonging to the ALP; and the existence of such property was 'incidental and accidental' to the conduct of the association.[55 ]The defendants argued that Ms Kairouz was in no better position than Mr Hogan was, as she was not suing the trustees to prevent non-compliance with, or maladministration of, the trusts.
87 To emphasise their argument that Ms Kairouz was not really bringing a trusts claim, the defendants submitted that the Administration Resolution had not led to any change to the trust objects, no alteration of trustees or of trust instruments, and no maladministration of trust property. After the Administration Resolution, the same trustees remained in place, the trust funds had not been transferred or spent in any unauthorised manner, there had been no change to the trust deed or the terms of the trusts on which the Victorian Branch's property was held, and there was no change in the role or responsibilities of the trustees nor interference with the performance of their duties. The trustees reported to the Administrators and then the Interim Governance Committee, because those bodies stood in the shoes of the Administrative Committee. The change in the reporting duties of Ms Byers, Ms Threlfall-Clarke and Mr McWhinney arose in respect of their capacity as office-bearers, not in their capacity as trustees. The trust claims were a contrivance to attempt to overcome Ms Kairouz's lack of a justiciable claim.
88 The plaintiff's claim based on alleged unlawful interference with the LSH Trust lacked substance. Although two of the directors and shareholders of LSH Trustee were replaced, the trustee remained unchanged. The replacement of the two directors and shareholders was a matter for the corporate trustee, not the trust, and a beneficiary of the trust had no right to bring an action to prevent a change of the directors or shareholders of the corporate trustee.
89 The trusts rules were to be read and interpreted in the context of the relationship between, first, the Victorian Branch and its Rules, and second, the National Executive and the National Constitution. This included the overarching powers of the National Executive in cls 16(d) and 16(f) of the National Constitution. Because of those powers, the trustees were obliged to comply with the National Executive's actions in the Administration Resolution to take over and direct the conduct of the Victorian Branch's affairs.
90 Before considering the justiciability of Ms Kairouz's trust exception arguments, I will deal with two matters that the defendants argued prevented her from making them.
91 An issue arose as to the right of the plaintiffs to make claims based on interference with the trusts when the trustees were not parties to the proceeding and had not commenced it. The plaintiffs in both proceedings filed summons seeking to add the trustees as parties and after hearing submissions I ordered that:
(a) Mr James McWhinney, in his capacity as a Trustee under rr 21.1 and 21.2 of the Australian Labor Party, Victorian Branch Rules, be joined as a defendant;
(b) The capacity in which the eighteenth defendant, Shannon Threlfall-Clarke, is sued be both in her capacity as a member of the National Executive of the Australian Labor Party and in her capacity as a Trustee under rr 21.1 and 21,2 of the Australian Labor Party Victorian Branch Rules;
(c) The capacity in which the twentieth defendant, Susie Byers, is sued be both in her capacity as a member of the National Executive of the Australian Labor Party and the Interim Governance Committee of the Victorian Branch of the Australian Labor Party, and in her capacity as a Trustee under rr 21.1 and 21.2 of the Australian Labor Party Victorian Branch Rules.
(d) Labor Services & Holdings Pty Ltd, in its capacity as Trustee under r 21.3 of the Victorian Branch Rules be joined as a defendant.
Can Ms Kairouz bring a claim for breach of trust?
92 A separate but related issue arose about whether, if Ms Kairouz's claims were regarded as made by a beneficiary alleging interference with the trusts, those claims had to be made by the trustees and not by Ms Kairouz as a beneficiary. The Three Defendants relied on the fact that she had not obtained the Court's leave to bring the claim and had not established that special circumstances existed explaining why the trustees could not bring the proceeding. [56] In other words, they contended that if Ms Kairouz's claim was a trust claim, it was not properly constituted. The Three Defendants submitted that this part of Ms Kairouz's claim was to compel performance of the trusts and to restrain a breach of trust, and as the defendants include the trustees, Ms Kairouz's need to establish special circumstances as to why she should be able to bring the claim was particularly important.
93 Ms Kairouz explained that she did not claim that the trustees had refused to execute proceedings. Rather her claim was in personam against a third party, the National Executive, for unlawful interference with the administration of the trusts, which held all the Victorian Branch's property. As a member, she enjoyed a 'civil right of a proprietary nature' by virtue of being a beneficiary of the trusts.
Analysis of Ms Kairouz's right to bring the trust claim
94 For reasons that I give below, I accept Ms Kairouz's case that she has a right as a beneficiary under the trusts to bring that part of the proceeding that alleges unlawful interference with the administration of the trusts. In addition, although argued by the Asmar plaintiffs and not by Ms Kairouz, I consider that special circumstances existed that make it appropriate to permit Ms Kairouz to bring her trusts claims. Hargrave J in Deutsch v Deutsch[57] considered such circumstances to include that a plaintiff was materially interested in the due enforcement of the claims or would be seriously prejudiced if they were not duly prosecuted; that a substantial impediment existed to the trustee prosecuting the proceeding; and that due to the nature of the assets or position of the trustees, it would be either impossible, or at least seriously inconvenient, for them to bring proceedings.
95 I consider that it would be 'seriously inconvenient' for Ms Byers, the Victorian Branch President and Ms Threlfall-Clarke, the Branch Senior Vice-President, who were members of the National Executive that passed the Administration Resolution, in Ms Byers' case by proxy, and as a result were named as defendants, to commence the proceeding and they could not be regarded as ready and willing to do so. The Junior Vice-President, Mr McWhinney and the corporate trustee LSH Trustee Pty Ltd were joined as defendants during the trial. Mr McWhinney was prepared to be joined as a plaintiff, but ultimately was joined as a defendant. He was only one of the trustees and, in these circumstances, I do not consider that allowing one trustee to bring the claims made by Ms Kairouz, when he had not commenced the proceeding and the other trustees are defendants, would be appropriate. It appeared that Mr McWhinney did not propose to take an active part in the proceeding, whether he was joined as a plaintiff or a defendant. In any event, the issue of Ms Kairouz's right to bring the trusts claims was only raised during the trial and even if Mr McWhinney had been joined as a plaintiff, it would not have been practicable, at least from the perspective of case management and the timely completion of the proceeding, for him to take over or join in its conduct.
Analysis of the trusts exception submissions as a ground of justiciability
96 Returning to Ms Kairouz's reliance on the trusts exception to Cameron v Hogan, I accept that she, as a member of the ALP, has the right and standing to bring proceedings claiming that the National Executive's Administration Resolution, and the actions taken under it, unlawfully interfered with the administration of the trusts upon which the Branch property is held. I accept that such a claim is justiciable and that she has standing to bring it. She is a beneficiary of the trusts, or is to be treated as a beneficiary, to the extent that the trusts are non-charitable objects trusts.
97 The trusts created by, or recognized in, the Victorian Branch Rules are in three cases non-charitable objects trusts and, in the case of the LSH Trust, probably a trust for the members and the objects of the Party. They will be treated as being trusts for the benefit of the members of the Victorian Branch for the time being.[58] Although the rules preclude distribution of that property to members, Ms Kairouz's interest is sufficient to enforce the proper administration of the trusts.
98 The right of Ms Kairouz to bring the trust claim is clear from Stevens v Keogh,[59] where the High Court decided that a member of a voluntary association, an unincorporated trade union, was entitled to challenge its use of funds to pay a member's legal costs. As Latham CJ explained:
The plaintiff is met at the outset by a contention that he has no right of action because he cannot sue to enforce the rules upon a contractual basis (Cameron v Hogan) and because he has no right of property which can justify the intervention of the court. The rules of a voluntary association, in cases where the members of the association have no proprietary rights, are, as a general rule, left to be enforced by the means provided by the rules themselves; if, however, members have a right of property under those rules the courts will interfere to protect that right of property (Baird v Wells; Cameron v Hogan). In the present case the rules of the Association do not confer upon the members any right to share in the property of the Association, either during the existence of the Association or upon its liquidation or winding up. But the rules contain provisions with respect to the application of the funds of the Association. The plaintiff as a member of the Association is prima facie entitled to invoke the assistance of a court in order to prevent misapplication of the funds. If he were unable to take proceedings in any court for this purpose, then a member would be quite helpless if the controlling body of the Association deliberately determined to misuse the funds of the Association.[60]
99 Although Stevens v Keogh and the decision of Rendall-Short v Grier, previously mentioned, were about the unlawful use of trust property, I see no reason why the principle they applied does not extend to claims that the National Executive, or their agents, the Administrators, unlawfully interfered with the administration and governance of the trusts on which the Victorian Branch property is held.
100 But finding that a claim is justiciable and that Ms Kairouz has the required standing to commence it, is preliminary to, and separate from, the question of whether the claim succeeds. That question requires determination of whether Ms Kairouz has proved or established her cause of action. On that question, I have decided that she has not done so. She has not established that the National Executive and the Administrators have unlawfully interfered with the administration of the trusts. The main effect of the Administration Resolution was that the powers normally exercised by the Administrative Committee were to be exercised by the Administrators. The trustees were required to report to them. Two of the directors and shareholders of the corporate trustee, LSH Trustee, were replaced, but that was not a change to the trustee itself, which remained Labor Services & Holdings Pty Ltd. The position is similar to the case of an administrator being appointed to a business or other entity and being able to exercise all of its powers. I do not consider that any of the effects of the Administration Resolution unlawfully interfered with the administration of the trusts.
101 Ms Kairouz does not point to any misapplication or misuse of trust funds. Rather, in the case of the Administration Resolution, she, in effect, challenges the National Executive's take over of, and direction of, the conduct of the Victorian Branch's affairs, including the suspension of its committees. As a result of the Resolution, the Administrators replaced the Administrative Committee for the duration of the intervention.
102 The validity of the Administrators' actions affecting the trusts depends on whether the Administration Resolution was a valid exercise of the National Executive's powers.[61] The Branch Rules under which the trusts were created or are recognized are to be read as allowing for, or acknowledging, the powers contained in the National Constitution, and therefore, as incorporating, or allowing for the exercise of the powers of the National Executive. I deal with this issue of the relationship between the National Constitution and the Victorian Branch Rules later in this judgment when considering the structure of the ALP. As I later explain, in my opinion, the Administration Resolution was valid and within the power of the National Executive to pass. I also consider that the appointment of the Administrators was valid.
103 A claim of a breach of a trust is different from a proceeding seeking to enforce the rules of a voluntary association. In Wylde v Attorney-General (NSW) (ex rel Ashford), a proceeding alleging a breach of a charitable trust for religious purposes, Dixon J explained:
It is hardly necessary to add that this suit is not framed as a proceeding by one or more members against other members of the Church considered as a voluntary association for the enforcement of the rules adopted for the good order and government of the communion. It is a suit by the Attorney-General for relief against breaches of a public charitable trust. In the view I take, our decision in Cameron v Hogan would make it impossible for members of the Church to maintain either an action or a suit for the enforcement against the Bishop of any term implied in the consensual compact imputed to the communion, if there were such a term requiring him to conform strictly with the order of the ministration of the Holy Communion prescribed by the book of Common Prayer. In other words I do not think that the purpose of the present suit could have been achieved by any other form of proceeding.[62 ]
104 I consider that Ms Kairouz's trust claims are more in the nature of a proceeding to enforce the rules of a voluntary association, to use Dixon J's description. Ms Kairouz does not claim that the Administrators have unlawfully interfered with particular trust property. In contrast were the claims made in Burton v Murphy,[63] which included a claim for an injunction restraining the Interim Administrative Committee from collecting, expending, remitting, transferring or otherwise dealing with any of the money or property belonging to the Queensland Branch, which included trust property.
Ms Kairouz's reliance on a contract claim as an exception to Cameron v Hogan
105 Ms Kairouz also contended that her claims were justiciable because they fall within the contract exception to the principle in Cameron v Hogan. Ms Kairouz submitted that both the National Constitution and the Victorian Branch Rules created contracts, which she described as the Constitution Contract and the Rules Contract.
106 Ms Kairouz alleged that the Administration Resolution's unlawful interference in the administration of the trusts was a breach by those members of the National Executive who are also members of the Victorian Branch of rr 21.1, 21.2 and 21.3 of the Rules Contract. She also alleged that the Administrators' cancellation of the appointment of the two LSH Trustee directors who had been nominated by the Administrative Committee was a further breach of the Rules Contract. Ms Kairouz sought declarations to give effect to these allegations.
107 She submitted that the defendants' reliance on the honours clauses in cl 2 of the National Constitution and r 23 of the Victorian Branch Rules could not oust the jurisdiction of the Court.
108 Ms Kairouz also submitted that the National Executive breached the contracts by making the Amended Rules and by bringing the charges against her through their agents the Administrators. The Rules Contract was also said to have been breached by the appointment of the Interim Governance Committee.
109 The defendants disputed that the Victorian Branch Rules or the National Constitution created any contract between members and the Party or between members and anyone else. They did not argue that the honours clause removed this Court's jurisdiction to determine the contract claim.
Analysis of Ms Kairouz's reliance on the contract exception in Cameron v Hogan
110 I consider that Cameron v Hogan establishes that the Victorian Branch Rules did not give rise to a contract between members and the Party or otherwise. I again set out the relevant passage from that decision:
Hitherto rules made by a political or like organisation for the regulation of its affairs and the conduct of its activities have never been understood as imposing contractual duties upon its officers or its members. Such matters are naturally regarded as of domestic concern. The rules are intended to be enforced by the authorities appointed under them. In adopting them, the members ought not to be presumed to contemplate the creation of enforceable legal rights and duties so that every departure exposes the officer or member concerned to a civil sanction. The matter has not been the subject of much, if any, discussion in English cases. For American authority it is enough to refer to McKane v Adams.[64]
111 I do not consider that there is any provision in the National Constitution or the Victorian Branch Rules which justifies a departure from Cameron v Hogan or a conclusion that a contract has been created. The National Constitution in cl 2 provides that the Rules and everything done in connection with them are expressed as not bringing about any legal relationship, rights, duties or outcome of any kind, or being enforceable by law, or being the subject of legal proceedings, but instead all arrangements, agreement and business are described as being only binding in honour. The Victorian Branch Rules contain a similar provision in r 23. These provisions support a conclusion that no contract is created.
112 While there has by now been considerable discussion in England of the contractual relationship between members and political parties,[65] in circumstances where Cameron v Hogan remains the prevailing authority in Australia, I can only conclude that the Victorian Branch Rules and the National Constitution do not create a contract between members and the Party or otherwise. Thus Ms Kairouz cannot rely on the contract exception recognized in Cameron v Hogan to establish the justiciability of her claims.
113 I agree with the plaintiff that the honours clauses do not oust the jurisdiction of this Court.
Distinguishing Cameron v Hogan: the recognition of political parties by the Electoral Acts
114 In addition to invoking exceptions to the principle in Cameron v Hogan, Ms Kairouz seeks to distinguish it on the ground that the Victorian Branch is a registered political party, and that the constitutional and statutory recognition of political parties, as well as their statutory role and functions, set them apart from the ALP as it was in 1934 when considered in Cameron v Hogan. She referred to Dowsett J's judgment in Baldwin v Everingham[66 ]who relied upon the effect of amendments to the Commonwealth Electoral Act to distinguish Cameron v Hogan. She submitted that the Court should follow Baldwin v Everingham and cases which have applied it. She contended that the National Executive's resolutions were made in the performance of a 'public duty' or in the exercise of a power which had a 'public element'. Her claims were justiciable based on the modern, 'post Electoral Act' approach as well as the orthodox approach which included trusts and contracts.
115 The defendants disputed that the National Executive was exercising any public power or determining any legal rights or controversies. The Electoral Acts did not regulate the internal affairs of the ALP or other political parties. The cases relied on by the plaintiff were not applicable.
116 The parties' arguments about these issues depend to a large degree on the effects of the electoral reforms and recognition of political parties under the Electoral Acts. I will next consider the relevant effects of the electoral legislation.
117 The starting point for this consideration is s 15 of the Australian Constitution, as amended in 1977, which provides for vacancies in the Commonwealth Senate to be filled by a member of the party to which the former Senator belonged if he or she was publicly recognised by that particular political party as being its endorsed candidate.
118 The Commonwealth Electoral Legislation Amendment Act 1983 (Cth) implemented the recommendations of the Joint Select Committee on Electoral Reform.[67] Those recommendations included that '(i) voters be provided with information to identify candidates' political affiliations, (ii) there be a 'list' system for Senate ballot papers (with party affiliations on ballot papers), (iii) political parties should be publicly funded, (iv) there be disclosure of expenditure and donations for political parties and candidates, and (v) political parties be registered'.[68] Those recommendations are a succinct summary of the relevant effects of the legislation which I will now describe.
119 Under the Commonwealth Electoral Act, political parties may be registered and deregistered, and do not have to be incorporated to be registered. Applications for registration must be made by the party secretary, setting out its name, giving details of its registered officer, and including the names of 500 members of the party and being accompanied by the party's constitution.[69 ]Upon registration a party is entitled to receive funding.[70] Different levels of political parties may be registered.[71 ]Thus, the ALP Victorian Branch is registered as well as the ALP itself.
120 In addition, registration under the Commonwealth Electoral Act enables political parties to nominate replacement senators[72] and put forward persons as candidates at elections and bulk nominations of candidates.[73] The names of parties can be recorded on the ballot paper,[74] electors can vote 'above the line' in Senate elections for a group of candidates identified by the party,[75] and parties receive public funding calculated by reference to how many votes they received in the preceding election.[76] Major parties receive millions of dollars in funding.
121 Registration imposes obligations on political parties. They must inform the Electoral Commission of the amount of their electoral expenditure.[77] They may not receive gifts of at least $1,000 from foreign donors,[78] and they are not permitted to receive loans exceeding the disclosure threshold unless the terms of the relevant loan are recorded.[79] Parties, including State Branches, are obliged to provide annual returns to the Commission detailing their income and its source, and other benefits received, expenditure and any debts.[80]
Victorian Electoral Act
122 Section 27A of the Constitution Act 1975 (Vic) provides that where a casual vacancy arises in the Legislative Council, and the retiring member was a member of a registered political party, the replacement member must be a member of that party. The Victorian system of registration of political parties was enacted by the Constitution Act Amendment (Electoral Legislation) Act 1984 (Vic).
123 The Victorian Electoral Act provides for the registration of political parties, and requires them to be 'established on the basis of a written constitution (however described)' and for the constitution to be provided with the registration application.[81 ]A registered political party can be an unincorporated association. Political parties are registered with the Victorian Electoral Commission and recorded in its register.[82] Applications for registration must set out the party's name and details of its registered officer,[83] and provide the names of 500 members of the party who must be electors.[84] Parties may be deregistered and the Commission may compel a party to provide information to it to assess whether it remains eligible to be registered as a party.[85]
124 The Victorian Electoral Act gives various rights to registered political parties: candidates for the Legislative Council who are endorsed by a party may be grouped on the ballot paper;[86 ]and where candidates are endorsed by parties, this is shown on ballot papers. Upon registration, a party is entitled to receive public funding. For elections held after 24 November 2018, the entitlement is $6 for every first preference vote given for a candidate for election to the Legislative Assembly, and $3 for each first preference vote given for a candidate for election to the Legislative Council.[87] The funding is paid to the registered officer,[88 ]who must pay it into the State campaign account and provide an annual return to the Victorian Electoral Commission.[89] The registered officer must provide a statement of expenditure after the election,[90 ]together with an audit of the statement.[91] Political parties may receive administrative expenditure funding and policy development funding.[92 ]
125 The Victorian Electoral Act imposes other obligations on political parties including: that the registered officer must sign a form identifying election candidates endorsed by the party,[93 ]how to vote cards are to be submitted to the Commission,[94] the registered officer must keep a State campaign bank account into which funding and all donations must be paid and all State election expenditure is to be paid from the account.[95] Parties must provide audited annual returns to the Commission as to the disbursement of administrative funding which cannot be used for election purposes.[96 ]They must disclose donations, which are subject to caps,[97] and they must provide annual returns which set out the total funds they have received.[98]
Ms Kairouz's submissions about the significance of the Electoral Acts
126 Ms Kairouz submitted that political parties now have a constitutional role in the electoral system and, once registered, play a 'vital role in the working of democratic government' and are provided with public money for that purpose. The ALP's interests and objectives are entirely public in nature as the objectives set out in cls 4 and 5 of the National Constitution and rr 2.1 and 2.2 of the Victorian Branch Rules demonstrate. Political parties can no longer be considered as the equivalent of social or sporting clubs. In providing for the registration of a political party on the basis of a written constitution, and permitting nominated candidates to record their party affiliation on the ballot paper, Parliament cannot have envisaged that the party would nominate candidates otherwise than in accordance with its written constitution.
127 Ms Kairouz relied upon a series of decisions, which were discussed in the interlocutory judgment, commencing with Baldwin v Everingham, which distinguish Cameron v Hogan on the grounds that the Commonwealth Electoral Act recognises political parties, provides for their registration and authorises the granting of public funds to them.[99] I will next discuss some of these cases.
128 In Baldwin v Everingham, Dowsett J, referring to Cameron v Hogan, stated that:
If it were not for the statutory recognition of political parties to which I have referred in some detail, I would be compelled to the conclusion that the case does so apply. I can see no other basis for distinction between the Labor Party as it was in 1930s and the Queensland Branch of Liberal Party as it now is.[100]
129 Dowsett J also relied on Edgar v Meade,[101] where Isaacs J decided a claim by a member excluded from a union, which was a body corporate capable of suing or being sued in its corporate name by reason of the provisions of the Commonwealth Conciliation and Arbitration Act 1904. His Honour decided that a member of a union registered under that Act might, even when they did not have a proprietary right, assert in court their legal right to remain a member of the union.
It is unremarkable that members of an incorporated body are entitled to enforce the rules of the corporation in the courts. It is trite law that rules of a corporation are contractual; and '[e]ach member has a contractual right, as against the association, to have the affairs of the association conducted in accordance with the rules'.
...
It is not surprising, in these circumstances, that Isaacs J construed the [Commonwealth Conciliation and Arbitration Act 1904-1911 (Cth) Act] as conferring a right of action on the member to enforce the rules against the statutory organization.[102]
131 Priestley JA in Scandrett v Dowling[103] made similar comments about the basis of Isaacs J's judgment in Edgar v Meade.
132 A number of decisions since 1993 have followed Baldwin v Everingham, mainly in preselection disputes, but without further elaborating its rationale for distinguishing Cameron v Hogan. One that did was Coleman v Liberal Party of Australia, New South Wales Division (No 2)[104 ]where Palmer J summarised the basis on which this line of authority had distinguished Cameron v Hogan:
I think, the reality that certain decisions of a political party's internal process - such as those relating to selection of candidates for election, for example - are in truth not private matters at all; they are very public, particularly when there are disputes between factions. In such circumstances, a political party may regard it as highly expedient in order to quell faction-fighting that the final decision on the Constitutional validity of its internal proceedings be left, not to a domestic tribunal constituted by party members whose impartiality may, however unjustly, be called into question but, rather, to a Court whose impartiality is beyond any question. Perhaps it is this expediency which explains why the decisions distinguishing Cameron v Hogan on the ground explained in Baldwin v Everingham have never been taken on appeal, so that the High Court has never had occasion to revisit Cameron v Hogan.
Judges have called attention to the fact that a modern political party registered under the legislation governing elections is in itself an institution whose internal stability and good governance is important in the democratic process. Accordingly, there is a public interest in ensuring that a registered political party, which is entitled to funding assistance for electoral expenses from public monies, is administered in accordance with a correct construction of its rules.
In my opinion, if the Disputes Panel in the present case has not construed the Constitution correctly, so that Mr Coleman has been wrongfully deprived of consideration as a candidate by a properly constituted Selection Committee, there is a public interest in affording him the right to have that error corrected in this Court by declaration and, if necessary, injunction. If such relief is otherwise available in the present case, I would exercise the Court's discretion to grant it.[105]
133 In Barker v Australian Labor Party[106] Kennedy J dismissed a proceeding in which the plaintiff alleged non-compliance with ALP preselection rules. In obiter, her Honour stated that the dispute was justiciable and that she considered that 'the analysis of the single Justices in distinguishing Cameron is correct'.[107] She said that:
[t]he identification of the endorsed candidate ... may be seen as important for the proper working of the Victorian Act [ie the Electoral Act] and thereby designed to effectuate the conduct of State elections. This is similar to the approach taken by Robson J in Butler, namely, that the identification of the secretary and the secretary's role in registration was important for the proper working of the Victorian Act.[108]
134 Robson J in Butler v Mulholland (No 2) considered a dispute within the Democratic Labour Party ('DLP') about the identity of the Victorian Branch secretary and the Victorian Branch Executive of the Party. His Honour considered that it was in the public interest for the operation of the Victorian Electoral Act to resolve that dispute.[109] He said that:
In substance, the relief sought all turns on the question of which faction or members thereof (that is, Mr Butler's faction or Mr Mulholland's faction) constitutes the officers of the Executive of the Victorian State Branch.[110]
135 His Honour held that the dispute was justiciable and distinguished Cameron v Hogan. In referring to the Baldwin line of authorities, he stated that they:
...had regard to the importance of political parties in public affairs and (by implication) that the proper administration of these voluntary associations extended beyond the interests of the party members inter se and into the broader public welfare. On that basis, the authorities have distinguished political parties from mere social unincorporated associations, whose affairs are only of concern to its members.[111]
In my opinion, the issue of who is the Secretary of the DLP in the Victorian State branch is a justiciable issue. Similarly, the Secretary can only act with the authority given to him under the Constitution of the DLP and in accordance with the instructions of the State Executive. The membership of the State Executive is therefore an important issue, which it is in the public interest to resolve. In my opinion, the determination of the issue of who constitutes the State Executive is also justiciable.[112]
137 In Setka v Carroll, Riordan J referred to Robson J's judgment, stating:
An example of the Court exercising jurisdiction for the limited purpose of protecting the objects of an electoral Act can be found in Butler v Mulholland [No 2]. In that case, Robson J found that the issue of who was the secretary of the Democratic Labour Party was justiciable because, under the Electoral Act 2002 (Vic), an application for registration was required to be signed by the secretary of the political party; and the application determines the identity of the 'registered officer', who had other powers under the Electoral Act 2002 (Vic). Robson J held that 'the identity of the secretary and his authority to make an application to the Commission for registration of the political party are important issues for the proper working of the Victorian Act'.[113]
138 But as I have set out above, in the same part of Robson J's judgment to which Riordan J referred, his Honour also concluded that the identification of the members of the Executive of the Victorian Branch of the DLP, who gave instructions to the Secretary, was a justiciable matter, which was in the public interest to resolve.[114]
139 In 2016, the Court of Appeal in Mulholland v Funnell,[115] which was another case about disputes in the DLP, referred to Robson J's judgment without disapproval_._ The dispute that gave rise to that litigation was described in the first sentence of the joint judgment as follows:
This application for leave to appeal arises from a fundamental dispute over the composition of the federal and Victorian Branches of the Democratic Labour Party ('DLP').[116]
140 In issue was whether the Federal and State Conferences of the DLP were validly convened and whether the election of office-bearers and resolutions passed at the Conferences were void. The Court of Appeal did not suggest that these issues were not justiciable, but referred to Robson J's judgment which contained extensive discussion of justiciability. The Court of Appeal refused leave to appeal from the judgment of the trial judge, who had summarily dismissed the proceeding on a number of grounds. They were that Mr Mulholland's claim had no real prospects of success, because first, neither his pleadings nor his supporting evidence put in issue the fundamental proposition on which his case relied, namely, that the DLP Federal Conference was invalid, secondly, due to the outcome of previous litigation, and thirdly, because of his failure to join a contradictor. It does appear that this judgment is not decisive in this proceeding as it was an application for leave to appeal from a summary judgment dismissing a proceeding, where one side was not legally represented and the question of justiciability was not raised. But still noteworthy are the nature of the dispute that was before the Court of Appeal and the authorities to which the Court referred, without any suggestion that the dispute was not justiciable.
141 Finally, there is the significant decision of the Full Court of the Queensland Supreme Court in Burton v Murphy, which I discuss in the section of this judgment dealing with the structure of the ALP. It was decided 11 years before Baldwin v Everingham and involved a challenge to the Federal Executive's intervention in, and suspension of, the operation of the Queensland Branch of the ALP. The Court gave extensive consideration to the Branch rules and the Federal Executive's powers. No objection to the justiciability of the dispute was raised at trial or on appeal. The trial judge, Lucas J, said that the defendants had not relied on Cameron v Hogan to oust his jurisdiction and that it had been distinguished many times, and in the passage I set out previously gave his reasons for distinguishing it.[117]
142 Professor Greg Taylor, in a recent article, noted that most single-Judge decisions favour treating internal party disputes as justiciable, and urged Parliament or the High Court, if they were to consider the matter, to impose the maximum degree of accountability on political parties.[118] Doing so would recognise the public nature of the power exercised by political parties that distinguishes them from other voluntary and unincorporated associations.[119]
The defendants' submissions about the significance of the Electoral Acts
143 In submitting that the recognition of political parties did not make the plaintiff's claims justiciable, the defendants relied on the principle in Cameron v Hogan that the courts will not determine internal disputes in voluntary unincorporated associations, such as the ALP. Those disputes are only justiciable when the association's rules constitute a legally enforceable contract, or the members of the association have a legal or equitable interest in the property of the association upon which the claim is based. Riordan J's decision in Setka v Carroll was correct.[120] Baldwin v Everingham and the cases that followed it applied a false analogy between political parties registered under the Electoral Acts and trade unions given corporate status under the Commonwealth industrial legislation.
144 The registration of the ALP and the Victorian Branch as political parties did not make their internal disputes justiciable. It did not give them corporate status or create a contract between the ALP and its members. The Electoral Acts do not regulate the internal rules or constitutions of registered political parties in any relevant way. Rather they require the identification of a registered officer who is given roles and responsibilities, including informing the Commission of nominated candidates for election, whose names and party identification are then listed on the ballot paper.[121 ]
145 The defendants submitted that Butler v Mulholland (No 2) had no present application as it concerned only the identification of the registered officer who performed important functions under the statute_._
146 The Three Defendants submitted that the plaintiff's attempts to rely upon the statutory recognition of political parties necessarily involved an attempt to extend the law of judicial review in Australia to associations such as the ALP. But judicial review principles and remedies have no application to a private organisation or a voluntary unincorporated association.[122 ]The English decisions, including R v Panel on Take-overs and Mergers; ex parte Datafin Plc,[123] have not generally been applied in Australia.[124] The National Executive's actions did not have any public law consequences.
147 The Court could not grant a declaration or injunction in this case as those remedies can only be used to determine a legal controversy in respect of which the plaintiff has a real interest. As the High Court stated in Egan v Willis:
Declaratory relief should be directed to the determination of legal controversies concerning rights, liabilities and interests of a kind which are protected or enforced in the courts.[125 ]
Analysis of the significance of the statutory recognition of political parties
148 I agree with the reasoning of Riordan J in Setka v Carroll that, Cameron v Hogan cannot be distinguished on the basis of the subsequent statutory recognition of political parties, rather than with the reasoning in Baldwin v Everingham. As his Honour stated:
The reasoning of Dowsett J in Baldwin v Everingham has been applied in other cases involving applications arising out of internal disputes in political parties; but in each of these cases the issue of justiciability was the subject of a concession and not argued.
In my opinion, the cases that follow Baldwin v Everingham do not identify the cause of action or other ascertainable or enforceable legal right which would entitle the claimant to relief at law or equity; or otherwise provide a proper basis to distinguish Cameron v Hogan.[126]
149 In addition to Setka v Carroll, there are other decisions since Baldwin v Everingham in which Cameron v Hogan has been applied.[127]
150 Riordan J referred to the High Court's judgment in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd,[128] that establishes that in order to obtain an interlocutory injunction, a plaintiff must establish a legal or equitable interest entitling them to that remedy. The same principle must also apply to the grant of final relief. The question of whether it is in the public interest to decide a dispute in a political party is a different question from whether the plaintiff has a legal or equitable interest capable of being protected or enforced by a court that makes that dispute justiciable
151 The Baldwin v Everingham line of authority relies on Isaacs J's judgment in Edgar v Meade,[129] but, in my opinion, it provides no basis for distinguishing Cameron v Hogan. That case concerned the effect of the Commonwealth Conciliation and Arbitration Act 1904 (Cth), which was supported by s 51(xxxv) of the Australian Constitution and which had the effect of incorporating and regulating trade unions and industrial associations and providing for the rights of their members. That legislative scheme has little relevance to the justiciability of Ms Kairouz's claims. Riordan J in Setka v Carroll considered the features of the statutory regulation of trade unions distinguishable from the statutory recognition of political parties.
152 The Electoral Acts do not seek to regulate the internal affairs of political parties, for example they do not require the Electoral Commissions to approve amendments to their Constitutions or Rules, nor do they prescribe procedures for the resolution of disputes between branches and members and between branches and National Executives. The registration procedures applying to political parties are much different from the regulation of trade unions contained in Commonwealth industrial legislation.
153 The funding of, and conferral of rights and obligations on, political parties in the electoral process required a legislative scheme to ensure that the applicant for registration was a genuine political party, to gain legislative authority for providing funding to them and to prescribe accountability for that funding. But those measures do not make internal disputes in the political party justiciable. I accept that where a dispute exists of the kind presented by Butler v Mulholland (No 2), as to the identity of the political party's authorised agent, a court is likely to decide the issue by making an appropriate declaration to enable the Electoral Acts to operate in respect of the party. But that does not create a principle of wider application extending to all disputes within political parties or between branches and the national body. In my opinion, to justify the Court's intervention, the issue sought to be determined must have a connection to the proper operation of the Electoral Acts. The plaintiff's claims do not have that character. A disputed issue does not become justiciable by reliance on an issue concerning the Electoral Acts when the dispute has little connection with their operation. The plaintiff's claim in this case does not have a direct bearing on, or connection to, the operation of the Electoral Acts.
154 In other cases, for example Mulholland v Funnell and Burton v Murphy, Courts have been willing to determine internal disputes within political parties, but it appears that no issue of justiciability was raised. In Burton v Murphy, a trust claim was relied on. This may reflect a practice that, when all parties seek the Court's assistance in determining an issue necessary for the proper operation of an Electoral Act, the Court may well be willing to assist the parties by determining the issue irrespective of its justiciability. But that is not the case here, as the question of justiciability has been raised and must be decided.
155 Political parties perform an essential function in our democracy. They form governments, which are always referred to by the name of the political party to which government members belong and candidates' political parties are listed on ballot papers. But that recognition, and the public funding provided to political parties, does not make them public bodies amenable to judicial review or make their internal disputes justiciable. Many associations and individuals receive public funding and usually have to apply or register to obtain it. But they are not thereby turned into public bodies to whom judicial review remedies apply.
156 The Electoral Acts do not regulate how preselections are conducted or the distribution of powers between national bodies and State Branches of political parties. The English decision in R v Panel on Take-overs and Mergers; ex parte Datafin Plc does not assist the plaintiff as that decision, and other similar cases, have not been have not been widely adopted in Australia. They turn on the extent to which the powers of the bodies concerned involved public functions.
157 One change since Cameron v Hogan that affects the legal status of voluntary associations is the availability of incorporation under the Associations Incorporation Reform Act 2012 (Vic) and its equivalents in other jurisdictions. When political parties are incorporated under that legislation, then courts have jurisdiction to determine many of their internal disputes, including disputes about the observance of their rules.[130] But the ALP has not become an incorporated association under that legislation.
Conclusions on the justiciability of Ms Kairouz's claims
158 I conclude that although Ms Kairouz's trust claim is justiciable, it does not succeed because neither the Administration Resolution nor the actions of the Administrators taken under that Resolution or any other Resolution unlawfully interfered with the administration of the trusts. None of Ms Kairouz's submissions seeking to establish the justiciability of her claims by bringing them within exceptions to the principle in Cameron v Hogan, or seeking to distinguish it from the facts of this case, succeed. The conclusion that the trust claim is justiciable does not make Ms Kairouz's other claims justiciable, as those other claims are too remote from the trust claim.
159 In addition to the issue of justiciability, the parties made submissions about Ms Kairouz's standing to bring the proceeding, while acknowledging that the two issues overlapped. Questions of standing are relevant to whether members of the Victorian Branch have a real interest to seek relief.
160 I have not accepted Ms Kairouz's submissions for distinguishing Cameron v Hogan from the circumstances of this case. As I have stated, she must establish a relevant proprietary or contractual interest to bring her claims within the exceptions recognized in that decision. I have decided that her trusts claims are justiciable and she has standing to bring it. She is a member of the Victorian Branch with a real or special interest as a beneficiary in the administration of the Victorian Branch trusts and has standing to bring her claim that the Administration Resolution unlawfully interfered with their administration. However, I have decided that Ms Kairouz has not established that such unlawful interference occurred.
Disputes between members of the Victorian Branch and the National Executive
161 I have concluded that the effect of Cameron v Hogan is that a member of the Victorian Branch, including a member of the Administrative Committee, can only bring a proceeding challenging the actions of the National Executive on the grounds that its actions are not in accordance with the Victorian Branch Rules or the National Constitution, when the proceeding raises justiciable issues, being claims by the member based on a proprietary or contractual interest. Such an interest, whether it is described as a 'real' interest or a 'special' interest may enable a member to bring a proceeding raising a justiciable dispute. Members of affiliated unions who are not members of the Victorian Branch will not have a proprietary or contractual interest on which to base a justiciable dispute.
162 In case I am incorrect in my conclusions about justiciability, I will, as I am obliged to do, proceed to consider the remainder of Ms Kairouz's grounds which concern whether the National Executive had power to pass the Administration Resolution and other Resolutions and whether the Administrators had power to charge her with the four disciplinary charges.
163 To determine these questions, I must first consider the issues raised about the structure of the ALP, about the relationship between the National Constitution and the Victorian Branch Rules and about whether the national body and the Victorian Branch are separate entities.
164 An important issue in deciding this proceeding is the relationship between the National Executive and the Victorian Branch as revealed in the National Constitution and the Victorian Branch Rules. An understanding of that relationship gives context to the National Executive's claim to be able to intervene in the Victorian Branch and to the question whether the Victorian Branch is a separate entity to the national body.
165 Ms Kairouz contended that the Victorian Branch and other branches are self-governing, independent polities, although affiliated with the Federal ALP, and accordingly, the resolutions of the National Executive could not authorise the intervention.
166 In contrast, the defendants contended that the Victorian Branch is not autonomous but is a constituent unit of the ALP subject to the provisions of the National Constitution and decisions of the National Conference and the National Executive. Because the ALP is a national party or association, the National Constitution and the Victorian Branch Rules must be read together to understand the different roles of the national body and its branches. Once that is done, it is seen that, subject to certain preconditions, the National Executive had the power to intervene in the Victorian Branch.
167 The first step in deciding these questions concerning the structure of the ALP is to consider the relevant parts of the National Constitution and the Victorian Branch Rules.
The National Constitution of the ALP
168 The National Constitution provides that '[t]he name of the Party shall be "The Australian Labor Party"' and that '[t]he Party shall consist of branches in each state'.[131] The National Constitution refers to the 'states', 'state branches', and rules of state branches, as well as to 'affiliated unions'.
169 The National Constitution states that Party policy is made by National Conference comprising the federal and state parliamentary leadership of the Party and the elected delegates from all States and Australian Young Labor.[132] As mentioned in the Victorian Branch Rules, party policy within the States is framed by conferences of delegates elected by constituent branches, affiliated unions and members. The National Constitution again emphasises that ALP policy is not made by directives from the leadership, but by resolutions originating from branches, affiliated unions and individual Party members.[133]
170 The National Conference is the supreme governing authority of the Party and its decisions are binding upon every member and every section of the Party.[134] The National Executive is the chief administrative authority of the Party, subject only to the National Conference.[135] Of particular relevance are the following powers and duties of the National Executive contained in cls 16(c), (d) and (f):
(c) Decisions of the National Executive are binding on all sections and members of the ALP subject only to appeal to National Conference. Pending the hearing of any appeal, the decision of the National Executive continues to operate.
(d) Subject only to National Conference, the National Executive may exercise all powers of the Party on its behalf without limitation, including in relation to the state branches and other sections of the Party.
(f) Without limiting the plenary powers of the National Executive under clause 16(d), if in the opinion of the National Executive any state branch or section of the Party is acting or has acted in a manner contrary to the National Constitution, the national platform or a decision of National Conference, as interpreted by the National Executive, the National Executive may:
(ii) intervene in the state branch or section, and take over and direct the conduct of its affairs; and
(iii) conduct any preselection that would otherwise have been decided by the state branch or section.
171 The National Constitution contains National Principles of Organisation which are binding on State Branches and must be implemented through their rules.[136] They concern the election of delegates to National Conference,[137] membership and membership recruitment,[138] affiliation of unions,[139] preselections,[140] and affirmative action.[141] Branches were required to submit rules implementing these National Principles to the National Executive in 2013 and, pursuant to the plenary power in cl 16(d), the National Executive was empowered to amend the rules of any State Branches so as to implement them.[142]
172 Under the Victorian Branch Rules, the definitions of key terms are significant. First there is the name of the Branch which is '[t]he Australian Labor Party, Victorian Branch'.[143] Secondly, 'Party', as a defined term, means 'the Australian Labor Party, Victorian Branch'.[144] Thirdly, 'Member', as a defined term, means 'a Central Branch member or/and a Local Branch Member'.[145] The Party consists of affiliated trade unions and individual members.[146]
173 The Victorian Branch Rules recognise that ALP policy is made by the National Conferences[147] and, within the State and Territories, is framed by conferences of delegates elected by constituent branches and affiliated unions.[148] In Victoria this is the State Conference.[149] Policy within the ALP is made by resolutions originating from branches, affiliated unions and individual party members and not made by directives from the leadership.[150] State Conference is described as the supreme policy making and governing body of the Party,[151] with the power to determine all matters affecting the party. Eight matters are mentioned,[152] one of which is the power, subject to the national rules, to make and 'interpret Platform and Policy and to amend and interpret the Rules of the Party'.[153] Another is to review, amend or revoke any decision or action of the officers or of the Administrative Committee or of any other Committee.[154] State Conference can make recommendations to the National Conference or Executive if certain conditions are met.[155]
174 The Administrative Committee is a committee of the State Conference[156] with powers and duties that include carrying out its decisions.[157] Mr Garth Head, a long time ALP member with considerable experience in its operation, who gave evidence in the Asmar Proceeding, with considerable experience in its operation, who gave evidence as part of the plaintiffs' case, stated the Administrative Committee 'in substance governs the affairs of the Victorian Branch in between meetings of State Conference'.[158] Its membership includes the Officers of the Party and 30 other members elected by State Conference as voting members together with non-voting members.
175 Another committee of the State Conference is the Rules Revision Committee, which considers and makes recommendations to the State Conference about all proposed rule changes and, by its own motion, can propose amendments for State Conference to consider.[159] Then there is the Public Office Selection Committee, from which persons are chosen to take part in the preselection of candidates.[160] The Victorian Branch Rules also deal with disciplinary offences and establish a Disputes Tribunal which hears disciplinary charges.[161]
176 The National Executive is given the responsibility and the power to enforce the affirmative action rules, which are contained in the Victorian Branch Rules, and to determine the outcome in any Public Office preselection so as to ensure compliance with those rules.[162]
177 All disputes within the Party, or between one member and another that relate to the Party, are to be resolved in accordance with the Victorian Branch Rules and the National Constitution and not through legal proceedings.[163]
The relationship between the National Constitution and the Victorian Branch Rules
178 Ms Kairouz addressed the interpretation of the National Constitution and the Victorian Branch Rules and especially the question of whether, when a person becomes a member of the Victorian Branch, they become subject not only to the Victorian Branch Rules, but also to the National Constitution.
179 Ms Kairouz submitted that, while the Victorian Branch is affiliated with what she called the Federal ALP, under the Victorian Branch Rules, the Victorian Branch is an autonomous organisation separate to, and independent of, the Federal ALP, which could not interfere in its affairs unless authorised by the Victorian Branch Rules. She submitted that there is a Federal body whose members are all the members of the State Branches and which is governed by the National Constitution and that each State Branch constitutes a separate body with its own members and which is governed by its separate Rules.
180 Ms Kairouz submitted that membership of the Federal ALP is different from membership of the state party, which is a separate entity. The Federal ALP does not consist of a collocation of unincorporated associations as its members are ipso facto members of the state or territory branches. Under cl 13 of the National Constitution, the Federal ALP is an unincorporated association, the members of which are all the members of the state and territory unincorporated associations. It is a separate and distinct organisation from each of the state and territory parties and its membership is therefore different from the membership of each state or territory party. The terms of the National Constitution and the Branch rules support this interpretation. The 'powers of the party' that cl 16(d) permits the National Executive to exercise are limited to the powers of the Federal ALP contained in the National Constitution, but including those powers relating to state and territory branches. When cl 14(c) of the National Constitution states that the National Executive is the chief administrative authority of the Party, it is referring to the Federal ALP. Clause 14(b) provides that '[t]he National Conference shall be the supreme governing authority of the Party and its decisions shall be binding upon every member and every section of the Party', but that does not make them binding on a branch.
181 Ms Kairouz also relied on the Victorian Branch's policy-making role, with the State Conference being the 'supreme policy-making and governing body' of the Victorian ALP with the power to amend the Victorian Branch Rules.[164]
182 Ms Kairouz submitted that the existence of two distinct bodies was confirmed by the separate registration of the Federal ALP under the Commonwealth Electoral Act and the Victorian Branch under the Commonwealth Act. Under the National Constitution, the Party is the Australian Labor Party, whereas under the Victorian Branch Rules it is the Australian Labor Party, Victorian Branch.
183 The defendants submitted that the Victorian Branch was not autonomous, but rather was a constituent unit of the ALP, subject to the National Constitution, the National Conference and the National Executive. This was obvious from the description 'Victorian Branch', the noun 'branch' meaning part of a wider whole. This construction was apparent from provisions in the Victorian Branch Rules.
184 They relied on the description of the ALP's structure contained in Cameron v Hogan that:
The "Australian Labor Party State of Victoria" is an organization which itself forms part of a federal organization. There is a federal conference to which each State organization sends six delegates. Resolutions passed by it in accordance with the Party federal constitution are binding upon State organizations.[165]
185 The defendants pointed to the recognition in the Victorian Branch Rules that ALP policy is made by the National Conference.[166] The State Conference's power to make and interpret Platform and Policy and to amend and interpret the Branch Rules is expressly stated to be '[s]ubject to the National Rules'.[167] No motion 'which is inconsistent with National Platform or Policy' shall be presented to State Conference in the form '[t]hat it be the Platform/Policy of the Victorian Branch that ...', but rather must be presented in the form '[t]hat State Conference recommends to the Federal Conference/Executive ...'.[168] The number of delegates and proxy delegates to the National Conference is 'as are provided for in the National Rules'.[169] Under the Victorian Branch Rules, failure to comply with the National Constitution or the National Platform or Policy is a disciplinary offence.[170]
186 The defendants submitted that many provisions of the National Constitution supported their contention. They pointed to the name of the party which is 'The Australian Labor Party'[171] and it consists of branches in each state.[172] The National Conference is the supreme governing authority of the Party, and its decisions are binding upon every member and every section of the Party[173] and the National Executive is the chief administrative authority of the Party, subject only to the National Conference.[174] The National Executive has plenary powers under cl 16(d) and further powers under cls 16(e) and 16(f), including an intervention power. Delegates are elected from each state to National Conference, and State Branches cannot bind delegates as to how they vote on any issue before the National Conference.[175]
187 The Three Defendants submitted that because the ALP operates as a unified national entity it was artificial to characterise the intervention of the Federal ALP as the improper imposition of power upon the Victorian ALP. Their respective rules operate in harmony. Importantly, the National Constitution and the Victorian Branch Rules are united in the requirement for ALP members to resolve disputes, including between the State and Federal bodies, using the prescribed dispute resolution process and without judicial intervention. They also pointed to the immediate acquiescence of the Victorian Branch to each of the resolutions of the National Executive which are now challenged, conduct which was consistent with the Federal ALP and its State Branches operating as one political party.[176]
188 To support their submissions that the Victorian Branch is not independent of, or autonomous from, the national body, the defendants relied upon the analysis of the structure of the ALP contained in Burton v Murphy, Jackson v Bitar[177] and Setka v Carroll, which I will now describe.
189 In Burton v Murphy, the Full Court of the Supreme Court of Queensland, in determining the validity of federal intervention in the ALP Queensland Branch, considered the structure of the ALP and the relationship between the Party's Federal Rules and the Branch Rules as they stood in 1980. That decision is of considerable assistance in deciding the relationship between the National Executive and the Victorian Branch.
190 The case was a challenge to the Federal Executive's resolution of 1 March 1980 declaring that the Administrative Committee and Disputes Committee of the Queensland Branch no longer existed, suspending the operation of certain rules of the Queensland Branch, and setting up an 'Interim Administrative Committee' as the sole administrative authority of the Queensland ALP. The plaintiffs, who challenged the resolutions and intervention, were members of the pre-existing Administrative Committee and sued on behalf of and representing all members of the Queensland Branch, except the defendants who were appointees to the Interim Administrative Committee. They also sued in their personal capacities and as trustees of the property of the Queensland Branch.
191 The Federal Executive resolution was made under cls 7(c)(vii) and 7(c)(viii) of the then Federal Rules. Rule 7(c)(vii), which can be contrasted with the current cl 16(d), stated:
The National Executive shall -
have plenary powers to deal with and decide in matters which, in the opinion of an absolute majority of members of the Executive, affect the general welfare of the Labor Movement, provided that no decision of National Conference shall be abrogated under this rule.
192 Rule 7(c)(viii), which can be contrasted with the current cl 16(f)(iii) provided:
The National Executive shall -
in the case of any State Executive, State branch or section of the A.L.P. acting or having acted in a manner deemed by the National Executive to be contrary to the National Constitution, Platform and Policy of the Party as interpreted by the National Executive, the National Executive may overrule such State Executive, State Branch or section and/or may declare that same no longer exists, and shall set up in place thereof organisation competent to carry out the National Constitution, Platform and Policy of the A.L.P. Pending the hearing of any appeal, the decision of the National Executive shall operate. In the event of the National Executive taking any action under this sub-clause, the National Executive shall be the body to approve any selection which otherwise would have been made by the body affected by the National Executive decision.
193 The plaintiffs sought declarations that the defendants were not entitled to act as the Queensland Branch. In separate judgments, Douglas, D.M. Campbell and W.B. Campbell JJ dismissed an appeal from the judgment of Lucas J, who had decided that the Federal Rules were binding upon the members of the Queensland Branch and that the National Executive was acting within its powers in making the 1980 resolution. The separate judgments considered a number of the issues that arise in this case.
194 First, on the structure of the ALP, Douglas J stated:
Prima facie it seems to me that the Australian Labor Party starting with the individual, relevantly in the State of Queensland, by the rules referred to us, creates a pyramidal structure with the Federal Conference at the apex.[178]
In the Policy Handbook (ex. 35) issued after the first State conference in Rockhampton, the statement appears that 'The A.L.P. is organised as a federal body with national machinery superimposed on six States and two Territorial branches'. I think that generally sums up the position.
The following figurative meanings of the word "Branch" are given in the standard dictionaries; Oxford - a component portion of an organisation or system, a part of a large unity (vol 1. p. 1053); Webster - a member or part of any complex body or work (2nd ed. vol. 1 p. 325); Macquarie - any member or part of a body or system (p. 246). It seems to me that when the Queensland rules refer to "The Queensland Branch" they are recognising that the Queensland association has become part of a larger association and that individuals, on becoming members of, or joining, the Queensland association, are aware that they are becoming members of the larger body.
197 Secondly, the Court held that the ALP's National Platform and Constitution or Rules were binding on members of the State Branch. D.M. Campbell J stated: [182]
The Queensland Branch Rules go further than merely recognising the existence of the national organisation. The binding effect on members of the Platform and Rules is expressly recognised, for example, in rule 108(d)(ii).
Furthermore, under rule 13(d), the State Conference may refer matters to the National Executive and National Conference. The implication is that if matters are referred they are referred for decision or determination.
It seems to me that all members of the Queensland Association have become members of the "Australian Labor Party". The issue here is whether the National rules are binding on the individual members of the Queensland association. There was no evidence placed before His Honour to the effect that any member of the Queensland body held the view that he was, as such member, bound only by the Queensland rules and not by the National rules. Indeed, as I have said, the evidence was all the other way, namely, to the effect that the members of the Queensland body have always treated the National rules as forming part of the totality of rules by which they have agreed to hold themselves bound when applying for and becoming members of the political party in Queensland. For over fifty years the members of the Labor Party, who have been accepted as members by the Queensland branch, have not considered that they are members of a political party in Queensland separate and apart from the Australian Labor Party throughout Australia. A consideration of the history of the Australian Labor Party and of the rules of both the National organisation and of the State organisation has led me to the conclusion that the National rules are binding on all members of the Australian Labor Party (Queensland Branch).
199 Thirdly, the Court rejected the challenge to the National Executive's intervention in the Queensland Branch. D.M. Campbell J stated:
It does not strike me as irreconcilable with the independence of a state branch of a national political movement that the central executive should have power to intervene if it bona fide believes that the branch has acted contrary to the national constitution, platform and policy, provided intervention is confined to that.[184]
200 Fourthly, the Court decided that the Queensland Branch was not a wholly autonomous and independent body and that persons who became a member of it also became a member of the national body. W.B. Campbell J stated:[185]
In my opinion the material has shown that the Queensland body is not an organisation which is wholly autonomous and independent; its own rules illustrate that it has through its management organs, acting on behalf of its members, agreed to become part of a larger organisation, namely, the National body. It has recognised that rules are made from time to time by the National body, it has sent delegates to the National body to take part in the making of such rules, and the rules of the State body show that it has agreed that its members are subject to the rules of the National body. A person who is or becomes a member of the Queensland body also becomes a member of the National body. The supreme governing body of the State association is the State Conference which does not comprise all individual party members but only certain delegates chosen to represent other groups of individuals. That body elects delegates to the governing bodies of the National association, namely, the National Conference and the National Executive. The Queensland body's rules, insofar as they speak of "supreme body of the Party" or "determine finally any matter in dispute" or use expressions of a similar nature, should in my opinion, be read as having reference to the affairs of the State branch and as being subject to the overall supremacy of the duly constituted authorities set up by the National body.
In my opinion, it is clear that the conduct of the officers and members of the Queensland body over the last fifty years (approx.) has constituted an approval or ratification of the rules made from time to time by the National body, and such conduct has amounted to an acceptance that the National rules regulate the affairs of the members of the Queensland body. The totality of the evidence has persuaded me that the members of the Australian Labor Party (State of Queensland) are, by virtue of that membership, also members of the larger unincorporated association known as "The Australian Labor Party". Consequently, I do not consider that there is any need for the rules of the National association to be formally adopted by the Queensland association before they can be said to be rules which govern the conduct and affairs of the members of the Queensland body. It is individuals, and not separate voluntary associations considered as entities, who constitute the members of a political party. A political party is made up of a number of individual persons associated together for the advancement of the cause of a particular political philosophy. In my view it is meaningless to say that the National association is a political party the members of which are unincorporated associations and not the individuals who have joined themselves together in those unincorporated associations.
202 In Setka v Carroll, Riordan J described the ALP's structure in the following manner: [188]
The ALP is a voluntary unincorporated association formed for the purpose of promoting stated political objectives. The following relevant entities are included in the ALP structure:
(a) The National Conference is at the apex of the ALP's structure. It is constituted by the National President and National Vice-Presidents, delegates from the federal and state parliamentary parties, each state and territory branch and Australian Young Labor.[189]
(b) The National Executive is the ALP's chief administrative authority.
(c) The ALP has branches in each State and Territory. The Victorian Branch is constituted by affiliated unions and individual members of local branches and the central branch.[190]
Analysis of submissions about the structure of the Australian Labor Party
203 In my opinion, the reasoning in Burton v Murphy is applicable to the relationship between the National Executive and the Victorian Branch, and establishes that the State Branches are not independent or autonomous organisations. A person who became a member of the Queensland Branch also became a member of the unincorporated body known as 'The Australian Labor Party'. The Queensland Rules' reference to 'the Queensland Branch' recognised that the Queensland association was part of a larger association and that individuals, on becoming members of the Queensland association, were aware that they were becoming members of the larger body.
204 The High Court in Cameron v Hogan reached a similar conclusion that the Victorian Branch formed part of the federal organisation.
205 In my opinion, the Victorian Branch of the ALP is not a separate, autonomous and self-governing organisation and is not a separate political party. Rather it is a branch of a larger association. It matters not whether the larger organisation is described as the Federal ALP or the National ALP, it is the Australian Labor Party and it has branches, which are organisational units, reflecting the dispersal of Australia's population in states and territories. Particular branches may develop their own practices and cultures, but to call a branch of an association a separate entity misunderstands the ordinary meaning of the word 'branch' and the role that branches play in the larger organisation. Just like a tree, whose branches form part of it, so too the branches of the ALP form part of the Party.
206 Therefore, the Victorian Branch is part of the larger entity, the Australian Labor Party, and this is reflected in its name 'the Australian Labor Party, Victorian Branch'.[191] A person who is, or becomes, a member of the Victorian body is also part of the national body. They are not members of a political party in Victoria separate and distinct from the Australian Labor Party, which exists throughout Australia.
207 The significance of branches has been described in cases about Australian trade unions. In Williams v Hursey, when considering the status of the Hobart Branch of the Waterside Workers Federation, Fullagar J said:
But I need not pursue the matter further, because, whatever the rules may do or fail to do, they have, in my opinion no application to the present cases for the reason that the "Hobart Branch" of the federation is not an "unincorporated society, fellowship, club or association". It has no separate identity - no existence apart from the registered organization, of which it is an integral and inseverable part. Its members are merely a section of the total membership of the federation - locally organised for the sake of convenience, but in no respect independent of the federation, and in all respects subject to the control of the federation. The branches are permitted within limits to make rules of their own, but the rules which they make derive authority from the rules of the federation. It is contemplated that a branch may have "property and moneys", but, if r. 15 of the Hobart branch rules means that the beneficial ownership thereof is in the members of the branch, it is inconsistent with r. 10 (A) of the rules of the federation which makes the "fund and property" of the organization and its branches subject to the "care, superintendence, management and administration of the governing body of the Organization for the carrying out of the objects of the Organization".[192]
208 Although the procedure by which members of the Hobart Branch of Waterside Workers Federation also became members of the union itself differed from the membership procedures of the ALP, and although the rights of the Branches to hold property differed, in my opinion, the remarks of Fullagar J are an apt description of the role that branches play in the ALP.[193]
209 Furthermore, as described by the National Constitution, the Party is the Australian Labor Party, which 'shall consist of branches in each state'.[194] The ALP is an unincorporated association, organised as a federal body with national machinery superimposed on six States and two Territory branches. The National Conference is the supreme governing authority of the Party and its decisions are binding upon every member and section of the Party[195]. The National Constitution is also binding on all sections and members of the Party. ALP policy 'is made by the National Conferences comprising the National and State Parliamentary leadership of the Party, together with elected delegates from all States, the Australian Capital Territory, the Northern Territory, and Australian Young Labor.'[196] The National Executive is the chief administrative authority of the Party, subject only to the National Conference.[197] The National Executive is given 'plenary power' and subject only to National Conference:
may exercise all powers of the Party on its behalf without limitation, including in relation to the state branches and other sections of the Party.[198]
210 The National Executive monitors the implementation of the National Principles of Organisation in consultation with the State Branches.[199] It also possesses the powers contained in cls 16(d) and (f).
211 The fact that the Victorian Branch and the federal ALP are separately registered under the Commonwealth Electoral Act does not suggest that the Victorian Branch is a separate entity and not a branch of the wider ALP. Section 130 of the Commonwealth Electoral Act expressly envisages that a political party may be registered under the Act notwithstanding that a political party that is related to it has been registered.
212 For those reasons, I conclude that the Victorian Branch of the ALP is not a separate political party nor is it a separate legal entity. It is a branch of a national organisation. As a result, the Victorian Branch Rules are to be read with, and in many instances are subject to the provisions of the National Constitution, including cls 16(d) and 16(f). This conclusion is of general significance in the determination of this proceeding, especially in deciding the scope of the National Executive's powers contained in cls 16(d) and (f).
The Validity of the National Executive's Resolutions
213 Next, , in case my earlier conclusions about justiciability are incorrect, I will consider Ms Kairouz's challenge to the National Executive's resolutions
214 Ms Kairouz argued that the following National Executive's resolutions were invalid and beyond the power of the National Executive: the Administration Resolution of 16 June 2020, the Rule Amendment Resolution of 14 September 2020, and the Further Amendment Resolution of 29 January 2021.
215 On one view, the validity of the Administration Resolution determines the validity of the later resolutions as they followed it, or were based on it, or were consequential to it. If it is invalid, so are they.
216 I will next consider the challenges to the validity of the Resolutions, commencing with the Administration Resolution.
217 On 16 June 2020, the National Executive passed a resolution which, in effect, implemented the 'oversight' requested by Mr Andrews by appointing Mr Steve Bracks and Ms Jenny Macklin as Administrators of the Victorian Branch. For ease of reference I will repeat the terms of the Administration Resolution and of cl 16(f) of the National Constitution.
Recommendation:
National Executive notes the correspondence from the Premier of Victoria in relation to necessary reform of the Victorian Branch.
National Executive resolves to exercise its powers under Rule 16(f)(ii) to appoint Steve Bracks and Jenny Macklin as administrators of the Victorian Branch. The administrators are appointed for an initial term extending to 31 January, 2021.
For the term of the National Executive oversight:
National Executive directs the administrators to provide an initial scoping report by 31 July 2020. The scoping report will include recommendations to the National Executive on integrity measures for the Victorian Branch membership. The scoping report will include recommendations on how to maintain affiliate representation in the Victorian ALP. The scoping report should also include processes for consulting with the Party membership and affiliated unions. The administrators should develop this scoping report in consultation with the Victorian State Secretary and the Victorian Branch President.
The National Executive requests that the administrators report back by 1 November 2020, with a final report. The final report should include recommendations on how the Victorian Branch should be restructured and reconstituted so that the branch membership comprises genuine, consenting, self-funding party members.
National Executive notes the request of the Victorian Labor Leader that all voting rights in the Victorian Branch be suspended at least until 2023. National Executive will exercise its powers under Rule 16(f) iii to conduct all preselections for the next federal and state elections.
For the term of the National Executive oversight, officials and staff of the Victorian Branch shall report to the administrators. National Executive will consider the need to further support the work of the administrators. Should the administrators require special advice or professional services, these shall be appointed with the approval of the National Executive Committee.
219 Clause 16(f) of the National Constitution, which was referred to in the Resolution, states:
Without limiting the plenary powers of the National Executive under clause 16(d), if in the opinion of the National Executive any state branch or section of the Party is acting or has acted in a manner contrary to the National Constitution, the national platform or a decision of National Conference, as interpreted by the National Executive, the National Executive may:
(i) overrule the state branch or section;
(ii) intervene in the state branch or section, and take over and direct the conduct of its affairs; and
(iii) conduct any preselections that would otherwise have been decided by the state branch or section.
220 The terms of cl 16(f)(ii) required the National Executive to first form the opinion that 'any state branch or section of the Party is acting or has acted in a manner contrary to the National Constitution, the national platform or a decision of National Conference, as interpreted by the National Executive' ('the Required Opinion'). Because the Administration Resolution did not state that it had formed any such opinion, Ms Kairouz contends that it was invalid.
221 Mr Bracks' and Ms Macklin's appointments as administrators of the Victorian Branch ended on 31 January 2021, when they were replaced by an Interim Governance Committee appointed by the National Executive. It comprised Susie Byers, Ben Davis, Michael Donovan, Linda White and Lloyd Williams.
Ms Kairouz's submissions about the validity of the Administration Resolution
222 Ms Kairouz's submission that the Administration Resolution was invalid was based on the following propositions.
223 First, the National Executive failed to form the Required Opinion necessary to exercise the power contained in cl 16(f) of the National Constitution. The presumption of regularity did not assist the defendants in establishing the validity of the Administration Resolution and, even if it did, it had been rebutted. The defence did not plead that the Required Opinion had been formed, but only that the Administration Resolution was 'justified' because it 'followed and was in response to' the 60 Minutes program and associated articles in The Age, 'which justified the conclusion that the Victorian Branch or a section of it was acting or had acted in a manner contrary to the Constitution'. The Resolution simply adopted the language of the attachment to Mr Andrews' letter of 16 June 2020 which did not identify any contravention of the National Constitution. The Court should conclude that the Required Opinion was not formed and the need for it was not considered. Rather, the decision to intervene in the Victorian Branch was made in discussions between Mr Andrews and Mr Albanese and the National Executive was then presented with a fait accompli and was not informed of the need to form the Required Opinion. Consequently, the Administration Resolution was not supported by the power contained in the National Constitution and all the Administrators' actions, including the laying of charges against Ms Kairouz, were invalid.
224 The unlikelihood that the National Executive did form the Required Opinion was evident from Mr Andrews' letter of 16 June 2020 requesting federal intervention in the Victorian Branch. He did not criticise its governance and did not suggest that he had consulted with its governing bodies. He did not request that the State Conference be suspended, nor did the National Executive suspend it, thereby demonstrating that there was no intention to restrict its powers. Mr Andrews did not express any lack of confidence in the adequacy of the Victorian Branch Rules to deal with the branch stacking issue. He appeared to assume that the National Executive would do his bidding as his prior request to Mr Bracks and Ms Macklin to serve as Administrators evidenced. He asked the National Executive to act under cl 16(f) without pointing to any act of the Branch, or a section of the Party, which contravened the National Constitution. He claimed, without giving adequate explanation, that 'he had no confidence in the integrity of any voting rolls that are produced for any internal elections in the Victorian Branch'. But he provided no evidence to justify his lack of confidence. Nor was there any evidence that the National Executive held the same opinion of the voting rolls, let alone that it had considered that issue. In Ms Kairouz's submission, the Administration Resolution was 'an impetuous, ill-considered and irrational reaction to a sensationalist television program'.[200] The National Executive simply adopted Mr Andrews' suggested wording and 'endorsed' it as he requested and thereby ignored the requirement that it form the Required Opinion. The National Executive meeting lasted only 28 minutes and there was no evidence that any of the preconditions described in cl 16(f)(ii) was mentioned or considered.
225 In any event, on the information available to the National Executive on 16 June 2020, it was not open to it to form the Required Opinion. The Branch Rules complied with cl 46 of the National Constitution and with the National Principles of Organisation in relation to 'Membership recruitment' requirements contained in cl 35. That clause contained detailed requirements designed to prevent branch stacking before a person could become a member of a local branch. As local Branch meetings had been suspended because of the COVID-19 pandemic, there was no opportunity for persons to engage in branch stacking. The 60 Minutes program and associated articles in The Age contained extravagant claims that could not have led the National Executive acting reasonably and rationally to conclude that the Victorian Branch, or a section of it, as distinct from an individual, was acting, or had acted, contrary to the National Constitution. The National Executive passed a far reaching resolution without any examination of the facts, or any consultation with the Administrative Committee or any other governing body of the Victorian Branch, about whether it was required. The National Executive did not call evidence as to the formation of the Required Opinion, and the Court should be satisfied that it was not formed.
226 The practice of the National Executive on other occasions suggested that it did not appreciate the preconditions to the exercise of its power under cl 16(f). It had made the same error in passing resolutions purporting to rely upon cls 16(d) and 16(f) suspending local branch meetings because of the COVID-19 pandemic.[201] On those occasions the National Executive did not form the Required Opinion and instead treated cl 16(f) as an unconditional power. The statement in the Preselection Resolution in May 2021 that the National Executive affirmed that it had held the Required Opinion did not solve the invalidity of the Administration Resolution.
227 The National Executive acting reasonably and rationally might have concluded that Mr Somyurek had acted in breach of the National Constitution, but not the Victorian Branch or a section of the Party. They should have realised that the claims made in the 60 Minutes program could not have been correct, for example the claim that Mr Somyurek controlled two thirds of the Victorian Branch members. The recent suspension of a senior member of the Party for branch stacking showed that the Victorian Branch Rules were adequate to deal with that issue.
228 The National Executive did not rely on cl 16(d), but on cl 16(f)(ii). The plaintiff disputed that the National Executive could rely upon the power in cl 16(d) in addition to cl 16(f)(ii), particularly if the latter power did not give it the necessary authority to make the Administration Resolution.
229 But, in any event, cl 16(d) did not give the National Executive power to make the Administration Resolution as the term 'all powers of the Party' only refers to the Federal ALP's powers. That includes the Federal ALP's powers contained in the National Constitution relating to State Branches, such as the powers in cl 16(f). Clause 16(d) does not empower the National Executive to exercise the powers given by the Branch Rules to the governing bodies of the Branch. Even if it did, there is no power in the Branch Rules enabling the passing of the Administration Resolution or the other Resolutions. No Victorian Branch rule gave the National Executive intervention powers. The National Executive's Administration Resolution did not suspend or intend to suspend the State Conference, but even if it did, the National Executive did not have power to suspend the Administrative Committee or other committees or appoint administrators.
230 Ms Kairouz relied on Riordan J's opinion in Setka v Carroll that, when acting under the plenary power conferred by cl 16(d) to exercise State Branch powers, the National Executive was constrained by the limitations on the exercise of those powers contained in the Branch Rules. His Honour in obiter stated:
I do not accept the defendants' contention that on a plain reading of cl 16(d) the effect of the words 'without limitation' means that the National Executive has an unlimited power to expel members of the ALP - for the following reasons:
(a) The plain reading of cl 16(d) is that relevantly the National Executive may exercise all powers of the state branches; and the words 'without limitation' emphasise that none of the state branches' powers are reserved to the state branch. The defendants' construction, that the words 'without limitation' go to how powers are to be exercised, would require cl 16(d) to be reworded, at least, as follows:
Subject only to National Conference, the National Executive may exercise all powers of the Party on its behalf without limitation, including in relation to the state branches and other sections of the Party, without any of the prescribed limitations on the exercise of such powers.
In my opinion, even allowing for the latitude permitted in construing rules of voluntary associations, such a rewriting is unwarranted.
(b) Under r 20 of the Victorian Rules, the power to expel is confined to proven specified offences under the Victorian Rules. It does not contain a general power to expel with certain limitations. In my opinion, to construe cl 16(d) of the National Constitution as conveying an unlimited power to expel, which is not contained in the Victorian Rules, is to strain the language beyond any fair construction.
(c) The defendants' construction is not consistent with the principle that any power to expel members from an unincorporated association must be exercised strictly in accordance with the language of the rule.
...
'Plenary' relevantly is defined in the Macquarie Dictionary as 'full; complete; entire; absolute; unqualified'.[202] I accept that, as it is expressed to be a plenary power, the power under cl 16(d) should be construed to be 'free from ... unexpressed qualification';[203 ]and 'without making implications or imposing limitations which are not found in the express words'.[204] However, for reasons already given, I do not consider the fact that the power is described as plenary founds a basis for construing the power conveyed to the National Executive under cl 16(d) as exceeding a power prescribed under the Victorian Rules.[205] (citations omitted).
231 Ms Kairouz also challenged the appointment of Administrators under the Administration Resolution submitting that cl 16(f) required the National Executive, by itself, its organs such as the National Executive Committee, or other appropriate committees, to intervene in the Branch where it formed the Required Opinion. The National Executive did not have power to appoint the Administrators.
232 Ms Kairouz also relied on the pleading in the defendants' defence that a section of the Victorian Branch had contravened the National Constitution. However, neither the defence nor the Administration Resolution identified the 'section' and Mr Somyurek or Ms Kairouz could not be regarded as sections of the Party. The phrase 'section of the Party' referred to a section of the Federal ALP. The word 'section', given its ordinary meaning, describes a separate part or portion of the Party as distinct from its individual members.[206 ]It does not include factions or groupings of members as the National Executive cannot take over their affairs or intervene in them. As the Administration Resolution did not identify any 'section of the Party', it did not demonstrate that the National Executive had formed the Required Opinion required to invoke the power in cl 16(f)(ii). No basis was established for intervening in the whole of the Branch. The Victorian Branch Rules did not confer power on the National Executive to intervene in a 'section' of it. The National Executive did not rely on cl 35 of the National Constitution, the membership recruitment provision, which applied only to individuals or groups of individuals. Therefore, cl 35 could not be breached by a State Branch or a section of the Party and did not enable the National Executive to find a contravention of the National Constitution on which to make the Administration Resolution under cl 16(f)(ii). Clause 35 includes the following provisions:
(a) It is an abuse of Party rules for an individual or group/s to fund Party membership for other individuals or groups of individuals who would otherwise be unwilling to pay their own subscriptions.
(b) It is an abuse of Party rules for an individual or group/s to encourage reduced-rate membership to people that may not be eligible for that category of membership.
(c) It is an abuse of Party rules for an individual or group/s to recruit members who do not live at the claimed addresses in an attempt to gain advantage at local Party meetings or the outcome of Party ballots.
(d) It is a requirement of Party rules that members either correctly enrol with the Australian Electoral Commission to vote in a federal election at their stated address, or not be eligible to do so because they are under 18 years of age or not an Australian citizen. If members are enrolled to vote, and they join a branch, subbranch or other party body that has specific geographic coverage under state branch rules, they must do so using the address at which they are enrolled to vote.
233 Clause 35 also provides that involvement in such abuses will be considered as behaviour likely to bring the Party into disrepute and will result in disciplinary action, which may include expulsion under the rules of the Party. All State Branch rules must, where necessary, establish a tribunal to effectively resolve disputes concerning membership. The tribunals will operate according to due process and according to the national membership principles and rules.
234 Clause 35 then provides how applicants must personally apply for membership and personally renew their membership. It also regulates applications for membership made online and contains measures to prevent the 'bulk renewal' of memberships and caps or limitations on the number of members who may apply to join the ALP at a local branch or sub-branch meeting. Clause 35 also provides:
(o) In order to ensure that this clause is given effect, the state branches of ALP be required to amend, where necessary, their rules to reflect this clause. Such amended rules will be presented to the National Executive no later than 1 November 2003.
(p) The National Executive must continue:
(i) to monitor and enforce compliance with this clause; and
(ii) to review the operation of this clause to ensure the integrity of the Party's membership processes.
(q) All states branches must provide to the National Executive a complete current branch membership list by no later than 31 July of each year.
235 As I discuss below, the defendants relied on the presumption of regularity to establish that the Required Opinion had been formed. Ms Kairouz disputed that they could do so. She argued that the presumption did not apply to the National Executive's Resolutions as it only applies to acts of a 'public or official nature'[207] and to matters of form, rather than of substance.[208] The Administration Resolution was not of that character. The presumption generally applied where the matter was 'incapable of easily procured evidence'[209] and could not be relied upon to establish the satisfaction of a jurisdictional fact as the defendants sought to use it.[210 ]It only led to the assumption that a required opinion was formed where, on the evidence, the opinion was open to be held.[211] But even then, the court was not obliged to apply it, even if no evidence to the contrary of the presumption was advanced[212 ]and the presumption was easily rebutted.[213]
236 Moreover, Ms Kairouz submitted that the facts and circumstances demonstrated that it was not open to the National Executive to form the Required Opinion. The Victorian Branch Rules contained extensive provisions to prevent branch stacking, and such conduct was unlikely when local branch meetings had been suspended because of the COVID-19 pandemic. The National Executive had chosen not to lead evidence that they had formed the Required Opinion and in any event, its formation had been rebutted. Having regard to the serious effect of the Administration Resolution, the fact that it did not refer to the Required Opinion demonstrated that the National Executive had not formed it.
The defendants' submissions about the validity of the Administration Resolution
237 The defendants contended that the National Executive acted within the power conferred by cl 16(f)(ii) in making the Administration Resolution. They relied on the presumption of regularity to establish that the National Executive had formed the opinion required by cl 16(f)(ii). The Resolution expressly relied on cls 16(f)(ii) and cl 16(f)(iii) and stated that the National Executive would 'exercise its powers under Rule 16(f)(iii) to conduct all preselections for the next federal and state elections'.[214] They submitted that the High Court decision in McLean Brothers & Rigg v Grice[215] established that the presumption of regularity applied generally and not just in the realm of public law. In that case, the High Court held that the presumption applied to the question of whether a quorum was present at a company meeting. Griffith CJ quoted the statement of Brewer J in Knox County v Ninth National Bank,[216] a United States Supreme Court decision, that the presumption of regularity is 'a rule of very general application, that where an act is done which can be done legally only after the performance of some prior act, proof of the later carries with it a presumption of the due performance of the prior act.'[217] The defendants submitted that the presumption could apply to the actions of a voluntary unincorporated association.
238 The defendants submitted that a resolution could be valid even if it did not recite the words of the precondition for the exercise of the power. The presumption was not limited to matters of form, but could apply to matters of substance.[218]
239 The defendants submitted that the 60 Minutes report, and the extensive coverage in The Age, and other media throughout the country, contained audio and video evidence depicting a significant branch stacking operation in the Victorian Branch, including individuals and groups funding party memberships for other individuals and groups who were apparently otherwise unwilling to pay their own subscriptions, who did not live at their claimed or enrolled addresses, and applicants not personally applying for their own memberships. This was alleged to be done in an attempt to gain advantage at local Party meetings and in the outcome of Party ballots. Each of these actions was in breach of cl 35(e) of the National Constitution. Mr Andrews' correspondence, put before all members of the National Executive and the resolutions passed in response to that correspondence referred specifically to the 60 Minutes and The Age reports. The actions authorised in the resolutions addressed the very conduct described in those reports.
240 It was an inescapable inference from the evidence that the National Executive was of the opinion that, at least, a section of the Victorian Branch was acting or had acted in a manner contrary to the National Constitution.
241 The defendants submitted that, even if the National Executive was not empowered to act under cl 16(f), the Administration Resolution was supported by the National Executive's plenary power under cl 16(d). Clause 16(f) states that it does not limit the plenary powers under cl 16(d). The National Executive could rely on cl 16(d) even though it did not mention it, as a mistake by a decision maker as to the source of their power does not invalidate their actions.
242 Counsel for the Three Defendants, whilst accepting that the plenary power in cl 16(d) had some limits, for example, it could not be used to abolish a branch, submitted that it was broad and allowed the National Executive to intervene in State Branches. The National Executive's power was not unlimited as it remained subject to the control of the National Conference.
243 The defendants argued that the National Executive's exercise of the powers contained in cls 16(f)(ii) and (d) were not subject to any limitations contained in the Victorian Branch Rules. On this point Riordan J's comments in Setka v Carroll were incorrect, but, in any event, could be distinguished as they concerned the power to expel members and the requirement that such a power had to be strictly interpreted.[219 ]
244 The defendants contended that when exercising the power in cl 16(f)(ii) the National Executive could appoint persons to administer a branch as part of an intervention. In any event, by the terms of the Resolution, the National Executive retained oversight of the intervention and the conduct of the Victorian Branch and directed the Administrators to report back on various matters.
Analysis of the challenges to the Administration Resolution
245 The precondition to the National Executive's exercise of the power contained in cl 16(f)(ii) is that it had first formed the Required Opinion that 'any state branch or section of the Party is acting or has acted in a manner contrary to the National Constitution, the national platform or a decision of National Conference, as interpreted by the National Executive'. Because the Administration Resolution did not recite or otherwise contain the Required Opinion, it is necessary to consider whether the presumption of regularity permits the assumption that the National Executive formed it.
246 I consider that the presumption of regularity applies to the Administration Resolution enabling the conclusion that the National Executive formed the Required Opinion. The authorities suggest that the National Executive did not have to recite the Required Opinion in the Administration Resolution. In Pearce v City of Coburg,[220] a Council, in order to grant a planning permit, was required to form an opinion about whether substantial detriment might be caused to any person other than the applicant by the grant of the permit. When deciding to grant the permit, Council members did not discuss the issue of substantial detriment. Starke J decided that the permit had been validly granted since it had not been shown that the Council had failed to form the opinion required. His Honour explained:
Mr Fagan then argued that if the council did not discuss the matter, it could not have formed an opinion. I do not think that this follows at all. There is, as I have said, a statutory duty on the council to form an opinion under s 18B.
It is my opinion that the council must be presumed to have acted regularly until the contrary appears, and in my judgment in this case the contrary does not appear. Indeed, it would be surprising to me if the members of the council when considering the matter were not acutely aware of the interests of neighbouring households.[221]
247 To like effect was the decision of the New South Wales Court of Appeal in Western Stores Ltd v Orange City Council[222] where in issue was the making and levying of a local rate. The resolution did not recite that, in the opinion of the Council, the works or services for which the rate was levied would be of special benefit to the areas rated. The formation of that opinion was a precondition to the exercise of the statutory power to levy that rate. The Court dismissed an appeal against the validity of the rate. Moffitt JA stated:
I do not think it is necessary to go to the alternate argument and that, as the case is one where the opinion...was open to be held, it is to be presumed, in default of reason to conclude to the contrary, that the rate was regularly made and therefore was made upon the prerequisite opinion having been formed: Jones v Robson; McLean Bros. & Rigg Ltd v Grice, and see Shire of Lillydale v Gainey and Hebburn Ltd. v Kearsley Shire Council (citations omitted). In applying the presumption I do not think that any distinction should be drawn between the exercise of a power by an individual and the exercise of such power by a body or group which acts by way of resolution, or vote.[223]
248 This decision was applied by the Western Australia Full Court in Re City of Joondalup; Ex parte Mullaloo Progress Association[224] where the issue was whether the Council had been satisfied of matters stipulated in the planning scheme as preconditions to the exercise of the power. Pullin J stated:
In my opinion, it was not necessary for council to state that it was satisfied of the matters referred to in cl 4.5.3. Where a power is conferred upon terms requiring the prior formation of a particular opinion by the donee of the power, it will be presumed from the exercise of that power, in the absence of evidence to the contrary, that the donee had the required opinion. See McLean Bros & Rigg Ltd v Grice.[225]
249 In addition, the circumstances surrounding the National Executive's meeting on 16 June 2020 support the conclusion that it formed the Required Opinion. The 60 Minutes program suggested widespread branch stacking centred on the actions of Mr Somyurek, which may also have affected many local branches in the Victorian Branch. It was reasonably open to the National Executive to conclude that the Victorian Branch, or a substantial section of it, had engaged in branch stacking activities. It was also reasonably open for the National Executive to respond to the television program and the associated media reports by resolving to intervene, take over and direct the conduct of the Victorian Branch's affairs. Given the nature and extent of the alleged branch stacking, and its ability to compromise many activities of the Branch and the Party, it was open to the National Executive to conclude that the Branch, as a whole, was acting in a manner contrary to the National Constitution. I also consider that if the National Executive considered that a 'section' was acting contrary to the National Constitution, the National Executive was nonetheless empowered to intervene in the Branch as a whole. For instance, actions by a 'section' contrary to the National Constitution might affect the integrity of the entire membership records of the Branch.
250 The National Executive did not have to specify in the Administration Resolution the 'section' said to be involved in branch stacking. The term 'section' which is contained in cls 16(d) and (f) has a wide meaning. In this context, it could include organised groups within the ALP, such as factions. Mr Head's evidence identified the following 'broad descriptors' of factions in the Victorian Branch:
251 Mr Head described these factions as 'sort of transient things that occur from time to time' and that there are sometimes sub-factions within those factions.[226 ]I gathered from his evidence that his list was not to be taken as an authoritative list of the past, present or future factions but as broad descriptors of the types of 'sections' to which Ministers, staffers and members may belong.
252 Although the Administration Resolution did not refer to cl 35 of the National Constitution, cl 35 requires the National Executive to monitor and enforce compliance with its provisions, which deal with membership recruitment and abuses, including branch stacking. As the National Executive was under that obligation, it has not been established that the Resolution was beyond the range of reasonable or rational responses for the National Executive to adopt. The Administration Resolution referred to cl 16(f) of the National Constitution as its source of power and the circumstances suggested by the 60 Minutes program and the resulting adverse media coverage provide a rationale for its intervention in the Victorian Branch under cl 16(f)(ii). The Administration Resolution recited that the National Executive relied on the power in cl 16(f)(ii).
253 The facts that the National Executive meeting lasted a short time or that, in effect, it did what Mr Andrews had requested, did not invalidate the Administration Resolution. Nor did the facts that Mr Andrews did not state that he had consulted with the Victorian Branch Officers or its Administrative Committee or had expressed dissatisfaction with its procedures for dealing with branch stacking. The members of the National Executive may have had a range of reasons for their support for the Resolution. But having national oversight of the ALP's affairs, they had to confront serious allegations of branch stacking in the Victorian Branch and the resulting media storm and were asked by the Victorian Parliamentary Leader to take action. They might have waited to analyse and sift the allegations to assess their weight and detect exaggerations or improbabilities. But people faced with a media storm may not consider that they have the luxury of that time. In my opinion, the National Executive did not exceed their power by deciding to take urgent action. The subsequent Administrators' Report suggests that the media allegations of branch stacking were not an exaggeration.
254 I also consider that the National Executive had power to pass the Administration Resolution under cl 16(d), the plenary power.
255 In Setka v Carroll, in the passage previously quoted_,[227]_ Riordan J, relying on Cameron v Hogan, dismissed a proceeding commenced by a member facing expulsion from the ALP. He said that if it were necessary to decide, he would have held that cl 16(d) of the National Constitution, the plenary power, did not give the National Executive an unlimited right to expel members, but rather that it had to follow the procedures contained in the Victorian Branch Rules.[228 ]
256 In my opinion, Riordan J's statement about the limitations on the exercise of the plenary power in cl 16(d), when relied on to expel a member, does not apply to matters not regulated by the Branch Rules. An example is the National Executive's power to intervene in a Branch under cl 16(f)(ii), which is not a matter dealt with in the Victorian Branch Rules. In contrast, the expulsion of members, the matter dealt with in Setka v Carroll, is expressly dealt with in the Victorian Branch Rules. The effect of his Honour's statement is that the exercise of a power, such as to expel a member, must be exercised in accordance with the limitations contained in the Branch Rules.
257 Nor do I consider that the expression 'the powers of the Party' contained in cl 16(d) is restricted to the powers of the 'Federal Party'. Rather, I consider that the expression 'the powers of the Party' extends to all the Party's powers, although subject to the limitation identified by Riordan J in Setka v Carroll in the case of cl 16(d).
258 I consider that the National Executive did not mistake the scope of the powers given to it by the National Constitution, but possessed power to intervene in the Victorian Branch under cl 16(f)(ii). If that was not the case, I would have decided that power to pass the Administration Resolution was contained in cl 16(d). If the decision maker has mistakenly acted under the wrong head of their power, the question is whether the decision maker had power to take the action that they did. The validity of the decision is not affected by the decision maker having purported to act under the wrong head of power, if another provision gave the necessary power to them.[229] So, in this case, if the National Executive did not satisfy the preconditions to the exercise of the power contained in cl 16(f)(ii), then cl 16(d), the plenary power, supported the validity of the Administration Resolution.
259 In summary, I consider that the National Executive had power to pass the Administration Resolution and to take over and conduct the affairs of the Victorian Branch. I conclude that the National Executive formed the Required Opinion because the Administration Resolution stated that it relied on cl 16(f)(ii) and the presumption of regularity applied, so that it can be assumed that it formed the Required Opinion. The surrounding circumstances provided a rationale for its formation. The National Executive passed the resolution following widespread publicity about branch stacking and Mr Andrews' request for it to act. The surrounding media coverage entitled it to conclude that there may be widespread involvement in branch stacking extending beyond Mr Somyurek and this cast serious doubt on the integrity of the membership records. Media coverage of branch stacking had become a public problem for the ALP and was attracting adverse media coverage. It was open to it to form the opinion that intervention in the Victorian Branch was required.
260 The existence of provisions in the Victorian Branch Rules attempting to prevent branch stacking, or instances of the enforcement of those provisions, did not suggest that the intervention was unnecessary as the branch stacking allegations arose despite those rules. Rather, the National Executive was entitled to conclude that the existence of those measures was insufficient. Nor did the suspension of local branch meetings suggest that the National Executive did not have to address branch stacking as the measures implemented by the Administration Resolution were directed at dealing with those involved in past branch stacking as well as preventing its reoccurrence. I discuss later, in dealing with the disciplinary charges, whether the Amended Rules could apply to past instances of branch stacking.
261 In my opinion, the National Executive was entitled to appoint appropriate persons to act on its behalf to carry out the intervention. This was necessary to enable the intervention to be implemented. The members of the National Executive could not carry out the day to day tasks of administering the Victorian Branch themselves. The grant of power includes by implication anything necessary to effectuate the purpose of the power.[230 ]The actions taken by the Administrators were valid as they were done in implementation of the Administration Resolution.
Was the Administration Resolution unreasonable, irrational or lacking in good faith?
262 As a second ground of challenge to the validity of the Administration Resolution, Ms Kairouz contended that even if the National Executive was taken to have formed the Required Opinion, it acted unreasonably or irrationally in passing the Administration Resolution, and as a result it was invalid.[231] No separate submission about a lack of good faith was developed. Ms Kairouz submitted that the National Executive could not reasonably or rationally have formed the Required Opinion on the material before it. If it had acted reasonably or rationally, the National Executive must have realised that the claims made in the 60 Minutes program were incorrect. For instance, the suggestion that Mr Somyurek controlled two thirds of Victorian Branch members was fanciful, given that there were in excess of 17,000 members. The Administrators' Reports concluded that the vast majority of them were genuine members.
263 The defendants submitted that Ms Kairouz had not discharged the onus of establishing invalidity on these grounds.[232] They submitted that the Administration Resolution made under cl 16(f) and, if necessary, supported by the plenary power in cl 16(d), was made for good reason, which I have summarised previously. The defendants rejected the contention that the National Executive did not exercise the power reasonably, rationally, or in good faith. They referred to the reports broadcast on 60 Minutes and published in The Age as evidence depicting and describing a significant branch stacking operation in the Victorian Branch.
Analysis of grounds of unreasonableness, irrationality, and lack of good faith
264 I proceed on the basis that decisions, or at least formal decisions, of voluntary associations can be challenged on these grounds.[233]
265 As I have previously stated, the circumstances existing when the National Executive passed the Administration Resolution suggested the likelihood of widespread branch stacking in the Victorian Branch. At the least there were serious allegations of branch stacking attracting widespread media coverage adverse to the ALP. A rational or reasonable response by the National Executive could include taking urgent action to investigate the allegations and, if they were established, implementing significant measures to eradicate branch stacking and its causes. Views about how to respond might differ, but the circumstances provided a basis for the National Executive to pass the Administration Resolution. Viewed in that context, the Administration Resolution could not be said to be irrational, illogical or unreasonable. Nor was it established that it was passed at the behest of Mr Andrews as distinct from the National Executive forming its own opinion.
266 For those reasons, if I had found the issue justiciable, I would have dismissed the plaintiffs' challenge to the Administration Resolution.
267 I have previously set out the terms of the Rule Amendment Resolution.[234]
Ms Kairouz's submissions about the Rule Amendment Resolution
268 Ms Kairouz's challenge to the Rule Amendment Resolution was based on similar grounds to her challenge to the Administration Resolution.
269 These were that the National Executive lacked power to pass the Resolution under either cls 16(d) or 16(f) and, in any event, it did not state under what power it was made. It did not form the Required Opinion as required by cl 16(f). Only the State Conference has the power to amend the Victorian Branch Rules and then only in accordance with rr 6.4.4, 6.4.5 and 6.4.6. Clause 16(f) did not empower the National Executive to amend the rules of a Branch that it has taken over.
270 Ms Kairouz submitted that the term 'all powers of the Party' in cl 16(d) refers to all the powers of the Federal ALP contained in the National Constitution and, therefore, did not include power to amend branch rules because there is no power to do so in the National Constitution. But even if the National Executive did have power to amend branch rules, any such amendment had to comply with the procedures contained in the Victorian Branch Rules,[235] whereas the National Executive simply sought to amend the rules by decree. The rule amendment procedures in the Victorian Branch Rules were contained in r 6.4.6 titled, 'Changing these Rules' and required the member or affiliate proposing the amendment to give the State Office eight weeks' notice prior to the next State Conference, the circulation of the amendments to affiliated unions, constituent units and Conference delegates and to the Agenda Committee. Any of them might propose amendments, which had to be similarly circulated and sent to the Rules Revision Committee. Any change to the Rules required the votes of an absolute majority of delegates entitled to attend the meeting of State Conference.
271 Ms Kairouz submitted that, to the extent that the defendants relied on the Rule Amendment Resolution, if it was invalid, everything done under it, including the laying of charges against her, was also invalid. To the extent that the rule amendments were made by the National Executive 'in furtherance' of its invalid Administration Resolution, they were invalid because the Administration Resolution did not authorise it to amend the Victorian Branch Rules.
272 Ms Kairouz also argued that the Rule Amendment Resolution violated the fundamental objectives and principles of the ALP contained in Pt B of the National Constitution and in Pt 2 of the Victorian Branch Rules. These include that the ALP is 'a democratic socialist party and has the objective of the democratic socialisation of industry, production, distribution and exchange, to the extent necessary to eliminate exploitation and other anti-social features in these fields' and that to 'achieve the political and social values of equality, democracy, liberty and social co-operation' it stands for a range of specified objectives.
The defendants' submissions about the Rule Amendment Resolution
273 The defendants submitted that the Victorian Branch Rules had to be adapted 'to confirm the Administrators' powers' to stop branch stacking and to achieve a party of 'genuine, consenting and self-funding members'.[236] The power in cl 16(f)(ii) to intervene in a branch and to take over and direct the conduct of its affairs carries with it all power necessary to make that intervention effective. The rule amendment power when exercised to deal with branch stacking was incidental to the original Administration Resolution.
274 The defendants submitted that the National Executive's plenary power in cl 16(d) also carried power to amend branch rules. In that respect, they submitted that Riordan J's opinion, given as obiter in Setka v Carroll,[237] was incorrect or only applied to the expulsion of members, where the common law requires the power of expulsion to be expressly conferred. An example of the National Executive's exercise of the power contained in cl 16(d) is r 24 of the Victorian Branch Rules which provides for the expulsion of members convicted of serious criminal offences and which was inserted by the National Executive under cl 16(d) in 2011. The National Executive's resolutions suspending local branch meetings because of the COVID-19 pandemic were also made under cl 16(d).
275 The phrases in cl 16(d) that 'all the powers of the party on its behalf' and 'including in relation to the State Branches and other sections of the Party' were to be read as including all the State Branches because the branches are part of the Party. There is only one ALP at all levels of government, Commonwealth, State, and Local. The party is a single body with constituent branches which are bound by the overarching supremacy of the National Conference and the National Executive.
276 The defendants disputed that the Rule Amendment Resolution violated the fundamental principles of the ALP or of the Victorian Branch and, even if it did, that would not invalidate it. To the contrary, the Rule Amendment Resolution clarified and refined the 'branch stacking' rules and sought to prevent such conduct and thereby fulfilled the fundamental objectives and principles of the ALP, including the membership recruitment requirements in cl 35 of the National Constitution.
277 The defendants submitted that the Rule Amendment Resolution was within power. It confirmed the National Executive's formation of the Required Opinion and was authorised by cls 16(d) and 16(f) but its validity was not dependent on express reference to those powers. Clause 16(d) confers very broad power 'without limitation' on the National Executive and it is not required to comply with the procedures contained in the Victorian Branch Rules when exercising that power.
Analysis of submissions about the Rule Amendment Resolution
278 The question is whether the rule amendments made on 14 September 2020, upon which the four disciplinary charges against Ms Kairouz were based, were valid. This question requires consideration of the extent of the National Executive's power to amend Branch rules.
279 This issue again requires the interpretation of cl 16(f)(ii) which gives power to the National Executive to intervene in a State Branch or section, and take over and direct the conduct of its affairs. That power is expressed so as not to limit the plenary powers of the National Executive under cl 16(d). The defendants contended that cls 16(d) and 16(f)(ii) enabled the amendment of State Branch rules in urgent circumstances like those existing on 14 September 2020.
280 The only specific mention in the National Constitution of amending branch rules is in cls 46 and 47 which state:
46. All state branch rules must be revised in accordance with these National Principles of Organisation as amended at the National Conference held in December 2011, and be submitted to the National Executive for endorsement no later than 31 December 2013.
47. Pursuant to clause 16(d), the National Executive is empowered to amend the rules of any state branch as required to implement the National Principles of Organisation.
281 The National Principles of Organisation are described as follows:
31. The National Principles of Organisation in this part are those provisions of the National Constitution intended to be binding specifically on state branches and implemented through their rules.
282 I conclude that the National Executive had power to pass the Rule Amendment Resolution approving the new rules under which Ms Kairouz was charged. I consider that the Resolution was incidental to the exercise of the intervention power. I will consider later the submissions about the validity of the four charges brought against Ms Kairouz.
283 The power to take over and direct the affairs of the Branch conferred by cl 16(f)(ii) carries with it power to amend rules and perform tasks incidental to the exercise of that power.[238 ]An amendment of the rules for a purpose connected with the intervention, such as the elimination of branch stacking, is incidental to the exercise of the intervention power when it is exercised to deal with branch stacking.
284 As I concluded in the case of the Administration Resolution, in order to exercise the power contained in cl 16(f), the National Executive did not have to state that it has formed the Required Opinion.
285 The plenary power in cl 16(d), by conferring all the powers of the Party on the National Executive, was another source of power to pass the Rule Amendment Resolution. I do not consider that the power conferred on the National Executive by cl 16(d) is limited to the power of what the plaintiffs described as the Federal ALP under the National Constitution. Nor do I consider that the National Executive's power to amend branch rules is constrained by the procedures for amending rules contained in the Victorian Branch Rules, which required State Conference to approve the amendments. To so require would be inconsistent with the National Executive's power to take over and direct the conduct of the affairs of the Branch. In my opinion, that power included power to amend the Victorian Branch Rules to deal with branch stacking which after all was the problem that caused the intervention. At the least, the National Executive had power to amend the Victorian Branch Rules to deal with the problem of branch stacking because it was action that was incidental to the power to take over and conduct the affairs of the Victorian Branch conferred by cl 16(f)(ii).
286 For those reasons, if I had found the issue justiciable, I would have dismissed the plaintiffs' challenge to the Rule Amendment Resolution.
287 On 29 January 2021, the National Executive further amended the Amended Rules with effect from 1 February 2021 ('the Further Amended Resolution and the Further Amended Rules'), when the appointment of the Administrators ceased. The Further Amendment Resolution included recommendations by the Administrators and the appointment of a Party Monitor. It also amended the rules by adding r 26.8.1 in the following terms:
Notwithstanding that the appointment of the Administrators ceased as at midnight on 31 January 2021, charges laid by the Administrators during the period of the administration shall be heard and determined by the Disputes Tribunal in accordance with rule 26 as it applied during the administration and any suspension of the member in question shall continue.
288 Ms Kairouz submitted that the Further Amendment Resolution was invalid and beyond the power of the National Executive for the same reasons as the Rule Amendment Resolution was. Ms Kairouz submitted that the National Executive's purported appointment on 1 February 2021 of the 22nd to 26th defendants as the Interim Governance Committee was also beyond power and invalid. She again relied on the submission that the 2020 Rules pursuant to which the charges were brought were invalid as being in excess of power. She submitted that the charges were brought with respect to alleged conduct to which the 2020 Rules did not apply and were therefore beyond power as they were not intended to apply retrospectively and to the extent that they purported to so apply and have retrospective effect they were beyond power. To the extent that 2020 Rules provided for a presumption of branch stacking and reversed the onus of proof, they were invalid. On the basis of these submissions and the submissions made with respect to the Rule Amendment Resolution, she submitted that the unamended Victorian Branch Rules were the rules governing the Victorian Branch.
289 The defendants submitted that the Further Amendment Resolution, like the Rule Amendment Resolution, was a valid exercise of the National Executive's powers under cl 16(d) and/or 16(f) of the National Constitution.
Analysis of submissions about the Further Amendment Resolution
290 I consider that the Further Amendment Resolution was valid for the same reasons as I gave for the validity of the Rule Amendment Resolution. The appointment of the Interim Governance Committee members was valid for the same reasons as the appointment of the Administrators. The Administrators expressed the opinion that the administration of the Victorian Branch needed to continue and the National Executive was entitled to act on that opinion and appoint members of an Interim Governance Committee to implement the Administrators' recommendations.
291 I also consider that the Administrators, who were validly appointed, had power to bring branch stacking charges against Ms Kairouz. Rule amendments made on 14 September 2020 permitted the Administrators to charge a member with a contravention of the branch stacking rules, and r 26.8, as introduced on 29 January 2021, provided that the charges laid by the Administrators should be heard and determined by the Disputes Tribunal in accordance with r 26 as it applied during the administration. However, as I discuss below, there is a question about whether Charge Four is a branch stacking charge and whether it could be brought by the Administrators. Since this question was not raised at the hearing, I do not decide it.
292 For those reasons, if I had found the issue justiciable, I would have dismissed the plaintiffs' challenge to the Further Amendment Resolution.
293 I deal next with Ms Kairouz's challenge to the disciplinary charges.
Ms Kairouz's Challenge to the Charges Brought by the Administrators
294 Ms Kairouz challenged the four disciplinary charges that the Administrators brought against her.
295 An initial question arose about whether Ms Kairouz's challenge to the disciplinary charges was justiciable.
296 I have held that Ms Kairouz's trust case is justiciable, but that it does not succeed. That conclusion about justiciability does not mean that her challenge to the disciplinary charges is justiciable. I do not consider that it is, as while the trust case falls within an exception to Cameron v Hogan, the challenge to the disciplinary charges does not fall within either the proprietary interest or the contract exceptions recognized in that decision. I do not consider that Cameron v Hogan can be distinguished from the circumstances of this case.
297 Despite my conclusion that Ms Kairouz's challenge to the charges is not justiciable, I will state my conclusions on the other arguments advanced about their validity.
298 The Administrators charged Ms Kairouz with four disciplinary charges. She challenged their validity on the grounds of their retrospectivity and argued that the Administrators lacked the power to bring them. I will next set out the rules dealing with branch stacking.
299 On 31 January 2021, the Administrators, purporting to act under rr 26.4.2 and 26.6.5 of the Amended Rules, charged Ms Kairouz with alleged contraventions of the Amended Rules relating to branch stacking. Rules 26.4 and 26.6 then relevantly provided:
26.4.1: This Rule applies when the Administrators allege that a member has breached the branch stacking rules.
26.4.2: The Administrators may, in their absolute discretion, charge a member with a breach of the branch stacking rules.
26.4.3: In the event that the Administrators charge a member under sub-rule 26.4.2, the charge will be dealt with by the Disputes Tribunal in accordance with Rule 20 of these Rules, subject to sub-rules 26.4.4 and 26.6.
26.4.4: For the purposes of sub-rule 26.4.3, a member charged with branch stacking is presumed to have engaged in the activity or activities in question:
26.4.4.1: for the predominant purpose of influencing the outcome of ballots of members within the Party; and/or
26.4.4.2: with the intention of enrolling as a member, or retaining as a member, a person who is not a genuine member;
unless the members satisfies the Disputes Tribunal otherwise.
26.4.5: Despite anything in these Rules to the contrary, the Administrators may suspend the membership of any member who has been charged under sub-rule 26.4.2 pending a decision by the Disputes Tribunal in accordance with sub-rule 26.4.3.
26.6.3. The Administrators have sole responsibility for receiving and investigating complaints of branch stacking.
26.6.4. The Administrators have sole responsibility for charging members with breaches of the branch stacking rules.
26.6.5. The Administrators may also charge members with any other disciplinary offences under Rule 20.5.
26.6.6 Rule 20.5.3. does not apply.
300 Branch stacking is defined under r 5.17 of the Victorian Branch Rules. Prior to the Rule Amendment Resolution, the relevant provision of r 5.17 read as follows:
5.17.1.1: Branch stacking is conduct unacceptable to the Party. Branch stacking is defined as the enrolling of persons to the Party by offering inducement or enrolling persons for the principal purpose of influencing the outcome of ballots of members within the Party.
301 After the Rule Amendment Resolution, the relevant rules read as follows:
5.17.1.2: Branch stacking is conduct unacceptable to the Party. Branch stacking means any activity relating to enrolling members, renewing memberships or transferring members between branches:
5.17.1.2.1: Engaged in for the predominant purpose of influencing the outcome of ballots of members within the party; or
5.17.1.2.2: That has the effect, or is likely to have, or intended to have, the effect of enrolling a member, or retaining as a member, a person who is not a genuine member.
5.17.1.3: Party members individually or collectively who engage in, organise or promote Branch stacking activities, including any of the following activities, will be deemed to have engaged in Branch stacking...
302 'Genuine member', which is a term introduced in the Amended Rules, is defined as follows:
5.17.1.1: In this Rule, "genuine member" means a member who:
5.17.1.1.1: agrees by their own affirmative act to become and remain a member of the Party
5.17.1.1.2: complies with the membership pledge stated in Rule 2.5; and
5.17.1.1.3: pays their own membership fee by traceable means (subject only to the family member exception referred to in Rule 5.17.2.1).[239]
303 Both after and prior to the Rule Amendment Resolution, r 20.5.3 provides that a 'complaint must be made within 6 months of the offence being committed, unless the Disputes Tribunal is satisfied there is good reason for the delay'.
304 Rule 26.4.4, which was introduced by the Rule Amendment Resolution and is quoted above, establishes a presumption that a member charged with branch stacking engaged in that activity unless he or she satisfies the Disputes Tribunal otherwise.
305 Lastly, r 5.16.3.3, which was unchanged by the Rule Amendment Resolution, reads as follows:
5.16.3.3: ...[Members], staff and volunteers must promptly advise the State Secretary, the Party Monitor, the President, the Senior Vice President or the Junior Vice President about any matter that may bring the Party into disrepute.
306 Next I set out the charges brought against Ms Kairouz. For each charge, I discuss whether it could have been brought both under the rules as they were prior to 14 September 2020 ('the Old Rules') or only under the Amended Rules introduced on that date.
Engaging in conduct that amounts to a disciplinary offence [under] Rule 20.5.1.4, that is, Ms Kairouz engaged in an activity relating to enrolling members, renewing memberships or transferring members between branches that has the effect, or is likely to have, or is intended to have the effect of enrolling as a member, or retaining as a member, a person who is not a genuine member as described in Rule 5.17.1.2.4, namely, by:
308 The reference in the first charge to r 5.17.1.2.4 appears to have been intended to refer to r 5.17.1.2.2 as there was no r 5.17.1.2.4.
309 The particulars to Part A of this charge concern Ms Kairouz's alleged participation in a meeting with Mr Somyurek on 10 March 2020 that involved, among other things, the discussion and encouragement of branch stacking activities organised by him. The particulars to Part B of this charge concern Deloitte's analysis of the Victorian Branch's membership records. This analysis purported to identify hundreds of forms in respect of branches in which Ms Kairouz's was active as having been filled out or lodged with the State office by her electorate officers, with a high proportion of these members having paid their membership fees in cash. The particulars common to both Part A and Part B related to Ms Kairouz's membership in the Party, her and Mr Somyurek's positions in the Party, and the number and identities of her staff.
310 The first charge appears to contain allegations that could not have been the subject of a charge brought under the Old Rules and at the time at which Ms Kairouz is alleged to have engaged in the relevant conduct. This is because of three elements of the charge. First, in addition to alleging activity relating to enrolling members, the charge continues to include renewing memberships or transferring members between branches. The latter two actions were not covered by the Old Rules. Secondly, the charge alleges that the members who were enrolled, the members whose memberships were being renewed or whose memberships were being transferred were not 'genuine members', a term which was not contained in the Old Rules. Thirdly, by relying on the term 'genuine member' it refers to members whose membership fee has been paid by 'traceable means', the definition of which precludes cash payment. The Old Rules did not prohibit payment of membership fees by cash.
[Engaging in] an activity relating to enrolling members, renewing memberships or transferring members between branches that has been engaged in for the predominate purpose of influencing the outcome of ballots of members within the Party as described as Rule 5.17.1.2.1, namely by:
312 The particulars to Charge One were repeated and relied upon in support of Charge Two.
313 Charge Two also appears to be a charge that could not have been brought under the Old Rules. It relies on two changes introduced by the Amended Rules. First, it speaks of enrolling, renewing or transferring members whereas the Old Rules only referred to enrolling members. Secondly, it refers to the predominant purpose of the activity rather than the principal purpose, although there may be little difference between predominant and principal.
Engaging in conduct that amounts to a disciplinary offence under Rule 20.5.1.4, that is, Ms Kairouz engaged in the organisation and promotion of Branch stacking activities both individually and with others for the purposes of Rule 5.17.1.3 namely, by:
315 The particulars to Charge One were repeated and relied upon in support of Charge Three.
316 Charge Three could have been brought under the Old Rules. The language of r 5.17.1.3 is the same in both the Old Rules and the Amended Rules, subject to the renumbering of the rule from 5.17.1.2 in the Old Rules to 5.17.1.3 in the Amended Rules. The phrase 'individually or collectively' appears in both versions of the rule. This phrase accommodates the language of 'individually and with others' in Charge Three. Since the rule is a deeming provision, the change to the underlying definition of branch stacking does not affect its operation. Accordingly, if Charge Three intends to rely on one of the deeming limbs of r 5.17.1.3, then it could be brought under either version of the Victorian Branch Rules.
Ms Kairouz failed to promptly advise the State Secretary, the State President, the Senior Vice President, or the Junior Vice President about a matter likely to bring the Party into disrepute in breach of Rule 5.16.3.3 namely, conduct by Adem Somyurek in breach of the Code of Conduct relating to Membership Recruitment and Democratic Participation referred to in Rule 5.17.
318 The particulars to Part A of Charge One and common to both Parts A and B of Charge One were repeated and relied upon in support of Charge Four.
319 Charge Four could have been brought in the same terms for breach of the old r 5.16.3.3, the wording or numbering of which was not altered by the Rule Amendment Resolution.
320 A question not raised at the hearing was whether the Administrators could bring Charge Four in their capacity as Administrators. Rule 26.4.2 gives the Administrators power to bring branch stacking charges, but it does not appear to give them power to bring other charges. Charge Four may not be a branch stacking charge, as it appears to be based on the requirements of the General Conduct provisions in r 5.16.3 rather than the branch stacking definition in r 5.17.
321 Ms Kairouz relied on five arguments in support of her contention that the four disciplinary charges were invalid. The first and second arguments were that the Administrators were not validly appointed and therefore could not validly bring these charges and that the Amended Rules under which they were brought were invalid as being in excess of power. For reasons previously given, I do not agree with those arguments.
322 Ms Kairouz's remaining arguments were as follows. First, that the charges were brought with respect to alleged conduct to which the Amended Rules did not apply as they did not operate retrospectively in respect of conduct that occurred before their adoption on 14 September 2020. Secondly, that if the Amended Rules did apply to conduct engaged in prior to their enactment and therefore had retrospective effect, they were beyond power. Thirdly, to the extent that the Amended Rules provided for a presumption of branch stacking, they reversed the onus of proof and were therefore invalid and denied her procedural fairness.
323 Ms Kairouz's submission was that as the conduct on which the charges was based was alleged to have occurred in March 2020, she was only obliged to comply with the rules in place at that date, and, in particular, the prohibition on branch stacking as defined in the rules then in force. She could not be expected or obliged to comply with rules which did not exist in March 2020. She also had a corresponding right to have any allegation that she had breached the Victorian Branch Rules determined under the rules in force at that time of the alleged breach.
324 Ms Kairouz argued that the Amended Rules did not operate retrospectively because, as with legislation, without very clear language, the Rules are not taken to operate retrospectively.[240] This principle is stated in several cases, including Maxwell v Murphy, [241] which I discuss later. Ms Kairouz submitted that the wording of the Amended Rules indicated that they were not intended to apply retrospectively. For example, the definition of 'genuine member' in r 5.17.1.1 - a term referred to in rr 5.17.1.2, 26.4.4 and 26.5.2.2 - contains references to a member who 'agrees ... to become and remain a member of the Party' (rather than 'agreed'), who 'complies with the membership pledge...' (rather than 'complied'), and who 'pays their own membership fee by traceable means...' (rather than 'paid'). She also referred to the definition of 'traceable means' in r 4.11.2, which excludes payments made in cash. Rule 5.17.3.1 was also amended because of the introduction of the term 'traceable means' as follows:
5.17.3.1 In relation to the payment of membership fees, it is the responsibility of Party Officials and other Party office holders to ensure that members pay for their own membership by traceable means. Any Party Official or office holder who engages in, promotes or assists in Branch stacking activities will be subject to Rule 20.5.5.5.
325 Ms Kairouz argued that this amendment gave an important indication that the amendments directed at the elimination of branch stacking did not operate retrospectively, as the drafters could not have intended to make party officials and officeholders responsible for ensuring that members had in the past paid their own membership fees by traceable means. The same was said of r 26.2 relating to pending applications for membership and r 26.3 concerning pending renewals, both of which refer to the payment of membership fees needing to be by traceable means, which it was submitted could only refer to present or future membership payments.
326 Alternatively, Ms Kairouz submitted that if the Amended Rules purported to apply to conduct engaged in prior to their enactment, they had retrospective effect, and were beyond power.[242 ]She relied on Clarke v Australian Labor Party,[243] where retrospective rule amendments which prejudiced the interests of members were found to be beyond power.
327 She contended that the defendants' interpretation of the Amended Rules would result in them applying to past conduct and events in such a way as to affect her rights or liabilities defined by reference to the past events. It would not be a provision using past conduct as a foundation for future action, which would not attract the presumption against retrospectivity. As Gobbo J explained in Geschke v Del-Monte Home Furnishers Pty Ltd:
As is evident from the above statements, there is little doubt that legislation should not ordinarily be understood as applying to past events so as to affect rights or liabilities defined by reference to the past events. The respondents argued that this is so when the past unfair conduct is relied upon to found an order restraining future unfair conduct. It is said that the attaching of new consequences to past acts is within the category of matters involved in the presumption against retrospectivity.
In my view the present legislation does not come within the core principle that may be extracted from the judgments in Maxwell v. Murphy and earlier judgments referred to. This is not a case where rights or liabilities are affected in any meaningful way, nor is it a case where accrued or vested rights are altered. It is at most a case where the trader, by reason of past events, may become amenable to control that would not otherwise be open. But the legislation does not make past breach of contract any less or any more a breach of contract. It may as a result of the legislation be possible to base future action, namely possible restraint from further unfair conduct, on the antecedent unfair conduct.[244]
328 In that case, the legislation relied on past conduct for deciding future action, or for indicating present fitness to be able to conduct business, whereas in this case, the rules in and before March 2020 defined conduct which was prohibited branch stacking. Ms Kairouz was obliged to comply with those rules and not the rules as they were after the amendments of 14 September 2020. She had a right to have the charges against her decided under the rules in force at the time of the conduct in which she is alleged to have engaged.
329 The defendants' case was that Ms Kairouz had been charged under the rules in force at the date the charges were laid. No question arose as to the National Executive's power to make retrospective rules. The Amended Rules simply relied on conduct engaged in the past as a basis for future action.[245] They applied to conduct whether past, present or in the future. The fact that the prohibitions in the Amended Rules were expressed in the present tense did not mean that they were not intended to apply to past conduct, but rather was the use of 'plain language drafting' and did not suggest a particular temporal scope of the rules. The application of the Amended Rules to past conduct was consistent with their purpose and the context in which they were made, being in response to the Administrators' Reports. An interpretation which confined the application of the Amended Rules to future conduct alone would undermine the objectives referred to in the Administrators' Scoping Report. The National Executive's resolution noted that Report's description of the Resolution as being:
[I]n furtherance of the objective of achieving a party membership consisting of genuine, consenting and self-funding members, that the Victorian Branch Rules be adopted in order to confirm the Administrators' powers as follows...
330 That resolution made clear that the rule amendments relating to branch stacking were to apply to past as well as future conduct. They would thereby assist the Victorian Branch to purge members previously involved in branch stacking, including those who had been involved in the conduct reported by 60 Minutes and The Age.
331 The defendants submitted that the Amended Rules had two relevant features - one to define certain activities as branch stacking, and the second providing for proof of an activity as being for that proscribed purpose by a presumption that the conduct was for a proscribed purpose or so as to achieve the proscribed effect, a presumption that could be rebutted. In any event, the amendments defining certain activities as branch stacking merely made explicit what was already implicit and plain in the existing rules. They did not change the substance of any obligation or principle to which Ms Kairouz had subscribed on becoming a member. Nor did they remove any accrued right that she possessed, as the fact that particular conduct is not proscribed or regulated does not create a right which is protected by the presumption against retrospectivity.
332 The defendants submitted that Clarke v Australian Labor Party[246] was distinguishable because the rule changes in that case were retrospective in the legal sense, as they purported to change the legal status of memberships at a time in the past.
333 In any event, even if the Amended Rules did have retrospective effect, that did not invalidate them. The National Executive's power to amend the Victorian Branch Rules was not subject to any restriction contained in those Rules. If Clarke v Australian Labor Party decided otherwise, it was wrong on this point and should not be followed.[247 ]
334 In Maxwell v Murphy, Dixon CJ said of the presumption against retrospectivity:
The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events. But, given rights and liabilities fixed by reference to past facts, matters, or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy is not within the application of such a presumption. Changes made in practice and procedure are applied to proceedings to enforce rights and liabilities, or for that matter to vindicate an immunity or privilege, notwithstanding that before the change in the law was made the accrual or establishment of the rights, liabilities, immunity or privilege was complete and rested on events or transactions that were otherwise past and closed. The basis of the distinction was stated by Mellish LJ in Republic of Costa Rica v Erlanger [1876] UKLawRpCh 259; (1876) 3 Ch D 62, at p 69:
'No suitor has any vested interest in the course of procedure, nor any right to complain, if during the litigation the procedure is changed, provided, of course, that no injustice is done.'
The distinction is clear enough in principle and its foundation in justice is apparent. But difficulties have always attended its application.[248]
Perhaps there could be no more practical summary of the principle, which, as was said, emerges from the English and Canadian cases, than the following, - 'unless the language used plainly manifests in express terms or by clear implication a contrary intention - (a) A statute divesting vested rights is to be construed as prospective. (b) A statute, merely procedural, is to be construed as retrospective. (c) A statute which, while procedural in its character, affects vested rights adversely is to be construed as prospective.'[249]
336 The changes to the definition of branch stacking made by the Amended Rules were substantive and not merely procedural as they altered the elements of the disciplinary offence of branch stacking and not merely the procedure by which such a charge is heard by the Disputes Tribunal. The amendments do not merely use 'past conduct as a foundation for future action'.
337 I accept that the fact that particular conduct in which a person engages is not regulated is not a right protected by the presumption against retrospectivity, as most rights may be regulated. But where conduct is already regulated, as was the enrolling of members in the Victorian Branch, an alteration of that regulation may attract the presumption against retrospectivity.
338 The retrospectivity questions can be considered in two categories: whether the new definition of branch stacking under the Amended Rules has retrospective effect, and, if the definition does have retrospective effect, whether its introduction was beyond power. I have concluded in answer to these questions that the new definition of branch stacking does not have retrospective effect, but that, if it did, it was within the National Executive's powers so to do. My reasons for those conclusions are as follows.
339 It is appropriate first to note that under the rule amendment power contained in r 6.4.6.8 of the Victorian Branch Rules, any change to the Rules will take effect from the conclusion of the State Conference at which it is made, unless the Rules provide for a different date of operation.
340 As mentioned, Ms Kairouz relied on Dixon CJ's judgment in Maxwell v Murphy for the proposition that a statute should not be understood as operating retrospectively unless 'the intention appears with reasonable certainty' that it should operate that way.[250] While the Victorian Branch Rules are not a statute, Ms Kairouz noted that Mullighan J in Clarke v Australian Labor Party applied this principle to the rules of an unincorporated association. Professor Dal Pont, in Law of Associations, stated that an alteration of an association's rules does not have retrospective effect, at least to the extent that it can prejudice the interests of existing members.[251]
341 In support of this proposition, Professor Dal Pont cited Clarke v Australian Labor Party and two further cases, which are discussed below. In Clarke v Australian Labor Party,[252] the South Australian Branch admitted about two thousand new members shortly before an election of delegates to the annual convention. When the plaintiff objected to the inclusion of the new members in the lists of some sub-branches, because this would grant them voting rights in alleged contravention of the Branch Rules, the South Australian Branch legitimised their memberships by retrospectively amending the rules. Despite the fact that the South Australian Branch was an unincorporated association with its own Disputes Tribunal, Mullighan J considered the matter justiciable and declared the retrospective amendments to be unconstitutional, as they prejudiced the rights of existing party members.
342 Of the two further cases, the first is Dawkins v Antrobus,[253] which concerned the expulsion of the plaintiff from a club under a rule that allowed a majority of its members to expel a member who acted to bring the club into disrepute. Brett LJ described the only question which the Court could consider was whether the members of the club had acted ultra vires and the only questions that could be entertained for that purpose were: whether the rules themselves were contrary to natural justice, whether a person who had condoned the departure from them has been acted against contrary to the rules of the club and whether the decision of the club was bona fide. On retrospectivity, Brett LJ stated that the rule being disputed by the plaintiff 'ought not to be applied to matters which had happened before the rule was passed'.[254] The English Court of Appeal found that nothing had been done contrary to natural justice, and therefore upheld the club's decision to expel the plaintiff.
343 The second of the two further cases is Echunga Football Club Inc v Hills Football League Inc,[255] which considered the application and operation of the Hills Football League's by-laws as they applied to a football competition. The defendant raised the possibility of amending the by-laws to operate retrospectively to relegate the plaintiff to another league. While this matter was not fully argued, Stanley J stated that it was 'at the very least arguable that an amendment to the by-laws expressed to operate retrospectively...would be beyond the power of the [association], and invalid'.[256] Ultimately, the question of retrospectivity was not critical to the determination of that case.
344 Counsel for the majority defendants made two submissions regarding the plaintiff's reliance on Clarke v Australian Labor Party: first, that the present case should be distinguished, as unlike that decision, the amendments did not infringe the legal principle against retrospectivity;[257] and, secondly, that Mullighan J did not cite any legal authority supporting the invalidation of retrospective rules of an unincorporated association.[258] However, Dawkins v Antrobus, which predates Clarke v Australian Labor Party, provides support for applying the presumption against retrospectivity to the rules of an unincorporated association. As such, there is good reason to apply Maxwell v Murphy to an unincorporated association with the result that the presumption against retrospectivity applies.
345 Consequently, the question is whether the Amended Rules about branch stacking disclosed an 'intention...with reasonable certainty' that the Amended Rules were to operate retrospectively. In my opinion, the better view is that while there are contextual indicators that support finding the intention that the rules are to operate retrospectively, they have insufficient 'certainty' to overcome the prospective language of the rules.
346 First, the introduction of the term 'genuine member' in r 5.17.1.1 of the amended Victorian Branch Rules introduces new machinery to the branch stacking definition that should be read as prospectively. The plaintiff made extensive reference to the use of the simple present tense in the definition of 'genuine member', arguing that this grammar did not permit a retrospective operation.
347 But I consider that the significance of this use of the simple present tense is overstated by the plaintiff, as legal definitions do sometimes adopt this usage to express a term which may apply to the past, present or the future. As such, this use of the present tense alone is not sufficient to require a prospective reading of 'genuine member' and, by extension, of the definition of branch stacking. Instead, the key element is the requirement for a 'genuine member' to pay his or her membership fee by traceable means, subject to the family member exception.[259] Prior to the Rule Amendment Resolution, membership fees could be paid by cash and there was no distinction between a member and a 'genuine member' because the latter term had not yet been adopted or defined. After the Rule Amendment Resolution, payment of membership fees by traceable means was a precondition to a person becoming a member of a particular branch, as the Victorian Branch Rules concerning membership fees now require such payment.[260] To impose retrospective operation on the definition of 'genuine member' would, for consistency's sake, favour treating any membership not paid for by traceable means prior to the Rule Amendment Resolution as invalid. Equally, it would render officeholders responsible for ensuring that members they had previously enrolled had paid by traceable means, a task likely to be difficult to achieve. Those outcomes are unlikely to have been intended by a political party that seeks to maintain legitimate membership records. The interpretation of the rules seeks to give to the words used, construed in their context, evidence of the objective intention of the drafters.[261] An interpretation that would be difficult to implement is less likely to have been intended. Consequently, to the extent that r 5.17.1.2 of the Amended Rules defines branch stacking as including conduct that has the effect of enrolling as a member, or retaining as a member, a person who is not a genuine member, it should be read as operating prospectively, as this is more consistent with the overall treatment of membership within the Amended Rules.
348 But this conclusion only addresses the second limb of r 5.17.1.2 of the amended definition of branch stacking, as the first limb in r 5.17.1.2.1 makes no reference to genuine members. Instead, the first limb defines branch stacking as including 'any activity relating to enrolling members, renewing memberships or transferring members between branches... engaged in for the predominant purpose of influencing the outcome of ballots of members within the party'. In my opinion, the first limb should be interpreted in the context of the entire rule. Rule 5.17.1.2 does not create two separate definitions of 'branch stacking'. Instead, it creates one definition with two separate limbs, parts of the one definition. To treat one limb of the definition as having retrospective operation and the other limb as having strictly prospective operation would be unwieldy and unlikely to have been intended. This is especially the case when the two limbs of the definition overlap, as enrolling members who are not genuine members could be for the 'predominant purpose of influencing the outcome of ballots of members within the party'. Therefore, the better construction is that as the second limb of the definition in r 5.17.1.2.2 has prospective operation and therefore that the whole definition should be read as having prospective operation.
349 The defendants' submissions that the branch stacking rules were intended to apply to conduct occurring before 14 September 2020 relied heavily on the stated purpose of the Administrators and is not consistent with a consideration of all the amendments made by the Amendment Resolution. While it is correct that the Administrators' Final Report indicated that their recommendations were directed at removing the membership of any person who was involved, or who had been involved, in branch stacking, this intention cannot override the text of the Victorian Branch Rules. Further, the defendants' argument that the new rules simply used past conduct as a basis for future disciplinary action does not explain the broader changes to the membership provisions and the effect of the requirement of traceable means for membership fees. The purpose of the amended definition of branch stacking and the means of its achievement are revealed by the treatment of membership fees and how they are to be paid. It may be that the decision in Clarke v Australian Labor Party can be distinguished on the basis that there the amended rules were retrospective in the legal sense. In this case, the requirement that membership fees be paid by traceable means under the amended Victorian Branch Rules indicates that the amended branch stacking rules were part of a broader attempt to impose higher standards for recruiting or retaining members. But, in my opinion, the indications that the Amended Rules relating to branch stacking were to operate retrospectively falls short of the 'reasonable certainty' of which Dixon CJ spoke. They should be read as having prospective effect.
350 Since the new definition of 'branch stacking' is inherently tied to the new understanding of membership and how membership fees are to be paid, that definition should not be applied with respect to the enrolment or retention of members under the Old Rules. The question of whether the Old Rules, and their definition of, and regulation of branch stacking, continue to apply to conduct engaged in before the commencement of the Amended Rules on 14 September 2020 was not discussed by the parties.
351 If, despite my conclusion, the amended definition of branch stacking and its related prohibition are found to operate retrospectively, then, I do not accept Ms Kairouz's submission that the amendments exceeded the National Executive's power and were beyond power. I consider that the National Executive possessed the power under cls 16(f)(ii) and 16(d) to make rule amendments introducing rule changes with retrospective effect. Once the National Executive had taken control of the Victorian Branch, it could exercise its powers to amend the Victorian Branch Rules without being constrained by r 6.4.6.8, as that rule is directed towards amendments made by State Conference. Nonetheless_,_ applying the principles discussed in Maxwell v Murphy and Clarke v Australian Labor Party, to the extent that the National Executive seeks to amend the Branch Rules to remove members who engage in branch stacking, it must exercise that power consistently with the principles against retrospectivity and make it clear with 'reasonable certainty' that the rule amendment does apply retrospectively.
352 Charges Three stands regardless of the above as it was brought under a rule that was not changed by the Rule Amendment Resolution, except for a renumbering. Consequently, Charge Three was validly brought.
353 Charge Four is brought for alleged contravention of r 5.16.3 ('General Conduct'), which obliges members to advise the relevant internal authorities of any matters that may bring the Party into disrepute. Nothing in this charge turns on retrospectivity or any other basis for invalidity. But as I have stated, there is a question about whether Charge Four was a branch stacking charge, and if it was not one, whether the Administrators had power to bring it. While the charge was particularised with allegations that would amount to branch stacking, the charge was for a contravention of a General Conduct provision. Consequently, a question arises whether it was a branch stacking charge that the Administrators could bring. I will express no opinion on this issue as it was not raised during the hearing.
354 In stating that the Charge Three was validly brought, I, obviously, say nothing about whether on the evidence before the Court, that charge against Ms Kairouz could be established. That is not my task in this proceeding.
The validity of the presumption introduced by r 26.4.4
355 I next consider the issue of the validity of the introduction by r 26.4.4 of the presumption that a member who is charged with branch stacking is presumed to have engaged in the activity, unless they prove to the contrary,
356 Ms Kairouz disputed the validity of this presumption and in addition contended is a denial of procedural fairness.
357 The defendants contended that the presumption of branch stacking contained in r 26.4.4 had a less severe effect than the provision in the Old Rules that a person was deemed to be guilty of branch stacking if the relevant facts were proved, as the new presumption could be rebutted. Further, the defendants submitted that, if necessary, the presumption of branch stacking contained in r 26.4.4 could be severed and the rest of the rules left standing.
Analysis of the challenge to the validity of the presumption of branch stacking
358 The issue of whether the presumption against retrospectivity applies to the presumption of branch stacking contained in r 26.4.4 depends upon whether it is a substantive or procedural provision. Although Ms Kairouz's submissions about the presumption were directed to whether it denied her procedural fairness, she challenged its validity. The question of its validity again raised the issue of the application of the presumption against retrospectivity. There is some authority that the presumption against retrospectivity can apply where the legislation interferes with an important common law right regardless of whether the amendment is regarded as 'procedural' or 'substantive'.[262] But, in my opinion, the High Court's decision in Rodway v The Queen[263 ]establishes that this presumption of branch stacking is procedural and therefore that the presumption against retrospectivity does not apply to its operation. That case concerned the repeal of a provision of the Tasmanian Criminal Code requiring corroborative evidence of the evidence of the alleged victim of the crime. Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ stated:
Whether or not the previous requirement of the law that certain evidence require corroboration before it could safely be relied upon could be described as basic or fundamental, both in Attorney-General's Reference No 1 of 1988 and in this case the statutory amendments were clearly intended to alter the existing law with respect to corroboration. Both amendments were procedural in character. They did not operate to affect existing rights or obligations. Rather, they operated to affect the way in which rights fell to be determined at trial and, for that reason, they did not fall within the presumption against retrospective operation. It follows that, in our view, Attorney-General's Reference No. 1 of 1988 was wrongly decided and that the Tasmanian Court of Criminal Appeal was correct in declining to follow the decision.[264]
359 The Full Federal Court judgment in O'Connell v Palmer[265] is an example of the application of this principle in a case of disciplinary charges.
360 I consider that the introduction of the presumption did not affect existing rights or obligations, but affected the way in which rights fell to be determined at trial or in this case, at the disciplinary hearing. I therefore conclude that r 26.4.4 containing the presumption was a valid amendment.
361 Many provisions in both civil and criminal law contain a statutory presumption that in effect reverses the onus of proof in respect of all, or particular, issues. This may occur where the reason for particular conduct lies peculiarly within the defendant's' knowledge.[266 ]
362 An example of the application of the High Court decision in Rodway was the decision of the Tasmanian Court of Criminal Appeal in Attorney-General's Reference (No 1 of 2004) (Tas),[267 ]which concerned amendments to the Misuse of Drugs Act 2001 (Tas). Section 7(2) of the Act had provided that if an accused cultivated a trafficable quantity of prohibited drugs it was presumed, in the absence of evidence to the contrary, that the accused had the relevant intention. An amendment came into operation after the alleged commission of an offence, but before the trial, placing the onus of proof on the balance of probabilities on the accused to displace the presumption. Underwood CJ, Crawford and Evans JJ agreeing, held that the amendment did no more than change the manner in which the statutory factual presumption could be displaced and did not affect the accused's rights, obligations or liabilities that he had acquired or was subject to at the date of the alleged offence. Underwood CJ, referring to Rodway v The Queen, stated:
Of particular relevance to the present issue in the two passages I have just cited are the following propositions:
firstly, that there is no right to be tried in a particular way (at least not before the trial begins); and;
secondly, that the determinative factor is whether the amendment affects only the manner in which existing rights and obligations are to be determined. If it does no more than affect the way existing rights and obligations are to be tried, there is no presumption against retrospectivity.
These propositions are valid even if the amendment affects what might be generally regarded as a fundamental protection against wrongful conviction...
At the time of the alleged commission of the offence, Mr Crane 'had acquired no right to a particular mode of procedure at his trial', per Rodway at 523. The Act, s 7(2), before and after amendment, concerned only the nature and extent of the evidence required to establish the offence charged. The amendment did no more than change the manner in which the statutory factual presumption could be displaced. It did not touch Mr Crane's rights, obligations or liabilities that he had acquired, or was subject to, at the date the State alleged he committed the offence charged. Although it might be said that the amendment touched an important protection, or made a fundamental change, it clearly did no more than affect the way the accused's rights and obligations were to be contested in court, and therefore did not fall within the presumption against retrospectivity.[268]
363 While I concluded that Ms Kairouz's claims in relation to the charges were not justiciable, if I was wrong in that conclusion, I would have found Charges One and Two to be invalid, as the rules under which they were brought did not apply retrospectively. But this conclusion would not have applied to Charges Three as it could have been brought under either the Old Rules or the Amended Rules. I would have expressed no opinion about Charge Four for the reason previously mentioned.
364 I would have considered the presumption of branch stacking in the Amended Rules to be valid and therefore capable of applying to Charges Three. It is not capable of applying to Charges One and Two which are not valid charges.
365 I also would not have considered the presumption of branch stacking in the Amended Rules constitutes a denial of Ms Kairouz's right to procedural fairness when responding to the disciplinary charges. Rather, it deals with how charges are to be proved, which, procedure in this case, I do not consider was subject to the requirements of procedural fairness.
366 I have concluded that Ms Kairouz's challenges to the Resolutions, with the exception of her challenge based on her trusts claims, are not justiciable and, in any event, do not succeed. But, I will expressly state my view on the defendants' submission that Ms Kairouz should, in any event, be refused remedies in the exercise of the Court's discretion because she delayed in commencing this proceeding with resulting prejudice to the ALP and because she did not use the available internal remedies under the Victorian Branch Rules and the National Constitution.
367 Ms Kairouz disputed that she should be denied remedies and submitted that her claims were not capable of resolution by the Disputes Tribunal or the National Appeals Tribunal.
368 If I had otherwise found that Ms Kairouz were entitled to remedies, I would have granted the remedies despite the submissions made by the defendants. I do not consider that Ms Kairouz failed to exhaust any internal remedies that were available to her or, that even if she did, that she should be denied any remedy otherwise available to her. Her claims raised legal arguments that, if found to be justiciable, were appropriate to be determined by this Court.
369 I do not consider that any of the internal remedies which might be available through the Party Monitor, the Disputes Tribunal or the National Appeals Tribunal were appropriate to deal with all the claims Ms Kairouz made. It is not clear that any of those bodies could have dealt with her challenges to the validity of the Resolutions. The Victorian Disputes Tribunal may not be able to deal with jurisdictional issues. The National Appeals Tribunal cannot hear appeals 'until all practicable avenues of appeal have been exhausted under the rules of the relevant state branch' and can only make recommendations and not enforceable rulings.
370 Nor do I consider that Ms Kairouz unjustifiably delayed in bringing the proceeding. She acted promptly after the charges were brought against her on 31 January 2021.
The Honourable STEVE BRACKS AC, in his capacity as Administrators of the Australian Labor Party Victorian Branch First Defendant
The Honourable JENNY MACKLIN, in her capacity as Administrators of the Australian Labor Party Victorian Branch Second Defendant
The Honourable ANTHONY ALBANESE, in his capacity as a member of the National Executive of the Australian Labor Party Third Defendant
Senator TIM AYRES in his capacity as a member of the National Executive of the Australian Labor Party Fourth Defendant
STEVEN BAKER, in his capacity as a member of the National Executive of the Australian Labor Party Fifth Defendant
NICK CHAMPION, in his capacity as a member of the National Executive of the Australian Labor Party Sixth Defendant
KATE DOUST, in her capacity as a member of the National Executive of the Australian Labor Party Seventh Defendant
GERARD DWYER, in his capacity as a member of the National Executive of the Australian Labor Party Eighth Defendant
DAVID GRAY, in his capacity as a member of the National Executive of the Australian Labor Party Ninth Defendant
ROSE JACKSON, in her capacity as a member of the National Executive of the Australian Labor Party Tenth Defendant
TIM JACOBSON, in his capacity as a member of the National Executive of the Australian Labor Party Eleventh Defendant
GRAEME KELLY, in his capacity as a member of the National Executive of the Australian Labor Party Twelfth Defendant
Senator SUE LINES, in her capacity as a member of the National Executive of the Australian Labor Party Thirteenth Defendant
TARA MORIARTY, in her capacity as a member of the National Executive of the Australian Labor Party Fourteenth Defendant
BOB NANVA, in his capacity as a member of the National Executive of the Australian Labor Party Fifteenth Defendant
MICHAEL O'CONNOR, in his capacity as a member of the National Executive of the Australian Labor Party Sixteenth Defendant
MICHAEL RAVBAR, in his capacity as a member of the National Executive of the Australian Labor Party Seventeenth Defendant
AMANDA RISHWORTH, in her capacity as a member of the National Executive of the Australian Labor Party Eighteenth Defendant
WENDY STREETS, in her capacity as a member of the National Executive of the Australian Labor Party Nineteenth Defendant
SHANNON THRELFALL-CLARKE, in her capacity as a member of the National Executive of the Australian Labor Party, and as Trustee under Rule 21.1 and Rule 21.2 of the Australian Labor Party Victorian Branch Rules Twentieth Defendant
Senator RAFF CICCONE, in his capacity as a member of the National Executive of the Australian Labor Party Twenty-First Defendant
SUSIE BYERS, in her capacity as a member of the National Executive of the Australian Labor Party, as a member of the Interim Governance Committee of the Victorian branch of the Australian Labor Party, and as Trustee under Rule 21.1 and Rule 21.2 of the Australian Labor Party Victorian Branch Rules Twenty-Second Defendant
LINDA WHITE, in her capacity as a member of the National Executive of the Australian Labor Party and as a member of the Interim Governance Committee of the Victorian branch of the Australian Labor Party Twenty-Third Defendant
BEN DAVIS, in his capacity as a member of the National Executive of the Australian Labor Party Twenty-Fourth Defendant
MICHAEL DONOVAN, in his capacity as a member of the National Executive of the Australian Labor Party and as a member of the Interim Governance Committee of the Victorian branch of the Australian Labor Party Twenty-Fifth Defendant
LLOYD WILLIAMS, in his capacity as a member of the National Executive of the Australian Labor Party and as a member of the Interim Governance Committee of the Victorian branch of the Australian Labor Party Twenty-Sixth Defendant
JAMES MCWHINNEY, in his capacity as Trustee under Rule 21.1 and 21.2 of the Australian Labor Party Victorian Branch Rules Twenty-Seventh Defendant
LABOR SERVICES & HOLDINGS PTY LTD, in its capacity as Trustee under Rules 21.3 of the Australian Labor Party Victorian Branch Rules Twenty-Eighth Defendant
[1] Court Book, Kairouz v Bracks (Supreme Court of Victoria, S ECI 2021 00274, Ginnane J, 26 May 2021) 737, 743, and 877 ('Kairouz Court Book').
[3] The parties filed an Agreed Statement of Facts. Much of the description of events that follows is taken from that Statement.
[4] Where it is necessary to refer to the defendants other than the Three Defendants, I use the term 'the majority defendants'.
[6] Meaning in this section of the judgment the majority defendants.
[11] Nick McKenzie, Joel Tozer, and Sumeyya Ilanbey, 'Somyurek Secret Tape Scandal Rocks Labor', The Age (Melbourne, 14 June 2020); Kairouz Court Book, 1662.
[12] Nick McKenzie, Sumeya Ilanbey and Joel Tozer, 'F**k the premier': 'Labor's secret tapes reveal industrial scale stackathon', The Age (Melbourne 15 June 2020); Kairouz Court Book, 1694-1718, 1956-1957.
[25] The National Executive Committee consists of some of the National Executive and meets at least once between each meeting of the National Executive for the purpose of preparing the agenda and making recommendations to expedite the business of the National Executive: see National Constitution, cl 17.
[38] Kairouz v Bracks [2021] VSC 130.
[39] Jeremy Kirk, 'Justiciability' in Cheryl Saunders and Adrienne Stone (eds), The Oxford Handbook of the Australian Constitution (Oxford University Press, 2018) 510; G E Dal Pont, Law of Associations (LexisNexis Butterworths, 2018) [7.7].
[40] Hogan v Cameron [1933] VicLawRp 70; [1934] VLR 88, 94-95.
[41 ] Cameron v Hogan [1934] HCA 24; (1934) 51 CLR 358, 370.
[49 ] The plaintiff relied on Schmidt v Rosewood Trust [2003] UKPC 26; [2003] 2 AC 709, Hartigan Nominees Pty Ltd v Rydge (1992) 29 NSWLR 405, and Fordyce v Ryan [2016] QSC 307; [2017] 2 Qd R 240.
[50 ] Leahy v Attorney-General (NSW) [1959] UKPC 1; [1959] AC 457 at 485; Bacon v Pianta [1966] HCA 44; (1966) 114 CLR 634 at 638; Re Goodson [1971] VR 801.
[51] Cameron v Hogan [1934] HCA 24; (1934) 51 CLR 358, 370 (Rich, Dixon, Evatt and McTiernan JJ).
[52 ] [1980] Qd R 100, 109-110.
[54] Burton v Murphy [1981] QSC 274.
[55 ] Cameron v Hogan [1934] HCA 24; (1934) 51 CLR 358, 378 (Rich, Dixon, Evatt and McTiernan JJ).
[56] They referred to Deutsch v Deutsch [2012] VSC 227, [40] (Hargrave J). See also El Sayed v El Hawach [2015] NSWCA 26; (2015) 88 NSWLR 214, [48]-[53].
[57] [2012] VSC 227 [40]; Ramage v Waclaw (1988) 12 NSWLR 84, 93.
[58] Leahy v Attorney-General (N.S.W) [1959] UKPC 1; [1959] AC 457 at 485; Bacon v Pianta [1966] HCA 44; (1966) 114 CLR 634 at 638; Re Goodson [1971] VR 801.
[61] See in respect of this the submissions of Ms Kairouz's Counsel at Transcript of Proceedings, Kairouz v Bracks (Supreme Court of Victoria, S ECI 2021 00274, Ginnane J, 3-4, 8-9 and 17 June 2021) 113 ('Kairouz Transcript').
[62 ] [1948] HCA 39; (1948) 78 CLR 224, 296-297.
[64] [1934] HCA 24; (1934) 51 CLR 358, 376.
[65] See Evangelou & Ors v McNicol (Rev 1) [2016] EWCA Civ 817, [18]-[19] where the English Court of Appeal decided that the relationship between the Labour Party, an unincorporated association, and its members was in contract. The Court was dealing with claims of 'entryism', as branch stacking is called in England, in the Labour Party prior to a leadership election. See also Foster v McNicol [2016] EWHC 1966 (QB), which concerned Jeremy Corbyn's attempt to challenge Labour Party decisions about whether he was permitted to stand in a leadership ballot in accordance with the Party's rules. The Court did not see any common law bar to Mr Corbyn's right to have the rules carried out in accordance with what they say. However, the Court found that the Party had acted in accordance with the rules. See also Lee v The Showmen's Guild of Great Britain [1952] 2 QB 329.
[66 ] [1993] 1 Qd R 10, 14-21.
[67] Court Book, Asmar v Albanese (Supreme Court of Victoria, S ECI 2021 01465, Ginnane J, 25 May 2021) 267 ('Asmar Court Book'); Book of Authorities, Asmar v Albanese (Supreme Court of Victoria, S ECI 2021 01465, Ginnane J, 25 May 2021) 1822.
[72] Australian Constitution s 15.
[81 ] Electoral Act 2002 (Vic) s 45.
[84] Ibid s 45(2)(e).
[87] Ibid s 211(2A).
[89] Ibid s 212(4A).
[99] Clarke v Australian Labor Party (SA Branch) [1999] SASC 365; (1999) 74 SASR 109; Coleman v Liberal Party of Australia [2007] NSWSC 736; [2007] 212 FLR 271; Thornley v Heffernan (Supreme Court of New South Wales, Brownie J, 25 July 1995); Tucker v MacDonald [2001] QSC 296; Galt v Flegg [2003] QSC 290.
[100] Baldwin v Everingham (1993) 1 Qd R 10, 17.
[102] Setka v Carroll (2019) 58 VR 657, 676-677 [40(a)-(b)].
[103] (1992) 27 NSWLR 483, 565.
[104 ] [2007] NSWSC 736; (2007) 212 FLR 271, 281; followed in James v Wilson [2019] NSWSC 17 (Lindsay J).
[105] [2007] NSWSC 736; (2007) 212 FLR 271, [47]-[49].
[109] Butler v Mulholland (No 2) [2013] VSC 662, [105].
[113] Setka v Carroll (2019) 58 VR 657, 680 [50].
[114] Butler v Mulholland (No 2) [2013] VSC 662, [105].
[115] Mulholland v Funnell [2016] VSCA 290.
[117] Rendall-Short v Grier [1980] Qd R 100, 109. I previously set out Lucas J's reasoning at [84] of this judgment.
[118] Greg Taylor, Leadership Spill Rules from the Constitutional Perspective (2021) 95 Australian Law Journal 203, 212.
[120] (2019) 58 VR 657, [46], [50], [63].
[126] Setka v Carroll (2019) 58 VR 657, 683 [59]-[60].
[127] Rush v WA Amateur Football League (Inc) [2007] WASCA 190; (2007) 35 WAR 101 at [36]- [37] Pullin JA; DEF v Trappett [ 2016] NSWSC 1698 [132] (Beech-Jones J).
[130] Johnston v The Greens NSW [2019] NSWSC 215 [18] (Robb J); Johnston v The Greens NSW Inc [2020] NSWSCA 357 [16] Brereton and Meagher JJA.
[131] National Constitution, cls 10 and 13.
[159] Victorian Branch Rules, rr 8.3.2.1, 8.3.2.2 and 6.4.6.
[165] Cameron v Hogan [1934] HCA 24; (1934) 51 CLR 358, 374 (Rich, Dixon, Evatt and McTiernan JJ), 379-380 (Starke J).
[166] Victorian Branch Rules, r 2.4.2.
[170] Ibid rr 20.5.1.3.2 and 20.5.1.3.4.
[171] National Constitution, cl 10.
[176] See Lewis v Heffer [1978] 1 WLR 1061, 1076, quoted in Burton v Murphy [1983] 2 Qd R 321, 340.
[187] The plaintiff sought to restrain the defendants, who were members of the ALP, from taking steps in connection with the preselection of a candidate for a state seat after the Administrative Committee resolved to request that the National Executive invoke its plenary powers under the National Constitution in relation to the preselection. The plaintiffs unsuccessfully complained that this would result in the process required by the Victorian Branch Rules not being applied with the National Executive deciding the candidate.
[188] (2019) 58 VR 657, 665 [16].
[189] National Constitution, cl 15.
[192] Williams v Hursey [1959] HCA 51; (1959) 103 CLR 30, 54-5 (Fullagar J). The judgment of the High Court in Hall v Jobs [1952] HCA 57; (1952) 86 CLR 639 was to similar effect.
[193] See also the English Court of Appeal's description of the relationship between the British Labour Party and its local constituency parties in Lewis v Heffer [1978] 1 WLR 1061.
[194] National Constitution, cl 13.
[196] Victorian Branch Rules, r 2.4.2.
[197] National Constitution, cl 14(c).
[202] Macquarie Dictionary (6th ed, 2013) 'plenary' (def 1).
[203 ] Actors and Announcers Equity Association of Australia v Fontana Films Pty Ltd (1982) 150 CLR 169, 208 (Mason J).
[204] R v Public Vehicles Licensing Appeal Tribunal of the State of Tasmania [1964] HCA 15; (1964) 113 CLR 207, 225 (Dixon CJ, Kitto, Taylor, Menzies, Windeyer and Owen JJ).
[205] Setka v Carroll (2019) 58 VR 657, [79]-[81].
[206 ] Reference was made to cl 14(c) and 16(c).
[207] Kingham v Sutton [2002] FCAFC 107, [58] (Wilcox and Marshall JJ), quoting G D Nokes, An Introduction to Evidence, 2nd ed, 1956, 64, and [115] (Kiefel J). The plaintiff relied on McHugh JA's statement in Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154, 164, that '[t]he natural home of the maxim is public law'.
[208] Selby v Pennings (1999) 102 LGERA 253, 261 (Ipp J) (Owen J agreeing: 282). This statement of the principle was adopted by McClellan CJ in Centro Properties Ltd v Hurstville City Council [2004] NSWLEC 401; (2004) 135 LGERA 257, 271 [60].
[209] Kingham v Sutton [2002] FCFCA 107, [59] (Wilcox and Marshall JJ) quoting Wigmore, Evidence in Trials at Common Law, vol 9 [2534].
[210 ] Franklins Ltd v Penrith City Council [1999] NSWCA 134, [28] (Stein JA).
[211] Cf Western Stores Ltd v Orange City Council [1971] 2 NSWLR 36, 46-47 (Moffit JA) (Asprey JA agreeing at 42 and Taylor AJA agreeing at 54).
[212 ] J D Heydon, Cross on Evidence, (12th ed, 2020), [7260]; see also [7250].
[213] S v S [1972] AC 24, 41 (Lord Reid).
[216] [1893] USSC 8; 147 US 91, 97 (1893).
[217] McLean Brothers & Rigg v Grice [1906] HCA 1; (1906) 4 CLR 835, 850, quoting Knox County v Ninth National Bank, [1893] USSC 8; 147 US 91, 97 (1893).
[218] GPT Re Ltd v Belmorgan Property Development Pty Ltd [2008] NSWCA 256; (2008) 72 NSWLR 647, 667 [82].
[219 ] Setka v Carroll (2019) 58 VR 657, [74].
[223] Western Stores Ltd v Orange City Council [1971] 2 NSWLR 36, 46-47 (Asprey JA and Taylor AJA agreeing).
[225] Re City of Joondalup; Ex parte Mullaloo Progress Association [2003] WASCA 293; (2003) 132 LGERA 243, [77] (Parker J and Miller J agreeing).
[226 ] Transcript of Proceedings, Asmar v Albanese (Supreme Court of Victoria, S ECI 2021 01465, Ginnane J, 27-28, 31 May and 1-4, 7-9 June 2021) 100-102.
[228 ] Setka v Carroll (2019) 58 VR 657, [78].
[229] Australian Education Union v Department of Education and Children's Services (2012) 248 CLR 1,16 [34] (French CJ, Hayne, Kiefel and Bell JJ).
[230 ] Small v Smith (1884) LR 10 App Cas 119; British Medical Association v Commonwealth [1949] HCA 44; (1949) 79 CLR 201, 274.
[231] Citing Australian Football League v Carlton Football Club Ltd [1988] 2 VR 546, 550.
[232] Citing Industrial Equity Ltd v Deputy Commissioner of Taxation (1990) 170 CLR 649, 671-672 (Gaudron J).
[233] Australian Football League v Carlton Football Club Ltd [1998] 2 VR 546, 550.
[234] See [44]-[45] of this judgment.
[235] Setka v Carroll (2019) 58 VR 657.
[236] Kairouz Transcript, 180, quoting Kairouz Court Book, 2084.
[237] (2019) 58 VR 657, [78].
[238 ] Small v Smith (1884) LR 10 App Cas 119 at 129; British Medical Association v Commonwealth [1949] HCA 44; (1949) 79 CLR 201 at 274.
[240] Citing Australian Education Union v General Manager of Fair Work Australia [2012] HCA 19; (2012) 246 CLR 117, 134-135 [30]-[32] (French CJ, Crennan and Kiefel JJ).
[242 ] Citing Clarke v Australian Labor Party [1999] SASC 365; (1999) 74 SASR 109, 147-150 [130]-[143] (Mullighan J); Echunga Football Club Inc v Hills Football League Inc [2014] SASC 201; (2014) 121 SASR 449, 468 [66] (Stanley J); R v Toohey; Ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170, 201- 202 (Stephen J); Dawkins v Antrobus [1881] UKLawRpCh 28; (1881) 17 Ch D 615, 632 (Brett LJ); G E Dal Pont, Law of Associations (LexisNexis Butterworths, 2018) [6.89].
[244] [1981] VicRp 80; [1981] VR 856, 859.
[245] Citing Geschke v Del-Monte Home Furnishers Pty Ltd [1981] VicRp 80; [1981] VR 856, 860 (Gobbo J); Yarra City Council v MFESB [2017] VSCA 194, [201]-[202], [216]-[219] (Warren CJ, Tate and Osborn JJA); Traill v McRae [2002] FCAFC 235; (2002) 122 FCR 349, 396-7 [210]-[212] (Sackville, Kenny and Allsop JJ); Nicholas v Commissioner for Corporate Affairs [1988] VicRp 40; [1988] VR 289, 298-9 (Kaye J); Commissioner for Corporate Affairs v X and Y [1987] VicRp 41; [1987] VR 460, 464-465 (Marks J). The twelfth, fourteenth and fifteenth defendants adopted the submissions of the other defendants on this issue.
[246] Clarke v Australian Labor Party [1999] SASC 365; (1999) 74 SASR 109.
[248] Maxwell v Murphy (1957) CLR 261, 267.
[251] G E Dal Pont, Law of Associations (LexisNexis Butterworths, 2018), [6.89].
[256] Ibid. Stanley J also noted at [66] that, in any event, a retrospective by-law would also run the risk of contravening s 61 of the Associations Incorporation Act 1985 (SA), which prohibits oppressive or unreasonable acts.
[259] Submissions were made regarding the change to the definition of 'traceable means' to expressly exclude payments made by cash, these submissions should also not be given significant weight. In substance, 'traceable means' excluded cash payments both prior to and after the Rule Amendment Resolution. The amendment only served to render this exclusion explicit rather than necessarily implied.
[260] In particular, the payment of membership fees for Central Branch Membership (r 5.4.1), for joining a branch generally (rr 5.6.5 and 5.6.7.6), for party membership generally (rr 5.9 and 5.10), and for interstate / international membership (r 5.19) requires a payment by traceable means under the amended Victorian Branch Rules, but not under the version of the Old Rules. Rules 5.6.4.4 ('Multiple Recruitment Requirements and Notifications'), 5.12.1 ('Continuity'), 7.19 ('Elections by State Conference') and 8.5.4 ('Policy Committees') required payment by traceable means under both versions of the Victorian Branch Rules.
[261] G E Dal Pont, Law of Associations (LexisNexis Butterworths, 2018), 139.
[262] Domaso v The Queen [2002] NTCCA 2; (2002) 168 FLR 103.
[266 ] General Motors-Holden Pty Ltd v Bowling (1976) 51 ALJR 235 at 241; Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500 at 519-520, 536, 547 concerning whether an employer has dismissed an employee for a proscribed reason.
Kairouz
Bracks
(1934) 51 CLR 358
(2019) 58 VR 657
(1992) 29 NSWLR 405
(1966) 114 CLR 634
(2015) 88 NSWLR 214
(1988) 12 NSWLR 84
(1946) 72 CLR 1
(1948) 78 CLR 224
(1999) 74 SASR 109
(1993) 1 Qd R 10
(1916) 23 CLR 29
(1992) 27 NSWLR 483
(2007) 212 FLR 271
(1998) 195 CLR 424
(2007) 35 WAR 101
(2001) 208 CLR 199
(1959) 103 CLR 30
(1952) 86 CLR 639
(1982) 150 CLR 169
(1964) 113 CLR 207
(1987) 9 NSWLR 154
(1999) 102 LGERA 253
(2004) 135 LGERA 257
(1906) 4 CLR 835
(2008) 72 NSWLR 647
(2003) 132 LGERA 243
(2012) 248 CLR 1
(1949) 79 CLR 201
(1990) 170 CLR 649
(2012) 246 CLR 117
(1957) 96 CLR 261
(2014) 121 SASR 449
(1981) 151 CLR 170
(2002) 122 FCR 349
(2002) 168 FLR 103
(1990) 169 CLR 515
(1994) 53 FCR 429
(1976) 51 ALJR 235
(2012) 248 CLR 500