Plaintiff v Defendants

"Nominations are now open for the election of the FEA Executive (5 position/s), FEA State Conference Delegates (14 positions), Young Labor Conference delegates (8 position/s) and FEA returning officers (2 positions).

To be eligible to stand and vote for the FEA Executive, State Conference delegate and FEA returning officer, members must have twelve months' continuity of local branch membership at the close of nominations on 29 July 2005."

3 The plaintiff contends that there are, as a result of new rules adopted by the Victorian Branch in 2003, further eligibility requirements. He seeks an interlocutory injunction restraining the conduct of the elections until the issue of the content of the eligibility requirements both to nominate as a candidate for, and to vote in, the elections are determined by the court.

4 The dispute arises in the following way. Each of the ALP and the Victorian Branch is an unincorporated voluntary association. The ALP is a political party registered under the Electoral Act 1918 (Cth) ("the Act"). As such, it is required to provide a copy of its constitution to the Australian Electoral Commission, has officers registered with the Australian Electoral Commission pursuant to the Act and is in receipt of public funding.

5 The Victorian Branch is a State branch of the ALP and, in that capacity, also receives public funding under the Act. Further, the Victorian Branch is registered under the Electoral Act 2002 (Vic), has a registered officer under that Act, receives public electoral funding pursuant to that Act, and is otherwise subject to its requirements.

6 There is a complex Federal and State structure, under which the ALP and its various State and Territory branches, including the Victorian Branch, operate. It is not necessary for the purposes of this application before me to set out the whole of that structure. However, some detail is required in order to understand the facts relevant to the application which I must determine.

7 The ALP is the national body with a national constitution. The supreme governing body of the ALP is the National Conference of delegates. The chief administrative body of the ALP is its National Executive. Each State and Territory branch of the ALP is a separate, unincorporated voluntary association with its own set of governing rules. The Victorian Branch has its own supreme governing body, the State Conference, and also has a state Administrative Committee. The State Conference of the Victorian Branch is made up of delegates. Some are appointed by trade unions. The remaining delegates are members of the ALP who are elected from each Federal Electorate Assembly, or FEA. The delegates ultimately determine the identity of persons to be endorsed for preselection to stand on behalf of the ALP at State and Federal elections.

8 There has for some time been a concern in the ALP about a practice known as "branch stacking". In or about August 2002, a report reviewing ALP party structures was made by the Honourable Bob Hawke, AC, and the Honourable Neville Wran, AC, QC. Mr Hawke and Mr Wran are widely regarded as revered senior figures within the ALP. The report that they produced was known as "The Hawke-Wran Review". It made a number of recommendations to revamp party structures. Among the problems that the Hawke-Wran Review sought to address was the problem of branch stacking. The report included specific proposals to eliminate or minimise branch stacking, which it described as having a cancerous effect within the ALP.

9 In October 2002 the ALP held a special National Conference to consider and implement the recommendations of the Hawke-Wran Review. The Conference resulted in amendments to the National Constitution of the ALP and the creation of what are referred to as National Principles of Organisation, or NPOs.

10 Following the special National Conference, each State and Territory branch was required by the NPOs to amend their rules consistent with the requirement of the NPOs. NPO 19 required that all State and Territory rules be revised by the relevant State or Territory branches in accordance with the NPOs and be submitted to the National Executive for endorsement by 1 November 2003.

11 In May 2003 the State Conference of the Victorian Branch, in compliance with its obligation under NPO 19 of the National Constitution, amended the old State rules and created the 2003 State rules that were expressed to come into force on 1 June 2003. I will refer to these as "the new rules". The new rules, among other things -

(a) required that members of the ALP be enrolled with the Australian Electoral Commission in order to vote in any internal party elections ("the AEC rule"); and

(b) required that members were required to have been members of the ALP for at least 24 months, and to have had at least 12 months continuity of branch membership before being permitted to vote in internal party elections ("the 24-month continuous membership rule").

12 The 24-month continuous membership rule appears to make branch stacking more difficult, because it is more difficult to recruit and pay other people's memberships over a period of two years in order to affect preselection outcomes than it is to do so over a period of one year.

13 The AEC rule apparently aims to combat the practice of having people join the party in key areas in order to affect preselection in that area, when the person does not in fact live in that area. False addresses can be used to achieve this end. This practice may be defeated if the person's address for the purposes of party membership is required to correspond to his or her AEC enrolment.

14 The relevant provisions of the new rules are contained in clause 9.3.3. In so far as relevant, that rule provides:

"9.3.3 All elections for returning officers, executive members and delegates to State Conference shall be conducted in accordance with the following procedures:

(i) who are members of a branch in the electorate at the close of nominations;

(ii) who have at least 12 months continuity of branch membership (not including central branch membership) at the close of nominations;

(iii) who have been members of the party for at least 24 months (not including central branch membership) before the close of nominations;

(iv) who are enrolled to vote in Federal elections; and

are eligible to vote. Only members eligible to vote are eligible to nominate for election as State Conference delegates.

(i) who are members of a branch in the electorate at the close of nominations;

(ii) who have been members of the party for at least 24 months before the close of nominations; and

are eligible to nominate for returning officers and executive members."

15 Following the changes to the rules of the Victorian Branch, the new rules were provided to the National Secretariat for endorsement in accordance with the NPOs.

16 The 24-month continuous membership rule and the AEC rule were the subject of some disagreement. In August 2003 these rules ("the disputed rules") were referred to the National Appeals Tribunal set up under the ALP National Constitution. The dispute was considered by Mr Barry Unsworth, a member of the National Appeals Tribunal. The context of this appeal process clearly included a concern about an election process which was at that time already in process, and the possibility of the new rules causing retrospective disenfranchisement of members. However, the recommendations of the tribunal to the National Executive are not limited to this issue. The recommendations favoured prospective operation of the 24-month continuous membership rule, but recommended deletion of the AEC rule. These were recommendations, not decisions binding on the Victorian Branch or the National Executive.

17 The matter came before the National Executive on 19 September 2003. The minutes record that it was resolved as follows, in respect of an agenda item described as "3.1 - Victorian Appeal":

"The National Executive accepts the recommendations of the National Appeals Tribunal in relation to the conduct of the current FEA elections and directs that they should be conducted in accordance with the Rules of the Victorian Branch as at 31 May 2003.

The National Executive accepts a commitment from the Victorian Branch that no other elections will be conducted prior to 31 January 2004 under the new 9.3.3(a)(iv), 9.3.3(b)(ii) and 9.3.3(a)(iii) until there is a determination of the application of the AEC provisions and the 24-months provisions by the National Conference."

18 Dr Emerton, who appeared on behalf of the second defendant, Mr Gartrell, submitted that the effect of this resolution of the National Executive was that the disputed rules were "sent off on a separate path". They were directed by the National Executive to be considered by the National Conference. This was in lieu of the National Executive acting under NPO 19 and endorsing this aspect of the new rules. Dr Emerton submitted that this course was open to the National Executive under Clause 18(g) of the National Constitution, which provides:

(i) must promptly consider all recommendations of the tribunal; and

(ii) may make any decision in relation to the appeal it thinks fit."

19 Mr Gunst, who appeared with Mr Holding for the plaintiff, submitted that this resolution of the National Executive dealt primarily with retrospectivity, and only operated prospectively until 31 January 2004.

20 The National Executive met again on 28 November 2003. The minutes record the following resolution under Item 3.6:

"3.6 Report back on implementation of items from the special National Rules Conference (NPO 19).

'That the rules received be endorsed and outstanding State rules be placed on the agenda for the National Executive meeting scheduled for 5 p.m. on Thursday 4 December. This shall include the WA Branch Union Affiliation Rule.'

Carried."

Prior to the meeting on 28 November 2003, Mr Gartrell, in his capacity as National Secretary of the ALP, prepared a memorandum to all members of the National Executive. It recorded as follows:

"Re State/Territory Compliance with ALP National Constitution.

Date: November 2003.

Rule 15(1) of the ALP National Constitution reads:

'In order to ensure that these rules are given effect, the State and Territory branches of the ALP be required to amend, where necessary, their rules to reflect these national rules. Such amended rules will be presented to the National Executive no later than 1 November 2003.'

National Principle of Organisation (NPO) 19 reads:

'All State and Territory branch rules must be revised in accordance with these National Principles of Organisation as amended at the Special National Rules Conference held in October 2002 and be submitted to the National Executive for endorsement no later than 1 November 2003.'

The following tables match Rules 15 and the NPOs with the relevant State rules as amended to comply with the ALP National Constitution.

Note that South Australia has not yet held a conference to allow them to fully comply with the NPOs."

21 There is annexed to this memorandum a number of tables dealing with the rules which had been adopted by each of the States and Territories, except South Australia, pursuant to NPO 19. In the table dealing with the new rules adopted in Victoria, there are numerous references to the disputed rules and to the fact that they include the 24-month membership rule and the AEC rule. At the conclusion of the table it is stated, in respect of NPO 19, that Victoria has met the requirements of NPO 19.

22 Mr Gunst submitted that it was at least arguable that, by its 28 November 2003 resolution, the whole of the new rules were endorsed by the National Executive as contemplated by NPO 19. Mr Masel, who appeared on behalf of the first and third defendants, and Dr Emerton joined in the submission that this endorsement did not relate to the disputed rules because they had previously, by the 19 September 2003 resolution of the National Executive, been directed by the National Executive to be considered at the next National Conference; in other words, that the disputed rules were outstanding rules within the meaning of the resolution which was passed on 28 November 2003 by the National Executive. It was submitted on behalf of the defendants that there was no serious question to be tried on this issue.

23 In my view, there are persuasive factors which tend to support each of the rival submissions.

24 The submissions on behalf of the plaintiff are supported by the text of the resolution. The new rules had been received and were referred to in the resolution as endorsed. This was in the context of the table prepared by Mr Gartrell, which recorded that the new rules met the requirements of NPO 19. It is arguable that there were "outstanding rules" other than the disputed rules. As the memorandum of Mr Gartrell demonstrated, South Australia had yet to comply with the NPO's. Further, the item being considered as 3.6 on 28 November 2003 specifically refers to NPO 19. It is also common ground that the National Conference has not considered any issue relating to the disputed rules in a period of nearly two years since the dispute arose. This is despite there being a National Conference in January and February 2004. The evidence does not disclose if there has been a National Conference since that time. In any event, the unlikelihood of such an important issue being deferred for such a long time is a factor in favour of the plaintiff's submissions.

25 The submissions on behalf of the defendants are also supported by cogent factors. Not only is there the terms of the 19 September 2003 resolution by the National Executive, which at least implies an intention on the part of the National Executive to refer the disputed rules to the National Conference, but in addition the subsequent conduct of the Victorian Branch has been to conduct elections in November 2003 and September 2004 on the basis of the new rules, save and except for the disputed rules.

26 I note that on 13 July 2005, prior to the 14 July letter from Mr Newnham notifying members of the Victorian Branch of the elections, that the National Executive resolved, in response to a request from the National Union of Workers, that its 19 September 2003 resolution required the elections to be conducted in accordance with the rules of the Victorian Branch in force before the new rules. This is not consistent with the conduct of the November 2003 and September 2004 elections, which Mr Newnham swears were conducted upon the basis of the new rules except for the disputed rules. This adds to the confusion. The evidence indicates that the 13 July resolution of the National Executive was the result of a ballot and not discussion of the issues on its merits.

27 As I have said, I am satisfied that there is substance to each of the competing arguments as to whether the disputed rules have been endorsed by the National Executive and are in force. In my view, there is a serious question to be tried on this issue.

28 Further to the factual dispute about the applicability of the disputed rules, an issue was argued as to whether this dispute was justiciable in the court. The plaintiff relied upon Edgar v Meade[1], Baldwin v Everingham[2] and Clarke v The ALP[3]. The defendant relied upon Cameron v Hogan[4]. I was taken to passages from each of these authorities in some detail.

29 I am satisfied that there is a serious question to be tried as to the justiciability of this dispute in the court. The issue is certainly not one which, on an interlocutory basis in a busy Practice Court, can or should be conclusively resolved.

30 I note that there are statements in the National Constitution and in the new rules to the effect that it is intended that they are not to be enforceable at law. Further, there are some limited "appeal" rights. However, on examination and as noted by Mr Gunst, these "appeal" rights arise under non-contractual rules and are to a body which can only make recommendations to the National Executive, which is not bound by those recommendations. In this case, exercise of these "appeal" rights would at best result in a non-binding recommendation to the very body which, by ballot on 13 July 2005, decided that the new rules did not apply at all, and that the old rules continued to apply to the elections.

31 The existence of these statements of intention and rights of "appeal" does not, in my view, mean that there is no serious question to be tried as to whether the plaintiff is entitled to final relief. Nor, as a matter of discretion, should it bar the plaintiff from obtaining interlocutory relief.

32 I turn to consider the balance of convenience. In my view it favours the granting of interlocutory relief. The undertaking as to damages which the plaintiff offers will meet any wasted costs of the election process to date. It would be most undesirable if persons were nominated and elected, and acted as duly elected representatives, only to be later removed from office due to irregularities in the election process. There is no urgent need to preselect ALP candidates, as there are no State or Federal elections due in the near future.

33 On the other hand, there is obviously a need to resolve this important issue within the ALP, which is one of the two major political parties in Australia, at an early time. Accordingly, the court will accommodate an urgent trial. I will fix the trial of this matter for 15 August 2005, on an estimate of hearing for three days.

34 I will hear counsel as to the form of orders and directions to bring about such an urgent trial.

[1] [1916] HCA 70; (1917) 23 CLR 29

[2] (1993) 1 QR 10

[3] [1999] SASC 365; (1999) 74 SASR 109

[4] [1934] HCA 24; (1934) 51 CLR 358