Plaintiffs v Defendants

PRACTICE AND PROCEDURE - Representative order - Whether need for a common grievance - Supreme Court (General Civil Procedure) Rules 2015 O 18 r2, 4.

Mr R Merkel QC with Mr E Nekvapil, Mr T Borgeest and Ms C Mintz

For the 1st-9th, 11th, 14th-21st and the 23rd- 24th Defendants

Mr P G Willis SC with Mr A D Lang, Mr J H Kirkwood and Mr G Jegatheesan

1 The plaintiffs in this proceeding are members of the Australian Labor Party ('the ALP') or, in one case, is a trade union. Most of the plaintiffs are also officers of branches of trade unions affiliated with the Victorian Branch of the ALP and sue as representing the members of their branches.

2 The plaintiffs' case is that a resolution of the National Executive of the ALP which took control over the preselection of candidates for safe ALP House of Representative seats in the forthcoming federal election was invalid because it was not authorised by the ALP's National Constitution or the Victorian Branch Rules. The Preselection Resolution followed and was based on the National Executive's intervention in the Victorian Branch in June 2020 under an Administration Resolution made following allegations of branch stacking, which they argue was also invalid. They also argue that the Preselection Resolution was not a reasonable exercise of the powers conferred on the National Executive by the National Constitution or the Victorian Branch Rules, and was made for improper purposes. They also challenge other National Executive resolutions which were passed after the Administration Resolution of June 2020.

3 The defendants are the members of the National Executive and the trustees of trusts under which the Victorian Branch's property is held.

4 The Victorian Branch is given power by its Rules to conduct preselections for public office, including for House of Representative electorates. A significant number of rank and file members of the ALP, in ordinary times, have the opportunity to participate in the preselections. However, the National Executive has power over preselections when it forms 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. In those circumstances, it may conduct any preselection that would otherwise have been decided by the State Branch. This power is given by cl 16(f)(iii) of the National Constitution and, in my opinion, also by the plenary power conferred by cl 16(d).

5 On 4 May 2021, the National Executive acting under the power in cl 16(f)(iii) resolved to conduct the preselections for 21 safe ALP seats and one newly created seat with the nominations to close on 7 May 2021, 46 hours later ('the Preselection Resolution').

6 Some of the plaintiffs, as members of the Public Office Selection Committee or through selection by their local branches, may have been electors in those preselections if they had been conducted in the usual manner under the Victorian Branch Rules. Because of the Resolution the plaintiffs lost their opportunity, as did ordinary members, to be part of the preselection process an important democratic process in the ALP and other political parties.

7 In deciding this case, two general and important questions arise. The first is whether the plaintiffs' case is of the kind with which a court will become involved. Using the legal term, is it justiciable? The defendants say that 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 a decision of the High Court in 1934, Cameron v Hogan,[1] 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 has been no subsequent High Court decision questioning 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, the plaintiffs rely on exceptions recognized as applying to the general principle in Cameron v Hogan and also submitted that it could be distinguished from the facts or circumstances of this case.

8 The second important 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 conferred by the National Constitution over branches and also influence the interpretation of the Victorian Branch Rules.

9 I have decided that one of the plaintiffs' claims is justiciable being their claim that the National Executive's intervention by the Administration Resolution was an unlawful interference with the trusts upon which the Victorian Branch's property is held and that they have the legal standing to bring that claim. This claim comes within one of the exceptions recognized in Cameron v Hogan. Having reached that conclusion and decided that the Court will hear that claim, I then considered whether the plaintiffs' claim of unlawful interference with the Branch trusts has been proved or established. My conclusion is that the plaintiffs have not proved or established their claim that the National Executive has unlawfully interfered with the administration of the Branch trusts by passing and implementing the Administration Resolution.

10 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. Thus the powers contained in the National Constitution and exercisable by the National Executive apply to all Branches and members of the ALP subject to limitations that I discuss in the judgment.

11 I have decided that the plaintiffs' other grounds for challenging the Administration Resolution, Preselection Resolution and other resolutions are not justiciable. They are not grounds or claims with which the Court will become involved or 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 advanced for distinguishing that decision from the circumstances of the present case.

12 However, despite those conclusions, I have, as I am required to do, considered the plaintiffs' other grounds of challenge to the Administration Resolution, the Rule Amendment Resolution, the Further Amendment Resolution and the Preselection Resolution. Having done so, I have reached the conclusion that none of the plaintiffs' grounds of challenge would succeed in establishing that those Resolutions were invalid. If I had found the plaintiffs' challenges to those Resolutions to be justiciable, I would have dismissed those challenges.

14 The plaintiffs in this proceeding are members of the Australian Labor Party ('the ALP') or in one case, a trade union. Most of the plaintiffs are officers of branches of trade unions affiliated with the Victorian Branch of the ALP and bring the proceeding representing the members of their union's branch. The defendants are the National Executive of the ALP ('the National Executive'), which is established by the ALP National Constitution ('National Constitution') and trustees of trusts on which the Victorian Branch's property is held.

15 Both the ALP and the Victorian Branch are registered political parties under the Commonwealth Electoral Act 1918 (Cth) ('Commonwealth Electoral Act'), as the 'Australian Labor Party' and the 'Australian Labor Party, Victorian Branch'. The Victorian Branch is also a registered political party under the Electoral Act 2002 (Vic) ('Victorian Electoral Act').

(a) the 16 June 2020 resolution of the National Executive to intervene in and appoint administrators to the Victorian Branch ('the Administration Resolution');

(b) the 14 September 2020 resolution of the National Executive amending the Victorian Branch Rules ('the Victorian Branch Rules') in order to confirm the Administrators' powers by amending the existing rules to add r 26 entitled 'Temporary Rules Applicable During the Period of the Administration' and altering the rules relating to branch stacking through, inter alia, the inclusion of a new rule, r 26 ('the Rule Amendment Resolution');

(c) the 29 January 2021 resolution of the National Executive further amending the Victorian Branch Rules to, inter alia, rescind r 26 of the amended rules, providing for the appointment of an Interim Governance Committee to replace the Administrators, and adding r 26.8.1 ('the Further Amendment Resolution'); and

(d) the 4 May 2021 Preselection Resolution.

17 The plaintiffs seek a declaration that nothing done based on the Preselection Resolution has legal effect as a decision or act of the Victorian Branch for the purposes of the Commonwealth Electoral Act. They seek a declaration that there was no reasonable, proper or lawful basis for the affirmation in the Preselection Resolution that the National Executive remained of the opinion that the Victorian Branch, or a section of it, was acting or had acted in a manner contrary to the National Constitution that warranted or justified an opinion that the conduct of the preselection process, the subject of the resolution, 'remains necessary and justified'. They also seek injunctive relief.

Connection between this case and the Kairouz Proceeding

18 This proceeding was heard immediately before S ECI 2021 00274 Kairouz v Bracks ('the Kairouz Proceeding') which is a challenge to the National Executive's Administration Resolution and intervention in the Victorian Branch following allegations of branch stacking. Because of common issues in the proceedings, I allowed the parties in the Kairouz Proceeding to participate in this proceeding as appropriate as I had allowed the plaintiffs in the present proceeding ('the Asmar plaintiffs') to participate in the Kairouz Proceeding. I later made an order that the two 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, in many instances, 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 this proceeding. I have determined those issues in the proceeding in which they arose.

19 The plaintiffs referred to, repeated and relied on the grounds contained in Ms Kairouz's Amended Statement of Claim in respect of the first three resolutions and contended that those resolutions and the amended rules following them were invalid.[2]

20 The defendants contended that the plaintiffs' claims were not justiciable as the ALP is a voluntary unincorporated association which exercises no public power. In any event, the defendants contended that the plaintiffs had not established that the Resolutions were invalid.

21 On 7 May 2021, I granted an interlocutory injunction restraining the defendants from acting upon or giving effect to any nominations received in respect of the 22 Federal House of Representative seats in Victoria identified in the Preselection Resolution and from conducting any ballot as foreshadowed in that Resolution following those nominations. On 9 June 2021, I dissolved that injunction as I considered that the balance of convenience did not favour continuing it. However, I stated that the 'National Executive bore the risk of any electoral harm that may follow' should the Court later find the preselections to be invalid.[3]

22 The tenth, twelfth, and thirteenth defendants, all of whom are members of the National Executive, are also the twelfth, fourteenth and fifteenth defendants in the Kairouz Proceeding_._ They 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 as the Three Defendants, where it is necessary to distinguish their submissions or their claims. Otherwise I will generally 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]

23 The main issues for decision in the proceeding are as follows:

1. The justiciability of the National Executive's resolutions requiring consideration of:

(b) exceptions to the principle in Cameron v Hogan,

(c) grounds for distinguishing the decision in Cameron v Hogan:

(ii) the statutory recognition of political parties; and

2. The validity of the following resolutions of the National Executive:

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 depicting a significant branch stacking operation within the Victorian Branch. Among the principal speakers in the recordings 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.

26 The defendants tendered a copy of the 60 Minutes program and played it for the Court. They described events that as addressing: 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 employees 'to deliver Indians' for him; and that person's 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.

27 In 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 the 60 Minutes report. 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.[7]

28 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.

29 The defendants pointed by way of example to the following parts of reports published:

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. ..."[8]

30 The defendants contended that some of the audio and video captures what appears to be attempted falsification of documents and forgery of signatures of members.

31 Between 14 and 16 June 2020, the matters reported in the 60 Minutes program 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.[9]

32 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.

33 At 10:26am on 15 June 2020, Mr Andrew's Chief of Staff, Ms Lissie Ratcliff, sent an email attaching Mr Andrews' letter to Mr Tim Gartrell, requesting that it be brought to the attention of the first defendant, Mr Anthony Albanese, who is the Leader of the Opposition and the Federal Parliamentary Leader of the ALP in the Commonwealth Parliament.[10] At 11:15am, Mr Gartrell, who is Mr Albanese's Chief of Staff, replied to Ms Ratcliff's email stating 'He's got it'.[11]

34 At 10:53am on 15 June 2020, Mr Somyurek resigned his membership of the ALP.[12]

35 On 16 June 2020, Mr Andrews wrote a second letter to the National Executive in different terms to his first letter, 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.[13]

36 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:

• All Committees of the Victorian State Conference, as defined in the Victorian Rules, are suspended
• All officials and staff of the Victorian Branch will report to the administrators.

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.[14]

37 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[15] 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.

38 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's 'oversight' might also be described as the National Executive's intervention in the Victorian Branch.

39 The Administration Resolution was in the following terms which were similar to the attachment to Mr Andrews' letter 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:

• All committees of the Victorian State Conference, as defined in the Victorian Rules, are suspended
• All officials and staff of the Victorian Branch will report to the administrators.

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.[16]

40 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 a revised resolution that would include amending the existing Victorian Branch Rules to prohibit cash and cash like payments for memberships and membership renewals.

41 On 14 September 2020, the National Executive resolved that the 'Victorian Branch Rules be adapted in order to confirm the Administrators' powers'[17] which included r 26 titled 'Temporary Rules Applicable During the Period of the Administration' ('the Rule Amendment Resolution').[18] These 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. I will refer to the Victorian Branch Rules as amended on 14 September 2020 as the 'Amended Rules'.

The National Executive's Resolutions of 27 November 2020

42 On 27 November 2020, the National Executive resolved to:

(a) accept the Administrators' Final Report and adopt their recommendations;

(b) confirm 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) give effect to recommendation 29 and 30 in the Administrators' Final Report by making changes to the Victorian Branch Rules relating to membership by amending rr 5.7.6 and 5.12.2 and inserting new rules 5.3.6 and 5.3.7; and

(d) note 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.[19]

43 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.

44 As stated above, on 4 May 2021 the National Executive resolved to take over and conduct the preselection of ALP candidates for the next federal election in 21 House of Representatives electorates, which ALP members currently hold, and one new seat, the seat of Hawke. The Preselection Resolution, and its background, are set out later in these reasons.

45 The term justiciability describes whether a claim for relief is appropriate and capable of being settled or decided by a court of law.[20] 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.

46 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.[21]

47 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 under them some civil right of a proprietary nature.[22 ]The High Court found that 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 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.[23] 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.[24]

48 The judgments in Cameron v Hogan addressed matters of relevance to this proceeding in the following passages. Starke J stated 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.[25]

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.[26]

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.[27]

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.[28]

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.[29]

50 Cameron v Hogan was recently applied by Riordan J in Setka v Carroll,[30] which concerned a challenge by Mr Setka to requests made to the National Executive to expel him from the ALP. Riordan J held that such a claim was not justiciable.

The plaintiffs' reliance on their proprietary interests in the Victorian Branch's trusts

51 To support the justiciability of their claims, the plaintiffs sought to rely on the proprietary interest exception recognized by the High Court in Cameron v Hogan by relying on rights under, or in respect of, the trusts upon which the Victorian Branch's property is held. Although the plaintiffs did not seek any remedy specific to the administration of the trusts, they challenged the Administration Resolution, the Rule Amendment Resolution, the Further Amendment Resolution and the Preselection Resolution on grounds that they unlawfully interfered with the trusts' administration.[31] They also relied on the right of a beneficiary to seek the enforcement of a trust even if that right was not a proprietary interest and argued that such a right was not governed by the decision in Cameron v Hogan. The plaintiffs therefore contended that, as members or as affiliated unions, they had the requisite standing to bring this proceeding for the proper and due administration of the trusts on which the property of the Victorian Branch is held, or that in the alternative, they had the requisite standing based on their claims for breach of contract. I will next describe the trusts under which the Victorian Branch's property is held.

52 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

53 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.

54 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.

55 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.

56 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 of the trusts who would include the members of the Victorian Branch.[32]

57 The trustees of the r 21.1 and r 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.

58 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.

59 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 to 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.

60 Clause 3 of the Trust Deed describes 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.

61 Clause 3 of the Trust Deed also gives the Trustee broad powers to give effect to the purpose of the Trust.

62 The plaintiffs adopted the substance of Ms Kairouz's submissions that, as a member of the Victorian Branch, she had a cause of action as a beneficiary to sue to restrain unlawful interferences with the trusts. They relied on her pleading that the Administration Resolution constituted unlawful interference in these trusts and altered their administration by:

(a) requiring the Trustees of the trusts created by rr 21.1 and 21.2 of the Victorian Branch Rules 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 their 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

63 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 state 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.

64 A similar letter was sent to Mr Hilakari. The attached documents recorded that they were 'retiring' as directors and shareholders. Upon their retirement, the Administrators, Ms Macklin and Mr Bracks, became directors and shareholders of the trustee company in their place.

The plaintiffs' submissions about their interests in the Victorian Branch trusts

65 The plaintiffs argued that their claims fell within the proprietary interest exception recognized by Cameron v Hogan as beneficiaries under the trusts on which the Victorian Branch's property is held. They argued that the Administration Resolution had unlawfully interfered with the administration of the trusts. In that respect, they relied on allegations of breach of trust contained in Ms Kairouz's amended statement of claim, relevant parts of which I have set out above, as containing the details of that unlawful interference.

66 In summary, the allegations were that the Administrators, purporting to act under the Administration Resolution, had taken control of the administration and assets of the trusts and in effect had appointed themselves trustees. By passing the Administration Resolution, the National Executive had unlawfully interfered in the trusts and altered their administration and affected the interests of beneficiaries in them. They had changed the governance and administration of the trusts, and in the case of the LSH Trust, the directors and shareholders of the corporate trustee. They had removed powers of the Administrative Committee over the trusts' operations, such as the power to authorise the trustees of the first trust to raise and borrow money and in respect of the Capital Investment Fund to approve the making of advances by the Trustees, the power to nominate two directors and shareholders of LSH Trustee and the power of the Administrative Committee to change or vary the LSH trust deed.

67 The plaintiffs argued that they have both a proprietary interest as well as a real and special interest in the relief they seek because of their interests in the trusts. As an alternative argument, they submitted that their right to seek relief because of the Administrators' interference with the administration of the trusts did not depend upon them establishing that they were beneficiaries.[33]

68 To support their claim for justiciability on the trusts ground, the plaintiffs relied on the decision in Rendall-Short v Grier[34] in which Lucas J referred to Cameron v Hogan, and the right of members of an association to see that its rules were observed, including the rules concerning the application of its property and income in promotion of its objects. Such a right was 'a right of a proprietary nature'. The case concerned the legality of the transfer of trust property of an unincorporated association to another trust. Lucas J stated:

In the present case I think there is a trust ground on which Cameron v Hogan may be distinguished. In Forbes v. Eden Lord Cranworth said in an oft quoted passage which is repeated in Cameron v Hogan:

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.

Clause 21(a) of the constitution of the association, to which I have already referred, provides:

The income and property of the organisation shall be applied in promotion of its objects.

The substantial matter of which the plaintiffs complain is the transfer of the assets of the association to the Therapy Society. As members of the association the plaintiffs have a right to see that its rules are observed by the committee of management; this is a right which of course extends to the observance of all the rules. It is true that in relation to many of the rules, a court would not enforce their observance; for example, it is doubtful whether the court would entertain an action in which the only complaint was of some irregularity at a meeting:

"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." (Cameron v. Hogan).

But I do not think that clause 21(a) is a rule of that nature. The plaintiffs as members have the right to require the committee of management to apply the income and property of the association in promotion of its objects. I can see no basis upon which a right of such a nature could be considered as anything other than a 'right of a proprietary nature'. Having regard to the value of the property concerned, it would be surprising if a member had no remedy in respect of its misapplication. Nor do I think that the fact that the objects of the association are charitable means that the intervention of the Attorney-General is required. The plaintiffs are not seeking to enforce a charitable trust; they are merely insisting upon the proper application of the property of the association; in other words seeking the performance of their proprietary right: cf. Baldry v. Feintuck.

For these reasons I have come to the conclusion that the plaintiffs have the necessary standing to bring both of these actions.[35]

69 Lucas J's judgment has additional significance because he applied its reasoning in his judgment at first instance in Burton v Murphy[36] to explain why he was distinguishing Cameron v Hogan. Burton v Murphy, which I consider in detail below, concerned the intervention in 1980 of the Federal Executive of the ALP in the Queensland Branch. In deciding that case, which is relevant to deciding whether the plaintiffs' claims in this case are justiciable, 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.[37]

70 The plaintiffs also referred to s 41(1) of the Trustee Act 1958 which deals with the appointment of new trustees and the removal of existing trustees as having the consequence that the Administrators had no power to appoint or remove trustees.[38] They argued that s 41(1) contemplated the appointment of new trustees by the persons nominated by the instrument creating the trust, or the surviving or continuing trustee for the time being, or personal representatives of the last remaining trustee. Critically, s 41(2) deals with the removal of trustees, and contemplates that this may be done under a power contained in the instrument creating the trust. Section 48(1) empowers the Court to appoint new trustees, including by substituting them for existing trustees. The Court also has inherent power to remove trustees. Otherwise, so the plaintiffs submitted, no one, including the Administrators in the present case, has power to remove a trustee. Further, the plaintiffs contended that any attempt to remove the jurisdiction of the courts to deal with claims concerning the due administration of a trust was void as contrary to public policy.

The defendants' submissions about the plaintiffs' interests in the Victorian Branch trusts

71 The defendants accepted that in circumstances where property of an 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.

72 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 plaintiffs as beneficiaries of the trusts relating to branch property, for example, to compel the trustees to perform the terms of the trusts, is irrelevant to their present claims in this proceeding. 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.[39] The defendants argued that plaintiffs were in no better position than Mr Hogan was, as they were not suing the trustees to prevent non-compliance with, or maladministration of, the trusts.[40]

73 To emphasise their argument that the plaintiffs were 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. The plaintiffs sought no relief based on trust claims. Their trust arguments were a contrivance to attempt to overcome their lack of a justiciable claim and they could not 'bootstrap' themselves into a justiciable issue by claiming a declaration. After the Administration Resolution was passed, 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 property of the Victorian Branch 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 thereafter the Interim Governance Committee, because they stood in the shoes of the Branch's 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 plaintiffs' claim based on wrongful 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.

74 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. That relationship included the powers of the National Executive, particularly those in cls 16(d) and 16(f) of the National Constitution. The trustees were obliged to comply with the National Constitution which included the power to amend the Victorian Branch Rules. Intervention by the National Executive to take over and direct the conduct of the affairs of branches, including their property, was part of the design of the rules.

75 Before considering the justiciability of the plaintiffs' trust exception arguments, I will deal with matters that the defendants argued prevented the plaintiffs from making them.

76 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 Victorian Branch Rules, be joined as a defendant;

(b) The capacity in which the eighteenth defendant, Ms 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 the plaintiffs bring a claim for breach of trust?

77 However, despite that joinder, an issue arose whether, if the plaintiffs' claims were treated as made by beneficiaries alleging interference with the trusts, they had to be made, as the Three Defendants contended, by the trustees and not by the beneficiaries. They relied on the fact that the plaintiffs 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. In other words they contended that to the extent that the plaintiffs' claims were trusts claims they were not validly constituted.

78 The Three Defendants relied on the absence of allegations in the plaintiffs' pleadings against the trustees, or of any request by a beneficiary for the trustees to institute proceedings. They did not plead or produce evidence of any disagreement or deadlock between the trustees or any control being exerted over them to prevent them from acting in accordance with their duties. There was no evidence that the National Executive had interfered in the administration of the trusts.

79 On the issue of 'special circumstances', the plaintiffs relied on the statement of Gleeson CJ, Gummow and Hayne JJ in Alexander v Perpetual Trustees WA Ltd that:

In Ramage v Waclaw, Powell J reviewed many of the authorities, including the judgment of James LJ in Sharpe v San Paulo Railway Co, which support the proposition that, where relief is sought in the equitable jurisdiction of the Supreme Court against a third party, a beneficiary may sue in his own name, joining as defendants the trustee and any other beneficiaries, but only where there are 'special circumstances'. One reason for this restriction, given by James LJ in Sharpe, is the avoidance of the vexation of the third party by multiple suits. Powell J held that the 'special circumstances' were not confined to collusion between the trustee and the third party, or the insolvency of the trustee. But the general principle is that stated by Scott:

The interests of the beneficiaries of a trust are protected against a third person acting adversely to the trustee through proceedings brought against him by the trustee and not by the beneficiaries. As long as the trustee is ready and willing to take the proper proceedings against the third person, the beneficiaries cannot maintain a suit against him.[41]

80 The plaintiffs submitted that the Court should find that the trustees were not ready and willing to take the proper proceedings against third persons, being the National Executive, who were unlawfully interfering with the administration of the trusts. The two trustees who, as members of the National Executive voted in favour of the Administration Resolution, or in one case by proxy, demonstrated an unwillingness to bring the proceedings as trustees. Their resistance to the summons for their joinder and the joinder of the trustee company, LSH Trustee, although later not opposing it, was an implicit refusal to commence these proceedings. There was a substantial impediment to the trustees bringing the claim.

Analysis of the plaintiffs' right to bring the trust claim

81 For the reasons I give below, I accept that the plaintiffs' case that they have a right as beneficiaries under the trusts to bring that part of the proceeding that alleges unlawful interference with the administration of the trusts. In addition, I consider that the plaintiffs have established special circumstances that make it appropriate to permit them to bring that part of their claim alleging unlawful interference with the administration of the trusts. Hargrave J in Deutsch v Deutsch[42] 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.

82 I consider that it would have been '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 that they could not be regarded as ready and willing to do so. The Junior Vice-President Mr McWhinney and the corporate trustee LSH Trustee 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 the plaintiffs, when he had not commenced the proceeding and where 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 the plaintiffs' 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 join in or take over its conduct.

Analysis of the trusts exception submissions as a ground of justiciability

83 Returning to the plaintiffs' reliance on the proprietary interest exception to Cameron v Hogan in order to establish the justiciability of their claims, I accept that the plaintiffs who are members of the ALP have 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 on which the Victorian Branch property is held. I accept that such a claim is justiciable and that they have standing to bring it. They are beneficiaries of the trusts, or are to be treated as beneficiaries to the extent that the trusts are non-charitable objects trusts. As such, they have an interest in the trusts sufficient to sue for their due administration.[43]

84 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 of the Branch 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.[44]

85 The right of the plaintiffs to bring their trusts claim is clear from Stevens v Keogh,[45 ]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.[46]

86 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 same principle 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.

Have the plaintiffs' established their trust claims?

87 But finding that a claim is justiciable and that the plaintiffs have standing to bring it, is preliminary to, and separate from, the question of whether the claim succeeds. That requires determining whether the plaintiffs have proved or established their cause of action. On that question I have decided that the plaintiffs have not done so. They have not established that the National Executive, or 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 or the Branch Officers were to be exercised by the Administrators with the trustees reporting to them rather than to the Administrative Committee. 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 a case of an administrator being appointed to a business or other entity and being able to exercise all the powers of that business or entity. I do not consider that any of the effects of the Administration Resolution unlawfully interfered with the administration of the trusts.

88 The plaintiffs do not point to any misapplication or misuse of trust funds. Rather, in challenging the Administration Resolution, they in effect challenge the National Executive's takeover of, and direction of, the conduct of the Victorian Branch's affairs, including the suspension of its committees. As a result of that Resolution, the Administrators replaced the Administrative Committee for the duration of the intervention.

89 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. The Branch Rules under which the trusts were created or 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. Later in this judgment I deal with this issue of the relationship of the National Constitution and the Victorian Branch Rules when considering the structure of the ALP. Again later in the judgment, I explain why in my opinion, the Administration Resolution was valid and within the power of the National Executive to pass and that the appointment of the Administrators was also valid.

90 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 (N.S.W.) (ex rel Ashford),[47] a proceeding alleging a breach of a charitable trust for religious purposes by the Sacrament of Holy Communion being administered in the Church of England otherwise than in accordance with the Book of Common Prayer, 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.[48]

91 I consider that the plaintiffs' claims are more in the nature of a proceeding to enforce the rules of a voluntary association, to use Dixon J's description. The plaintiffs do not claim that the Administrators have unlawfully interfered with particular trust property. In contrast were the claims in Burton v Murphy,[49] 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.

92 I do not consider that the provisions of the Trustee Act dealing with the appointment and removal of trustees assist the plaintiffs. The powers on which the defendants rely derive from the National Constitution. The provisions in the Victorian Branch Rules dealing with the trusts on which Branch property is held, must be read subject to the powers of the National Executive in respect of the Branch.

The plaintiffs' reliance on a contract claim as an exception to Cameron v Hogan

93 The plaintiffs adopted Ms Kairouz's submissions made in reliance on the contract exception recognized in Cameron v Hogan, but did not add to them to any extent.

94 They did refer to Ormrod LJ's statement in Lewis v Heffer that:

Rules of association of this kind ultimately derive their legal effect from the acceptance, by the members of the terms and conditions of the association when they join the group.[50]

95 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.

Analysis of the plaintiffs' reliance on the contract exception to Cameron v Hogan

96 As I stated in the Kairouz Proceeding, I consider that Cameron v Hogan establishes that the Branch Rules did not give rise to a contract between the members and the Party or otherwise.[51]

97 While the question of whether a contract exists between members and their political party has now been subject to considerable discussion in England,[52] in circumstances where Cameron v Hogan remains the prevailing authority in Australia, I can only conclude that neither the Victorian Branch Rules nor the National Constitution creates a contract between members and the party or otherwise. Thus the plaintiffs cannot rely on the contract exception recognized in Cameron v Hogan to establish the justiciability of their claims.

98 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 is created. Clause 2 of the National Constitution 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 the conclusion that no contract is created.

Distinguishing Cameron v Hogan: rights as affiliated unions

99 Next the plaintiffs sought to distinguish Cameron v Hogan. First, those of the plaintiffs who are trade unions, or represent branches thereof, submitted that their claims were justiciable because of their 'rights' under the Victorian Branch Rules as affiliated unions to participate in the affairs of the Victorian Branch. In order to be affiliated unions, they pay the Victorian Branch substantial fees based on their membership numbers. They contended that their affiliation fees were more than 'subscriptions to an object' with 'no resulting interest however contingent',[53] to use the words of Cameron v Hogan. They submitted that their rights as affiliated unions carried 'real benefits' sufficient to confer standing and make their present claims justiciable and that the Administration Resolution directly interfered with these participatory rights.

100 The plaintiffs submitted that each affiliated union or branch thereof who was a plaintiff had a right in equity to enforce the due administration and exercise of power in accordance with the Victorian Branch Rules and also had an equitable right, or interest in, or in relation to, the property and assets of the Victorian Branch. Each union has an interest greater than other persons in the subject-matter of the proceeding and the relief sought, including an interest in participating in the preselection of candidates nominated by the Victorian Branch under the Electoral Acts. I will next consider the effect of unions affiliating with the Victorian Branch and the rights that they thereby gain.

101 Rule 5.1.1 of the Victorian Branch Rules provides that the Branch shall consist of affiliated trade unions and individual members. Affiliated unions must pay affiliation fees, the amount of which is based on the number of their members.[54] Affiliated unions have the right to appoint State Conference delegates under r 6.3, to propose changes to the Victorian Branch Rules under r.6.4, to be consulted on rule changes under r 6.4.6 and to enforce their rights by complaining to the Disputes Tribunal under r 20. Each affiliated union is required by r 5.2 and Sch A 2 to pay affiliation fees based on membership numbers, failing which it becomes unfinancial and may not exercise its rights as an affiliated union.

102 In her affidavits Ms Diana Asmar, the first plaintiff, described the role and rights of affiliated unions.[55] Ms Asmar is the State Secretary of the Health Services Union (No 1 Branch) ('the HSU'). The HSU is an affiliate of the Victorian Branch of the ALP. Unions do not affiliate with the ALP at a national level. The HSU has 15,015 members which entitles it to 16 of the 300 union delegates at the Victorian State Conference. In addition, there are 300 delegates representing ordinary members elected by proportional representation from members in each Federal electorate. Then there are six additional delegates, four being the State Parliamentary Lower and Upper House leaders and two elected by, and from, the Victorian ALP members of the Commonwealth Parliament.

103 The HSU is a significant affiliated union within the ALP Victorian Branch. Its 16 delegates to State Conference participate in the election of the members of the Administrative Committee and other committees of the State Conference. These include the Public Office Selection Committee from which 50 per cent of the electors to preselect ALP candidates in elections are chosen. The remaining electors are chosen from local branch members in the electorate for which the preselection is occurring. As delegates at State Conference, HSU members participate in governance decisions of the Party. These include the scheduling, timetabling and conduct of the preselection of candidates for public office, including for House of Representatives seats.[56]

104 HSU members, through Victorian Branch policy committees and as union delegates to State Conference, determine the Branch's policy as well as the ALP's election platform, which is binding upon ALP members of the Victorian Parliament. The State Conference elects delegates to the National Conference. Through their representatives at State Conference, the affiliated unions may propose amendments to the Rules, the Platform or Policy of the Party and propose resolutions for consideration by State Conference.[57]

105 The HSU and the other unions to whom plaintiffs' belong pay substantial sums of their members' money to the Victorian Branch for their participation in its affairs. They pay affiliation fees to the Victorian Branch every quarter calculated on the number of their members. Between 16 June 2020, the date of the Administration Resolution and 6 May 2021, the HSU paid $88,963.07 in affiliation fees.

106 The other unions, or branches thereof, including those who are represented by individual plaintiffs, have similar affiliation fee arrangements with the Victorian Branch. They obtain similar entitlements to take part in the election of members of the Administrative Committee, the Public Office Selection Committee and Policy Committees.[58] The plaintiffs who represented the unions or their branches made affidavits which described their affiliation arrangements with the Victorian Branch.

107 Mr Garth Head gave evidence as part of the plaintiffs' case in affidavits on which he was cross-examined, including about the affiliation of unions with the Victorian Branch. He is a life member of the ALP, having joined the Victorian Branch in 1972 and remained a member of it except between 1981 and 1986 when he was a member of the Queensland Branch. He has held many senior organisational positions within the ALP at branch, electorate, state and national level, and as a State Conference delegate. He was a member of the Victorian Administrative Committee for a short period in 1980 and 1981 and between 1989 and 2014, a member of the Queensland State Council for three years and has been the long-term President of the Victorian Branch's Rules Revision Committee. He has also been an ALP endorsed candidate in various elections, a senior ministerial advisor and a trade union official in ALP affiliated unions. He described the Administrative Committee as 'in substance govern[ing] the affairs of the Victorian Branch in between meetings of State Conference'.[59]

108 Mr Head gave evidence that the affiliation fees paid by unions to the Victorian Branch are a significant source of its income. For example, in the financial year ending 30 June 2019, the Victorian Branch received approximately $1.5 million from such fees. The unions represented by the plaintiffs collectively contributed approximately $500,000 of this amount.[60]

109 Mr Head described the entitlement of affiliated unions, collectively, to exercise one half of the voting power of delegates at the State Conference as the 'principal means by which affiliated trade unions take the benefit of affiliation, exercise influence in the governance of the Victorian Branch, influence the policies and platform of the Victorian Branch, influence the preselection of ALP candidates for public office and, indirectly, influence the like activities and attributes of the National ALP.'[61]

Submissions about the affiliated unions' claims as a ground for distinguishing Cameron v Hogan

110 The plaintiffs submitted that the Administration Resolution directly interfered with the rights of the affiliated unions and their branches to participate in the affairs of the Victorian Branch, including in the preselection of candidates for federal seats, and their rights in the property and assets of the Victorian Branch.[62] They contended that each affiliated union and the individual plaintiffs who are members of the Victorian Branch have a right in equity to enforce the due administration and the proper exercise of power affecting their participatory rights in accordance with the Victorian Branch Rules, including in respect of the trusts established under those Rules.[63]

111 Affiliated unions pay fees to the Victorian Branch in exchange for their rights to participate in its affairs. Those fees are held as trust property and the affiliated unions thereby have a 'real' and proprietary interest sufficient to confer standing and make their claims in respect of the trusts justiciable. Therefore, they can sue to seek orders for the due administration of the trusts.

112 The defendants contended that no affiliated union had any proprietary interest in the property of the Victorian Branch. Rule 21 provides that the property of the Branch is held on trust for members, not for affiliated unions. Rule 21.1.2 says that no portion of the funds shall be paid or transferred to any members. The trusts described in r 21 were created because the Victorian Branch is an unincorporated association which cannot hold property itself.

113 The Branch Rules do not give affiliated unions any direct right to vote in preselections. Any influence they might have is at most indirect, through the election by State Conference of members of the Public Office Selection Committee, who might be members of an affiliated union, or through members of affiliated unions joining the Party and being selected as electors entitled to vote in their local preselections.

114 The defendants argued that the high water mark of affiliated unions' rights was, in combination with other affiliated unions, to choose 300 delegates to attend State Conference. But that right was considered in Cameron v Hogan as not creating a justiciable right and that decision binds the Court in this case. Members of affiliated unions only become members of the Branch if they join it as individuals.

115 In support of an argument that payment of affiliation fees did not confer any interest in branch property, the Three Defendants referred to s 151 of the Victorian Electoral Act which prohibits payments of money to political parties to influence a person's election conduct, which is defined to include a person's nomination as a candidate.[64] In addition, cl 54(m) of the National Constitution provides that 'the ALP does not accept funds that are subject to conditions of any kind, whether they be explicit or implied'.

116 The High Court in Cameron v Hogan made clear that the payment of membership fees does not render claims about internal party disputes justiciable at the suit of members. I consider that this principle also applies to affiliated unions and their payment of affiliation fees as the following passages in the joint judgment indicate. Rich, Dixon, Evatt and McTiernan JJ stated:

Each affiliated Trade Union and the collective members of the Branches in each State Electorate may send delegates to an annual conference, which is 'the supreme ruling authority within the State'.

...

In every State constituency there is a State Electorate Council composed of delegates appointed by Branches, which, with the addition of delegates from affiliated Unions, becomes a campaign committee for the purpose of conducting election campaigns and ballots for selection of candidates.

...

The revenue required to defray the expenses of all these bodies is raised through the Branches and the affiliated Unions. Upon affiliation a Union and a Branch must pay to the central executive a fee which goes from two shillings and six pence, if its members are not more than twenty-five, to four shillings if they exceed a thousand. Every affiliated Union must then pay the central executive for every male member a ten pence a year in quarterly payments.[65]

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 authorizing that distribution. Except for this, the respondent has no interest capable of enjoyment. There is much to be said for the view that payments made by members to the Branch or by the Branch or the Union to the central executive or the State Electorate Council are final: that they are subscriptions to an object, and that no resulting interest however contingent remains in the member. No doubt indirectly in choosing delegates members may affect the mode in which the fund is expended. But whatever view may be taken of this exact and technical situation of the legal and equitable property in the various assets 'belonging' to the Party, it is reasonably clear that membership of the association carries with it no tangible or practical proprietary right. The association must be conducted, and money is needed to carry it on. There must be some margin of revenue over current expenditure, some continuing possessions for use by its officers, some rights incidentally acquired in the process of fulfilling its objects. But the existence of such property is incidental and accidental. 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 interfere upon members civil rights susceptible of private enjoyment.[66]

118 I consider that the reasoning in Cameron v Hogan applies to both affiliation fees and membership fees. Applying this reasoning, the affiliated union had 'no civil or proprietary interest suitable for protection by injunction'.[67] Nor do I consider that they have established any other legal or equitable interest making their claims justiciable or giving them standing to bring them. In the words of the High Court, the affiliation fees are subscriptions to an object and no resulting legal or equitable interest remains in them. Their status as affiliated unions gives them significant participatory rights in the Victorian Branch and the ALP, those rights are not recognised as legal or equitable rights that assist them in establishing an interest in the Victorian Branch's property.

119 Ms Asmar, in her capacity as a member of the ALP and the other individual plaintiffs who are ALP members have standing to bring claims that the Administration Resolution unlawfully interfered with the administration of the trusts on which the property of the Victorian Branch is held. But I do not consider that such claims have been established for the reasons that I gave in dealing with the trusts exception.

120 In any event, I consider that the plaintiffs, in essence, are not seeking the due administration of the trusts, or to prevent unlawful interference with their administration. Rather, they are challenging the validity of the Administration Resolution and subsequent resolutions. Only if the Administration Resolution was invalid might their claims of unlawful interference with the administration of the trusts succeed. As I explain later, I consider that the Administration Resolution was validly made.

Distinguishing Cameron v Hogan: the recognition of political parties by the Electoral Acts

121 The second ground on which the plaintiffs relied to distinguish Cameron v Hogan was 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. They referred to Baldwin v Everingham[68 ]in which Dowsett J relied upon the effect of amendments to the Commonwealth Electoral Act to distinguish Cameron v Hogan. They submitted that the Court should follow Baldwin v Everingham and cases which have applied it. They 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'. Their claims were justiciable based on the modern, 'post Electoral Act' approach in addition to the orthodox approach which included trusts and contracts.

122 The defendants disputed that the statutory recognition of political parties created any exception to the principle in Cameron v Hogan or provided grounds for distinguishing it. The Electoral Acts did not regulate the internal affairs of the ALP or any other political parties. The cases relied on by the plaintiffs were not applicable.

123 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 first consider the relevant provisions of the electoral legislation.

Commonwealth Electoral Act

124 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.

125 Next was the Commonwealth Electoral Legislation Amendment Act 1983 (Cth) which implemented the recommendations of the Joint Select Committee on Electoral Reform.[69] 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'.[70] These recommendations provide a succinct summary of the relevant effects of the legislation which I will now describe.

126 Under the Commonwealth Electoral Act, political parties may be registered and deregistered. They do not have to be incorporated to be registered. Applications for registration must be made by the secretary of the party, set out its name, give details of its registered officer, include the names of 500 of its members and be accompanied by the party's constitution.[71] Upon registration a party is entitled to receive funding.[72] Different levels of political parties may be registered;[73] thus, the ALP Victorian Branch may be registered as well as the ALP itself.

127 Registration under the Commonwealth Electoral Act gives rights to political parties, including nominating replacement senators,[74] putting forward persons as candidates at elections, permitting bulk nominations of candidates,[75] recording the name of a candidates' political party on the ballot paper,[76] and enabling electors to vote 'above the line' in Senate elections for a group of candidates identified by the parties.[77] Parties receive public funding calculated by reference to how many votes they received in the preceding election.[78]

128 Registration imposes obligations on political parties. They must inform the Electoral Commission of the amount of their electoral expenditure.[79] They may not receive gifts of more than $1,000 from foreign donors,[80] and they are not permitted to receive loans exceeding the disclosure threshold unless the terms of the relevant loan are recorded.[81] 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.[82]

Victorian Electoral Act

129 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 also be a member of that party. The Victorian system of registration of political parties was created by the Constitution Act Amendment (Electoral Legislation) Act 1984 (Vic).

130 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.[83] Registered political parties do not have to be incorporated.

131 Political parties when registered with the Victorian Electoral Commission are recorded on its register;[84] parties must have a registered officer;[85] applications for registration must set out the party's name and details of its registered officer,[86] and provide the names of 500 of its members who must be electors.[87] Parties may be deregistered and the Commission may compel a party to provide information to it so that it can assess whether it remains eligible to be registered as a political party.[88]

132 The Victorian Electoral Act gives various rights to political parties: candidates for the Legislative Council who are endorsed by a party may be grouped on the ballot paper;[89] and where candidates are endorsed by parties, this is shown on ballot papers. Upon registration, a party is entitled to receive public funding.[90] For elections held after 24 November 2018, the entitlement is $6 for every first preference vote for a candidate for election to the Legislative Assembly, and $3 for each first preference vote for a candidate for election to the Legislative Council.[91] The funding is paid to the registered officer of the political party,[92] who must pay it into the State campaign account and provide an annual return to the Victorian Electoral Commission.[93] The registered officer must provide a statement of expenditure after the election,[94] together with an audit of the statement.[95] Political parties may also receive administrative expenditure funding and policy development funding.[96]

133 The Victorian Electoral Act imposes obligations on political parties, including that the registered officer must sign a form identifying election candidates endorsed by the party;[97] how to vote cards must be submitted to the Commission;[98] the registered officer must keep a state campaign bank account into which all donations must be paid and all state election expenditure is to be paid from that account.[99] Parties must provide audited annual returns to the Commission of the disbursement of administrative funding and public development funding which cannot be used for election purposes.[100] They must disclose donations, which are subject to caps.[101] They must provide annual returns which set out the total funds they have received.[102]

The plaintiffs' submissions about the significance of the Electoral Acts

134 The plaintiffs 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', receiving public money for that purpose.[103] They are no longer organisations of a 'strictly personal nature' as they serve public policy aims and give effect to aspects of the electoral law. In providing for the registration of a political party on the basis of a written constitution, and in empowering it to nominate candidates, Parliament cannot have intended that the legislation would give effect to or recognize the nomination of a candidate not made in accordance with the party's written constitution. The preselection of candidates for Victorian seats has statutory consequences, including that the candidate will have party endorsement and the preselection will result in the party receiving public funding.[104]

135 The plaintiffs submitted that the decision in Setka v Carroll was incorrect to decide that the legislation providing for the registration of political parties had no public law consequences. The consequences of the registration of political parties were grounds for distinguishing their current status from their status when Cameron v Hogan was decided. Although a preselection decision under the Victorian Branch Rules did not itself have statutory effect, it had statutory consequences as a result of the statutory provisions, including the name of the candidate nominated by the party carrying party identification on the ballot paper. The plaintiffs relied upon R v Criminal Injuries Compensation Board; Ex Parte Lain[105] and Hot Holdings Pty Ltd v Creasy[106] for the proposition that '[a] preliminary decision or recommendation, if it is one to which regard must be paid by the final decision-maker, will have the requisite legal effect upon rights to attract the remedy of certiorari'.[107]

136 The plaintiffs submitted that their claims concerning the intervention of the National Executive in the affairs of the Victorian Branch, including the adoption of a process for preselection not provided for by the Victorian Branch Rules, established a sufficient connection between the Electoral Acts and their present claims to make them justiciable. The Victorian Electoral Act was drafted on the premise that registered political parties would act in accordance with their rules, in matters such as the preselection of candidates.[108] That had not occurred in the present case and the Victorian Branch, which is registered under the Act, has been taken over unlawfully, or in an unauthorised manner.[109]

137 The plaintiffs submitted that the High Court's reference, in Cameron v Hogan, to McKane v Adams[110] showed that American authority held the rules of political organisations to be unenforceable in civil proceedings.[111] However, they argued that more recent American authorities, such as Casey v Nuttall,[112] have found that the activities of unincorporated political associations, once recognised by statute, attracted the public interest, and were therefore subject to judicial review.[113]

138 The plaintiffs relied upon a series of decisions 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.[114] The plaintiffs submitted that Riordan J was incorrect to hold in Setka v Carroll that those matters did not provide a ground for distinguishing Cameron v Hogan. They argued that because there are two lines of conflicting authority, the Court is not bound by Setka v Carroll, but should follow Baldwin v Everingham and Robson J's decision in Butler v Mulholland (No 2) and conclude that the present dispute is justiciable.[115]

139 In Baldwin v Everingham, Dowsett J, in 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.[116]

140 His Honour relied on Edgar v Meade,[117] where Isaacs J was dealing with a claim by a member excluded from a union, which was a body corporate capable of suing or being sued in its corporate name because of the provisions of the Commonwealth Conciliation and Arbitration Act 1904(Cth). Isaacs J decided that a member of an organisation registered under that Act might, even when they did not have a proprietary right, assert in court their legal right to remain a member. But as Riordan J noted in Setka v Carroll, that Act demonstrated a clear legislative intent that membership of an organisation was to be regulated and required that its rules must include provisions for admission and termination of membership. Its rules were binding on the members and provided that '[e]very dispute between an organisation and any of its members shall be decided in a manner directed by the rules of the organization'. As Riordan J remarked:

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.[118]

141 Priestley JA in Scandrett v Dowling[119] expressed similar views about Edgar v Meade.

142 A number of decisions since 1993 have followed Baldwin v Everingham, mainly in preselection disputes. Many of them have not re-analysed the basis on which Dowsett J distinguished Cameron v Hogan. One that did was Coleman v Liberal Party of Australia, New South Wales Division (No 2)[120] 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.[121]

143 Barker v Australian Labor Party,[122] a decision of this Court, arose from a dispute about compliance with the ALP's preselection rules. Kennedy J dismissed the proceeding, but in obiter, stated that the dispute was justiciable and that she considered that 'the analysis of the single Justices in distinguishing Cameron is correct'.[123] 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.[124]

144 Butler v Mulholland (No 2) concerned a dispute within the Democratic Labour Party ('DLP') concerning the identity of the Victorian Branch Secretary and the Victorian Branch Executive of the Party. Robson J considered that it was in the public interest in the operation of the Victorian Electoral Act to resolve that dispute.[125] 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.[126]

145 His Honour held that the dispute was justiciable and distinguished Cameron v Hogan. In referring to the Baldwin v Everingham line of authorities, he said 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.[127]

The DLP is registered as a political party under the Commonwealth Act, having been registered on 20 July 1984. Under the Victorian Act, the Victorian Electoral Commission must establish and maintain a Register of Political Parties containing a list of the political parties which are registered under the Act. The DLP is a registered political party. ...

Under the Victorian Act, a registered political party is entitled to payments by the State. Under s 208 of the Act, for the purpose of having an entitlement under s 211 (ie a sum for each first preference vote), the registered officer of a registered political party must within a certain time provide information to the Victorian Electoral Commission on the amount spent by the party in a State election.

...

It can be seen, therefore, 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.

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.[128]

146 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'.[129]

147 In addition, in the passage in Butler v Mulholland (No 2) set out above, Robson J continued to the conclusion that the identification of the members of the Executive of the DLP Victorian Branch, who gave instructions to the Secretary, was also a justiciable matter, which was in the public interest to resolve.[130]

148 Three years later, the Court of Appeal in Mulholland v Funnell,[131] which concerned another dispute 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:

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').[132]

149 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 in which there was 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 for 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 might be said that the judgment bears no great significance for present purposes 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.

150 Finally, there is the decision of the Full Court of the Queensland Supreme Court in Burton v Murphy, which was decided 11 years before Baldwin v Everingham which I discuss in the section of this judgment dealing with the ALP's structure. It concerned 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 rules and dealt with issues relating to the Federal Executive's powers. No point about the justiciability of the claims appears to have been raised by the parties at trial or on appeal.[133] The trial judge, Lucas J, said that the defendants had not relied on Cameron v Hogan to oust his jurisdiction and that the case had been distinguished many times and in the passage I set out previously,[134] explained his reasons for distinguishing it.

151 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.[135] Doing so would recognise the public nature of the power exercised by political parties that distinguishes them from other voluntary and unincorporated associations.[136]

The defendants' submissions about the significance of the Electoral Acts

152 In submitting that the statutory recognition of political parties did not make the plaintiffs' claims justiciable, the defendants relied on Cameron v Hogan for the proposition that the courts will not decide ordinary internal disputes and disagreements in voluntary unincorporated associations, such as the ALP, unless the rules of the association form a legally enforceable contract, or its members have a legal or equitable interest in its property, in circumstances where that interest is the basis of the dispute. They argued that Riordan J's decision in Setka v Carroll was correct and should be followed, whereas Baldwin v Everingham and the cases that followed it applied a false analogy between political parties registered under the Electoral Acts and trade unions registered as industrial organisations under the Commonwealth industrial legislation. The decision in Butler v Mulholland (No 2) had no application as it concerned only the justiciability of the identification of the party's registered officer who performed important functions under the Electoral Act.

153 The defendants submitted that the registration of the ALP and the Victorian Branch as political parties did not provide a basis for the Court to hear and determine the plaintiffs' substantive claims. It did not have the effect of incorporating them or creating a contract between members and the ALP. Furthermore, the Electoral Acts do not regulate the internal rules or constitutions of registered political parties in any relevant way. Rather, they give a role to a registered officer who files nominations or endorsements of candidates in elections so that their names and party identification can be recorded on the ballot paper.[137] Although the Electoral Acts do recognise the existence of, and make some provision for, political parties, they do not regulate their internal affairs or disputes. Therefore, to the extent that Australian political parties are recognised by statute, they are not creatures of statute.[138]

154 The Three Defendants submitted that the plaintiffs' attempts to rely upon the statutory recognition of political parties necessarily involved an attempt to extend the law of judicial review in Australia to a body such as the ALP. But judicial review principles and remedies have no application to a private organisation or a voluntary unincorporated association such as the ALP.[139] The English decisions including R v Panel on Take-overs and Mergers; ex parte Datafin Plc have not generally been applied in Australia.[140] The National Executive's actions which the plaintiffs challenged did not have any public law consequences.

155 Finally, the defendants contended that the American cases cited by the plaintiffs did not support their case on justiciability. Rather they concerned disputes about the application of the political parties' rules in the context of election laws which contained detailed and extensive statutory requirements, including as to the political party's composition and its internal rules.[141] While the 1896 New York decision of People ex rel Trayer v Lauterbach[142] reflected the common law approach, later decisions were affected by the passage of Election Laws which in effect turned political parties into 'creature[s] of statute'.[143] As was described in Battipaglia v Executive Committee of the Democratic County Committee:

While formerly political parties were voluntary organizations unrecognized by statute, with the management and control of which a court would not interfere they are, though still unincorporated associations now recognized by statute and have statutory rights and duties[.][144]

Analysis of the significance of the statutory recognition of political parties

156 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 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.[145]

157 In addition to Setka v Carroll, there are other decisions since Baldwin v Everingham in which Cameron v Hogan has been applied.[146]

158 Riordan J referred to the High Court's judgment in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd,[147] that in order to obtain an injunction, in that case an interlocutory injunction, a plaintiff must establish a legal or equitable interest entitling them to that remedy. The same principle must 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 in courts to make that dispute justiciable.

159 The Baldwin v Everingham line of authority relies on the judgment of Isaacs J in Edgar v Meade, 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 the incorporating and regulating trade unions and providing rights for their members. That legislative scheme appears to have little relevance to the justiciability of the present disputes. Riordan J in Setka v Carroll considered the features of the statutory regulation of trade unions distinguishable from the statutory recognition of political parties.

160 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 resolution of disputes between branches and members and between branches and the National Executive. The registration procedures applying to political parties are quite different from those contained in Commonwealth industrial legislation and applying to industrial organisations.

161 The funding of, and conferral of rights and imposition of obligations on political parties required a legislative scheme to ensure that the applicant for registration was a genuine political party, to gain legislative authority for providing funding for them and to ensure 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 that party. But that decision does not create a principle of wider application extending to all disputes within a political party or between a branch and the national body. In my opinion, to justify the Court's intervention in an internal dispute in a political party, the issue sought to be determined must have a direct bearing on the proper application and operation of the Electoral Acts. The plaintiffs' claims do not have that character. A disputed issue does not become justiciable by a party relying on the Electoral Acts if the dispute has little connection with their operation. The plaintiffs' claims in this case do not have a direct connection to the application or operation of the Electoral Acts.

162 In other cases, such as Burton v Murphy and Mulholland v Funnell, courts have been willing to determine internal disputes within political parties_,_ but in those cases it appears that no issue of justiciability was raised and in Burton v Murphy, a trusts claim was relied on. This may reflect a practice that where all parties seek the Court's assistance by deciding an issue necessary for the operation of an Electoral Act, the Court may well be willing to assist the parties by deciding 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.

163 Political parties perform an important function in our democracy. For example, governments are referred to by the name of the party to which government members belong and candidates' political parties are recorded on ballot papers. But that recognition and the public funding provided to political parties, do not make them public bodies amenable to judicial review or make their internal disputes justiciable. Many bodies and persons in the community receive public funding and usually have to apply or register to obtain it, making them accountable for its expenditure. But they are not thereby turned into public bodies whose actions are subject to judicial review.

164 The Electoral Acts do not regulate how preselections are conducted or the distribution of powers between national bodies and state branches. The English decision in R v Panel on Take-overs and Mergers; ex parte Datafin Plc and similar cases do not assist the plaintiffs. They have not been widely applied in Australia and depend on the extent to which the powers of the bodies concerned involved public functions.

165 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.[148] But the ALP has not become an incorporated association under that legislation.

166 I do not accept that the cited American authorities provide any assistance to the plaintiffs. As mentioned, the Electoral Acts do not regulate the internal workings of political parties, whereas the New York Election Law did. Australian political parties cannot be said to derive their powers and rights from the State so as to make their decisions subject to judicial review as was the case with the legislation considered in the American authority of Casey v Nuttall.

Distinguishing Cameron v Hogan: declaratory relief

167 As a further ground for distinguishing Cameron v Hogan, the plaintiffs pointed to the modern availability of declaratory relief in contrast with the circumstances in which that remedy was normally granted at the time that Cameron v Hogan was decided.[149]

168 The plaintiffs contended that, unlike the plaintiff in Cameron v Hogan, they were entitled to seek declarations as that remedy had foreseeable consequences for the parties by determining a legal controversy, rather than answering an abstract or hypothetical question.[150] That legal controversy concerned their participatory rights in preselections and the Australian Electoral Commission's placing preselected candidates' names on the ballot paper for the next Federal election. The law's policy of not interfering in disputes within voluntary associations, which do not concern the civil rights of members, no longer applies to applications for declaratory relief which determine legal controversies. This was particularly the case where the declaration was sought in respect of the validity of the exercise of statutory power. The plaintiffs had a special interest in the issues raised in the litigation.[151]

169 In Cameron v Hogan, the High Court refused to grant Mr Hogan a declaration concerning the legality of his expulsion from the ALP, stating that the foundation of the jurisdiction to grant an injunction or a declaration was the existence of some civil right of a proprietary nature that the plaintiff sought to protect. It concluded that Mr Hogan did not have such a right.[152] But the plaintiffs contended that it was no longer necessary to establish a strictly proprietary or legal interest because the ALP was now more than a purely voluntary association and its recognition under the Electoral Acts gave it a public character. Instead, the plaintiffs relied on recent High Court statements about the availability of declaratory orders which they argued suggested that the circumstances in which they will be granted has widened. They include where the plaintiff has a 'real interest' in raising the questions to which the declarations would go, the declaration will have foreseeable consequences for the parties and will determine a legal controversy and is not directed to answering an abstract or hypothetical question.[153] They also submitted that the benefits accruing to a member of a voluntary association were real benefits entitling the member to bring an action seeking injunctive relief. The decisions of voluntary associations can be subject to judicial review.

170 The plaintiffs contended that, as the Victorian ALP's preselection decisions have public law consequences and significance, those decisions are justiciable. [154] The plaintiffs have a 'special interest', greater than other persons, in the subject matter of the proceeding and the relief sought. They have standing to bring their claims. Their interest includes 'their valuable participatory rights' which have real consequences for the candidates preselected as recognition is given to that preselection under the Commonwealth Electoral Act. Political parties' registration under the Electoral Acts helps to achieve public policy aims contained in the electoral laws. They exercise statutory power and their actions in preselecting candidates are recognized by the Electoral Acts which is based on the assumption that the parties will observe their internal rules.

171 The defendants disputed that the National Executive, in passing the Resolutions, was exercising any public power or determining legal rights or controversies. The Electoral Acts did not regulate the internal affairs of political parties.

172 The recent High Court decisions relied on by the plaintiffs[155] only re-affirmed the principle that a declaration will be granted to determine a legal controversy in which the plaintiff has a real interest. The same is the case with injunctions. As Riordan J noted in Setka v Carroll, declaratory relief must be directed at a dispute which involves rights, liabilities or interests which are themselves justiciable.[156] Although the plaintiffs argued that it is sufficient for them to show that they are entitled to a 'real benefit' under the Victorian Branch Rules to be entitled to injunctive and declaratory relief, this is contrary to settled authority.[157] As Gaudron, Gummow and Hayne JJ 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.[158]

173 By not alleging any misapplication or misuse of trust funds the plaintiffs failed to establish that any actual legal controversy exists. At most, an abstract controversy may exist regarding the National Executive's actions. The plaintiffs have not established that any of their real interests would be protected by the grant of a declaration.

174 A plaintiff cannot establish that a dispute is justiciable merely by claiming a declaration. The underlying controversy must itself be justiciable to enable a claim for declaratory relief to be entertained and the plaintiffs have failed to demonstrate any legal or equitable right that is in controversy, and therefore no declaration could be made.

175 In my opinion, the recent High Court decisions have not lessened the requirement that the applicant for a declaration must seek the protection or enforcement of a right or interest that is recognized in law or equity. That was reaffirmed in Egan v Willis.[159] A member's interest in a political party, which is a voluntary association, is not of that character. Nor does the public character of political parties confer such rights or interests on members in public law or otherwise. I do not consider that the decisions of political parties which are voluntary associations are generally subject to judicial review. In passing the Resolutions, the National Executive was not exercising any public power or determining any legal rights or controversies. 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 in courts to make that dispute justiciable.

Conclusions on the justiciability of the plaintiffs' claims

176 I conclude that, although the plaintiffs' trust claims are justiciable, they do not succeed because neither the Administration Resolution nor the actions of the Administrators taken under that Resolution unlawfully interfered with the administration of the trusts. None of the plaintiffs' other grounds for establishing the justiciability of their 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 the plaintiffs' other claims justiciable, as those other claims are not sufficiently connected with the trusts claims.

177 The conclusions that I have reached are a necessary consequence of the continuing effect of Cameron v Hogan. While many may hold the opinion that it would be in the public interest that Courts be able to decide disputes in political parties, the prevailing law in this country permits that to occur in only limited circumstances.

178 In addition to the issue of justiciability, the parties made submissions about the plaintiffs' standing to bring the proceeding, while acknowledging that the two issues overlapped. This overlap was particularly emphasised by the plaintiffs during their submissions regarding Cameron v Hogan and the modern availability of declaratory relief. Questions of standing are relevant to whether members of the Victorian Branch or the plaintiffs who are affiliated unions have a real interest to seek relief.

179 I have not accepted the plaintiffs' submissions for distinguishing Cameron v Hogan from the circumstances of this case. As I have stated, they must establish a relevant proprietary or contractual interest to bring themselves within the exceptions recognized in that decision. I have decided that their trusts claims are justiciable and they have standing to bring it. They are members of the Victorian Branch with a real or special interest in the administration of the Victorian Branch trusts and have standing to bring a proceeding claiming that the Administration Resolution unlawfully interfered with their administration. However, I have decided that the plaintiffs have not established that such unlawful interference occurred.

Disputes between members of the Victorian Branch and the National Executive

180 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 interest. 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.

181 In case I am incorrect in my conclusions about justiciability, I will, as I am obliged to do, proceed to consider the remainder of the plaintiffs' grounds which concern whether the National Executive had power to pass the Administration Resolution and other Resolutions, including the Preselection Resolution.

182 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. This issue is also relevant to the plaintiffs' trusts claims which I have found to be justiciable.

183 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 questions about the National Executive's power to intervene in the Victorian Branch, its power to pass the Resolutions and the question whether the National Executive is a separate entity to the Victorian Branch.

184 The plaintiffs contended that the Victorian Branch is autonomous and self-governing and, although affiliated with the Federal ALP, is separate and independent from it and, accordingly, the resolutions of the National Executive could not authorise the intervention.

185 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 their separate or joint roles. The defendants argued that once that is done, it is seen that the National Executive had the power to intervene in the Victorian Branch.

186 The resolution of these issues depends on determining the role played by State and Territory Branches in the ALP and that requires consideration of the National Constitution and of the Victorian Branch Rules, to which I next turn.

The National Constitution of the ALP

187 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'.[160]

188 The National Constitution also states that Party policy is made by National Conference comprising the federal and state parliamentary leadership of the Party, the elected delegates from all States and Australian Young Labor.[161 ]Party policy within the States is framed by conferences of delegates elected by constituent branches, affiliated unions and members. The National Constitution emphasises that policy within the Australian Labor Party is not made by directives from the leadership, but by resolutions originating from branches, affiliated unions and individual Party members.[162]

189 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.[163] The National Executive is the chief administrative authority of the Party, subject only to the National Conference.[164] Of particular relevance are the following powers and duties of the National Executive 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.

190 The National Constitution refers to the 'states', 'state branches', and rules of state branches, as well as to 'affiliated unions'. A National Appeals Tribunal is responsible on behalf of the National Executive for hearing all appeals by members, affiliated unions and constituent units of the Party that relate to compliance with the National Constitution, or enforcement of the rights and obligations of members, affiliated unions and constituent units under the National Constitution. The Tribunal makes recommendations to the National Executive in relation to those appeals,[165] and the National Executive can make its own decision whether to accept those recommendations. The Tribunal cannot hear any appeal until all practicable avenues of appeal have been exhausted under the rules of the relevant state branch.[166]

191 The National Constitution contains National Principles of Organisation which are binding on state branches and must be implemented through their rules.[167 ]Those Principles concern the election of delegates to National Conference,[168] membership and membership recruitment, and affirmative action.[169] 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.[170]

192 Under the Victorian Branch Rules, the name of the Branch is '[t]he Australian Labor Party, Victorian Branch'.[171] 'Party', as a defined term, means 'the Australian Labor Party, Victorian Branch'.[172] 'Member', as a defined term, means 'a Central Branch member or/and a Local Branch Member'.[173] The Party consists of affiliated trade unions and individual members.[174 ]

193 The Rules recognise that ALP policy is made by the National Conferences[175 ]and, within the State and Territories, is framed by conferences of delegates elected by constituent branches and affiliated unions.[176] In Victoria this is the State Conference.[177] 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.[178 ]State Conference is described as the supreme policy making and governing body of the Party,[179 ]and it has the power to determine all matters affecting the party, with the Rules listing eight subject matters.[180] One of the eight 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.[181] Another is to review, amend or revoke any decision or action of the Officers, the Administrative Committee or any other Committee.[182 ]State Conference can make recommendations to the National Conference or Executive if certain conditions are met.[183]

194 The Administrative Committee is a committee of the State Conference[184] with powers and duties that include carrying out its decisions.[185] Mr Garth Head, a long time ALP member 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'.[186] Its membership includes the Officers of the Party and 30 other members elected by State Conference as voting members together with non-voting members.

195 Another committee of the State Conference is the Rules Revision Committee, which considers and makes recommendations to Conference about proposed rule changes and, by its own motion, can propose rule amendments for State Conference to consider.[187] Then there is the Public Office Selection Committee,[188] through which, in combination with the local branches, persons are chosen to take part in the preselection of candidates, a subject on which the Rules contain extensive provisions.[189] The Branch Rules also deal with disciplinary offences and establish a Disputes Tribunal.[190]

196 The National Executive is given the responsibility and 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.[191]

The relationship between the National Constitution and the Victorian Branch Rules

197 The plaintiffs addressed the interpretation of the National Constitution and the Victorian Branch Rules and 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.

198 The plaintiffs first submitted that, while the Victorian Branch is affiliated with what they called the Federal ALP, it 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.

199 In support of this proposition, the plaintiffs relied on the name given by the Rules to the Victorian Branch and its status as an entity registered as a political party under Pt XI of the Commonwealth Electoral Act and Pt 4 of the Victorian Electoral Act. They argued that it would be inconsistent with both statutory schemes if registered political parties receiving substantial public funding and given significant privileges in elections could be controlled by outside entities, such as the National Executive and Administrators unless the Victorian Branch Rules expressly provided for that to occur. They 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 rules.[192]

200 They submitted that rules such as r 6.4.7 demonstrate that the Victorian Branch Rules and the National Constitution are intended to operate harmoniously in a coherent way, by providing that no change shall be made to the Platform or Policy of the Party and no recommendations shall be made unless notice thereof is contained in the agenda paper of the relevant meeting and at least half of the delegates entitled to attend State Conference have taken out credentials for the relevant session of the Conference.

201 Secondly, the plaintiffs submitted that the Victorian Branch Rules provide detailed procedures on a range of governance matters, including the selection of candidates for public office[193] and the amending of the Rules, which could not be defeated by an external party's intervention unless expressly authorised by the Rules.

202 Thirdly, and relevant to the first point, the autonomous status of the Victorian Branch carries statutory recognition under the Electoral Acts and its activities have statutory consequences.

203 Fourthly, the role that the National Executive is given to play in the Victorian Branch is identified in the Victorian Branch Rules. An example is the National Executive's role in enforcing the affirmative action requirements as provided for in the Victorian Branch Rules.[194] They identify a limited role for the National Executive in Branch affairs and it does not derive any additional power from the National Constitution to interfere in the Victorian Branch or its governance processes.

204 The plaintiffs referred to provisions of the National Constitution which they said demonstrated that the Federal ALP and the Victorian Branch were separate. For instance, cl 14(b), which 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', does not include being binding on a branch. They disputed that the National Constitution made the Victorian Branch part of the Federal ALP and governed by the National Constitution or that the Victorian Branch Rules were subject to, and could be overridden by, the National Constitution.

205 Fifthly, as the National Constitution is 'only binding in honour',[195 ]it could not provide authority to override the Victorian Branch Rules, nor could its provisions bind members.

206 The Victorian Branch Rules and the National Constitution therefore deal with different entities, who do not have the same membership. For instance, members of affiliated unions are not members of the Federal ALP.

207 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 also apparent from provisions in the Victorian Branch Rules.

208 The defendants relied on the description of the ALP's structure 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.[196]

209 The defendants pointed to the recognition in the Victorian Branch Rules that ALP policy is made by the National Conference.[197] The State Conference's power to make and interpret Platform and Policy and to amend and interpret the Rules of the Party is expressly stated to be '[s]ubject to the National Rules'.[198] 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 ...'.[199] The number of delegates and proxy delegates to the National Conference is 'as are provided for in the National Rules'.[200] Failing to comply with the National Constitution or the National Platform or Policy is a disciplinary offence under the Victorian Branch Rules.[201 ]Charges for disciplinary offences are heard and determined by the Victorian Branch's Disputes Tribunal and its decisions are final, 'subject only to the National Rules'.[202]

210 The defendants submitted that many provisions of the National Constitution operate on the basis that the Victorian Branch is a constituent unit of the ALP and is subject to the National Constitution, the National Conference and the National Executive. These include that the name of the party is 'The Australian Labor Party'[203 ]and it consists of branches in each state.[204 ]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[205] and the National Executive is the chief administrative authority of the Party, subject only to the National Conference.[206 ]The National Executive is given plenary powers by cl 16(d) and further powers under cls 16(e) and 16(f), including power to intervene in, and take over, the conduct of a Branch's affairs. Delegates are elected from each state to National Conference, and state branches cannot bind delegates as to how they will vote on any issue before the National Conference.[207 ]

211 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 Branch. The National Constitution and the Victorian Branch Rules operate in harmony, for instance they 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 acquiescence of the Victorian Branch to each of the resolutions of the National Executive which the plaintiffs now challenge, an acquiescence consistent with the Federal ALP and its State branches operating as one political party.[208 ]

212 The National Executive has often undertaken preselections in the exercise of its plenary powers under cl 16(d) of the National Constitution. Examples of this occurred in July 2018 for 25 Victorian federal electorates[209] and three Senate positions in Victoria, when nominations for preselection were open for 4 days, and in March 2019, for the Victorian federal electorate of Higgins, when nominations were open for 6 hours.[210]

213 In support of their submission that the Victorian Branch is not independent and autonomous from the Federal ALP, the defendants relied upon the analysis of the structure of the ALP contained in Burton v Murphy, Jackson v Bitar[211] and Setka v Carroll, and which I will now detail.

214 In Burton v Murphy, the Full Court of the Supreme Court of Queensland, in determining the validity of federal intervention in the Queensland Branch of the ALP, considered the structure of the ALP and the relationship between the Party's Federal Rules and the Branch Rules as they stood in 1980.

215 That proceeding followed the Federal Executive's resolution on 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, setting up an 'Interim Administrative Committee' as the sole administrative authority of the Queensland ALP and an Interim Disputes Tribunal. 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 personally and as trustees of property belonging to the Queensland Branch.

216 The Federal Executive's resolution was made under r 7(c)(vii) and r 7(c)(viii) of the then National Rules. Rule 7(c)(vii), which can be contrasted with the current cl 16(d), stated:

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.

217 Rule 7(c)(viii), which can be contrasted with the current cl 16(f)(iii) provided:

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.

218 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 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 and I will next describe their conclusions.

219 First, on the structure of the ALP, Douglas J stated:

Prima facie it seems to me that the Australian Labour 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.[212 ]

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.[213]

221 W.B. Campbell J stated that 'effect must be given to the words "Queensland Branch" where those words appear in the rules of the State body',[214] and:

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.[215]

222 Secondly, the Court held the National Platform and Constitution or Rules were binding on members of the State Branch. D.M. Campbell J stated:

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 maters are referred they are referred for decision or determination.[216]

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).[217]

224 Thirdly, the Court rejected the challenge to the National Executive's intervention in the Queensland Branch. D.M. Campbell J explained:

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.[218]

225 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:

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.[219]

226 In Jackson v Bitar,[220] Pagone J, in refusing to grant an interlocutory injunction in a Victorian Branch preselection dispute, applied Burton v Murphy to the Victorian Branch and the Victorian Branch Rules.[221]

227 In Setka v Carroll, Riordan J described the structure of the ALP as follows:

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.[222]

(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.[223]

Analysis of submissions about the structure of the Australian Labor Party

228 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 had become part of a larger association and that individuals, on becoming members of, or joining, the Queensland association, were aware that they were becoming members of the larger body.

229 The High Court in Cameron v Hogan reached a similar conclusion that the Victorian Branch was an organisation which formed part of the federal organisation.

230 In my opinion, the Victorian Branch of the ALP is not a separate, autonomous and self-governing organisation or a separate political party. Nor is there a state party and a national party. Rather, the Victorian Branch is part of the national body, 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 procedures 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 whole ALP.

231 Therefore, the Victorian Branch is part of the larger body or entity and so is named the Australian Labor Party, Victorian Branch.[224] A person who is or becomes a member of the Victorian body also becomes part of the national body. They are not members of a political party in Victoria separate and apart from the Australian Labor Party, which exists throughout Australia.

232 The significance of branches has been described in cases dealing with Australian trade unions, or registered organisations to use their statutory name. In Williams v Hursey,[225] 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".[226]

233 Although the procedure by which members of the Hobart Branch of the 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.[227]

234 Furthermore, as described by the National Constitution, the Party is the Australian Labor Party,[228] which 'shall consist of branches in each state'.[229] The ALP exists as an unincorporated body organised as a federal body with national machinery imposed on state and territory branches. Members of state and territory branches are members of the ALP. The National Conference is the 'supreme governing authority of the Party and its decision shall be binding upon every member and section of the Party'.[230] 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.'[231] The National Executive is the chief administrative authority of the Party, subject only to the National Conference.[232 ]It 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.[233]

235 The National Executive monitors the implementation of the National Principles of Organisation in consultation with the state branches.[234] It also has the powers contained in cls 16(e) and (f) of the National Constitution.

236 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 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.

237 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

238 Next, in case my earlier conclusions about justiciability are incorrect, I proceed to consider the plaintiffs' challenge to the National Executive's resolutions,

239 Like Ms Kairouz, the plaintiffs argued that the following National Executive's resolutions were invalid and beyond its power: the Administration Resolution of 16 June 2020, the Rule Amendment Resolution of 14 September 2020, and the Further Amendment Resolution of 29 January 2021. In addition, the Asmar plaintiffs contended that the Preselection Resolution of 4 May 2021 was invalid and beyond the power of the National Executive.

240 The plaintiffs challenged all the Resolutions on grounds relating to the structure of the ALP, which I have discussed in the last section of this judgment. They were that the Victorian ALP was autonomous and self-governing and that the Federal ALP could not interfere in its affairs, unless authorised by the Victorian Branch Rules. They provide detailed procedures on a range of governance matters, including preselections. It was not to be expected that those procedures could be defeated by an external party's intervention unless expressly authorised by the Victorian Branch Rules. The Victorian Branch can be registered under the Commonwealth Electoral Act. Because of the honours clause in cl 2(a) of the National Constitution, it could not be that an unenforceable, non-binding power extraneous to the Victorian Branch Rules could validly interfere with and override those rules. The plaintiffs had an equitable right to enforce the due and proper administration of the trusts established in accordance with the Victorian Branch Rules. The conduct of the National Executive in passing the resolutions was not authorised by the Victorian Branch Rules and breached the terms on which the trusts established under those Rules were to be administered. The National Executive made the Resolutions without being empowered to do so by the Victorian Branch Rules and therefore they were invalid or ineffective.

241 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, formerly a Premier of Victoria, and Ms Jenny Macklin, formerly a member of the House of Representatives and a Minister in the Australian Government, 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:

• All committees of the Victorian State Conference, as defined in the Victorian Rules, are suspended
• All officials and staff of the Victorian Branch will report to the administrators.

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.

243 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.

244 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, the plaintiffs contend that it was invalid.

245 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.

The plaintiffs' submissions about the validity of the Administration Resolution

246 The plaintiffs advanced the following arguments as why the Administration Resolution was invalid and beyond power. First, because the National Executive failed to form the Required Opinion necessary to exercise the power contained in cl 16(f) of the National Constitution. Secondly, because the Administration Resolution was irrational, illogical or unreasonable as there was no basis or material before the National Executive to justify the formation of the Required Opinion. At most, there was Mr Andrews' wish for the National Executive to intervene and pass the Administration Resolution. Thirdly, the National Executive's power under cl 16 could only be exercised 'in the circumstances authorised by the rules; and for the purposes proposed by the constitution; and not for any ulterior purpose'.[235] Any opinion held by the National Executive under cl 16(f) must be held bona fide and could not be an 'excessive' exercise of power. It was to be inferred that the National Executive's exercise of power was made for a purpose ulterior to cl 16(f) and not formed in good faith.

247 The plaintiffs adopted most of the submissions on which Ms Kairouz relied to challenge the Administration Resolution and disputed that the presumption of regularity applied to it. They argued that the presumption applied to acts of a 'public or official nature'[236] and to matters of form, rather than of substance[237] and submitted that the Administration Resolution did not have that character. The presumption generally applied where the matter or opinion was 'incapable of easily procured evidence'[238] and not to assist in the satisfaction of a jurisdictional fact as the defendants sought to use it.[239] It only applied to the formation of a required opinion where, on the evidence, the opinion was open to be held,[240] but a court was not obliged to apply the presumption, even if no evidence to the contrary of the presumption was advanced[241] and the presumption was easily rebutted.[242]

248 The plaintiffs submitted that the National Executive did not form the Required Opinion as the Administration Resolution did not record it and did not state any of the bases upon which cl 16(f) allowed it to be formed. It simply adopted Mr Andrews' suggested wording and 'endorsed' it, as he requested, and thereby ignored the need to form the Required Opinion that was a precondition to the exercise of the power. The National Executive meeting lasted only 28 minutes and there was no evidence that any of the preconditions described in cl 16(f) were considered.

249 Moreover, the facts and circumstances demonstrated that it was not open to the National Executive to form the Required Opinion or to decide that the Administration Resolution was necessary. The Victorian Branch Rules contained extensive provisions to prevent branch stacking, and such conduct was unlikely to occur when local branch meetings had been temporarily 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, the surrounding circumstances rebutted the likelihood that the National Executive had formed it.

250 The National Executive's defence pleaded that it was satisfied that a 'section of the Party' had acted contrary to the National Constitution. The phrase 'section of the Party' referred to a section of the Federal ALP as the definition of 'Party' in the National Constitution made clear. The term 'section' does not include a branch. The National Executive did not rely on cl 35 of the National Constitution, which regulates membership recruitment practices, but which applies only to individuals or groups of individuals. It could not be breached by a state branch or a section of the Party and therefore could not provide a foundation for the National Executive's passing of the Administration Resolution.

The defendants' submissions about the validity of the Administration Resolution

251 The defendants submitted that the National Executive did form the Required Opinion to enable it to pass the Administration Resolution under cl 16(f). The resolution expressly relied on cl 16(f)(ii), 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'.[243] The National Executive did not have to expressly recite in the Administration Resolution that it held the Required Opinion[244] as the presumption of regularity supported the conclusion that it had formed it. That it had been formed was confirmed by the terms of the National Executive's Preselection Resolution of 4 May 2021, which recalled that 'it was of the opinion at its meeting on 16 June 2020 that the Victorian Branch or a section of it was acting or had acted in a manner contrary to the National Constitution as interpreted by the National Executive' and affirmed that it remained of that opinion and that intervention in the Victorian Branch and 'the conduct of pre-selections remained necessary and justified'.

252 The defendants relied upon the High Court decision in McLean Brothers & Rigg v Grice[245] to establish that the presumption of regularity extended generally and not just to public law cases. There the High Court held that the presumption applied to the issue of whether a quorum was present at a company meeting. The defendants submitted that a resolution could be valid even if it did not recite the words containing the precondition for the exercise of the relevant power. The presumption was not limited to matters of form, but could apply to matters of substance.[246]

253 The defendants contended that it was open to the National Executive to be satisfied that the allegations of branch stacking in the Victorian Branch, or a section of it, showed conduct that contravened the National Constitution, particularly cl 35, which regulated 'membership recruitment'. That clause was part of the National Principles of Organisation which the Victorian Branch Rules were required to implement. The word 'section' was capable of referring to organised groups such as factions who did not have a formal role within the party.

254 The Court could also infer that the National Executive had formed the Required Opinion from the circumstances surrounding the passing of the Administration Resolution, in particular the allegations contained in the 60 Minutes program and subsequent media reports and Mr Andrews' letters to the National Executive. The Administration Resolution was carried without dissent, including with the vote of a the proxy for the Victorian Branch President, Ms Byers. Those circumstances precipitated the Resolution and made it likely that the National Executive had formed the opinion that the Victorian Branch, or a section of the Party, was acting or had acted in a manner contrary to the National Constitution in that it had failed to take the action necessary to preserve the integrity of the Branch's membership records. Mr Somyurek clearly had offsiders and lieutenants. The 60 Minutes program and the subsequent media reports identified three cabinet members, four different ministerial staff and branches in the north, south-east and west of Melbourne suggesting that branch stacking was widespread. Those groups could be regarded as a section of the party. The Administrators' reports stressed that the problem of branch stacking could not be cured by the removal or disciplining of one person.

255 The terms of previous National Executive resolutions suspending local branch meetings because of COVID-19 restrictions did not establish that it had an erroneous view of the scope of cl 16(f) as those resolutions were requested by State Branches and they also referred to the power contained in cl 16(d). Rather, those resolutions revealed that the State Branches, including the Victorian Branch, recognised the overriding power of the National Executive and its capacity to affect the operation of, and alteration of, State branch rules.

256 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 plenary power contained in 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 did not invalidate their actions.

Analysis of the challenges to the Administration Resolution

257 The precondition to the National Executive's exercise of the power contained in cl 16(f)(ii) is that it has 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 justifies the assumption that the National Executive formed it.

258 I consider that the presumption of regularity applies to the Administration Resolution and enables 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,[247] 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 required opinion. 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.[248]

259 To like effect was the decision of the New South Wales Court of Appeal in Western Stores Ltd v Orange City Council[249] 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.[250]

260 That decision was applied by the Western Australia Full Court in Re City of Joondalup; Ex parte Mullaloo Progress Association[251] where the issue was whether the Council had been satisfied of matters stipulated in the planning scheme as a precondition 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 (citation omitted).[252]

261 In addition, the circumstances surrounding the National Executive's meeting on 16 June 2020 support the conclusion that it formed the Required Opinion before passing the Administration Resolution. The 60 Minutes program suggested widespread branch stacking centred on the actions of Mr Somyurek, but which may 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 reasonably open for the National Executive to respond to the program and the associated media reports by resolving to intervene and 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 cl 35 of 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' in contravention of the National Constitution might affect the integrity of the entire membership records of the Branch.

262 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 groups or factions. Mr Head's evidence identified that the following 'broad descriptors' of groups or factions existing in the Victorian Branch:

263 Mr Head described these factions as 'sort of transient things that occur from time to time' in which there are sometimes sub-factions within those factions.[253] 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 containing broad descriptors of the types of 'sections' to which Ministers, staffers and members may belong.

264 Although the Administration Resolution did not refer to cl 35 of the National Constitution, it 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 clause 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).

265 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 does the fact that Mr Andrews did not state that he had consulted the leaders of the Branch 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 supporting the Resolution. But having national oversight of the ALP's affairs, they chose to confront serious allegations of branch stacking in the Victorian Branch and the resulting media storm and were asked by the Victorian Parliamentary Leader of the ALP to take action. They might have waited to analyse and sift the allegations to assess their weight and detect exaggerations or improbabilities. But decision makers faced with a media storm might not always 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.

266 I also consider that the National Executive had power to pass the Administration Resolution under cl 16(d), the plenary power.

267 In Setka v Carroll, in the passage previously quoted,[254] 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 provision, 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.[255 ]

268 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 the Victorian Branch under cl 16(f)(iii), which is not a matter dealt with in the 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.

269 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 of the Party's powers, although their exercise is subject to the limitations described by Riordan J in Setka v Carroll.

270 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 power, the question then 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.[256] So, in this case, if the National Executive did not satisfy the preconditions to the exercise of the power in cl 16(f)(ii), then cl 16(d), the plenary power, supported the validity of the Administration Resolution.

271 In summary, I consider that the National Executive had power to pass the Administration Resolution and to take over the conduct of the affairs of the Victorian Branch. I conclude that the National Executive formed the Required Opinion. 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 the National Executive's formation of the Required Opinion. It passed the Resolution following widespread publicity about branch stacking and Mr Andrews' request for it to act. The media coverage of branch stacking entitled it to conclude that there was, or might be, widespread branch stacking in the Victorian Branch which 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 Branch was required.

272 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 allegations of branch stacking had arisen 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 branch stacking did not have to be urgently addressed as the measures implemented by the Administration Resolution were directed at dealing with past branch stacking as well as preventing its reoccurrence.

273 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 power to be implemented and carried out. The grant of power includes by implication anything necessary to effectuate the purpose of the power.[257] The members of the National Executive could not carry out the day to day tasks of administering the Victorian Branch themselves. The actions taken by the Administrators were valid as they were done in implementation of the Administration Resolution.

Was the Administration Resolution irrational, illogical or unreasonable?

274 As a second ground of challenge to the Administration Resolution, the plaintiffs contended that even if the National Executive was taken to have formed the Required Opinion, it acted irrationally, illogically or unreasonably in passing the Administration Resolution, and that as a result it was invalid.[258] On the material before it, the National Executive could not rationally, logically or reasonably have formed the Required Opinion. If it had acted rationally, logically or reasonably, the National Executive would 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 obviously fanciful, given that there were in excess of 17,000 members. The Administrators' Reports concluded that the vast majority of members were genuine members.

275 The defendants submitted that, although the Administration Resolution was made under cl 16(f), if it was necessary, it was also supported by the plenary power in cl 16(d), and was made for good reason. The plaintiffs had not discharged their onus of establishing the grounds upon which they relied.[259]

276 The defendants submitted that the 60 Minutes report, and the extensive coverage in The Age, which was reported by other media throughout the country, contained audio and video evidence depicting a significant branch stacking operation in the Victorian Branch. This included individuals and groups funding party memberships for other individuals and groups who were apparently unwilling to pay their own subscriptions, who did not live at their claimed or enrolled addresses, and instances of applicants not personally applying for their memberships. These actions were alleged to have been taken to gain advantage at local Party meetings and in Party ballots. Each of these actions was in breach of cl 35(e) of the National Constitution. Mr Andrews' correspondence provided to 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 were directed towards addressing the very conduct depicted in those reports.

Analysis of grounds of irrationality, illogicality and unreasonableness

277 I proceed on the basis that decisions, or at least formal decisions, of voluntary associations can be challenged on these grounds as there is some authority for that proposition.[260]

278 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 and 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 the 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, unreasonable or an excessive use of power.

Challenge to the Administration Resolution alleging improper purpose

279 The plaintiffs also challenged the Administration Resolution on the basis that the National Executive passed it for an improper or ulterior purpose whereas the power in cl 16 could only be exercised 'in the circumstances authorised by the rules, and for purposes proposed by the constitution; and not for any ulterior purpose'.[261]

280 The defendants submitted that there was no basis for the plaintiffs' improper purpose argument. Despite bearing the onus of proof,[262] the plaintiffs did not identify the alleged improper purpose. An inference of improper purpose will only be drawn if the circumstances of the passing of the resolution could not be reconciled with the proper exercise of a power.[263]

Analysis of improper purpose challenge to the Administration Resolution

281 The plaintiffs have not established that the National Executive passed the Administration Resolution for an improper or ulterior purpose. I rely on the reasons that I gave in respect of the last ground of irrationality, illogicality or unreasonableness. The evidence suggests that the National Executive decided to deal with a pressing problem affecting the ALP, namely widespread adverse publicity relating to branch stacking allegations occurring in the Victorian Branch. It was open to it acting reasonably to adopt the measures suggested by Mr Andrews, who was the Parliamentary Leader of the ALP in Victoria, the location of the alleged branch stacking. The availability of other measures, short of intervention, does not mean that the decision to take over the conduct of the Victorian Branch's affairs was made for an improper purpose.

282 For those reasons, if I had found the issue to be justiciable, I would have dismissed the plaintiffs' challenge to the Administration Resolution.

The Rule Amendment Resolution and the Further Amendment Resolution

283 The plaintiffs did not add to Ms Kairouz's submissions about the Rule Amendment Resolution of 14 September 2020, the Amended Rules, the Further Amendment Resolution of 29 January 2021 or the Further Amended Rules. The Further Amendment Resolution appointed the Interim Governance Committee to replace Mr Bracks and Ms Macklin as Administrators.

284 As I concluded in the Kairouz Proceeding, I consider that the National Executive's powers in cls 16(f)(ii) and 16(d) empowered it to make the Rule Amendment Resolution, the Amended Rules, the Further Amendment Resolution and the Further Amended Rules. I repeat the reasons that I gave in that judgment. If I had found the issue to be justiciable, I would have dismissed the plaintiffs challenges to those Resolutions.

285 On 31 January 2021, the Interim Governance Committee replaced the Administrators whose members were tasked with performing all functions of the Administrative Committee of the Victorian Branch in accordance with the Further Amendment Resolution.

286 On 30 April 2021, the Australian Financial Review published an article about a group of trade unions considering legal action against the Labor Party. That article stated:

A group of trade unions is preparing legal action against the Labor Party to challenge the seizure of control of the Victorian division by the national executive.

The Construction, Forestry, Maritime, Mining and Energy Union and other unions have been briefed by lawyers on a legal challenge to the federal intervention, which was prompted by allegations last year of mass fake membership, three party sources said.

The first step was likely to be a letter of demand to the national executive to allow the Victorian division to choose parliamentary candidates for the next state and federal elections, one union official said.

287 Prior to the National Executive's meeting on 4 May 2021, its members communicated about the forthcoming meeting by text messages, most of which were tendered in evidence. Although in combination they are lengthy, I will now set out many of them, and a letter from Mr Albanese, because of their possible relevance to the plaintiffs' ground of challenge to the Preselection Resolution as containing communications between National Executive members about the meeting on 4 May 2021.

288 The factional descriptions are taken from a document that Ms Asmar exhibited to an affidavit and identified as containing the factions to which people mentioned in the texts were aligned.[264] The references in the following paragraphs to persons being of a particular faction reflects the descriptions of factional alignments contained in that document. In some cases, the factional alignments of participants in the communications were not stated in the document.

289 At 4:09pm on 30 April 2021, a text message was sent from the second defendant, Senator Tim Ayres, of the left faction, to the first defendant, Anthony Albanese, the leader of the Federal Parliamentary Labor Party and of the NSW left faction stating '[u]nderstand you have been briefed by Marles. We are in pretty good shape to get this Vic thing moving over weekend - corro from you on Sunday', to which Mr Albanese responded '[s]weet'. 'Marles' appears to be a reference to Richard Marles MP, the Deputy Leader of the Federal Parliamentary Labor Party and of the right faction.

290 On 1 May 2021, at 5:28pm, Senator Ayres sent a text message to Mr Marles, the contents of which are redacted on the basis of legal professional privilege. At 2:21pm on Sunday 2 May 2021, Senator Ayres sent a text message to Mr Marles stating '[s]ent you the final draft - it's on its way to AA to sign now'. On 2 May 2021, at 4:14pm, Senator Ayres sent Mr Marles a message stating '[t]hat looks good'.

291 On 2 May 2021, at 3:44pm, a text message was sent to the 13th defendant, Mr Bob Nanva, the Secretary of the NSW Branch of the Labor Party and of the NSW Right faction, John Berger, the Victorian Secretary of the Transport Workers' Union and of the Right faction, and Michael Donovan[265] the Victorian Secretary of the Shop, Distributive and Allied Employees Association and of the Right faction stating:

We have received some feedback from the SL [Socialist Left faction] following Thursday's meeting then their own caucus. One key issue for the SL was when they saw that Ben Davis [The Victorian Branch Secretary of the Australian Workers' Union, of the Rt faction and a plaintiff in this proceeding] was trying to create a loophole to allow the new federal seat of Hawke to be given to the IL [Industrial Left] They are adamantly opposed to that. They are agreeing to LU having the seat but they will not agree to give it to the IL. That was a core issue for them. They were already at the point of signing up with John, Sam and I but that pushed them across the line. So Ben shot himself in the foot with the SL in terms of being a part of a Stability Pact. They do not oppose the AWU coming into the agreement over time. But that was a core issue for them at this time. The other key issue was when David Asmar made very plain that his primary relationship was with the IL and anything with the SL was secondary. The SL tell us that those were the two key issues for the SL from last Thursday's meeting.

292 The identity of the sender of this text message is not apparent from the discovered text messages.

293 At 4:24pm on 2 May 2021, Mr Albanese's Chief of Staff, Mr Tim Gartrell of the NSW Left faction, sent an email to the ALP National Secretary, Mr Paul Erickson of the Victorian Socialist Left faction, referring to 'attached correspondence from the Leader for the ALP National Executive'.

294 Mr Albanese's letter to Mr Erickson, dated 2 May 2021, stated:

The National Executive decision to intervene in the Victorian Branch, following the public revelations of large scale improper behaviour and culture in relation to membership recruitment, has included the appointment of Jenny Macklin and Steve Bracks as party administrators, rules changes, the suspension of voting rights and an extended period of National Executive supervision of the Branch while the necessary changes are made to get the Branch back on the right path in terms of its governance, capability and culture.

Under the terms of the National Constitution during this intervention the National Executive is responsible for the conduct of all Victorian preselections.

The next Federal election could be held any time over the next 12 months and Labor must clear the way to ensuring the selection of strong community candidates in every seat in Australia to ensure the strongest possible Labor campaign. The National Executive must ensure that it exercises its particular responsibility in Victoria to achieve this vital objective.

While the final report of the Victorian redistribution is yet to be received, there is sufficient certainty around boundaries and the new seat of Hawke to enable the first phase of Victorian preselections to begin. It is, in my view, electorally imperative that the National Executive commence that process now.

I am writing to request that the National Executive urgently determine preselections for held Federal House of Representative seats in Victoria, including the new seat of Hawke.

295 At 4:57pm that day Senator Ayres sent Mr Erickson a text message stating: 'All good re letter - should be in your inbox. No need to consider it or call me until tomorrow'.

296 At 5:45pm a message from Ms Byers to Mr Erickson stated: 'Credit where it's due, he does clearly state for the record that females are human too.'

297 On 3 May 2021, a WhatsApp message was sent by the 6th defendant, Gerard Dwyer, the National Secretary of the Shop, Distributive and Allied Employees Association, of the NSW Right faction and a member of the National Executive, to unknown recipients stating that there would be an urgent National Executive Committee meeting at 10:30am that day with a caucus held at 10:00am. The 18th defendant, Shannon Threlfall-Clarke, a National Executive member and of the Right faction, responded stating that she would be an apology and that Ben Davis would be attending the caucus. The details of the National Executive Committee meeting were also provided to the National Executive Committee Chair and members in a 9:09am email from Mr Erickson's Executive Assistant, Bernie Shaw.

298 At 9:27am, Bill Shorten, the former Leader of the Federal Parliamentary Labor Party, sent a pdf copy of Mr Albanese's 2 May 2021 letter in a group text to Ms Threlfall-Clarke, Cesar Melhem and Ben Davis following which the following exchange occurred:

Mr Shorten: Stitch up begins.

Ms Threlfall-Clarke: [Attaching Draft Resolution PDF]

Obviously decided he needed to strengthen his argument from the original letter.

Mr Davis: Nobody thinks casey, higgins or deakin are winnable.

Mr Cesar: Ben how did you go with Sam?

299 At 9:51am, Ms Threlfall-Clarke sent an email to Bernie Shaw, Jen Light and Paul Erickson stating:

Dear Paul, I'm unable to attend today's meeting of the NEC due to work commitments, and I don't believe providing only 80 minutes notice is sufficient for this body to consider properly what is a very important matter. Should the NEC meeting be rescheduled to after 5:00pm today or anytime tomorrow with sufficient notice I will be able to attend. In the meantime, I am notifying the committee that I do not support any motion that is brought before the NEC in relation to this correspondence, including but not limited to the calling of any special national executive meeting to further consider these matters. Could you please ensure this is conveyed to the members of NEC at 10:30am should it go ahead.

300 Mr Erickson forwarded this email to Senator Ayres at 9:56am.

301 It appears that the National Executive Committee meeting may have been rescheduled to 3:30pm on 3 May 2021, Jen Light, ALP National Assistant Secretary, of the NSW Right faction, sent a WhatsApp message to unknown recipients stating:

Hi all, we will have a caucus at 3:15pm ahead of the 3:30pm AEST NEC. Dial in details below: ... Please [let] me know if you can make it. Thanks Jen

302 Ms Threlfall-Clarke responded: 'Thanks Jen, I'll be able to make both.'

303 At 10:10am Mr Shorten sent a text message to Mr Nanva stating:

Hi

I'm on a plane but just head about how half of right and plenty of others are being excluded

Asking you to not support this ambush with no notice

Every time Nsw right asked me for support I have given it

This time I would like reciprocity

Happy to brief you

304 At an unspecified time later, Mr Shorten also sent the following message to Mr Nanva:

Albo

To be fair

Probably marles Conroy griffin behest calling to bring on preselection whilst intervention in place to grab new seat which they couldn't if intervention gone

305 At 5:50pm the 21st defendant Linda White, a member of the National Executive and the Interim Governance Committee and of the Victorian Socialist Left faction, sent a text to the 'Left NX Caucus' stating:

Hi all Just a heads up - you will shortly get a notice advising that there is a NX tomorrow (Tuesday) at 10:00am EST to deal with a letter from the leader re Federal preselections - Linda

306 At 5:50pm Ms Threlfall-Clarke also sent a group text to Mr Shorten, Mr Melhem and Mr Davis stating 'NX is at 10:00am tomorrow' in response to which the following exchange occurred:

Mr Melhem: I think [they] should be asked to have the process open for 2 weeks so ordinary members be given time to consider nominating.

Ms Threlfall-Clarke: I wouldn't vote for the motion at NEC but its being circulated to NX members anyway. Should I move amendment to that effect tomorrow?

Mr Melhem: I reckon you should for the record however it's your call and Bill and Ben of course.[266]

Mr Shorten: Move amendment. I have asked [Nanva] for a 4 week delay in order for us to promote women.

307 At 7:16pm Ms Byers sent a text to Mr Erickson stating:

The Victorian AA rules deal with the house and senate together. They require us to preselect [them] on the same table and certainly at least to nominate the target number of women together.

308 Then at 7:43pm she sent a further text to Mr Erickson attaching a copy of the Victorian Branch Rules highlighting r 3.2.1.3 before stating:

Can you confirm at the meeting tomorrow that the 3rd senate spot isn't winnable (assuming that's the case, I haven't checked the results).

309 While at 7:47pm Ms White sent Mr Erickson a message stating:

A question has arisen about whether vic 3rd senate spot is winnable as per vic rules... also qs re senate... also Natalie Hutchins is ringing me. Also there is a query about whether we can hold the house of reps held seat without the senate... can you give call

310 At 8:35pm Mr Erickson sent a message to both Ms White and Ms Byers stating he had just landed in Sydney after his plane had been stuck on the tarmac at Canberra for 90 minutes and that he would call 'when they let us off'. At 9:56pm Ms White sent Mr Erickson a message stating:

The way you could get around this is to just do preselections for the more marginal H of R seats in vic first - Dunkley, Corangamite, McNamara & unfilled Hawke - then do others & senate later but you can't declare AA filled until they are all done? Clunky but maybe possible.

311 At an unspecified time on 3 May 2021, Mr Erickson sent Ms White a text saying 'I spoke to Tony' and Ms White sent a text to Mr Erickson '[n]ot what leaders letter said. What's he say'. There were also 14 text messages from Mr Erickson to Ms White and 11 text messages from Ms White to Mr Erickson which were redacted on the grounds of legal professional privilege.

312 On 4 May at 8.47am, Ms White sent Mathew Hilakari, of the Victorian Socialist Left faction, a copy of the draft resolution over WhatsApp and stated 'Amended version as discussed'. At 8:48am Ms White also sent a text message to Senator Ayres stating '[s]poken to Paul, Susie & Matt ... resolution seems fine'.

313 At 9:06am the following exchange occurred in a group message between Ms Threlfall-Clarke, Mr Shorten, Mr Melhem, Victorian State Parliamentarian and of the Right faction and Mr Davis:

Ms Threlfall-Clarke: The left NX women have been told that two male MPs from the right are retiring before the next election and that we've given a guarantee that they will be replaced by women.

Mr Davis: Bullshit

Mr Shorten: What? Such bullshit. Dreyfus Byrne both ruled out retiring. If that was true there wouldn't be a rush to get Sam in to circumvent impending deadline.

Mr Davis: spoke to Dwyer re opening noms. Asked for a longer noms period. I reckon he will back a short period.

Ms Threlfall-Clarke: Albo usually dials into these meetings and gives a report so I'm going to ask him what he thinks is the best way to achieve the AA targets he wants for his caucus.

Mr Davis: [thumbs up]

Ms Threlfall-Clarke: [Sent 'Attach A1 - amended draft motion']

They have amended their motion based on my questions last night.

But we will still ask for a longer nomination period.

Ms Threlfall-Clarke: Albo said he's confident of meeting a target of 50% women in the caucus in 2022 (regardless of Hawke going to a man)

Mr Melhem: any update?

Got it [thumbs up]

315 At 9:38am Mr Berger, Victorian Secretary Transport Workers Union, of the Right faction and Michael Donovan, Victorian secretary, Shop Distributive and Allied Employees, Right faction, had the following text exchange:

Mr Berger: Hi Michael, I'm on the caucus... do we agree to the changes to the draft

Mr Donovan: Don't know. I would follow Gerard's lead.

Mr Berger: Ok

Mr Donovan: I have been talking to Gerard and he is fully briefed. I am sure he will want to follow the lawyers advice as it is expected to go to Court.

Mr Berger: Ok

Mr Donovan: Gerard will call you re seconding motion.

Mr Berber: [thumbs up]

316 At an unspecified time on 4 May 2021, Mr Shaw sent an email to the members of the National Executive attaching a document titled 'Attach A1 - amended draft resolution'.

317 At 10:00am on 4 May 2021, the National Executive held a special meeting by conference call and resolved that preselections in 22 federal electorates within Victoria, including the new seat of Hawke, should follow a particular process and timetable, with nominations to open at midday on 4 May 2021 and close at 10:00am on 7 May 2021. In her affidavit, Shannon Threlfall-Clarke, who is a member of the National Executive, attended the meeting which she described as follows:

The meeting on 4 May commenced at 10:00am and concluded at 10:12am. Apart from my question about whether or not affirmative action was recognised in the pre-selection process, that is gender balancing of candidates, the meeting concluded such that the timetable for the pre-selection was passed unanimously effectively without debate.

318 The resolution passed by the National Executive at its 4 May 2021 meeting was in the following terms ('the Preselection Resolution'):

1. affirms that it remains of the opinion that the Victorian Branch or a section of it was acting or had acted in a manner contrary to the National Constitution, as interpreted by the National Executive, and that intervention in the Victorian Branch and the conduct of pre-selections remains necessary and justified;

2. accordingly, pursuant to Rule 16(f)(iii) (further or alternatively, pursuant to Rule 16(d)), resolves:

1. that pre-selections for the next federal election in Victoria in the divisions of (1) Ballarat, (2) Bendigo, (3) Bruce, (4) Calwell, (5) Cooper, (6) Corangamite/Tucker, (7) Corio, (8) Dunkley, (9) Fraser, (10) Gellibrand, (11) Gorton, (12) Hawke, (13) Holt, (14) Hotham, (15) Isaacs, (16) Jagajaga, (17) Lalor, (18) Macnamara, (19) Maribyrnong, (20) McEwen, (21) Scullin, and (22) Wills, be conducted by the National Executive in accordance with the following timetable:
   1. Nominations open at midday AEST on Tuesday 4 May 2021.
   2. Nominations close at 10:00am AEST on Friday 7 May 2021.
   3. If required, a ballot of the National Executive be conducted at 2:00pm AEST on Friday 7 May 2021.
2. Unless specifically resolved otherwise in any particular case, Victorian Branch Rules 3.5 (affirmative action) (except 3.5.2), 18.2 and 18.3 (candidate nomination) are to apply (with references to the Administrative Committee to be read as references to the National Executive).

319 At 9:35pm on 4 May 2021, Ms White and Mr Erickson had the following exchange over text:

Ms White: [Link to an article on The Age website titled 'Legal Threat Looms over Labor preselection 'volcano waiting to erupt'']

Going well so far

Mr Erickson: Powerful Victorian unions have asked for legal advice on whether they can stop the preselections of a ... [text message incomplete]

320 At about 12:00pm on 4 May, some Victorian Branch members were notified by email that the nominations were open for the 22 federal seats. The preselections closed at 10:00am AEST on 7 May 2021.

The plaintiffs' submissions about the validity of the Preselection Resolution

321 The plaintiffs contended that the Preselection Resolution was invalid and beyond the power of the National Executive because it was not a proper exercise of its powers under cl 16(f)(iii). They also argued that it was not authorised by the Victorian Branch Rules for reasons similar to those relied on to challenge the Administration Resolution. These included that the National Executive had never formed the Required Opinion.

322 Secondly, the plaintiffs argued that insofar as it was contended that the National Executive formed the Required Opinion on the basis of the events of 14-16 June 2020 and the reports and letters of the Administrators, those matters bore no rational connection to the Preselection Resolution. The Administrators' work was complete and did not provide any foundation for the formation of the Required Opinion on 4 May 2021.

323 Thirdly, and in addition to the second argument, if the National Executive formed the Required Opinion, it lacked any intelligible basis or was unreasonable and excessive.[267] Ms Threlfall‑Clarke's evidence established that the meeting of the National Executive on 4 May 2021 lasted 12 minutes with the resolution being adopted without debate apart from her question about affirmative action.

324 In connection with this ground, the plaintiffs pointed to the short time of 46 hours for members to nominate for preselection, even in the new seat of Hawke whose boundaries were yet to be determined. The plaintiffs relied on Mr Head's evidence to support their argument that the time allowed for nominations was inappropriate. Persons wishing to nominate for Hawke could not meet the requirements of the Victorian Branch Rules that the nomination form be signed by ten members living within the electorate while the boundaries were undetermined. An aspiring candidate, Ms Setches, had her nomination rejected for failing to meet the requirement.

325 Fourthly, the plaintiffs argued that the plenary power in cl 16(d) did not authorise the Preselection Resolution as it contained a general power and cl 16(f)(iii) a more specific power to conduct preselections, provided that the Required Opinion had been first formed.[268] Clause 16(d) had a quite different application as it enabled the National Executive to exercise all powers of the 'Party', being the Federal ALP,[269] 'in relation to' a state branch or section. This meant, so the plaintiffs argued, that the powers must be possessed by the Federal ALP otherwise than by cl 16(d), and have connection to a state branch, so that their exercise could be described as 'in relation to' a state branch or section. The more general power contained in cl 16(d) should not be interpreted as permitting the conduct of preselections which was expressly provided for in cl 16(f)(iii).

326 Fifthly, even if cl 16(d) gave power to pass the Preselection Resolution the exercise of that power was irrational, illogical, unreasonable and excessive.

327 Sixthly, it was to be inferred that the Preselection Resolution was made for an ulterior or improper purpose, which was to install particular persons as candidates.[270] That inference was also supported by the fact that the Resolution gave candidates 46 hours in which to lodge their nominations, although the federal election was not imminent and the boundaries of the new seat of Hawke were not yet determined.

328 The plaintiffs submitted that the trigger for the Preselection Resolution appeared to have been an article in the Australian Financial Review of 30 April 2021 stating that unions were threatening legal proceedings concerning preselections. They argued that the evidence, particularly the text messages between National Executive members prior to the meeting on 4 May 2021, permitted the inference to be drawn that the National Executive's true purpose was to use the preselection process to preselect the 21 sitting members and to preselect their preferred candidate, Mr Sam Rae, in the new seat of Hawke. The texts also disclosed that the Preselection Resolution's purpose was to resolve factional issues and disputes. Mr Albanese's letter of 2 May 2021 was consistent with, or supported, the contention that the Preselection Resolution had the improper purpose. No member of the National Executive gave evidence of any other purpose of the Preselection Resolution. The promotion of factional differences, and of one faction over another, could be an improper purpose invalidating a decision made under a political party's rules. There was no direct evidence of the National Executive's purpose and in the circumstances a Jones v Dunkel[271] inference could be drawn supporting a conclusion that the Preselection Resolution was passed for an improper purpose.[272]

329 Furthermore, the plaintiffs contended that by 4 May 2021, the administration process implemented in June 2020 was complete, the Administrators had provided their final report, significant rule changes had been implemented and there was no justification for the Preselection Resolution. The fact that the National Executive had previously conducted preselections did not assist the defendants' case because the context in which that had occurred was not established.

330 Mr Head's evidence was said to provide further support for the conclusion that the Resolution had an improper purpose. He also gave evidence that when the National Executive had previously conducted preselections it had done so with the cooperation of the branch concerned. He emphasised the significance of the preselection process in the life of the ALP.[273] He stated that preselections of ALP candidates for House of Representatives seats ordinarily require substantial notice to be given to members of the Victorian Branch and allowing a meaningful period between the opening of nominations and their close and subsequent preselections.[274]

331 Mr Head emphasised that the rules for preselections conducted under the Victorian Branch Rules are subject to the requirements of the Party's affirmative action policy. The National Constitution contains similar requirements. The current Victorian Branch Rules require that the Victorian Branch preselect women in not less than 40% of preselections for various categories of seats in the Commonwealth Parliament for elections after 2021 not less than 45%, and for elections after 2024 not less than 50% of such elections after 2024.[275]

332 Seventhly, the plaintiffs argued that even if cls 16(d) or (f) of the National Constitution authorised the making of the Preselection Resolution, properly construed those clauses did not permit the National Executive, when intervening in the conduct of a state branch, to disregard all of its rules. Thus, preselections undertaken by the National Executive exercising the power in cl 16(f)(iii) would need to comply with the Victorian Branch Rules, for example r 3.5.2 regarding affirmative action. In this case they had not done so. This argument was based on Riordan J's statement in Setka v Carroll, that when the National Executive decided to act under cl 16(d) on a matter regulated by the Victorian Branch Rules, it must comply with any limitations on the exercise of the powers contained in those Rules.

The defendants' submissions about the Preselection Resolution

333 The defendants submitted that, to the extent the National Executive acted under cl 16(f)(iii) in passing the Preselection Resolution, it had formed the Required Opinion which was a precondition to the exercise of that power. Moreover, the Preselection Resolution confirmed that the National Executive had formed the Required Opinion when it passed the Administration Resolution by stating:

1. recalling that, in light of facts and allegations contained in reports broadcast on 60 Minutes on 14 June 2020 and further as published in The Age newspaper on 15 June 2020, and having regard to the letters of the Premier of Victoria to the Executive of 15 and 16 June 2020, it was of the opinion at its meeting on 16 June 2020 that the Victorian Branch or a section of it was acting or had acted in a manner contrary to the National Constitution, as interpreted by the National Executive...

334 The defendants argued that the National Executive could reasonably have formed the Required Opinion as the work of administering the Victorian Branch was not complete, with critical work remaining to implement the Administrators' recommendations before it could resume normal operations. The Administrators' Final Report highlighted the need for a transitional period of interim governance until a new Administrative Committee could be elected, including the appointment of an Interim Governance Committee and continued oversight by the National Executive, through the appointment of an Executive Officer. The defendants pointed to passages in the Administrators' Final Report to support their submission. The Report, in recommending that the next State Conference be held between 1 January 2022 and 31 May 2022 at which members of the Administrative Committee would be elected, stressed that the integrity of the membership roll was vital.

335 The Victorian Branch membership roll had been tainted by a significant branch-stacking operation, and the State Conference delegates, and the Administrative Committee and Public Office Selection Committee, had been elected on the basis of that tainted roll, making it inappropriate that they take part in the preselections.

336 The Three Defendants also submitted that the presumption of regularity supported the validity of the Administration Resolution because it entitled the assumption to be adopted that the Required Opinion had been formed.

337 The defendants submitted that the Preselection Resolution was also supported by the National Executive's plenary powers in cl 16(d), which were additional to the preselection power contained in cl 16(f)(iii). The National Executive, in the exercise of its plenary powers, has frequently undertaken State preselections, with short nomination periods.[276] It was not limited in conducting preselections by the procedures contained in the Victorian Branch Rules.[277] Mr Head's evidence that he did not know of any time that the National Executive had acted as it did in the present instance without the agreement or request of the Administrative Committee of the Branch concerned did not support the existence of any established practice or understanding about the reach of the plenary power.[278] It was appropriate for the new seat of Hawke to be treated as a safe seat and to be included in the preselections and three candidates had nominated in the time allowed.

338 The defendants submitted that the purpose recited in the Preselection Resolution was not an improper purpose. The original Administration Resolution contemplated that the National Executive would conduct preselections in Victorian seats for the next federal election, an election which could have been called within a few months of 4 May 2021. Because of this possibility, by that time, the ALP had commenced to conduct preselections in other branches and other political parties were also conducting preselections.

339 The plaintiffs did not identify evidence which established that a sufficient number of the National Executive were motivated by, or had acted on, the asserted improper purposes. There was no warrant to draw a Jones v Dunkel inference.

340 The passing of the Preselection Resolution was to be viewed in the context that the Administration Resolution had given the National Executive the conduct of the Victorian Branch's affairs, including conducting preselections. The new procedures to ensure the integrity of the membership roll had not been in place long enough to permit the Interim Governance Committee to conduct the preselections. The text messages between members of the National Executive demonstrated a perfectly proper political process at work within a political party. The Preselection Resolution was a political party acting for one of the purposes arranging to nominate members to stand for political office, which was one of the reasons for its existence.

341 Mr Albanese's letter of 2 May 2021, requesting the National Executive to conduct the preselections, explained why he wanted them to occur and did not reveal any improper purpose.

342 The Three Defendants supported by the other Defendants contended that judicial review grounds such as improper purpose and unreasonableness did not apply to the actions of a voluntary unincorporated association such as the ALP. It was not exercising public power or performing public duties. They submitted that Lewis v Heffer, like other English cases, involving challenges to decisions of political parties or disputes within them, was a contract case.

Analysis of the challenges to the Preselection Resolution

343 I do not consider that the plaintiffs' challenges to the Preselection Resolution have been established. They have not proved that the National Executive did not form the Required Opinion when passing the Preselection Resolution. The Preselection Resolution did recite that the National Constitution had been contravened, which was a precondition for the exercise of the power contained in cl 16(f)(iii). That contravention was of cl 35 which concerned Membership Recruitment. The Preselection Resolution was also supported by the plenary power in cl 16(d).

344 The Administration Resolution of 16 June 2020 foreshadowed that the National Executive would conduct the preselections for federal seats for the forthcoming federal elections. In his letter of 2 May 2021, Mr Albanese, the ALP's Federal Parliamentary Leader, requested that this occur in circumstances where other Branches were conducting preselections as were other parties. The election could have been called at any time.

345 The texts between National Executive members demonstrated internal political party discussions about preselection without any purpose to favour one group over another. They revealed that the proposal to hold preselections was raised and was discussed by representatives of different interest groups or factions. Discussions and debates occurred within factions and larger blocs, with negotiations and discussions occurring. The picture presented by this evidence is of party political processes at work.

346 The Administrators' Final Report made clear that critical work to end branch stacking in the Victorian Branch remained and included the introduction of new integrity rules about becoming a member of the Party and joining the Branch and renewing memberships, how membership fees could be paid, the recording of attendances at branch meetings and the establishing of a new membership database of genuine members to minimise the risk of further branch stacking. The plaintiffs did not present evidence that when passing the Administration Resolution, the National Executive was influenced by an improper purpose or engaged in illogical, irrational or unreasonable decision making. The onus of establishing those grounds lay with the plaintiffs and in my opinion they have not been established.

347 The short period for nominations that the National Executive allowed in the Preselection Resolution provided was similar to the periods it had allowed in some previous preselections. Despite the short nomination period allowed in the new seat of Hawke, three candidates were able to nominate for preselection. When the National Executive passed the Preselection Resolution, it was possible that the next federal election could have been called at any time.

348 For reasons that I gave when considering the Administration Resolution, I do not consider that when conducting a preselection under cls 16(f)(iii) or 16(d), that the National Executive was restricted by any limitation of the kind that Riordan J envisaged in Setka v Carroll.

349 The National Executive was not required to apply the Victorian Branch Rules for conducting preselections when it exercised the power conferred by cl 16(f)(iii). The circumstances differed from those in Setka v Carroll, where the power to expel a member was in issue. In this case, cl 16(f)(iii) gave the National Executive power to conduct preselections when it had formed the Required Opinion. That power, unlike the exercise of the power contained in cl 16(d), was not subject to the limitations in the exercise of the power contained in the Victorian Branch Rules. In any event, the preselection processes contained in those Rules were not available because the Public Office Selection Committee and the Administrative Committee had been suspended. Ms Asmar's evidence suggested that the Public Office Selection Committee could have recommenced functioning very quickly. However, the integrity of the Branch's membership records was in doubt and that would have put in question whether persons wishing to nominate for preselection or participate as an elector in the preselection were genuine members. Therefore, it would have been impractical for the National Executive to carry out the preselections under the procedures contained in the Victorian Branch Rules. Accordingly, I also consider that the National Executive had power to pass the Preselection Resolution under the power contained in cl 16(d). Because of the circumstances following the National Executive's intervention in the Victorian Branch, including the suspension of committees and the doubt over the integrity of membership records, the National Executive's plenary power contained in cl16(d), if relied on to conduct preselections, was not limited by the terms of the preselection power contained in the Victorian Branch Rules in the sense discussed in Setka v Carroll.

350 For those reasons, if I had found the issue to be justiciable, I would have dismissed the plaintiffs' challenge to the Preselection Resolution.

351 I have concluded that the plaintiffs' challenges to the Resolutions, with the exception of the trusts claims, are not justiciable and, in any event, do not succeed. But, I will state my view on the defendants' submission that the plaintiffs should, in any event, be refused remedies in the exercise of the Court's discretion because they delayed in commencing this proceeding with resulting prejudice to the ALP and because they did not use the available internal remedies under the Victorian Branch Rules and the National Constitution. The defendants argued that, to the extent to which the plaintiffs challenged the entire National Executive intervention and not just the Preselection Resolution, they had delayed inexplicably in bringing this proceeding. The National Executive's intention to conduct preselections for the next federal election was recorded in the Administration Resolution of 16 June 2020, but this proceeding was not commenced until May 2021. Granting relief now would cause serious prejudice to the ALP by undermining the vast amount of work undertaken to reform the Victorian Branch's activities. The plaintiffs 'sat on their hands' until May 2021.

352 The plaintiffs disputed that they should be denied remedies or that they had delayed in commencing proceedings.

353 If I had otherwise found that the plaintiffs were entitled to remedies, I would have granted the remedies despite the delay on which the defendants rely. While the Administration Resolution did foreshadow that the National Executive would conduct preselections, the plaintiffs did not know until 4 May 2021 the manner in which they would do so, or the time that they would allow for nominations. The plaintiffs' challenge to the Preselection Resolution carried with it a challenge to the Administration Resolution, but it was the Preselection Resolution that precipitated their challenge. Commencing a significant court action is no small step and I do not see why the plaintiffs should not have waited until the National Executive's intervention led to the Preselection Resolution, that the plaintiffs considered particularly affected their interests and justified the commencement of this proceeding.

354 Moreover, I do not see why the plaintiffs' success in this proceeding would undermine all of the Administrators' work. Their Final Report records that around 1700 members were removed from the members' roll and other steps were taken to strengthen its integrity. The defendants did not explain why those reforms will not endure.

355 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 the claims the plaintiffs made. It is not clear that any of those bodies could have dealt with the plaintiffs' challenges to the validity of the Resolutions. Those challenges, if found to be justiciable, raised issues appropriate to be dealt with by this Court. Then there is the fact that the National Appeals Tribunal can only make recommendations to the National Executive, whose resolutions are the subject of this litigation. 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.

The Plaintiffs' Application for Representative Orders

356 There is a final matter to consider. By amended summons the plaintiffs seek orders that the first named plaintiff be permitted to sue in a representative capacity on behalf of all individual members of the Australian Labor Party Victorian Branch and members of the affiliated trade unions of the Party. They also seek an order that the second plaintiff, Hiba Salem, be permitted to sue in a representative capacity on behalf of all members of the Party's Administrative Committee as at 16 June 2020.

A proceeding may be commenced and, unless the Court otherwise orders, continued, by or against any one or more persons having the same interests as representing some or all of them.

(1) A judgment given or an order made in a proceeding to which this Order applies shall bind the parties and all persons as representing whom the parties sue or are sued, as the case may be.

(2) The judge or order shall not be enforced against a person not a party except by leave of the Court.

359 The question then is whether the persons whom Ms Asmar and Ms Salem seek to represent have the same interest and whether the Court should exercise its discretion to make such an order.

360 The relevant test was discussed by the High Court in Carnie v Esanda Finance Corporation Ltd.[279] The test accepted by the Court was:

The test for determining whether an action is within the scope of [the rule] is whether the plaintiff and the members of the represented class have a community of interest in the determination of substantial issue of law or fact.[280]

361 The parties do not need to have a common view about the common issue, nor do they need to have a common grievance. This matter was dealt with by Kaye J in Clark v University of Melbourne[281] in the following terms:

I adopt comments made by Megarry J in John v Rees in relation to a plaintiff suing on his own behalf and on behalf of all other members of an unincorporated party where his Lordship said:

Although there is thus a clear common interest between all the members in having the issue determined, they may be far from united in the way they wish it to be resolved. Some may support one faction, some another. But if a named parties to the action together put forward every view that is seriously advanced, I cannot see that any real harm is done to a person who is part in the action. It is merely that he is represented by the plaintiff, even if the plaintiff is supporting a different cause, provided that there is a defendant that does stand for the cause espoused by the person being represented: Actions are decided by reference to justice according to law, and not by counting heads. The remedy for someone who is not consoled by this thought is, as Sir George Jessel MR held in Wilson v Church and as James LJ pointed out in Watson v Cave (No 1), for him to apply to be joined as a defendant. Alternatively, he may be able to procure an order, made under Order 15, R12, whereby he will be represented by a defendant.

It seems to me that the important thing is to have before the Court, either in person or by representation, all who will be affected: and provided that the issue will be fairly argued out, a mathematical precision in securing that each side is shown as representing the right number of supporters is of little moment.

362 The defendants opposed the order saying that it was not necessary. They also relied on the fact that the order may be misunderstood and persons who do not share the views of the plaintiffs may not be happy with it. While this may be understandable, is not relevant to the exercise of the discretion to make a representative order.

363 I note that in Burton v Murphy, where the plaintiffs sued on behalf of and representing all members of the Australian Labor Party (State of Queensland), except the defendants, personally and as trustees of property belonging to the Australian Labor Party (State of Queensland), the defendants were persons who had accepted appointments as members of an interim administrative committee following the Federal intervention.

364 In my opinion, in the exercise of discretion, representative orders similar to those sought in the summons should be made in respect of the first plaintiff. They will ensure that all members of the Victorian Branch and members of affiliated unions of the Victorian Branch will be bound by the Court orders.

365 I will also make the orders sought in respect of the second plaintiff, Ms Hiba Salem, as representing the members of the Administrative Committee as 16 June 2020. Although they will be members of the ALP, because they form an important group in the Victorian Branch with separate interests, it is appropriate that they are subject to separate representative orders.

366 In both cases, I will exclude from the effect of the representative order persons who are defendants in the proceeding.

367 The plaintiffs' proceeding is dismissed. I will hear the parties about any other orders that may be sought.

DIANA ASMAR in her capacity as Secretary of the Health Workers Union Victoria No 1 Branch T/A the Health Workers Union First Plaintiff

HIBA SALEM in her capacity as Delegate of the Victorian Branch of the Australian Labor Party's Administrative Committee Second Plaintiff

************************************** Third Plaintiff

MICK MYLES, on behalf of himself as a member of the Party and as a member of the Victorian Divisional Branch of the Construction and General Division of the Construction, Forestry, Maritime, Mining and Energy Union ('CFMMEU Construction and General Division Victoria'), and in a representative capacity on behalf of the CFMMEU Construction and General Division Victorian and its members Fourth Plaintiff

BEN DAVIS, on behalf himself as a member of the Party and as a member of the Victorian Branch of the Australian Workers' Union ('AWU Victoria'), and in a representative capacity of AWU Victoria and its members Fifth Plaintiff

PAUL HEALY, on behalf of himself as a member of the Party and as a member of the Victorian No 2 Branch of the Health Services Union ('HSU Victoria 2'), and in a representative capacity on behalf of HSU Victoria 2 and its members Sixth Plaintiff

EARL SETCHES, on behalf of himself as a member of the Party and as a member of the Victorian branch of the Plumbing Division of the Communications, Electrical. Electronic Energy, Information Postal, Plumbing and Allied Services Union of Australia ('CEPU Pluming Division Victoria'), and in a representative capacity on behalf of CEPU Pluming Division Victoria and its members Seventh Plaintiff

************************************** Eighth Plaintiff

PETER MARSHALL, on behalf of himself as a member of the Party and as a member of the Victorian Branch of the United Firefighters Union ('UFU Victoria') and in a representative capacity on behalf of UFU Victoria and its members Ninth Plaintiff

PAUL CONWAY, on behalf of himself as a member of the Party and as a member of the Victoria branch of the Australasian Meat Industry Employees Union ('AMIEU Victoria'), and in a representative capacity on behalf of AMIEU Victoria and its members Tenth Plaintiff

SHANE STEVENS, on behalf of himself as a member of the Party and as a member of the Victorian Divisional Branch of the Maritime Union of Australia Division of the Construction, Forestry, Maritime, Mining and Energy union ('CFMMEU Victoria'), and in a representative capacity on behalf of CFMMEU Victoria and its members Eleventh Plaintiff

LUBA GRIGOROVITCH, as a member of the Party and as a member of the Victorian Branch of the Australian Rail, Tram and Bus Industry Union ('RTBU Victoria'), and in a representative capacity on behalf of RTBU Victoria and its members Twelfth Plaintiff

The United Firefighters' Union of Australia Thirteenth Plaintiff

The Honourable ANTHONY ALBANESE, in his capacity as a member of the National Executive of the Australian Labor Party First Defendant

Senator TIM AYRES, in his capacity as a member of the National Executive of the Australian Labor Party Second Defendant

STEVEN BAKER, in his capacity as a member of the National Executive of the Australian Labor Party Third Defendant

NICK CHAMPION, in his capacity as a member of the National Executive of the Australian Labor Party Fourth Defendant

KATE DOUST, in her capacity as a member of the National Executive of the Australian Labor Party Fifth Defendant

GERARD DWYER, in his capacity as a member of the National Executive of the Australian Labor Party Sixth Defendant

DAVID GRAY, in his capacity as a member of the National Executive of the Australian Labor Party Seventh Defendant

ROSE JACKSON, in her capacity as a member of the National Executive of the Australian Labor Party Eighth Defendant

TIM JACOBSON, in his capacity as a member of the National Executive of the Australian Labor Party Ninth Defendant

GRAEME KELLY, in his capacity as a member of the National Executive of the Australian Labor Party Tenth Defendant

Senator SUE LINES, in her capacity as a member of the National Executive of the Australian Labor Party Eleventh Defendant

TARA MORIARTY, in her capacity as a member of the National Executive of the Australian Labor Party Twelfth Defendant

BOB NANVA, in his capacity as a member of the National Executive of the Australian Labor Party Thirteenth Defendant

MICHAEL O'CONNOR, in his capacity as a member of the National Executive of the Australian Labor Party Fourteenth Defendant

MICHAEL RAVBAR, in his capacity as a member of the National Executive of the Australian Labor Party Fifteenth Defendant

AMANDA RISHWORTH, in her capacity as a member of the National Executive of the Australian Labor Party Sixteenth Defendant

WENDY STREETS, in her capacity as a member of the National Executive of the Australian Labor Party Seventeenth Defendant

SHANNON THRELFALL-CLAREK, 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 Eighteenth Defendant

Senator RAFF CICCONE, in his capacity as a member of the National Executive of the Australian Labor Party Nineteenth Defendant

SUSIE BYERS, 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. Twentieth 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-First Defendant

************************************** Twenty-Second 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-Third 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-Fourth Defendant

JAMES MCWHINNEY, in his capacity as Trustee under Rule 21.1 and 21.2 of the Australian Labor Party Victorian Branch Rules Twenty-Fifth Defendant

LABOR SERVICES & HOLDINGS PTY LTD, in its capacity as Trustee under Rules 21.3 of the Australian Labor Party Victorian Branch Rules Twenty-Sixth Defendant

[1] [1934] HCA 24; (1934) 51 CLR 358.

[2] Court Book, Asmar v Albanese (Supreme Court of Victoria, S ECI 2021 01465, Ginnane J, 25 May 2021) 241, 276 and 278 ('Asmar Court Book'); 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) 70 and 240-241 ('Asmar Transcript').

[3] Asmar v Albanese (No 3) [2021] VSC 334, 7-8.

[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.

[7] Nick McKenzie, Joel Tozer, and Sumeyya Ilanbey, 'Somyurek Secret Tape Scandal Rocks Labor', The Age (Melbourne, 15 June 2020); Asmar Court Book, 941.

[8] 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); Court Book, Kairouz v Bracks (Supreme Court of Victoria, S ECI 2021 00274, Ginnane J, 26 May 2021) 1694-1718, 1956-1957 ('Kairouz Court Book').

[15] 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.

[20] 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].

[21] Hogan v Cameron [1933] VicLawRp 70; [1934] VLR 88, 94-95.

[22 ] Cameron v Hogan [1934] HCA 24; (1934) 51 CLR 358, 370.

[30] (2019) 58 VR 657.

[31] See, eg, Schmidt v Rosewood Trust [2003] UKPC 26; [2003] 2 AC 709; Hartigan Nominees Pty Ltd v Rydge (1992) 29 NSWLR 405; Fordyce v Ryan [2016] QSC 307; [2017] 2 Qd R 240.

[32] Leahy v Attorney-General (NSW) [1959] UKPC 1; [1959] AC 457 at 464; Bacon v Pianta [1966] HCA 44; (1966) 114 CLR 634 at 638; Re Goodson [1971] VR 801.

[33] Schmidt v Rosewood Trust Ltd [2003] UKPC 26; [2003] 2 AC 709, [51]-[52] and Hartigan Nominees Pty Ltd v Rydge (1999) 29 NSWLR 405.

[34] [1980] Qd R 100, 109-110.

[35] [1980] Qd R 100, 109-110.

[36] [1981] QSC 274.

[37] Burton v Murphy [1983] 2 Qd R 321, 325 (footnote).

[39] Cameron v Hogan [1934] HCA 24; (1934) 51 CLR 358, 378 (Rich, Dixon, Evatt and McTiernan JJ).

[41] [2004] HCA 7; (2014) 216 CLR 109, 129 [55].

[42] [2012] VSC 227 [40]; Ramage v Waclaw (1988) 12 NSWLR 84, 93.

[43] Rendall-Short v Grier [1980] Qd R 100; see also Leahy v Attorney-General (NSW) [1959] UKPC 1; [1959] AC 457 at 454; Bacon v Pianta [1966] HCA 44; (1966) 114 CLR 634 at 638; Re Goodson [1971] VR 801.

[45 ] [1946] HCA 16; (1946) 72 CLR 1.

[47] [1948] HCA 39; (1948) 78 CLR 224.

[48] Ibid 296-297. Dixon J formed part of the statutory minority in that case, but his statement of principle is not thereby affected.

[49] [1983] 2 Qd R 321.

[50] Lewis v Heffer [1978] 1 WLR 1061, 1076 quoted in Burton v Murphy [1983] 2 Qd R 321, 340.

[51] [1934] HCA 24; (1934) 51 CLR 358, 376.

[52] 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. In Foster v McNicol, 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.

[53] Cameron v Hogan ([1934] HCA 24; 1934) 51 CLR 358, 377 (Rich, Dixon, Evatt and McTiernan JJ).

[54] Victorian Branch Rules, rr 5.2.4-5.2.7.

[57] Victorian Branch Rules, rr 8.1.2.29 and 8.2.2.2.

[62] Plaintiff's Concise Statement, [13].

[63] Citing Fordyce v Ryan [2016] QSC 307; [2017] 2 Qd R 240, [43]; Schmidt v Rosewood Trust Ltd [2003] UKPC 26; [2003] 2 AC 709, [51]-[52]; Hartigan Nominees Pty Ltd v Rydge (1992) 29 NSWLR 405.

[65] Cameron v Hogan [1934] HCA 24; (1983) 51 CLR 358, 373-374.

[68 ] [1993] 1 Qd R 10, 14-21.

[69] Asmar Court Book, 267-268; Joint Select Committee on Electoral Reform, Parliament of the Commonwealth of Australia, First Report (Parliamentary Paper No 227, September 1983).

[71] Commonwealth Electoral Act 1918 (Cth) s 126.

[72] Ibid s 293.

[73] Ibid s 130.

[74] Australian Constitution s 15.

[75] Commonwealth Electoral Act 1918 (Cth) s 167.

[76] Ibid ss 169, 210A, 214, 214A.

[77] Ibid ss 168-169, 210.

[78] Ibid s 286A.

[79] Ibid s 314AB.

[80] Ibid s 302D.

[81] Ibid s 306A.

[82] Ibid s 314AB.

[83] Electoral Act 2002 (Vic) s 45.

[84] Ibid ss 43, 50.

[85] Ibid s 44.

[86] Ibid s 45(2).

[87] Ibid s 45(2)(e).

[88] Ibid s 52(2).

[89] Ibid s 69A(2).

[90] Ibid Pt 12 Div 2.

[91] Ibid s 211(2A).

[92] Ibid s 212.

[93] Ibid s 212(4A).

[94] Ibid s 208(1).

[95] Ibid s 209.

[96] Ibid Pt 12 Divs 1C, 2 and 2A.

[97] Ibid s 69(2).

[98] Ibid Pt 5 Div 5.

[99] Ibid s 207F.

[100] Ibid ss 207GC-207GD; ss 215A-215B.

[101] Ibid s 216.

[102] Ibid s 217I.

[103] Joint Select Committee on Electoral Reform, Parliament of the Commonwealth of Australia, First Report (Parliamentary Paper No 227, September 1983) [9.21].

[105] [1967] 2 QB 864.

[106] [1996] HCA 44; (1996) 185 CLR 149.

[107] Asmar Court Book, 267; quoting Hot Holdings Pty v Ltd v Creasy [1996] HCA 44; (1996) 185 CLR 149, 165.

[110] 123 N.Y. 609 (1890).

[112] 62 Misc 2d 386 (Y Sup Ct, 1970).

[114] 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.

[115] [2013] VSC 662, [96]-[105].

[116] (1993) 1 Qd R 10, 17.

[117] [1916] HCA 70; (1916) 23 CLR 29.

[118] Setka v Carroll (2019) 58 VR 657, 676-677 [40(a)-(b)].

[119] (1992) 27 NSWLR 483, 565.

[120] [2007] NSWSC 736; (2007) 212 FLR 271, 281; recently followed in James v Wilson [2019] NSWSC 17 (Lindsay J).

[121] [2007] NSWSC 736; (2007) 212 FLR 271, [47]-[49].

[122] [2018] VSC 596.

[125] [2013] VSC 662, [105].

[129] Setka v Carroll (2019) 58 VR 657, 680 [50].

[130] [2013] VSC 662, [105].

[131] [2016] VSCA 290.

[133] Lucas J's comments about Cameron v Hogan were noted by Douglas J in the Full Court in a footnote to his judgment.

[135] Greg Taylor, Leadership Spill Rules from the Constitutional Perspective (2021) 95 Australian Law Journal 203, 212.

[137] Commonwealth Electoral Act 1918 (Cth) s 169B.

[139] Ibid 379; see also the submissions of the other defendants at Asmar Transcript, 308-309.

[141] See, Election Law, ch 22, ss 64-65, 2 NY Laws (1909); Election Law, 17, NY Election Law, art 2, (McKinney, 2019).

[143] Cullinan v Ahern, 212 AD 2d 103, 106 (NY, 1995).

[144] 20 Misc 2d 226, 229 (NY Supt Ct, 1959).

[145] Setka v Carroll (2019) 58 VR 657, 683 [59]-[60].

[146] 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).

[147] (2001) 208 CLR 199.

[148] 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.

[149] CGU Insurance Ltd v Blakeley [2016] HCA 2; (2016) 259 CLR 339.

[150] Asmar Court Book, 263-264; Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319.

[151] Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493.

[152] [1934] HCA 24; (1934) 51 CLR 358 at 377.

[153] Plaintiff M68/2015 v Minister for Immigration and Ethnic Affairs [2016] HCA 1; (2016) 257 CLR 42, [64]; see also Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319.

[154] The plaintiffs relied on R v Panel on Take-overs and Mergers; ex parte Datafin Plc [1986] 1 QB 815; R v Wadley; Ex parte Burton [1976] Qd R 286; and Robbins v Harness Racing Board [1984] VicRp 55; [1984] VR 641.

[155] Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319 and Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1; (2016) 257 CLR 42.

[156] Egan v Willis [1998] HCA 71; (1998) 195 CLR 424, 438-9 [5].

[157] Setka v Carroll (2019) 58 VR 657 at 681 [57(a)] and Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, 216 [8], 248 [105].

[158] [1998] HCA 71; (1998) 195 CLR 424, 439 [5].

[160] National Constitution, cls 10 and 13.

[187] Victorian Branch Rules, rr 8.3.2.1, 8.3.2.2 and 6.4.6.

[195 ] National Constitution, cl 2(a).

[196] [1934] HCA 24; 51 CLR 358, 374 (Rich, Dixon, Evatt and McTiernan JJ), 379-380 (Starke J).

[197] Victorian Branch Rules, r 2.4.2.

[201 ] Ibid rr 20.5.1.3.2 and 20.5.1.3.4.

[203 ] National Constitution, cl 10.

[208 ] See Lewis v Heffer [1978] 1 WLR 1061, 1076, quoted in Burton v Murphy [1983] 2 Qd R 321, 340.

[209] Aston, Ballarat, Cooper, Bendigo, Bruce, Calwell, Casey, Chisholm, Corio, Deakin, Fraser, Gellibrand, Gorton, Holt, Hotham, Isaacs, Jagajaga, Lalor, Maribyrnong, McEwen, Monash, Melbourne, Macnamara, Scullin and Wills. These were band (i) and (ii), held and winnable, seats. See also Barker v Australian Labor Party [2018] VSC 596 [24] (Kennedy J) concerning preselections for a Legislative Council seat in which 4 days were allowed for nominations.

[211] [2011] VSC 11.

[212 ] Burton v Murphy [1983] 2 Qd R 321, 327.

[220] [2011] VSC 11.

[221] 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.

[222] National Constitution, cl 15.

[223] (2019) 58 VR 657, 665 [16].

[224] Victorian Branch Rules, rr 1.1 and 4.6.

[225] [1959] HCA 51; (1959) 103 CLR 30.

[226] Ibid 54-55 (Fullagar J). The judgment of the High Court in Hall v Jobs [1952] HCA 57; (1952) 86 CLR 639 was to similar effect.

[227] 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.

[228] National Constitution, cl 10.

[231] Victorian Branch Rules, r 2.4.2.

[232 ] National Constitution, cl 14(c).

[235] Quoting Lewis v Heffer [1978] 1 WLR 1061, 1073.

[236] 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 plaintiffs 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'.

[237] 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].

[238] Kingham v Sutton [2002] FCFCA 107, [59] (Wilcox and Marshall JJ) quoting Wigmore, Evidence in Trials at Common Law, vol 9 [2534].

[239] Franklins Ltd v Penrith City Council [1999] NSWCA 134, [28] (Stein JA).

[240] 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).

[241] J D Heydon, Cross on Evidence, (12th ed, 2020), [7260]; see also [7250].

[242] S v S [1972] AC 24, 41 (Lord Reid).

[244] Citing Western Stores Ltd v Orange City Council [1971] 2 NSWLR 16, 46-7 (Moffatt JA); Nekon Pty Ltd v Hobart City Council [2004] TASSC 44; (2004) 133 LGERA 288.

[245] [1906] HCA 1; (1906) 4 CLR 835.

[246] GPT Re Ltd v Belmorgan Property Development Pty Ltd [2008] NSWCA 256; (2008) 72 NSWLR 647, 667 [82].

[247] [1973] VicRp 56; [1973] VR 583.

[249] [1971] 2 NSWLR 36.

[250] Western Stores Ltd v Orange City Council [1971] 2 NSWLR 36, 46-7 (Asprey JA and Taylor AJA agreeing).

[251] [2003] WASCA 293; (2003) 132 LGERA 243.

[252] Re City of Joondalup; Ex parte Mullaloo Progress Association [2003] WASCA 293; (2003) 132 LGERA 243, [77] (Parker J and Miller J agreeing).

[254] Setka v Carroll (2019) 58 VR 657, [68].

[256] Australian Education Union v Department of Education and Children's Services (2012) 248 CLR 1, 16 [34] (French CJ, Hayne, Kiefel and Bell JJ)

[257] Small v Smith (1884) LR 10 App Cas 119; British Medical Association v Commonwealth [1949] HCA 44; (1949) 79 CLR 201, 274.

[258] Citing Australian Football League v Carlton Football Club Ltd [1988] 2 VR 546, 550 and Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.

[259] Citing Industrial Equity Ltd v Deputy Commissioner of Taxation (1990) 170 CLR 649, 671-2 (Gaudron J).

[260] Australian Football League v Carlton Football Club Ltd [1998] 2 VR 546, 550.

[261] Citing Lewis v Heffer [1978] 1 WLR 1061, 1073; Burton v Murphy [1983] 2 Qd R 321, 332.

[262] Citing LHRC v Deputy Commissioner of Taxation (No 3) (2015) 326 ALR 77; [2015] FCA 52, [149] (Perry J).

[263] Citing CDPP v Brady [2016] VSC 334, [404] (Hollingworth J).

[264] Affidavit of Diana Asmar sworn 6 June 2021, [44] (DA-20).

[265] The text was addressed to Michael Donnelly, which appears to have been intended as a reference to Michael Donovan.

[266] The parties summaries appear to attribute this message to Ms Threlfall-Clarke. However, from the copies of the actual messages it appears that it is from Mr Melhem.

[267] Australian Football League Ltd v Carlton Football Club Ltd [1998] 2 VR 546, 550. See also Mickovski v Financial Ombudsman Service [2012] VSCA 185; (2012) 36 VR 456, [38], [51].

[268] Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1, 7.

[269] National Constitution, cls 1(a)(ii) and 10.

[270] They relied on Municipal Council of Sydney v Campbell [1925] AC 338, Lewis v Heffer [1978] 1 WLR 1061, 1073 and Burton v Murphy [1983] 2 Qd R 321, 332.

[271] [1959] HCA 8; (1959) 101 CLR 298.

[272] Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899; (1999) 93 FCR 34.

[273] Asmar Transcript, 94, and 117-121.

[276] Jackson v Bitar [2011] VSC 11.

[278] Asmar Court Book, 300; Asmar Transcript, 359.

[279] [1995] HCA 9; (1995) 182 CLR 398.

[280] Ibid at 408 (Brennan J) and at 430 (McHugh J).

[281] [1978] VicRp 46; [1978] VR 457 at 477.