Unincorporated associations - Political party - Pre-selection for Parliament - Jurisdiction to review non-compliance with constitution and rules of political party - Justiciability - Application of Cameron v Hogan

4 The plaintiff's action was commenced by an originating summons filed on 2 February 2022. The originating summons was defective for the reason that it did not give any clear statement of the relief that the plaintiff is seeking.[1] On 28 February 2022, the plaintiff filed a chamber summons which, as Master Sanderson observed, 'while garbled, seems to at least outline the relief the plaintiff is seeking.'[2] Master Sanderson ordered that the document entitled 'chamber summons' filed on 28 February 2022 should stand as the plaintiff's originating summons.[3]

5 The defendant, understandably, given the abject lack of clarity regarding the cause of action and the relief sought, submitted that the matter should proceed as if commenced by writ with pleadings. Given the urgency of the action with the impending Federal election, Master Sanderson instead ordered that the parties file affidavits and the matter proceed to a final hearing. The parties did so.

6 The defendant relies upon an affidavit of Mr Malone, a legal practitioner, sworn 14 March 2022. The plaintiff relies upon multiple affidavits. It is necessary that the position of the plaintiff in respect of the multiple affidavits is understood. The multiple affidavits were primarily filed because of the failure of the plaintiff to file an affidavit with the annexures, referred to therein, actually attached. There were also compliance issues with the Rules of the Court. The plaintiff swore affidavits on 27 February 2022 and 2 March 2022 and then two further affidavits on 7 March 2022 and 8 March 2022, which appear to be in the same terms. However, the affidavit of 8 March 2022 produces the annexures referred to therein. Further affidavits sworn by the plaintiff were filed on 21 March 2022 and 27 March 2022 respectively. The affidavits of the plaintiff sworn on 7 March 2022, 8 March 2022 and 21 March 2022 respectively are substantially similar, though the affidavit of 21 March 2022 produces the entirety of the annexures to be relied upon, as well as further paragraphs in the affidavit. At the hearing, the plaintiff agreed that the affidavit of 21 March 2022 was the final affidavit that now produces the evidence that is primarily relied upon.[4] I have determined this matter on that understanding.

7 After the hearing of the matter on 28 March 2022, the plaintiff filed further affidavits. I have received affidavits sworn on 1 April 2022, 4 April 2022 and 5 April 2022. The affidavits are in similar terms. The plaintiff clarified that he relies upon the affidavit sworn on 5 April 2022.

8 The chambers summons stated that the plaintiff sought declaratory relief/orders that:

- in eliminating the Plaintiff from the nomination process the Defendant has failed to follow their Constitution and Rules (discretion is limited to the objects of the organisation including democracy and discretion can only be exercised for a proper purpose);

- in his appeal to the State Executive the Plaintiff has not been allowed to attend to speak to his appeal and has therefore been denied procedural fairness and natural justice (further breach of rules);

- the endorsement of a candidate for the federal seat of Forrest be set aside; and

- the Plaintiff be allowed to nominate for the federal seat of Forrest and a ballot of local members be conducted.

9 On Sunday, 27 March 2022, the day before the final hearing, the plaintiff sent by email to the court and the defendant a minute of orders sought for final hearing. At the hearing, counsel for the defendant confirmed that the minute of orders should be understood as encapsulating the plaintiff's case. The defendant sought an adjournment of the hearing for the reason that the plaintiff was now seeking to agitate a different cause of action and seeking different relief, than that pleaded in the chamber summons. After discourse, the defendant was content to proceed on the basis that the minute of orders served on Sunday, 27 March 2022 was confirmed by the plaintiff as the case that was to be answered by the defendant. That was agreed between the parties at the hearing.

1. A declaration that the decision of the Administrative Committee of the Western Australian Branch of the Australian Labor Party made on 10 September 2021 declining to accept the Plaintiff's Expression of Interest in being nominated to Represent WA Labor in the House of Representatives seat of Forrest, dated 12 August 2021 was invalid, as beyond the power of the Administrative Committee vested in it by the 2021 WA Labor Rules and Constitution.

2. A declaration that the decision of the State Executive of the Western Australian Branch of Australian Labor Party made on 13 November 2021 rejecting the Plaintiff's Appeal against the decision of the Administrative Committee of the Western Australian Branch of Australian Labor Party to close nominations for pre-selection of candidates for the Division of Forrest was invalid.

3. The Defendant pay the Plaintiff's costs of this application.

11 After the hearing, the plaintiff emailed to the court a proposed amended minute of orders dated 4 April 2022. The plaintiff then informed the Registry that his counsel and solicitors were no longer instructed to act on his behalf. The filed amended minute of orders is in the following terms (with the amendments underlined):

1. A declaration that the decision of the Administrative Committee of the Western Australian Branch of the Australian Labor Party made on 10 September 2021 and 5 November declining to accept the Plaintiff's Expression of Interest in being nominated to Represent WA Labor in the House of Representatives seat of Forrest, dated 12 August 2021 (and re-submitted on 19 October 2021) was invalid, as beyond the power of the Administrative Committee vested in it by the 2021 WA Labor Rules and Constitution (or by reason of a process which was procedurally unfair).

2. A declaration that the decision of the State Executive of the Western Australian Branch of Australian Labor Party made on 13 November 2021 rejecting the Plaintiff's Appeal against the decision of the Administrative Committee of the Western Australian Branch of Australian Labor Party to close nominations for pre-selection of candidates for the Division of Forrest was invalid.

3. The Defendant pay the Plaintiff's costs of this application.

12 There are three issues that arise for determination being:

(1) Whether the decision of the Administrative Committee to decline to accept the plaintiff's expression of interest (EOI) in being nominated to represent the ALP as the endorsed candidate for the Federal seat of Forrest in the House of Representatives and the subsequent decision of the State Executive dismissing the plaintiff's appeal is amenable to declaratory relief. That is, whether the plaintiff's contention that the Administrative Committee of the ALP and the State Executive acted contrary to the WA Labor Rules is justiciable.

(2) Whether the defendant acted contrary to the WA Labor Rules; first, by the Administrative Committee declining the plaintiff's EOI to be the nominated ALP candidate, and second, by the State Executive dismissing the plaintiff's appeal against that decision of the Administrative Committee, without affording the plaintiff the opportunity to attend and speak at the State Executive meeting held on 13 November 2021.

(3) Whether the Court should exercise its discretion to grant declaratory relief should it find that the defendant acted contrary to the WA Labor Rules.

13 The parties were not required to file an agreed statement of facts. However, during the hearing the parties agreed that the recital of the factual background in the affidavit of Mr Malone, filed by the defendant, was factually correct. The affidavits of the plaintiff also provide relevant details of the factual background. The following comprises the factual background which appears not to be in dispute between the parties.

14 The plaintiff is a member of the ALP and has been intermittently since 1989. The plaintiff last joined the ALP in 2016. The plaintiff deposes that he has been an active member of the ALP, having been a candidate for the ALP at the 2021 WA State election.

15 The defendant is the State Secretary of WA Labor.

16 WA Labor is an unincorporated association for the purpose of promoting stated political objectives.

17 On or about 21 May 2021, WA Labor sent an email to designated recipients, including the plaintiff, which confirmed the dates for the EOI process for nomination as a candidate in the House of Representatives and Senate.[5] The email attached the prescribed form for submitting an EOI and confirmed that applicants must also complete a candidate eligibility questionnaire.

18 On 10 June 2021, the plaintiff sent an email to the Returning Officer of WA Labor confirming that he would send an EOI shortly and that he had already asked nominators he had previously used and who were willing to nominate him as a candidate on this occasion. The plaintiff then caused a partially completed EOI to be sent to the Returning Officer.[6] The EOI stated that the plaintiff requested to be the candidate for the Federal seats of Pearce and Tangney or the Senate. The plaintiff signed the EOI and thereby agreed to the conditions therein, including that 'the decision of WA Labor's Administrative Committee regarding this application is final, and that I am not entitled to seek legal recourse through means outside of WA Labor's processes.'

19 On or about 15 June 2021, the plaintiff emailed the Returning Officer of WA Labor stating, 'Please put me down for Forrest and O'Connor also'.[7]

20 On 18 June 2021, the Administrative Committee held a meeting at which the plaintiff's EOI was considered.[8] The minutes of the meeting state that the Administrative Committee rejected the EOI from the plaintiff in respect of the Federal seats of Pearce and Tangney, and the Senate, for the reason that he did not have the required number of nominators necessary to be pre-selected for a seat, namely 15.[9]

21 On 18 June 2021, the defendant sent an email to the plaintiff informing him of the Administrative Committee's decision in respect of his EOI.[10] The email stated that the EOI was not accepted for the reason that there was an insufficient number of nominators. Further, the email from the defendant stated that 'As per the WA Labor Rules and the EOI form that you signed, the Administrative Committee has discretion to accept or reject EOIs and their decision is final.'[11]

22 On 18 June 2021, the plaintiff emailed the defendant and the Returning Officer requesting that his EOI be taken to be an EOI for the electorates of Forrest and O'Connor.[12]

23 On 12 August 2021, the plaintiff resubmitted his EOI in respect of the Division of Forrest.[13] The plaintiff attached documents listing the 16 signatures of his nominators. There appears to be no dispute between the parties that, in respect of the resubmitted EOI, the plaintiff met the requirement of 15 nominators. Otherwise, the content of the resubmitted EOI was the same document that was submitted on or about 10 June 2021.

24 On 14 September 2021, the defendant sent an email to the plaintiff in which the plaintiff was informed of the Administrative Committee's decision in respect of the resubmitted EOI, being that the EOI was rejected.[14] In that email the defendant stated:[15]

'Although there is no requirement to provide feedback, I assume you will ask, so can advise you that your lack of genuine connection to the local area and your suitability as a Federal Labor House of Representative Candidate with requisite campaigning and community engagement skills and experience were cited as reasons for not progressing your EOI.'

25 The plaintiff responded to the email from the defendant received on 14 September 2021.[16] In that email the plaintiff, in part, stated, 'as much as I am disappointed by Forrest, I think you personally do run a very fair process' and further, 'I wasn't good enough on the day for Forrest'.[17]

26 On 19 October 2021, the plaintiff sent an email to the defendant requesting that his EOI be reconsidered by the Administrative Committee.[18]

27 On 5 November 2021, a meeting of the Administrative Committee was held. The minutes of that meeting record that Ms Bronwen English's EOI was accepted and that she was invited to nominate for the Division of Forrest.[19] The minutes also record that the plaintiff had previously been rejected, based on not having the requisite number of signatures and not being a suitable candidate for Federal pre-selection. Accordingly, the plaintiff's EOI was rejected.[20] On 5 November 2021, the plaintiff was informed by the defendant that his EOI had been rejected by the Administrative Committee and that an EOI from another applicant had been accepted.[21] The defendant stated that 'As this is the third Forrest EOI you have submitted, the Committee has once again requested formally that you not submit another EOI.'[22]

28 On 12 November 2021, plaintiff sent an email to the defendant and other persons which appears to indicate that he proposed to appeal the decision of the Administrative Committee to decline to accept his EOI.[23] By letter from the plaintiff to the defendant dated 13 November 2021, the plaintiff stated that he appeals the decision of the Administrative Committee.[24] In the letter dated 13 November 2021 the plaintiff does not particularise the ground of the appeal other than contending that the 'only remaining EOI is not someone who would be able to demonstrate superior skills' to him and that there has been no assessment of the his skills, 'just an arbitrary elimination by an egregious factional monster called the Admin Committee.'[25]

29 On 13 November 2021, a meeting of the State Executive was held. By letter from the Assistant State Secretary of WA Labor dated 15 November 2021, the plaintiff was informed that his appeal had been considered by the State Executive and that his appeal had been 'rejected it in its entirety'.[26]

30 On 22 November 2021, the plaintiff appealed the decisions made by the Administrative Committee and the State Executive to the ALP National Appeals Tribunal (National Appeals Tribunal).[27] By an email from the plaintiff to the National Secretary of the ALP, sent on 22 November 2021, the plaintiff contended that, 'The dominant faction in Western Australia has decided that they only want one candidate to go through to nomination, hence no local ballot.' The plaintiff stated that he wished to put his credentials to the party members in Forrest.[28]

31 On 24 November 2021, the defendant caused an email to be sent to the plaintiff in relation to the appeal to the National Appeals Tribunal, requesting that the plaintiff cease sending communications, pending the determination of the appeal.[29]

32 On 24 November 2021, the plaintiff sent an email to the National Secretary of the ALP stating that, 'There is a dispute as to whether the Admin have the authority under the rules to arbitrarily exclude eligible people from nominating'.[30]

33 On 25 November 2021, the Administrative Committee endorsed Ms Bronwen English as its candidate for the Division of Forrest for the 2022 Federal election.[31] The endorsement of Ms English was decided whilst the appeal by the plaintiff to the National Appeals Tribunal was pending.

34 On 29 November 2021, the plaintiff emailed the National Secretary of the ALP, seeking clarification regarding his appeal.[32]

35 On 30 November 2021, the National Appeals Tribunal issued directions regarding the procedure for the plaintiff's appeal and for the preparation of relevant documents.[33] By letter from the defendant to the National Appeals Tribunal, the defendant outlined the nomination and pre‑selection process for the Federal seat of Forrest and addressed other relevant information.[34] In that letter, the defendant stated that on 5 November 2021 the Administrative Committee considered and rejected the plaintiff's EOI and accepted Ms English's EOI and requested Ms English formally nominate.[35] Further, the defendant stated that on Saturday, 13 November 2021 the State Executive conducted a meeting in Bunbury (within the Division of Forrest) and that the meeting was open to all members. However, the plaintiff did not attend that meeting of the State Executive to speak to his appeal.

36 On 16 December 2021, an email was sent from Mr Bernie Shaw, Executive Officer of the National Executive of the ALP to the defendant, in which the defendant was informed that the National Appeals Tribunal had recommended to the National Executive of the ALP that leave not be granted to the plaintiff in respect of the appeal.[36]

37 The National Appeals Tribunal published reasons for its recommendation.[37] The National Appeals Tribunal stated, in part, as follows:

The Appellant submits that the Administrative Committee undemocratically rejected his EOI without assessing the merits of his EOI. The Appellant asserts he was not afforded natural justice as he was not given the opportunity to speak to his appeal and has not been given the opportunity to speak to his EOI. The Respondent submits this was not the case and State Executive is open to all party members to attend.

Rule 15.8 of the WA State Rules provides for the EOI procedure. The object of this rule is to seek to ensure we have candidates of a high calibre and a strong team to fight State and Federal elections. WA Labor is committed to attracting candidates with strong community connections and a commitment to Labor values. Candidates that represent diversity in our community, with integrity and a high standard of ethics. Any member who wishes to nominate (other than a sitting member) is required to submit an EOI to the Administrative Committee. EOIs must include the required number of eligible electors as "nominators" which for the House of Representatives is 15 financial members. The Administrative Committee approves and publishes all the necessary criteria, processes, forms and timelines for the EOI process (WA Rule 15.8.5) and requires the person submitting the EOI to be eligible under law to nominate as a candidate for the seat. (WA Rule 15.8.2.7)

The EOI form includes a requirement that the individual accepts that it is for the Administrative Committee to accept or not any EOI and that no legal recourse to outside jurisdictions shall apply. The Appellant would have signed this acknowledgement as part of his EOI. The State Secretary is required to provide a report to the Administrative Committee which will include a recommendation on candidates who may formally nominate (WA Rule 15.8.4).

In essence, the WA Labor preselection process has a preliminary step before preselection which requires the assessment of the suitability of a prospective candidate through the EOI process. This is not the formal nomination process. Formal nomination only occurs after approval from the Administrative Committee to nominate.

...

The Tribunal has considered the Notices of Appeal (original and amended) and all further information received and has formed the view that an arguable case has not disclosed. For these reasons it is recommended to National Executive that leave to appeal is not granted and the appeal be dismissed.

38 In Cameron v Hogan the High Court considered the justiciability of claims involving unincorporated associations in the context of a member of the ALP who was denied endorsement as an electoral candidate and was expelled from the ALP.[38] The High Court held that a member of a voluntary association could not maintain an action on the basis of an alleged exclusion from the association in breach of the association's rules, nor could a member maintain an action for any other breach of an associations rules including the rules for pre-selection, unless the member could establish interference with a relevant proprietary right, or the member could establish that the rules were contractually binding.

39 The plaintiff relies upon two alternative bases upon which this dispute concerning a breach of the WA Labor Rules is justiciable. First, that the WA Labor Rules have contractual force and thus Cameron v Hogan is not applicable. Second, that the Commonwealth Electoral Act 1918 (Cth) gave political parties a statutory status and accordingly, disputes concerning the rules of political parties registered under the Commonwealth Electoral Act are justiciable. That is because Parliament, in conferring legislative recognition upon political parties, has taken them beyond the ambit of mere voluntary associations.

40 I will deal first with the plaintiff's contention that the WA Labor Rules are contractually binding. I am of the view that the WA Labor Rules are not contractually binding. The High Court in Cameron v Hogan held that the rules of the ALP did not operate to create enforceable contractual rights and duties between members, or between executive officers and members.[39]

41 The plaintiff did not address this High Court authority concerning the rules of political parties and, in particular, the ALP. The plaintiff placed reliance on Rush v WA Amateur Football League (Inc)[40] and Bagga v The Sikh Association of Western Australia Inc.[41] The Court of Appeal of Western Australia in Rush v WA Amateur Football League, in considering the relationship between a footballer and the WA Amateur Football League, stated that there was a 'consensual compact' between the two parties but that the compact was not intended to give rise to legally enforceable contractual relations.[42] Accordingly, in the circumstances of that case, relief was not available from the courts in relation to the by-laws, 'in that the matters of which the appellant complained were not alleged to have affected adversely any property, income or reputational interest.'[43] I find that similarly in this case the plaintiff has not established that his property, income or reputational interest has been adversely affected. In short, the plaintiff sought pre-selection and was not successful. The plaintiff joins a large group of men and women who aspire to be a Member of Parliament and are not pre-selected. That loss of opportunity to be a Member of Parliament is an insufficient basis to contend that the failed candidate's property, income or reputational interest has been adversely affected.

42 The WA Labor Rules do not create a contract between the members inter se or between members and officers. WA Labor is an association with the purpose of achieving common political aims and is not consistent with, nor sufficiently certain enough to constitute a contract between the individual members inter se.

43 I now turn to the second basis upon which the plaintiff relies to support a finding that his dispute with WA Labor is justiciable. Following the High Court decision of Cameron v Hogan, in the context of litigation concerning political parties, a number of Australian Courts have actively sought to distinguish Cameron v Hogan.

44 A number of decisions have distinguished Cameron v Hogan on the basis that the Commonwealth Electoral Act recognises political parties, provides for their registration and authorises the granting of public funds to political parties.[44] In Baldwin v Everingham,[45] the court considered the justiciability of a dispute concerning a resolution to reject the plaintiff's endorsement as a Liberal Party candidate by the State Executive of the Liberal Party. In Baldwin v Everingham, Dowsett J distinguished Cameron v Hogan on the basis of the statutory recognition of political parties by subsequent amendments to the Commonwealth Electoral Act with respect to the nomination of candidates under pt XIV of the Commonwealth Electoral Act and election funding and financial disclosure under pt XX of the Commonwealth Electoral Act. His Honour concluded that the statutory recognition of political parties meant that 'disputes concerning the rules of political parties registered under the Commonwealth Electoral Act are now justiciable.'[46]

45 The reasoning of Dowsett J in Baldwin v Everingham was subsequently followed in a number of cases including Thornley v Heffernan;[47] Clarke v Australian Labor Party;[48] Coleman v Liberal Party of Australia (NSW Division) (No 2);[49] Butler v Mulholland (No 2)[50] and Barker v Australian Labor Party.[51]

46 In Setka v Carroll,[52] Riordan J considered Baldwin v Everingham and determined that he was unable to discern any intention in the Commonwealth Electoral Act to give legal force to the constitutions of registered parties, or to confer a right of action on members to enforce the provisions of such constitutions against registered political parties.[53] His Honour stated that 'the cases that followed 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.'[54]

47 Riordan J observed that whilst the reasoning of Dowsett J in Baldwin v Everingham has been applied in other cases, it must be noted that in each of these cases the issue of justiciability was the subject of a concession and not argued.[55]

48 The most recent decisions considering the justiciability issue are that of the Victorian Court of Appeal in Asmar v Albanese[56] and the NSW Court of Appeal in Camenzuli v Morrison.[57]

49 The plaintiff did not specifically identify any provisions of the Commonwealth Electoral Act that are relevant and form the basis upon which the dispute in this case is justiciable. Rather, the plaintiff submitted that the fact that political parties receive funding justifies judicial intervention in internal party disputes.[58] The plaintiff relies upon the Victorian Court of Appeal decision of Asmar v Albanese, that considered a dispute concerning the pre-selection of candidates under a provision of the ALP National Constitution rather than the ALP Victorian Branch Rules. The Court of Appeal of Victoria in Asmar v Albanese stated that:[59]

It seems to us that pre-selection disputes in relation to federal parliamentary elections would generally have the necessary direct connection with the Commonwealth Electoral Act to render them justiciable. This is because of the close connection between such disputes and the provisions of the Commonwealth Electoral Act governing nomination and endorsement, and electoral funding. The registered officer is a role created by the legislation and one that plays no part (in that capacity) in the internal processes of pre-selection of candidates. Under the legislation, the registered officer has a central role in both the nomination of candidates (s 166) and their recognition as candidates endorsed by the registered political party (s 169B). The registered officer's role is to act as the conduit for communicating internal party decisions to the Electoral Commissioner and the voting public. The purposes of the legislation would be significantly undermined if an endorsement which was invalid under the governing constitution of a registered party was to be given effect because it was immune from challenge.

50 The NSW Court of Appeal in Camenzuli v Morrison considered the reasoning of the Victorian Court of Appeal in Asmar v Albanese in respect of the issue of justiciability. The NSW Court of Appeal stated that it was 'comfortably satisfied it (Asmar) is wrong.'[60] The NSW Court of Appeal in Camenzuli v Morrison stated that the reasoning of Riordan J in Setka v Carroll is to be preferred.

51 The NSW Court of Appeal in Camenzuli v Morrison made the following three observations concerning the passage from Asmar v Albanese, which is relied upon by the plaintiff and is cited above at [48]:[61]

[52] There are three observations which may be made with respect to this passage. First, although there is reference to provisions of the Electoral Act dealing with electoral funding, it is not clear that those provisions are relevant to the reasoning, which otherwise deals with provisions governing nomination and endorsement.

[53] Secondly, while it is true that the role of the registered officer is created by the legislation, it is also true that he or she plays no necessary part in the internal processes of the party in preselecting candidates. The "central role" of the registered officer in the legislative scheme is limited to conveying decisions of the political party with respect to nomination and endorsement. That role is aptly described as a "conduit" in relation to communications between the political party and the Electoral Commission.

[54] Thirdly, there is a sense in which the last and critical step involves an element of circularity. It is true that the legislative provisions relating to nomination and endorsement of candidates by political parties could be subverted if the ballot paper contained incorrect information. However, the ballot paper, it may be assumed, will contain the information conveyed to the Electoral Commission by the registered officer. To raise the possibility that that information may be incorrect because it is "invalid" is to assume that there is an avenue for challenging the validity of the content of the communication from the registered officer. But that is to assume the conclusion to the critical question rather than to answer it.

52 With respect, I agree with the reasoning of the NSW Court of Appeal.

53 The NSW Court of Appeal in Camenzuli v Morrison held that the provisions in the Commonwealth Electoral Act providing for party registration, candidate nomination and endorsement and public funding do not purport to affect the general internal operations of political parties. The public interest in the operation of major political parties does not justify judicial intervention in internal party disputes generally. Whether a dispute within a political party is justiciable must be determined in each case by reference to relevant provisions of the Commonwealth Electoral Act.

54 The NSW Court of Appeal observed that there is no provision in the Commonwealth Electoral Act requiring that rules be registered with the Commissioner, nor that changes in the rules be notified to the Commissioner.[62] Accordingly, there is no general regulation of the rules of political parties which might warrant the court intervening whenever a dispute arises with respect to the operation of those rules.

55 The NSW Court of Appeal considered the reasoning of previous cases and in particular Baldwin v Everington, which treated the fact that the issue was one of public importance as sufficient to render all questions as to the internal processes justiciable, as providing an inadequate basis for distinguishing Cameron v Hogan.[63] The NSW Court of Appeal observed that the need to determine who is the officer responsible for taking steps within the statutory scheme may render that issue justiciable.[64]

56 The recognition of and public funding provided to political parties, do not make them public bodies amendable to judicial review or make their internal disputes justiciable.

57 I accept that there exists a public interest in the operation of major political parties but that fact provides no basis for not applying Cameron v Hogan. As the NSW Court of Appeal observed, 'If this conclusion creates immunities from control in matters of significant import for the operation of a democratic political system, the ability to prevent abuse and regulate the institutions concerned must lie with the Parliament.'[65]

58 Accordingly, I am satisfied that the plaintiff's complaint is not justiciable. The plaintiff has failed to identify any enforceable contractual or other recognised right in law or equity.

Issue two: Alleged breaches of the WA Labor Rules

59 Although I have determined that the issues raised by the plaintiff are not justiciable, I will determine whether the defendant acted contrary to the WA Labor Rules. The plaintiff's claim particularises two alleged breaches of the WA Labor Rules. First, that the Administrative Committee's decision to reject the plaintiff's EOI for pre-selection for the Federal seat of Forrest was in breach of the WA Labor Rules, and was therefore invalid, as it was beyond the exercisable power of the Administrative Committee. By the amended minute of orders sought, the plaintiff also contends that that decision was invalid 'by reason of a process which was procedurally unfair.' Second, the plaintiff contends that he was denied the opportunity to attend and address the State Executive during the hearing of his appeal, held on 13 November 2021, against the Administrative Committee's decision.

60 I will outline the relevant WA Labor Rules and the principles of construction of rules of voluntary associations before turning to the issue of the proper construction of the relevant rules raised in this case.

61 Rule 1.4.1 provides that the Constitution and any Rules made under it bind all members of the party. Rule 1.4.4 provides that any interpretation of the Constitution and Rules will be made by the State Executive and that any decisions of interpretation, subject to appeal to State Conference, are binding on all members of the party.

62 The party comprises affiliated industrial unions and individual members.[66] The structure of the party comprises, in part, of the State Conference, State Executive and the Administrative Committee.[67] The State Conference is the supreme governing body of the WA Branch and shall meet annually.[68] The State Executive is the chief administrative authority of the party and has the authority to interpret the Platform between State Conferences.[69] Any member of the party may appeal against a decision of the State Executive to the State Conference but State Executive decisions bind them until the State Conference decides otherwise.[70]

63 The Administrative Committee is responsible for the administration of the party between meetings of the State Executive.[71] The duties and responsibilities of the Administrative Committee are outlined in rule 8.8.[72] Decisions of the Administrative Committee bind all members of the party, unless the State Executive decides otherwise.[73]

64 Rule 15 deals with the selection of parliamentary candidates. Rule 15.1.1 requires affirmative action in pre‑selections, stating that 'the equal representation of men and women in Parliament is an ALP objective'. Rule 15.3 deals with the procedure applicable for any ballots involving local electors.

65 Rules 15.6 to 15.10 expressly deal with the pre-selection of candidates for the House of Representatives and the Senate, which relevantly provide:

15.6.1 The preselection of House of Representative Parliamentary Candidates shall be determined by a ballot of the State Executive and Local Electors where there are at least forty (40) Local Electors. Where there are less than (40) Local Electors, the preselection shall be by a ballot of the State Executive.

15.6.2 Where there are forty (40) or less valid votes cast by Local Electors, each vote shall have a value of a whole vote. Where there are more than forty (40) valid votes cast by Local Electors, each vote shall have a value determined by dividing forty (40) by the number of valid votes. The votes of the Union delegates to State Executive, shall have a value of a whole vote. Where there are less than forty (40) votes cast by the remaining delegates to State Executive, each vote shall have a value of a whole vote. Where there are more than forty (40) valid votes cast by the remaining delegates to State Executive, each vote shall have a value determined by dividing forty (40) by the number of valid votes.

15.7.1 Senate pre‑selections shall be conducted by the State Executive alone, with each vote cast being worth a whole vote.

15.8.1 WA Labor seeks to ensure we have candidates of a high calibre and a strong team to fight State and Federal elections. WA Labor is committed to attracting candidates with strong community connections and a commitment to Labor values. Candidates that represent diversity in our community, with integrity and a high standard of ethics.

15.8.2 A member who wishes to nominate, who is not a current sitting member of Parliament, must submit an Expression of Interest (EOI) to the Administrative Committee.

15.8.3 Complete and sign a prescribed EOI form determined by the Administrative Committee;

15.8.4 EOIs shall include the required number of eligible electors as "nominators";

15.8.5 In the case of a Legislative Assembly and House of Representatives seat, the required number of "nominators" shall be 15 and in the case of a Legislative Council or Senate position the number shall be 25;

15.8.6 In each case the "nominators" must have been financial party members for 12 months at the time the nomination form is lodged and be enrolled to vote in the relevant state or federal electorate;

15.8.7 The EOI form will also include a requirement that the individual accepts that it is for the Administrative Committee to accept or not any EOI and that no legal recourse to outside jurisdictions shall apply;

15.8.8 Be a financial member of the ALP for at least twelve (12) months before the nomination;

15.8.9 Be eligible under law to nominate as a candidate for the seat.

15.8.10 The State Executive may waive the twelve (12) month eligibility criteria set out in 15.8.8 where it is deemed to be in the Party's interests.

15.8.11 The State Secretary shall provide a report to the Administrative Committee which will include a recommendation on candidates who may formally nominate.

15.8.12 The rejection of an Expression of Interest shall require at least a 75% majority vote of the Administrative Committee.

15.8.13 The Administrative Committee shall approve and publish all the necessary criteria, processes, forms and timelines for the Expression of Interest (EOI) process.

15.8.14 The Administrative Committee may waive the EOI process at any time where it is deemed to be in the Party's interests.

15.9.1 The State Executive shall call nominations for all parliamentary seats including those with sitting ALP members. On the close of nominations, State Executive may:

(a) Decide that the Party will not contest a seat;

(b) Declare any person seeking preselection to be unsuitable;

(c) Reopen nominations;

(d) Declare a person elected unopposed where the person is the only eligible nominee.

15.9.2 The timetable for nominations must comply with the provisions of Rule 14.

15.10.1 A member who nominates for a seat must:

(a) Complete and sign a prescribed nomination form provided by the State Secretary;

(b) Be a financial member of the ALP for at least twelve (12) months before the nomination;

(c) Be eligible under law to nominate as a candidate for the seat; and

(d) Sign the relevant parliamentary candidate's pledge. (See Appendix 7)

15.10.2 The State Executive may waive the twelve (12) month eligibility criteria set out in 15.10.1, where it is deemed to be in the Party's interest.

Principles of construction of rules of voluntary associations

66 The principles of construction for the rules of a voluntary association were outlined by Riordan J in Setka v Carroll in the context of considering the ALP Victorian Branch Rules.[74] Riordan J stated the following in respect of the principles of construction for the rules of voluntary associations:[75]

Principles of construction for rules of a voluntary association

[70] The principles to be applied in interpreting the rules of a voluntary association are, like the construction of a corporate constitution, similar to the principles applicable to the construction of commercial contracts.

[71] The principles of construction are modified to recognise that the rules are not those of a trading corporation, but a voluntary association. In Echunga Football Club Inc v Hills Football League Inc, Stanley J described the modification of the approach to construction as follows:

[T]he Court must recognise that this association is not a commercial operation established with a view to generating profits but rather is what may be described as a non-profit making sporting organisation. In this regard it is proper to recognise that the by-laws are drafted in an ad hoc and piecemeal fashion by lay-persons rather than lawyers, couched in terms intelligible to them but which often lack the consistency, coherence, form and drafting that would be expected in a statute or commercial contract.

Accordingly, in my view, the Court must approach the construction of a particular by-law, when read in the context of the by-laws as a whole, with a degree of flexibility. This means that the courts should not make too much of infelicities of expression in the by-laws, nor be too quick to identify absurdity, illogicality or apparent inconsistencies. As French J (as he then was) said in the context of interpreting industrial awards, while fractured and illogical prose may be met by a generous and liberal approach to construction, the instrument must make sense according to its ordinary and grammatical language.

[72] As with the interpretation of a commercial contract, the terms are construed objectively; but the Court will consider not only the text and the ordinary meaning, but also the context and known surrounding circumstances. However, because of the public nature of the rules:

(a) great emphasis is to be placed on the text of the rules; and

(b) the ambit of the surrounding circumstances to which the Court may have regard, may be constrained.

[73] The surrounding circumstances to which the Court may have regard include:

(a) the making of amendments to the rules; and previous versions of the rules may be relevant; and

(b) 'established and well known and unquestioned practice in use in the association ... which are accepted by persons joining the association. '

67 The plaintiff first contends that the decision of the Administrative Committee, in rejecting the plaintiff's EOI for pre-selection, was in breach of the WA Labor Rules or 'was a process which was procedurally unfair'. I understand that the plaintiff contends that the process was procedurally unfair because the Administrative Committee acted beyond the power vested in that committee by the WA Labor Rules.

68 The plaintiff's contention was dismissed by the State Executive and the National Appeals Tribunal. As I have observed, the National Appeals Tribunal stated that 'the WA Labor preselection process has a preliminary step before preselection which requires the assessment of the suitability of a prospective candidate through the EOI process. This is not the formal nomination process. Formal nomination only occurs after approval from the Administrative Committee to nominate.'[76]

69 The plaintiff submitted that rule 15.6.1 has primacy. He submitted that by providing that parliamentary candidates shall be determined by a ballot of at least 40 local electors, rule 15.6.1 means that all members seeking pre-selection, who meet the formal requirements, will be subject to a ballot. The plaintiff submitted that when the Administrative Committee assesses whether an EOI is accepted or rejected, it is undertaking a mere administrative role, limited to vetting the EOI in respect of matters of form only.[77] The matters of form comprise being satisfied that the applicant submitting the EOI has been a financial member of the ALP for at least 12 months prior the nomination, is eligible under law to nominate and has named 15 nominators.

70 Further, the plaintiff relies upon rule 15.8.11 which stipulates that the State Secretary shall provide a report to the Administrative Committee which will include a recommendation on candidates who may formally nominate. The contention is that the words 'formally nominate' imply that the procedure undertaken by the Administrative Committee is merely a vetting exercise to identify the candidates who may proceed to nominate.

71 The plaintiff contends that it is the State Executive who selects the candidate to be pre-selected.[78] Alternatively, the State Executive may declare any person seeking pre-selection to be unsuitable.[79] Rule 15.9.1 provides the State Executive shall call nominations for all parliamentary seats.

72 The plaintiff submits that the WA Labor Rules contemplate a process of 'greater democracy' by giving more decision making power to members of WA Labor. Therefore, the plaintiff argues that the defendant's preferred construction of the rules that empower the Administrative Committee to not accept an EOI is wholly inconsistent with the procedure that permits local electors, along with the State Executive, to vote on whom is pre-selected.

73 I do not accept the plaintiff's construction of the WA Labor Rules for the following reasons.

74 First, the WA Labor Rules establish the Administrative Committee as being the body responsible for the administration of the party between meetings of the State Executive.[80] The Administrative Committee comprises the most senior officers of WA Labor including the President, the State Secretary, the Assistant State Secretary/s, the State Treasurer, the Senior Vice President and two Junior Vice Presidents. By rule 9.1.1, the State Executive is permitted to establish a committee to deal with any matter affecting the party. A mere vetting process would be readily undertaken by an individual officer of WA Labor or by a small committee. The fact that the Administrative Committee is vested with the power to assess EOIs, strongly suggests that the assessment is not limited to a mere vetting of applications but that a substantive analysis of the suitability of the candidate is involved.

75 Second, having regard to the entirety of rule 15.8, rule 15.8.1 may be regarded as identifying the objective of the EOI process; to ensure candidates are of a high calibre and form a strong team for an election. If the EOI process was merely intended to ensure technical compliance by EOIs with the WA Labor Rules, that statement of the objectives of the EOI process would have no role to play.

76 Third, by rule 15.8.7, the EOI form includes a requirement that the applicant accepts that it is for the Administrative Committee to accept or reject any EOI and that no legal recourse through means outside the jurisdiction is to apply. A provision of that kind would be unnecessary if all EOIs that complied with the WA Labor Rules proceeded to the nomination stage.

77 Fourth, the rejection of an EOI requires a 75% majority vote of the Administrative Committee. That also supports the conclusion that the Administrate Committee's role is more substantive than merely confirming that the technical requirements for an EOI have been met. If the role of the Administrative Committee was merely to conduct vetting as to whether an EOI complied with the technical requirements of the WA Labor Rules, a vote of the Administrative Committee, much less a vote of such a sizeable majority, would not be necessary. Compliance with the technical requirements for EOIs would not ordinarily be contentious. For example, if the person does not have 15 nominators then the person is ineligible to be nominated.[81] A vote of the Administrative Committee is unable to overcome deficiencies in compliance. The fact that a 75% majority is required to reject an EOI, so that an applicant will not be permitted to nominate, supports the construction that the Administrative Committee may reject an EOI for reasons other than its compliance with the mere technical requirements for an EOI.

78 Fifth, if the EOI process under rule 15.8 was intended merely to confirm that each EOI complied with technical requirements, one would expect that most applicants would proceed to the nomination stage as intended by the operation of rule 15.8. Further, rule 15.10 requires each member who nominates for a seat to complete a nomination form. The fact that such a form is required to be completed at that stage strongly suggests that the nomination process is not merely a continuation of the EOI but, rather, an entirely new and discrete part of the process.

79 The plaintiff's first allegation that the defendant breached the WA Labor Rules is without merit.

The second alleged breach of the WA Labor Rules

80 The plaintiff's second claim, namely that he was denied the opportunity to address the State Executive during the hearing of his appeal, is also without any merit.

81 The plaintiff was advised on 5 November 2021, by the defendant, that his EOI was not accepted and that another applicant's EOI had been accepted.

82 The plaintiff was aware that a meeting of the State Executive was being held on Saturday, 13 November 2021. The plaintiff exchanged email correspondence with the defendant and other officers of WA Labor on Friday, 12 November 2021 regarding his appeal. The plaintiff's email sent on Friday, 12 November 2021 states, 'I don't want to turn up tomorrow uninvited better to get my 'appeal' to exec and go from there - I can come if you need me though.'[82]

83 In his affidavit of 21 March 2022, the plaintiff deposes, 'I believed that I was unable to attend unless I was a delegate.'[83] Further, the plaintiff deposed that he 'did not know much about it' and that 'nobody sought to explain it to me or engage me in the process'. The plaintiff states that 'there was no document or any other suggestion made to me saying I was allowed to attend'.[84]

84 The gravamen of this second alleged breach of the WA Labor Rules was far from clear. It was not clear whether the plaintiff alleged a breach of a particular rule or whether he alleged a failure to comply with a requirement of procedural fairness.

85 The plaintiff did not develop his contention in his written submissions nor in oral submissions. To the contrary, Senior Counsel for the plaintiff did not address the second alleged breach at all. At the conclusion of Senior Counsel's oral submissions, I asked whether the second alleged breach was maintained. I asked specifically whether the breach amounted to a contention that the plaintiff did not know he had the right to attend and therefore, did not attend for that reason. Senior Counsel simply stated that this may arguably be a breach of natural justice.[85] He did not make clear or develop that the contention was part of the plaintiff's case. Senior Counsel appeared to submit that the plaintiff's case is primarily the alleged breach by the Administrative Committee in rejecting the EOI.[86]

86 Doing the best I can to address this part of the case, it is clear that the plaintiff was not denied the opportunity to attend the meeting of the State Executive held on 13 November 2021. Rather, the plaintiff decided not to attend. There was no requirement to attend and therefore, the plaintiff did not do so. In his affidavit, the plaintiff contends that he was unaware that he was entitled to attend. Even if the plaintiff was unaware that he was able to, if he wished, attend the meeting to address the State Executive, that fact does not support a finding that he was denied the opportunity to attend the meeting of the State Executive. The plaintiff would need to establish some basis on which the defendant was obliged to advise him that he was able to attend if he so wished, and that the defendant failed to comply with that obligation. No such basis or non-compliance was identified, much less established.

87 The contention of the plaintiff is without merit.

Issue three: Discretion to grant declaratory relief

88 Given that I have found that the defendant did not act contrary to the WA Labor Rules, the third issue to be decided, namely, whether the Court should exercise its discretion to grant declaratory relief, does not arise for determination.

89 The contentions of the plaintiff are without merit and, therefore, the originating summons is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Dawkins v The State Secretary, Australian Labor Party (WA Branch) [2022] WASC 75 [2].

[2] Dawkins v The State Secretary, Australian Labor Party (WA Branch) [2022] WASC 75 [2].

[3] Orders of Master Sanderson made 3 March 2022.

[5] Affidavit of Nicholas Francis Malone sworn 14 March 2022, Annexure NFM2.

[6] Affidavit of Nicholas Francis Malone sworn 14 March 2022, Annexure NFM3.

[7] Affidavit of Nicholas Francis Malone sworn 14 March 2022, Annexure NFM4.

[8] Affidavit of Nicholas Francis Malone sworn 14 March 2022, Annexure NFM5.

[9] Affidavit of Nicholas Francis Malone sworn 14 March 2022, Annexure NFM5, 125.

[10] Affidavit of Nicholas Francis Malone sworn 14 March 2022, Annexure NFM6, 132.

[11] Affidavit of Nicholas Francis Malone sworn 14 March 2022, Annexure NFM6, 132.

[12] Affidavit of Nicholas Francis Malone sworn 14 March 2022, Annexure NFM7, 134.

[13] Affidavit of Nicholas Francis Malone sworn 14 March 2022, Annexure NFM8, 135.

[14] Affidavit of Nicholas Francis Malone sworn 14 March 2022, Annexure NFM9, 177.

[15] Affidavit of Nicholas Francis Malone sworn 14 March 2022, Annexure NFM9, 177.

[16] Affidavit of Nicholas Francis Malone sworn 14 March 2022, Annexure NFM10, 178.

[17] Affidavit of Nicholas Francis Malone sworn 14 March 2022, Annexure NFM10, 178.

[18] Affidavit of Nicholas Francis Malone sworn 14 March 2022, Annexure NFM11.

[19] Affidavit of Benjamin Letts Dawkins sworn 4 April 2022, Annexure BLD A.

[20] Affidavit of Benjamin Letts Dawkins sworn 4 April 2022, Annexure BLD A.

[21] Affidavit of Nicholas Francis Malone sworn 14 March 2022, Annexure NFM12, 181.

[22] Affidavit of Nicholas Francis Malone sworn 14 March 2022, Annexure NFM12, 181.

[23] Affidavit of Nicholas Francis Malone sworn 14 March 2022, Annexure NFM13.

[24] Affidavit of Benjamin Letts Dawkins sworn 21 March 2022, Annexure BLD11.

[25] Affidavit of Benjamin Letts Dawkins sworn 21 March 2022, Annexure BLD11.

[26] Affidavit of Nicholas Francis Malone sworn 14 March 2022, Annexure NFM14, 183.

[27] Affidavit of Nicholas Francis Malone sworn 14 March 2022, Annexure NFM15, 184 ‑ 185.

[28] Affidavit of Nicholas Francis Malone sworn 14 March 2022, Annexure NFM15, 184 ‑ 185.

[29] Affidavit of Nicholas Francis Malone sworn 14 March 2022, Annexure NFM16, 186.

[30] Affidavit of Nicholas Francis Malone sworn 14 March 2022, Annexure NFM18, 188.

[31] Affidavit of Nicholas Francis Malone sworn 14 March 2022, Annexure NFM17, 187.

[32] Affidavit of Nicholas Francis Malone sworn 14 March 2022, Annexure NFM18.

[33] Affidavit of Nicholas Francis Malone sworn 14 March 2022, Annexure NFM19, 193.

[34] Affidavit of Nicholas Francis Malone sworn 14 March 2022, Annexure NFM20, 194 - 196.

[35] Affidavit of Nicholas Francis Malone sworn 14 March 2022, Annexure NFM20, 195.

[36] Affidavit of Nicholas Francis Malone sworn 14 March 2022, Annexure NFM21.

[37] Affidavit of Nicholas Francis Malone sworn 14 March 2022, Annexure NFM21, 198 - 204.

[38] Cameron v Hogan [1934] HCA 24; (1934) 51 CLR 358.

[39] Cameron v Hogan (1934) 51 CLR 357, 370 - 378 (Rich, Dixon, Evatt and McTiernan JJ); 383 ‑ 386 (Starke J).

[40] Rush v WA Amateur Football League (Inc) [2007] WASCA 190.

[41] Bagga v The Sikh Association of Western Australia Inc [2012] WASC 193.

[42] Rush v WA Amateur Football League (Inc) [2007] WASCA 190, [34] - [37] (Pullin JA); [88] (Buss JA).

[43] Rush v WA Amateur Football League (Inc) [2007] WASCA 190, [37] (Pullin JA); [88] (Buss JA).

[44] Baldwin v Everingham (1993) 1 Qd R 10; Clarke v Australian Labor Party (SA Branch) [1999] SASC 365; (1999) 74 SASR 109; Coleman v Liberal Party of Australia (NSW Division) (No 2) [2007] NSWSC 736; (2007) 212 FLR 271; Thornley v Heffernan (unreported, Supreme Court of NSW, Brownie J, 25 July 1995); Tucker v MacDonald [2001] QSC 296; Galt v Flegg [2003] QSC 290.

[45] Baldwin v Everingham (1993) 1 Qd R 10.

[46] Baldwin v Everingham (1993) 1 Qd R 10, 20.

[47] Thornley v Heffernan (Unreported, Supreme Court of NSW, Brownlie J, 25 July 1995).

[48] Clarke v Australian Labor Party (SA Branch) [1999] SASC 365; (1999) 74 SASR 109.

[49] Coleman v Liberal Party of Australia (NSW Division) (No 2) [2007] NSWSC 736; (2007) 212 FLR 271.

[50] Butler v Mulholland (No 2) [2013] VSC 662.

[51] Barker v Australian Labor Party [2018] VSC 596

[52] Setka v Carroll [2019] VSC 571 [60].

[53] Setka v Carroll [2019] VSC 571 [45].

[54] Setka v Carroll [2019] VSC 571 [60].

[55] Setka v Carroll [2019] VR 657 [59] - [60].

[56] Asmar v Albanese [2022] VSCA 19.

[57] Camenzuli v Morrison [2022] NSWCA 51.

[59] Asmar v Albanese [2022] VSCA 19 [213].

[60] Camenzuli v Morrison [2022] NSWCA 51 [46].

[61] Camenzuli v Morrison [2022] NSWCA 51 [52] - [54].

[62] Camenzuli v Morrison [2022] NSWCA 51 [64].

[63] Camenzuli v Morrison [2022] NSWCA 51 [63].

[64] Camenzuli v Morrison [2022] NSWCA 51 [63].

[65] Camenzuli v Morrison [2022] NSWCA 51 [66].

[74] Setka v Carroll [2019] VSC 571 [70] ‑ [73].

[75] Setka v Carroll [2019] VSC 571 [70] ‑ [73].

[76] Affidavit of Nicholas Francis Malone sworn 14 March 2022, Annexure NFM21, 202.

[82] Affidavit of Benjamin Letts Dawkins sworn 21 March 2022, Annexure BLD11B.

[83] Affidavit of Benjamin Letts Dawkins sworn 21 March 2022 [47].

[84] Affidavit of Benjamin Letts Dawkins sworn 21 March 2022 [47].