Camenzuli v Morrison

1. [1]

   THE COURT: This matter has been heard as a matter of urgency in the face of an impending Federal election. The plaintiff, who is a member of the State Council and State Executive of the NSW Division of the Liberal Party of Australia, sought to impugn the validity of steps taken by the Federal Executive which, by resolution of 4 March 2022, established a committee with power to endorse three incumbent Liberal members of the Parliament as Liberal candidates to recontest their seats. The plaintiff challenged the validity of the resolution of Sunday, 6 March 2022 exercising the power of pre-selection. The substantive argument turned on the correct construction of the Party’s Federal Constitution and, in particular, cl 12.3.

2. [2]

   Before coming to the point of construction, it is necessary to address the justiciability of the issue in this Court. The first, second and third defendants (being the members of the committee established by the Federal Executive, the “committee defendants”) contended that the issue raised is purely one of construction of the internal rules regulating the operation of an unincorporated association, albeit a national political party, being a matter held by the High Court in Cameron v Hogan [1] to be non-justiciable. [2] That is, success on the issue raised would not entitle the plaintiff to a declaration, injunction, or other form of relief, the Federal Constitution not creating in members or office holders rights enforceable in a court.

Procedural Issues

1. [3]

   In proceedings which have been heard as urgently as the present (the statement of claim was filed barely a fortnight ago) it is unsurprising that there are unresolved procedural issues. In accordance with what has occurred in other comparable cases, the plaintiff sought orders appointing persons to represent (a) members of the New South Wales Division of the Party who were not already joined, and (b) members of the Federal Executive who were not already joined. This was opposed. Further, although the statement of claim sought only declaratory relief, at the hearing the plaintiff proposed an amendment seeking injunctive relief preventing the registered officer requesting the Electoral Commissioner to print the names of the purportedly endorsed candidates on the ballot papers. (The significance of this, which turns on s 169 and s 169B of the Commonwealth Electoral Act 1918 (Cth) (the Electoral Act) will be explained below.) This had not hitherto been flagged, although it was said to be a response to the events of the previous 48 hours, when there were two applications under s 40 of the Judiciary Act 1903 (Cth) to remove this proceeding into the High Court. We dismissed an application for what was candidly acknowledged to be ex parte injunctive relief against a non-party, and advised that we would deal with the substantive issues urgently, and allow the parties (and others) to be heard as to further procedural orders and relief to the extent necessary.

2. [4]

   Ordinarily, questions of parties, the form of the pleadings and the nature of the relief sought would be resolved prior to a final hearing. In the exigencies of the present litigation, and in circumstances where there was a clear dispute between two capably represented parties who had co-operated to achieve a highly expedited final hearing, this was a clear case for promoting the command in s 56 of the Civil Procedure Act 2005 (NSW) to resolve the real issues in the proceedings justly, quickly and cheaply.

3. [5]

   Upon receiving the plaintiff’s submission in reply, on 30 March 2022, the committee defendants identified a perceived need for the service of notices under s 78B of the Judiciary Act. That reasoning involved two steps. The first arose from the contention that the operation of the Federal Constitution was justiciable because the relevant provisions engaged the operation of Pt XIV of the Electoral Act. The second step turned on the fact that the Court, in dealing with the Electoral Act, would be dealing with an issue arising under a federal law and would therefore be exercising federal jurisdiction. [3] Further, while the issue of justiciability in relation to state law would not involve a constitutional issue, where federal jurisdiction was engaged the issue was said to give rise to a question as to the scope of the term “matter”, being the source of jurisdiction of the High Court under ss 75, 76 and 77 of the Constitution. Section 78B(1) of the Judiciary Act provides that where a cause pending in a State court involves a matter arising under the Constitution or involving its interpretation, the court is not to proceed unless and until notice has been given to the Attorneys General of the Commonwealth and of the States specifying the nature of the matter, and the Attorneys have had a reasonable time to consider the question of intervention in the proceedings or removal of the cause to the High Court.

4. [6]

   The issue was raised by the committee defendants on the evening of 29 March; on 30 March the Court directed that notices be served on the Attorneys by 2pm that day. The hearing was delayed from 31 March 2022 to 1 April 2022.

5. [7]

   It is true, as counsel for the committee defendants submitted, that the time allowed for consideration of the notice was unusually brief. Nevertheless, the Court was satisfied that the Attorneys had had a reasonable opportunity to consider the matter. The Court was told without objection that five State Attorneys General, including the New South Wales Attorney, had received the notice and advised that they would not intervene. The prospect of an intervention by the Attorney General of a Territory in those circumstances was remote. The Commonwealth Attorney-General was evidently conscious of the litigation and the date it was listed for final hearing because of her application to remove it to the High Court which was made and determined on 31 March 2021. Further, the underlying issue as to the role of the Electoral Act in creating a justiciable issue for disaffected members of political parties had already been raised in a number of cases, which will be discussed below. In particular, the matter had been the subject of an appeal in the Victorian Court of Appeal, and an urgent special leave application filed in the High Court in the previous week. It might therefore be assumed that the Attorneys, and in particular the Victorian and Commonwealth Attorneys-General, to the extent that they were interested in intervening in such proceedings before they reached the High Court, were already on notice of the issues being raised.

6. [8]

   The directions hearing on 30 March 2022 took place whilst the proceedings were listed in the Equity Division. A member of this Court gave directions. One involved the removal of the proceedings to the Court of Appeal, a matter which had originally been sought by the parties, but before appropriate grounds could be formulated to support the motion. The Court had refused an earlier application for removal in a matter involving the same parties and disposed of by Ward CJ in Eq on 25 February 2022. [4] Although at that stage no challenge had been raised as to justiciability, the judge addressed the issue and the submissions she had received, which favoured the conclusion that the matter before her was justiciable. The issue then in dispute was limited to a construction of the interaction of the Party’s Federal Constitution and the Constitution of the New South Wales Division of the Liberal Party (Divisional Constitution).

7. [9]

   On the same day that Justice Ward handed down her judgment, the Victorian Court of Appeal handed down judgment in the matter of Asmar v Albanese. [5] It was arguable that statements in that matter, though not determinative, favoured the conclusion that the present matter would be justiciable. A single judge in a Division might properly have considered that conclusion binding. As the committee defendants sought to challenge that conclusion, it was appropriate to remove the matter to this Court, so that a full consideration of the reasoning of the Victorian Court of Appeal could be permitted. [6]

8. [10]

   At the directions hearing on 30 March 2022, the committee defendants submitted that the Court should stay its consideration of the matter until an application by them to remove the matter to the High Court was determined. At that stage, no directions as to listing had been given in the High Court and no indication given as to whether, and if so when, the proceedings in this Court might be removed to the High Court. As all parties urged the expeditious disposal of the matter, with finality, it was by no means clear that vacating a hearing date in order to allow the application for removal to go ahead would achieve that result. If the High Court decided to remove the matter, it would have been able to do so at any point until this Court delivered judgment. Once judgment is delivered, an expedited application for special leave to appeal could be considered. On the other hand, if the matter were not removed, days would be wasted in circumstances where, according to the plaintiff, the selection process for candidates remained unconcluded with but a short period before an election which must be held by the end of May 2022.

9. [11]

   As it turned out, the removal application was heard by the High Court on 31 March 2022. The Commonwealth Attorney General made her own application to remove the matter which, pursuant to s 40(1) of the Judiciary Act, she was entitled to do as of right. Chief Justice Kiefel therefore ordered that the whole matter before this Court be removed (while noting that the constitutional issue sought to be raised might be described as “tenuous”), but proceeded immediately to remit the matter to this Court. Accordingly, the jurisdiction of this Court derives from either the general investment in s 39(2), or the specific investment following the making of the remittal order in s 44(3)(a), of the Judiciary Act, or both. There was no dispute that, the whole matter having been removed, it was the whole matter which was remitted. It is clear that this Court is exercising federal jurisdiction.

10. [12]

    At the hearing, the committee defendants tendered two volumes of written material comprising 583 pages. The material was admitted as Exhibit A subject to relevance. Some documents were referred to by both parties. Most of the material comprised emails between various officers and entities within the Liberal Party, together with the Constitutions of each State Division of the Party. While the bulk of the material was not addressed, it was said to be potentially relevant to discretionary matters as to relief and costs. As no party objected to any of the material, the convenient course is to allow the admission of the bundles marked Ex A to stand and remove the qualification.

11. [13]

    With respect to the two principal issues, there is a potential dilemma. If the proper construction of the Party’s Federal Constitution is not a matter for the Court, it should not embark on that exercise. However, whether or not it can undertake that exercise (the justiciability issue) depends in part upon the characterisation of the substantive issue. Accordingly, in order to address the question of justiciability, it will be necessary and therefore appropriate to consider certain terms of the Party’s Federal Constitution.

Relevant provisions of the Party Constitution

1. [14]

   Although the submissions drew attention to various provisions in the Party’s Federal Constitution and the Divisional Constitution, the focus of the argument was directed towards the power of intervention conferred by cl 12 of the Federal Constitution. Clause 12 is headed “Intervention”; cl 12.1 sets out “Intervention Grounds” in respect of a Division. Subclause (a)(iii) reads as follows:

2. [15]

   The operative provision, cl 12.3, read as follows:

3. [16]

   The issues of construction raised by the plaintiff were threefold. First, it was observed that the operative power conferred by par (a) was “to take over the management of” the relevant Division. It was submitted that “management” did not encompass “control” and that, where it was intended that both should be conferred, the Federal Constitution referred to both. Secondly, it was submitted that the concept of “management” did not involve the pre-selection of candidates for election otherwise than in the manner provided for in the Divisional Constitution. Thirdly, the powers conferred by par (b) expressly stated that neither the Federal Executive nor a committee established by it should have the power to “amend” the Divisional Constitution. That was said to confirm the plaintiff’s construction that the committee was bound to manage the NSW Division in accordance with the terms of the Divisional Constitution.

4. [17]

   It is necessary to turn to the provisions of the Electoral Act to understand how it can be said that the pre-selection of candidates engages with the operation of the Electoral Act. That question was an essential part of the plaintiff’s contention that the ruling of the High Court in Cameron v Hogan (that the internal rules of an unincorporated association were non-justiciable) did not preclude the hearing of his claims.

Electoral legislation

1. [18]

   Cameron v Hogan was concerned with the exclusion of Mr Hogan as a candidate endorsed by the Australian Labor Party for a Victorian State election. It was decided when the Electoral Act 1923 (Vic) and The Constitution Act Amendment Act 1915 (Vic) governed State elections. The plaintiff must demonstrate a material change in the legislative framework governing elections in order to found an argument that the ruling of the High Court no longer governs the internal affairs of unincorporated political parties.

2. [19]

   The Electoral Act 1923 made no reference to political parties, nor indeed to the process of nominating candidates. The Constitution Act Amendment Act 1915 included brief provisions relating to the qualifications of members (and by inference candidates) and the need to be nominated by 10 electors. Political parties were not referred to.

3. [20]

   It is convenient to note the provisions of the Electoral Act as in force at that time. Although the Court in Cameron v Hogan made no reference to any electoral legislation, presumptions as to the nature and operation of political parties were probably influenced by that legislative context.

4. [21]

   Like the Victorian legislation, the Electoral Act then made no provision for political parties. Part XI dealt with nomination of candidates, both for the Senate and the House of Representatives elections. It prescribed qualifications and provided for nominations to be in accordance with a prescribed form and to be signed by not less than six persons entitled to vote at the election for which the candidate was nominated: s 71(b). Candidates for election to the Senate were able to have their names grouped in the ballot papers “in the manner prescribed in this Act”: s 72A. Grouping was by consent of the candidates. At that stage, the Act did not provide for any particular order in which grouped names were to be listed. By an amendment in 1940, a new s 72B provided for the candidates in a group to notify the electoral officer for the State of the order in which their names were to appear on the ballot papers.

5. [22]

   It is readily apparent that, in 1934, no statute made provision for political parties to have any role in the electoral process. As a matter of practice, it may well be that Senate candidates in a group which involved members of one political party would nominate the order in which their names should appear, as was expressly provided for in the 1940 amendment. The statutory position may be described as antithetical to the formal involvement of political parties in the electoral process.

6. [23]

   The Electoral Act has changed significantly since Cameron v Hogan was decided in 1934. The critical provisions for present purposes are those concerning the registration of political parties in Pt XI and the provisions relating to nomination of candidates in Pt XIV.

7. [24]

   Part XI was inserted in 1983. It provides for the registration of political parties for the purposes of the Act: s 124. A “political party” is defined to mean “an organization the object or activity, or one of the objects or activities, of which is the promotion of the election to the Senate or to the House of Representatives of a candidate or candidates endorsed by it”: s 4. An “organization” may be an association or other body of persons, or it may be a body corporate: s 4. An “eligible political party” is a political party that either has a member of Parliament as a member or has at least 1,500 members and is established “on the basis of a written constitution (however described) that sets out the aims of the party”: s 123(1). The significance of the departure in s 123 defining an eligible political party by reference to its “aims” from the definition of political party (by reference to objects or activity) is unclear.

8. [25]

   There are procedural provisions for dealing with applications, and there are criteria on the basis of which the Electoral Commission may refuse to enter either a name or a logo on the register: ss 129, 129A. There are provisions for deregistering a registered political party, including in circumstances where the party has not endorsed candidates for an election over a specified period: s 136(1).

9. [26]

   Part XI provides for a range of decisions to be made by the Electoral Commission in relation to the registration or refusal of an application for registration, and other matters, including decisions with respect to names and logos. Section 141 provides for a review of such decisions, by way of application to the Administrative Appeals Tribunal. There is no requirement in Pt XI relating to the internal structure of a political party, nor specifying requirements in relation to its rules or the content of its constitution, beyond requiring that it be written and, by inference, specify the objects, activities or aims of the party. The constitution itself is not placed on the register. The register merely contains a list of the names of, and details concerning, registered political parties: s 125(1), s 133(1). [7] There is no prohibition on amending a constitution, nor requirement of notification of amendments. No issue arose in the present proceedings in relation to any aspect of Pt XI.

10. [27]

    Part XIV deals with nomination of candidates, and states that no person shall be capable of being elected as a Senator or Member of the House unless duly nominated: s 162. It specifies qualifications of candidates by reference to age, citizenship and entitlement to be an elector: s 163. Section 166 provides the procedures for nomination:

11. [28]

    Nomination thus requires the completion of a form which is to be signed either by a specified number of electors entitled to vote at the election for which the candidate is nominated, or by “the registered officer of the registered political party by which the candidate has been endorsed for that election”: s 166(1)(b). Section 166 assumes a process undertaken by a registered political party for the endorsement of candidates. It does not prescribe any process for endorsement. Whilst s 166(5) provides for a combined nomination of candidates, the “grouping” of candidates on a ballot paper is dealt with under s 168. The request is to be made in writing and signed by the candidates themselves, not the registered officer, which suggests that such a request may not be necessary in respect of a combined nomination by a registered party.

12. [29]

    Section 166 thus permits nominees to be endorsed by a political party, the endorsement being conveyed by the signing of the nomination form by the registered officer of the party. The term “registered officer” is defined in s 4C of the Electoral Act, which reads:

13. [30]

    The role of the registered officer is similar to that of the proper officer of a company or similar entity. He or she is nominated by the political party to be the person through whom communications are channelled both to and from the Electoral Commission. An application for registration of an eligible political party must be signed by the person who is to be the registered officer of the party and must set out his or her name and address: s 126(2)(c). In dealing with an application for registration, the Electoral Commission is required to give a document seeking certain particulars to the person who is to be the registered officer: s 132(5). Upon registration, the name and address of the registered officer is entered in the register: s 133(1)(a)(iii). The register is open for public inspection: s 139. Generally, where the Electoral Commission is required to give written notices, the notice is given to the registered officer: s 140(1).

14. [31]

    The plaintiff’s submissions placed weight on the fact that s 169 of the Electoral Act now provides for the party name to be printed on the ballot paper next to a candidate endorsed by that party. Section 169 reads as follows:

15. [32]

    The Electoral Act also provides for the “verification” of party endorsement in the following terms:

16. [33]

    The significance of s 169B will be addressed below. However, it is convenient to note at this stage that, although the heading refers to “verification” of party endorsement, it is in fact a deeming provision. Where, relevantly, a candidate is nominated by the registered officer, for example, on a form signed by that officer in conformity with s 166(1)(b)(ii), the endorsement by the party is presumed.

Cases addressing justiciability

1. [34]

   Against this statutory background it is convenient to turn to the cases concerning justiciability. Two preliminary observations are in order. First, the joint reasons in Cameron v Hogan did not conclude that no issue as to the operation and management of a voluntary association could be the subject of proceedings in a court. (Starke J expressed himself in more absolute terms, [8] but it is doubtful that he was departing from the accepted principles identified in the joint reasons of Rich, Dixon, Evatt and McTiernan JJ.) The joint reasons acknowledged that proceedings might be brought to enforce a proprietary interest in property held by a voluntary association and to enforce contractual rights between members (if any). The procedural difficulties noted by the joint reasons [9] may be put to one side for present purposes. There might also be an action in tort if members of the association took steps in reliance upon an attempted expulsion from membership which steps were resisted. Further, as noted in subsequent cases, the apparent approval of a power of intervention at the instance of a member of a registered industrial organisation demonstrates the significance of the statutory scheme within which a particular association operates. [10]

2. [35]

   Having determined that of two interpretations of the rules relied upon by the plaintiff in that case neither was warranted, the joint reasons continued: [11]

3. [36]

   The subsequent case law over more than 50 years has been referred to by Dr JRS Forbes and need not be addressed. [12] The plaintiff’s basis for distinguishing Cameron v Hogan was the changed statutory scheme for the regulation of political parties. The issue, however, is not whether the Electoral Act has changed significantly since 1934 (which it clearly has), but whether the changes warrant intervention in a particular case. The applicant asserted that because the legislation now gave political parties a statutory status, he had an interest within the reasoning in Cameron v Hogan.

4. [37]

   The starting point for this analysis was the judgment in Baldwin v Everingham. [13] As in the present case, Baldwin concerned a pre-selection decision. Dowsett J concluded that the level of statutory recognition of political parties led to the conclusion “that disputes concerning the rules of political parties registered under the Commonwealth Electoral Act are now also justiciable.” That was because the Parliament “in conferring legislative recognition upon political parties has taken them beyond the ambit of mere voluntary associations.” [14]

5. [38]

   Twenty years later, in a Victorian case, Butler v Mulholland (No 2), [15] Robson J addressed a dispute within the Democratic Labor Party as to who was the secretary of the party and the person responsible for providing details to the electoral officer for registration under the Victorian legislation. Robson J stated:

6. [39]

   This reasoning both identified a specific issue requiring resolution to allow the statutory scheme to operate, but also relied on an amorphous concept of the public interest, arguably reflecting the reasoning in Baldwin.

7. [40]

   In dealing with the position of the registered officer, Robson J concluded:

8. [41]

   Baldwin has been subjected to critical analysis in some subsequent cases. Setka v Carroll [16] involved a challenge to the expulsion of the plaintiff from the Australian Labor Party by resolution of the National Executive. Riordan J, in the Victorian Supreme Court, held that the dispute was non-justiciable. [17] The judge noted that both Cameron and Edgar were expulsion cases. He rejected the reasoning in Baldwin that political parties were now to be equated with industrial organisations registered under the Commonwealth Conciliation and Arbitration Act 1904 (Cth). Having referred to the relevant provisions of that Act in force when Edgar was decided, Riordan J continued: [18]

9. [42]

   Riordan J dismissed the requirement of registration under the Electoral Act as sufficient to justify departing from Cameron: [19]

10. [43]

    Riordan J also adopted the observations of Dr Forbes that “[i]t is a long leap of logic from the comprehensive legislative scheme in [Edgar] to the conclusion that Cameron v Hogan is nullified by ‘funding’ provisions tacked on to an electoral Act. The public interest in those provisions could be protected, if need be, by direct reference to the Act, without assuming general jurisdiction over internal party affairs.” [20]

11. [44]

    For reasons further developed below, the reasoning of Riordan J is persuasive.

12. [45]

    This reasoning was accepted by Ginnane J in Asmar v Albanese (No 4). [21] Ginnane J stated:

13. [46]

    Nevertheless, the Victorian Court of Appeal reached the conclusion that the validity of the intervention by the Federal Executive in Asmar was justiciable. [22] The reasoning supporting that conclusion was relied on by the plaintiff and is addressed in the next section of these reasons. The reasoning is not persuasive; indeed, we are comfortably satisfied it is wrong. The reasoning of Riordan J in Setka, with the agreement of Ginnane J in Asmar (No 4), is to be preferred.

14. [47]

    In Asmar v Albanese, the Victorian Court of Appeal stated:

15. [48]

    The lack of relevance of the statutory amendments to the construction of the rules of a party does not necessarily entail the conclusion that the statutory provisions do not give the rules a particular status. However, it does draw attention to the possibility that the registration provisions, while recognising the existence of political parties and their relevance to the electoral process, nevertheless do not purport to affect their internal operations. As noted by Gleeson CJ in Mulholland v Australian Electoral Commission: [23]

16. [49]

    The Chief Justice further observed that the scheme adopted a recommendation of a Joint Select Committee on Electoral Reform. Chapter 3 of the Report concluded that its own recommendation concerning the “list” system for Senate ballot papers “presupposes the inclusion of political party on the Senate ballot paper at least”, and would “require the adoption of a system for the registration of political parties”. [24] As recently explained in Ruddick v Commonwealth of Australia, [25] the other contextual factor relating to the registration of political parties was the provision of direct funding for political parties. [26] Again it is possible in theory that funding could be made conditional upon compliance with the constitution of a party, perhaps in specified respects. However, no such linkage was suggested in the present case and none is obviously applicable.

Plaintiff’s case – justiciability

1. [50]

   The plaintiff’s written submissions identified two approaches to the question of justiciability in the case law subsequent to the decision in Cameron v Hogan. The first, described as “the broader approach”, derived from the reasoning of Dowsett J in Baldwin v Everingham. As the plaintiff correctly submitted, acceptance of that broad statement of principle would result in the whole of his claim being justiciable.

2. [51]

   He also accepted, however, that recent decisions of the Supreme Court in Victoria had adopted a narrower approach. Most recently, in Asmar, the Victorian Court of Appeal, while accepting that not all disputes within political parties are justiciable, stated that disputes which “really do bear upon the matters addressed by the legislation” are justiciable. [27] The plaintiff relied upon this statement and the following passage in Asmar with respect to pre-selection disputes:

3. [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.

4. [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.

5. [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.

6. [55]

   Further, the Court of Appeal in Asmar held:

7. [56]

   The existence of a dispute does not enliven the jurisdiction of the Court to determine the dispute. There was a dispute in Cameron v Hogan, but the Court did not have power to determine it.

8. [57]

   Recognising these difficulties, in oral submissions the plaintiff advanced a more nuanced argument seeking to connect the particular dispute between him and the committee members with particular provisions of the Electoral Act, notably ss 169 and 169B. He submitted in essence that the endorsement by a registered political party gave a candidate a status which was recognised by the Electoral Act, and thus constituted a sufficient interest to be enforceable.

9. [58]

   The process commonly referred to as “pre-selection” leads to the endorsement of a candidate by a political party. There is nothing new in the process, nor in the concept of endorsement. It was precisely that process which was the subject of the challenge in Cameron v Hogan. On one view, all that changed with the introduction of Pt XIV of the Electoral Act was that the result of internal processes leading to party endorsement was able to be reflected on the ballot paper. However, the plaintiff contended that statutory recognition of the process of endorsement gave rise to a right enforceable at the behest of an interested party member, to have the court determine the validity of the internal process by which the endorsement occurred.

10. [59]

    This nuanced submission had the advantage of being at a level of generality required for any conclusion that provisions of the Electoral Act have created legal interests not enjoyed by the plaintiff in Cameron v Hogan. Statements that pre-selection disputes have a “close connection” with provisions of the Electoral Act concerning nomination, endorsement and funding [28] fall short of explaining why a dispute between the members of an organisation whose rules lack contractual force may become justiciable.

11. [60]

    However, the difficulty confronting the plaintiff’s submission is that the Electoral Act makes elaborate provision to introduce certainty in an area which is, by definition, time-critical and potentially contentious. First, the regime leaves no room for any doubt as to whether a party is registered, and who is its registered officer. Secondly, it is true that when a person is endorsed as a candidate in an election by a registered political party, that person enjoys a particular status, and that person would prima face be able to bring proceedings to vindicate rights and entitlements attaching to that status. However, the provisions of s 169(3) and s 169B(1)(a) and (b) indicate that in many circumstances, that status turns upon a written communication from the registered officer. That is to say, the very provisions upon which reliance is placed confirm that the scheme of the statute is to entitle (and require) the Electoral Commissioner to look to written communications from the registered officer as determinative statements of the outcome of the processes of the political party. There is evident sense in the legislation taking that course: by its nature, pre-selection and endorsement is apt to be divisive, and in circumstances where the statute permits political parties to have a wide range of constitutions, ranging from those which are formally binding upon members to constitutions which create no contractually enforceable rights or obligations at all, the position of the registered officer is an important source of certainty in the administration of the Act.

12. [61]

    The plaintiff invited the Court to find that the concluding words of s 169(1) (“a candidate who has been endorsed by that party”) were to be understood as referring to a candidate who has been endorsed by that party in accordance with the party’s constitution. The plaintiff said that that construction was strengthened by s 169B(1)(c) which authorises the Electoral Commissioner to make inquiries in order to be satisfied that a candidate is endorsed by the party. We do not accept this submission. It is impossible to reconcile the plaintiff’s construction with the effect of s 169B(1) as a whole, which deems a person to be taken to have been endorsed as a candidate in an election by a registered political party if any of its three paragraphs is made out, the first two of which involve communications by the party’s registered officer. Contrary to the plaintiff’s submission, the scheme of these provisions is to entitle the Electoral Commissioner to look to the registered officer as the authoritative source of information as to the candidates endorsed by the party. The Commissioner may look further if neither of the first two conditions is satisfied.

13. [62]

    Another way of making this point is to observe that while the “status” of being an endorsed candidate may be a convenient label, it tends to obscure two quite different things. It is one thing for the registered officer to advise the Electoral Commissioner that a person is the party’s endorsed candidate. It is another thing entirely for a person to be treated by a party as an endorsed candidate at some anterior stage. The latter, in the case of an unincorporated political party with a constitution which gives rise to no enforceable rights between members, cannot be treated as giving rise to any enforceable entitlement in the future merely because of a hope that the registered officer will in due course advise the Electoral Commission of the endorsement. In such a case, until and unless the registered officer has engaged the provisions of the Electoral Act, the person who has been treated as the party’s endorsed candidate is subject to the possibility that the members of his or her party might change their minds. That is an inherent incident of membership of an unincorporated association with a non-enforceable constitution.

14. [63]

    The reasoning in earlier cases, including Baldwin, which treated the fact that the issue was one of public importance as sufficient to render all questions as to the internal processes justiciable, provides an inadequate basis for distinguishing Cameron v Hogan. However, the need to determine who is the officer responsible for taking steps within the statutory scheme may render that issue justiciable. It need not be addressed in this case.

Justiciability – conclusion

1. [64]

   The broad reasoning in Baldwin has been followed by single judges in Supreme Courts in several jurisdictions. However, the correct principle cannot be expressed at such a high level of generality. There was, in 1934, and still is, no provision in the Electoral Act requiring that rules be registered with the Commissioner, nor that changes in rules be notified to the Commissioner. There is, therefore, 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.

2. [65]

   Furthermore, there are rules and rules. Some political parties have rules which have contractual force. An example may be seen in Johnston v The Greens NSW [29] where Robb J noted that s 26 of the Associations Incorporation Act 2009 (NSW) gave contractual force to that political party’s constitution and thus Cameron v Hogan was inapplicable. In contrast, the plaintiff accepted that the Federal Constitution of the Liberal Party lacked contractual force.

3. [66]

   The general public interest in the operation of major political parties provides no basis for not applying Cameron v Hogan. Indeed, there is no reason to suppose that, other than statutory changes (which provide no generic expression of a public interest beyond their specific terms), the role, or manner of operation, of political parties has changed materially since 1934. 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. Where deemed appropriate, Parliament has acted, and will no doubt continue to act. Indeed, the fact that it has so acted underlies those cases which have concluded that intervention is possible in circumstances not envisaged in Cameron v Hogan.

4. [67]

   The question in this case turns upon whether the Federal Constitution requires that a committee appointed by the Federal Executive with respect to the management of a particular Division must follow the processes for selection of candidates identified in the Divisional Constitution. That raises an objective question of construction. Other questions could arise of quite a different kind. There could be, for example, a potential challenge to the existence of proper grounds for intervention. There might be a question as to whether there was any basis on which the Federal Executive could be satisfied of a matter upon which it purported to rely. There could be a question as to whether it could rely upon a matter where it had created the circumstances giving rise to the need for intervention. These questions do not arise in the present case, but it must be doubted whether a court, consistently with the principles established in Cameron v Hogan, could treat such issues as properly raised for judicial determination in an unincorporated association which did not create contractual rights between members.

5. [68]

   There may be questions as to the existence of a matter necessary for the operation of the statutory scheme, as arose before Robson J in Butler, which may give rise to justiciable issues, but no such question arises in the present case.

6. [69]

   It follows that the challenge to the conferral of powers on the committee defendants by the National Executive, and the exercise of those powers, gave rise to no justiciable issue.

Construction of Party’s Federal Constitution

1. [70]

   As noted above, there is a connection between the submissions on justiciability of the dispute, and the submissions on the dispute itself. Although we are satisfied that the issues are not justiciable, in the interests of finality and against the possibility that we are wrong on the determinative issue, we now turn to the substantive dispute.

2. [71]

   Again the plaintiff’s submissions were put with clarity and concinnity. Expressed in general terms, the plaintiff’s submissions raised an issue as to the extent to which the Federal Executive is empowered to intervene in the management of a Division. Whilst it is correct to have close regard to the text of the Party’s Federal Constitution, it is also important to read the document as a whole and with regard to the structure of the political party which it establishes.

3. [72]

   First, the plaintiff submitted that cl 12.3 spoke of taking over the “management” of a Division, and not of taking over “management and control” of the Division. It was said, correctly, that in some places the Federal Constitution uses both terms and in others it refers only to management. Because the document is carefully drawn, it was submitted that effect should be given to these linguistic differences. However, there are other ways of reading the document. One is that the phrase “management and control” is a hendiadys, providing two words to express the result of an exercise of power. If precise grammatical structure is significant, it supports that use of the phrase. Thus, cl 8, providing that “[t]here shall be a Division of the Party in each State and the Australian Capital Territory consisting of the members of the Party resident in that State or Territory” (cl 8.1), continues:

4. [73]

   Similarly cl 9.2, dealing with the powers of the Federal Council, states:

5. [74]

   The use of the singular “is” in reference to the phrase “management and control” tends to support the view that the phrase engages a single concept.

6. [75]

   On the other hand, the two words may, in ordinary parlance, involve different objects. Thus, it makes sense to speak of management of the affairs of a person or organisation, but to speak of controlling the person or organisation. This usage appears to be reflected in some provisions. Thus, in dealing with the Divisions and the powers of executives and officers of the Divisions, cl 8.5 states:

7. [76]

   In cl 11, dealing with the Federal Executive, power is conferred to “do all things necessary and essential to the efficient management of the affairs of the Council”: cl 11.2(b). Whether or not control is exercised over persons or bodies, whereas affairs are managed, the semantic point provides little assistance with respect to the proper construction of cl 12.3 upon which the plaintiff’s case turns.

8. [77]

   Further, it is tolerably plain that cl 12.3(b) identifies three express powers which are conferred upon the Federal Executive in the event of the exercise of the power in cl 12.3(a). One of those powers is the power to “rescind or amend any decision made by the relevant Division’s Executive or governing or other body of that Division”. That power is expressed in general terms. It extends to any decision of any body of the Division. If, as the plaintiff submitted, there is a distinction between powers of management and powers of control, with only the former being conferred by cl 12.3, that distinction sits ill with the generality of cl 12.3(b)(ii).

9. [78]

   Secondly, the plaintiff placed emphasis on the fact that the Divisional Constitution includes powers and procedures for pre-selecting candidates and cl 12.3(b) expressly provides that neither the Federal Executive nor the administrator or committee “shall have power to amend the Divisional Constitution”. It therefore follows, the argument proceeded, that a committee appointed to take over the management of the Division must operate in accordance with the Divisional Constitution.

10. [79]

    On the one hand, it is clear that the powers and procedures in the Divisional Constitution which govern the selection of candidates are themselves subject to the Federal Constitution, in accordance with cl 8.2, set out above. On the other hand, there are specific powers in the Federal Constitution which expressly engage with the divisional powers to select candidates. For example, cl 12.5 provides for the Federal Executive to exercise powers in relation to candidates already chosen by a Division. In effect, if the personal circumstances of the candidates were “not taken sufficiently into account in the preselection process” and “are likely to jeopardise the Party’s prospects of electoral success” then the Federal Executive may “request the relevant Division to review the preselection or endorsement of that candidate in accordance with the appropriate procedures of that Division”: cl 12.5(a). Following a review and after hearing from the candidate, the Federal Executive may revoke the selection “and require the Division to take such steps as are necessary to select or appoint a new candidate”: cl 12.5(b). No similar powers are identified where the Federal Executive intervenes prior to a pre-selection process having been concluded, but it does not follow that cl 12.5 is an exclusive basis of intervention in the selection of candidates.

11. [80]

    Further, the Federal Constitution expressly deals with limitations on the powers of Divisions in the selection of candidates. Clause 23 is headed “Selection of Candidates by Divisions”. The first subclause provides:

12. [81]

    In these circumstances, it is difficult to infer a limitation on the power of the committee appointed by the Federal Executive in this case, for the purpose of pre-selecting candidates in particular seats. While it is no doubt true that the effect of that action is to bypass the selection process provided in the Divisional Constitution, that does not amount to an amendment to the Divisional Constitution, but the exercise of a power which is only available in circumstances where intervention grounds have been established. Clauses 12.5 and 23 provide a basis for the exercise of power in the present case.

13. [82]

    It is also self-evident and inevitable that intervention varies the effect of a Divisional Constitution. Thus powers of, say, the State Executive under the Divisional Constitution will no longer be exercised by the State Executive. But that involves no amendment of the Divisional Constitution.

14. [83]

    The plaintiff sought to meet this argument by distinguishing between management powers vested in executive officers or bodies, such as the State Council, from the prescribed processes for selecting candidates. While such a distinction may be available, context and purpose work against its acceptance. While the basis of intervention in cl 12.1(a)(iii) identified a troubling state of affairs, it did not identify where the problem lay. It could well be in the procedures operating in the Division. If so, it would undermine the purpose of the intervention to allow the Federal Executive to take over management of the Division without being able to resolve the problem. The proposed constraint on power finds no justification in the language of cl 12.3, read in the context described above, including cl 23.

Conclusions

1. [84]

   The plaintiff’s statement of claim should be dismissed on the basis that the question identified by the plaintiff is not justiciable. If the Court were entitled to rule on the validity of the resolution of 6 March 2022 it would reject the challenge.

2. [85]

   It is unnecessary to deal with the proposed joinder of new parties, the amendment of the statement of claim, or the making of representative orders. Any party wishing to apply for any further order may do so within the time prescribed by Uniform Civil Procedure Rules 2005 (NSW), r 36.16. The plaintiff sought an opportunity to address on costs. Any proposed order should be filed with a brief supporting submission (limited to three pages) by 5:00pm on Friday, April 8. The first, second, third and eighth defendants may reply by 5:00pm on Tuesday, April 12, also limited to three pages.

3. [86]

   The Court makes the following order: