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Asmar v Albanese

Asmar v Albanese

Case [2022] VSCA 19 25 February 2022

Constitutional Validity

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2021 0125

DIANA ASMAR & ORS (according to the attached Schedule)	Applicants
v
The Honourable ANTHONY ALBANESE & ORS (according to the attached Schedule)	Respondents

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JUDGES:	T FORREST, WHELAN JJA and FORBES AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	31 January 2022
DATE OF JUDGMENT:	25 February 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 19
JUDGMENT APPEALED FROM:	[2021] VSC 672 (Ginnane J)

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ASSOCIATIONS AND CLUBS – Political parties – Australian Labor Party – Intervention in Victorian branch by National Executive – Victorian branch ‘registered political party’ under Commonwealth Electoral Act 1918 (Cth) and Electoral Act 2002 (Vic) – Whether intervention valid – Whether Victorian branch subject to National Constitution – Appeal dismissed – Hall v Job (1952) 86 CLR 639, Williams v Hursey (1959) 103 CLR 30 applied – Commonwealth Electoral Act 1918 (Cth) ss 130, 287, 287A, 288, 292F, 296–8.

ASSOCIATIONS AND CLUBS – Jurisdiction of the courts – Political parties – Australian Labor Party – Victorian branch rules create trusts – National Executive conducted pre‑selection of electoral candidates for Victorian branch – Constituent documents expressly provide that provisions not legally enforceable – Whether disputes concerning pre-selection and administration of trusts justiciable – Cameron v Hogan (1934) 51 CLR 358, Baldwin v Everingham [1993] 1 Qd R 10, Butler v Mulholland [No 2] [2013] VSC 662 applied, Setka v Carroll (2019) 58 VR 657 distinguished – Commonwealth Electoral Act 1918 (Cth) ss 166, 169B.

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Mr R Merkel QC with Mr E Nekvapil, Ms C Mintz and Ms K Brown	Robinson Gill
For the 1^st to 9^th, 11^th and 14^th to 24^th Respondents	Mr P G Willis SC with Mr A D Lang, Mr J H Kirkwood and Mr G Jegatheesan	Holding Redlich
For the 10^th, 12^th and 13^th Respondents	No appearance (written case filed adopting the written case of the 1^st to 9^th, 11^th and 14^th to 24^th Respondents)
For the 25^th and 26^th Respondents	No appearance

T FORREST JA
WHELAN JA
FORBES AJA:

This proceeding concerns the pre-selection of Australian Labor Party candidates in Victorian electorates for the forthcoming federal election.

The Australian Labor Party is an unincorporated association. Its constituent document is called the ‘ALP National Constitution’ (the ‘National Constitution’). There are related unincorporated associations in each state and territory. The association in Victoria is called the ‘Australian Labor Party, Victorian Branch’. Its constituent document is called the ‘Australian Labor Party Victorian Branch Rules’ (the ‘Branch Rules’).

Normally, ALP[1] candidates for federal seats in Victoria would be pre-selected in accordance with a process set out in the Branch Rules. That did not happen in the pre-selections which are the subject of this proceeding. Instead, the candidates were pre-selected, or purportedly pre-selected, under a provision of the National Constitution.
[1]Names of the various Australian Labor Party political entities…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Asmar v Albanese

Details

AGLC: Asmar v Albanese [2022] VSCA 19
Case: [2022] VSCA 19
Decision Date: 25 February 2022

CaseChat Overview and Summary

In the Federal Court of Australia, Asmar sought to challenge the validity of an intervention by the National Executive of the Australian Labor Party into the affairs of the Victorian branch. The dispute arose from the National Executive's decision to intervene and the subsequent conduct of pre-selection processes for electoral candidates. The case sought to determine whether this intervention was valid under both the Commonwealth Electoral Act 1918 (Cth) and the Electoral Act 2002 (Vic).

The primary legal issues addressed by the Court were whether the National Executive's intervention was consistent with the rules and provisions governing the Australian Labor Party, and whether the Victorian branch, as a registered political party, was subject to the National Constitution. The Court also had to consider whether disputes concerning pre-selection and the administration of trusts created by the Victorian branch's rules were justiciable. This involved interpreting the relevant statutory provisions, such as sections 130, 287, 287A, 288, 292F, and 296–8 of the Commonwealth Electoral Act 1918 (Cth), and determining the applicability of common law principles concerning the justiciability of internal party disputes.

The Court held that the National Executive's intervention was valid, as it was consistent with the provisions of the Australian Labor Party's rules and the relevant statutes. The Court found that the rules expressly provided that their provisions were not legally enforceable, and thus the disputes concerning pre-selection and the administration of trusts were not justiciable. The Court applied established case law, including Hall v Job (1952) 86 CLR 639, Williams v Hursey (1959) 103 CLR 30, Cameron v Hogan (1934) 51 CLR 358, Baldwin v Everingham [1993] 1 Qd R 10, Butler v Mulholland [No 2] [2013] VSC 662, and Setka v Carroll (2019) 58 VR 657. The Court distinguished Setka v Carroll on the basis that it involved a different set of facts and legal issues.

The appeal was dismissed, and the Court determined that the National Executive's intervention was lawful, and the disputes concerning the pre-selection of candidates and the administration of trusts were not justiciable. The Court's decision reinforces the principle that internal disputes within political parties, governed by rules that explicitly state their non-enforceability, fall outside the scope of judicial intervention.

Orders