Asmar v Albanese
[2021] VSC 263
•7 May 2021 (Revised)
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2021 01465
| DIANA ASMAR in her capacity as Secretary of the Health Workers Union and others according to the schedule | Plaintiffs |
| v | |
| THE HONOURABLE ANTHONY ALBANESE and the persons whose names are set out in the schedule (in their capacity as the National Executive of the Australian Labor Party, and the Interim Governance Committee of the Victorian Branch of the Australian Labor Party respectively) | Defendants |
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JUDGE: | Ginnane J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 7 May 2021 |
DATE OF JUDGMENT: | 7 May 2021 (Revised) |
CASE MAY BE CITED AS: | Asmar v Albanese |
MEDIUM NEUTRAL CITATION: | [2021] VSC 263 |
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ASSOCIATIONS – Australian Labor Party – National Executive – Federal intervention in Victorian Branch – Resolution concerning pre-selection of candidates for Victorian electorates in the Australian Parliament – Challenge to National Executive’s resolution by unions affiliated with ALP - Whether National Executive had power to conduct pre-selections – Whether improper purpose or exercise of power unreasonably -– Whether issues justiciable – Interlocutory injunction granted
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APPEARANCES: | Counsel | Solicitors |
For the Plaintiffs | Mr R Merkel QC with Mr E Nekvapil | Robinson Gill |
| For the 1st-3rd, 5th-9th, 11th, 14th-21st and the 23rd Defendants | Mr P G Willis SC with Mr A D Lang and Mr J Kirkwood | Holding Redlich |
| For the 4th, 10th, 12th-13th and the 22nd Defendants | Dr A T Hoel | Johnson Winter & Slattery |
HIS HONOUR:
The plaintiffs seeks an interlocutory injunction restraining the defendants, who comprise the National Executive of the Australian Labor Party, from acting upon or giving effect to any nominations received in respect of the 22 Federal House of Representative seats in Victoria identified in a National Executive Resolution of 4 May 2021, which was Tuesday this week, from conducting any ballot as foreshadowed in the said National Executive Resolution following those nominations.
The plaintiffs are unions or officers thereof, affiliated with the ALP.
I heard the application yesterday, Thursday afternoon, as an urgent application made before the proceeding was filed. At the end of the hearing in the early evening, I granted such an interlocutory injunction to expire at 4:15 this afternoon primarily to give more time to hear argument and consider issues which, on their face, seemed to have possible substance.
Because I am determining an interlocutory application, it is important to state that the opinions and conclusions that I express in this judgment on all contested issues are not final, but expressed only to decide this interlocutory application. I could only express final opinions and conclusions after hearing evidence and submissions at the trial.
The general endorsement on the plaintiffs’ writ summarises the issues in this way. That the plaintiffs seek a declaration that the resolution of the defendants, made on 4 May 2021, was not authorised by the ALP's National Constitution, or the Australian Labor Party Victorian Branch Rules and is wholly invalid, void and/or has no effect, because it:
(a) was based on the National Intervention referred to in the resolution, which was wholly invalid, void, and/or of no effect;
(b) was passed for improper purposes;
(c) was not a reasonable exercise of the powers conferred by the ALP National Constitution and/or the Australian Labor Party Victorian Branch Rules; and/or
(d) was not authorised by the Australian Labor Party Victorian Branch Rules, on a proper construction of:
(i) the Australian Labor Party Victorian Branch Rules, being the written constitution of the Australian Labor Party (Victorian Branch) registered under Pt XI of the Commonwealth Electoral Commission Act 1918 (Cth) (the Act); and
(ii) the ALP National Constitution, being the written constitution of the Australian Labor Party, registered under Part XI of the Act.
The Plaintiffs sought:
2.A declaration that, by reason of paragraph 1(a), (b), (c) or (d) above, nothing done based on the resolution made on 4 May 2021 has legal effect as a decision or act of the Australian Labor Party (Victorian Branch) for the purposes of the Act.
3.A declaration that there was no reasonable, proper or lawful basis for the affirmation in the resolution that the National Executive remains of the opinion that the Victorian Branch or a section of it was acting or had acted in a manner contrary to the National Constitution as interpreted by the National Executive, that warranted or justified an opinion that the conduct of the pre-selection process the subject of the resolution “remains necessary and justified”.
4.An injunction restraining the defendants from giving effect to, acting upon or making any declaration in respect of any nomination received pursuant to the call for nominations pursuant to said resolution and/or the letter from Victorian Labor being exhibit DA-01 of the Affidavit of Diana Asmar, and from holding any ballot in respect of those nominations.[1]
[1]Endorsed Writ [2]-[4].
The defendants, dispute those propositions and challenge the justiciability of the proceeding.
The National Executive resolution was in the following terms:
1.affirms that it remains of the opinion that the Victorian Branch or a section of it was acting or had acted in a manner contrary to the National Constitution, as interpreted by the National Executive, and that intervention in the Victorian Branch and the conduct of pre-selections remains necessary and justified;
2.accordingly, pursuant to Rule 16(f)(iii) (further or alternatively, pursuant to Rule 16(d)), resolves:
a.that pre-selections for the next federal election in Victoria in the divisions of (1) Ballarat, (2) Bendigo, (3) Bruce, (4) Calwell, (5) Cooper, (6) Corangamite/Tucker, (7) Corio, (8) Dunkley, (9) Fraser, (10) Gellibrand, (11) Gorton, (12) Hawke, (13) Holt, (14) Hotham, (15) Isaacs, (16) Jagajaga, (17) Lalor, (18) Macnamara, (19) Maribyrnong, (20) McEwen, (21) Scullin, and (22) Wills, be conducted by the National Executive in accordance with the following timetable:
i. Nominations open at midday AEST on Tuesday 4 May 2021.
ii. Nominations close at 10.00am AEST on Friday 7 May 2021.
iii. If required, a ballot of the National Executive be conducted at 2.00pm AEST on Friday 7 May 2021.
b.Unless specifically resolved otherwise in any particular case, Victorian Branch Rules 3.5 (affirmative action) (except 3.5.2), 18.2 and 18.3 (candidate eligibility) and 18.4 and 18.5 (candidate nomination) are to apply (with references to the Administrative Committee to be read as references to the National Executive).[2]
[2]DA-04 Correspondence from Federal Labour leader.
Three affidavits have been filed on behalf of the plaintiffs and one of them has been made by Shannon Threfall-Clarke, who is a member of the National Executive and attended Tuesday's meeting. She described the meeting as follows:
The meeting on 4 May commenced at 10 am and concluded at 10.12 am. Apart from my question about whether or not affirmative action was recognised in the pre-selection process, that is, gender balancing of candidates, the meeting concluded such that the timetable for the pre-selection was passed unanimously, effectively without debate.
The Victorian Branch Rules in r 18 deal with Selection for Public Office, including for federal electorates, but the National Executive's resolution, if implemented, would supplant the operation of those Victorian Branch Rules.
The background to the National Executive’s resolution of 4 May 2021 is that the National Executive on 16 June 2020, passed a resolution exercising its powers under r 16(f)(ii) to appoint administrators to the Victorian Branch. All committees of the Victorian State Conference, as defined in the Victorian Rules, were suspended; and all officials and staff of the Victorian Branch were required to report to the administrators. On 29 January 2021, the National Executive passed further resolutions appointing an Interim Governance Committee to replace the Administrators.
The question to decide is whether the plaintiffs’ challenge to the National Executive resolution justifies the grant of an interlocutory injunction restraining the implementation of that resolution until the trial of the proceeding on 27 May 2021 or further order. To answer this question requires determination of whether the plaintiffs have established that there is a serious question to be tried and whether the balance of convenience favours the grant of an interlocutory injunction until trial.
The plaintiffs are 11 significant unions, being incorporated bodies pursuant to the Commonwealth industrial relations legislation. Ms Asmar is the State branch secretary of the Health Workers Union and has made an affidavit in the proceeding. In paragraphs 14 to 16, she describes how the unions pay affiliation fees to the ALP:
The HWU pays to the ALP an affiliation fee on an audited per member basis for its rights as an affiliated member. These payments are made on a quarterly basis. Since 16 June 2020, namely the date of the purported Federal Intervention, an amount of $88,963.07 has been paid in affiliation fees. Now shown to me and marked with the letters ‘DA-05’ are copies of the relevant invioices submitted to the HWU by the ALP.
By virtue of delegates of the HWU and delegates elected from the rank and file to the ALP Conference, the HWU at the last election in 2018 elected two members of the Victorian Administrative Committee out of 33 members of the Committee, 2 members of the POSC, and in addition to our involvement with the Health Policy Committee.
The third, fourth, fifth, sixth, seventh and eighth Plaintiffs have similar affiliation fee arrangements based on membership and similar entitlements to appoint delegates to the Victorian Administrative Committee, the POSC, and have involvement with the Health Policy Committee.[3]
[3]Affidavit by Diana Asmar dated 6 may 2021 [14]-[16]
So far as the issue of the justiciability of the dispute is concerned, I repeat what I said in Kairouz v Bracks:[4]
It is appropriate to repeat that Cameron v Hogan binds this Court. Nonetheless, many decisions of trial judges, particularly in Queensland, New South Wales and South Australia, have decided that unincorporated political parties have changed in character because of the public funding regime and their registration under the Electoral Acts. Some of those cases have suggested that political parties have become a form of public institution and that disputes arising in them, particularly in respect of their pre-selection of candidates for election, are justiciable in the public interest. However, there are judgments rejecting that basis for distinguishing Cameron v Hogan including Riordan J’s considered judgment in Setka.[5]
…
While recognizing the binding authority of Cameron v Hogan, many subsequent cases, that I have referred to in this judgment, suggest that disputes within political parties may be regarded as justiciable when particular circumstances are present. These circumstances include a fundamental dispute about who governs the party and, if the party is registered under the Electoral Acts, who is the authorised officer and who comprises the committee or other body which is entitled to give instructions to that authorised officer. Where such a fundamental dispute is present, the lack of certainty about the control of or accountability for significant public funding provided to the party may also be influential in establishing justiciability.[6]
[4][2021] VSC 130.
[5]Ibid [69].
[6]Ibid [75].
The Victorian Branch Rules do not appear to provide a precise timetable for the pre-selection of candidates for federal electorates. But some detail of the usual practice is provided by the affidavit of Mr Garth Head which was filed in the plaintiffs’ case. Mr Head is a life member of the ALP and has held membership in the party since 1972, which is approaching 50 years, and has held many senior organisational positions at branch, electoral, state and national levels, including as a national and state conference delegate.
Mr Head stated that the determination by the National Executive to open nominations at midday on Tuesday 4 May 2021 and close them at 10am on Friday 7 May 2021 did not in any way reflect the procedures for pre-selection as set out in clause 3.5 of the Branch Rules. He said that in practical terms, this timetable would give little opportunity for bona fide candidates to organise themselves to fulfil the necessary documentation requirements. Under the Rules, a potential candidate must obtain the support and signatures of at least ten ALP members of sufficient standing. He did not believe that the email about nominations was widely circulated and that many ALP members may not have immediate access to email and accordingly the process was flawed. In usual circumstances, the State Branch of the ALP would widely circulate and communicate the fact that nominations were open and that 14 days would be the minimum period for potential candidates to lodge their nominations. Thereafter, there would be a formal ballot and the Rules as set out would be followed. In his opinion, the process as determined by the National Executive gave little opportunity for a proper and reasonable process of nomination for pre-selection in the 22 Federal seats.
Senior counsel who appeared for most of the defendants informed me this morning that in 21 of the 22 electorates, the sitting member is the only person who has nominated and in the 22nd electorate, which is the proposed new seat of Hawke in Melbourne’s western and northern suburbs, three candidates have nominated.
The plaintiffs submitted that there was at least a serious question to be tried about whether the issues in the proceeding were justiciable. They advanced four arguments. First, the National Executive had exercised power it did not have; secondly, that there was a close connection between the issues in this case and the operation of the Commonwealth Electoral Commission Act; thirdly, were the nature and extent of the financial contributions that the plaintiffs as affiliated unions provide to the ALP; and, fourthly, the improper purpose argument which primarily relied on the truncated timetable for nominations that the resolution imposed.
The defendants denied the dispute was justiciable, relying on Cameron v Hogan[7] and also the general legal principles set out in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd[8] that an interlocutory injunction can only be granted where the plaintiff has identified the legal, including statutory, or equitable rights which are to be determined at the trial and in respect of which final relief is sought.
[7](1934) 51 CLR 358.
[8](2001) 208 CLR 199.
The argument about whether the plaintiffs had established a serious question to be tried overlapped to some extent with the justiciability issue. The plaintiffs argued that the National Executive had no power to impose its own conditions or processes for pre-selections of candidates for federal electorates, and that the Victorian Branch Rules continue to govern preselection. Branch r 3.6 states:
National Executive Responsibility
3.6.1 The National Executive has the responsibility and the power to enforce Rules 3.2 - 3.5 generally and specifically to determine the outcome in any Public Office preselection in order to ensure that this Rule is complied with.
Rule 3.5 deals with Public Office Preselection and r 3.5.1 provides in part:
For all public office preselections, at least the minimum percentage of the candidates preselected for each of the following groups or seats (determined separately for each group) must be women:
…
Rule 3.2 is a definitional provision, r 3.3 deals with Party Positions and r 3.4 with Union Delegations.
The plaintiffs submitted that even if the National Executive intervention in June 2020 was valid, it had no power to conduct the pre-selections.
The defendants disputed that proposition and said there was ample power under the National Rules for the National Executive to intervene in the Victorian Branch, particularly under cls 16(d) and 16(e)(iii) and to conduct the pre-selections.
The plaintiffs relied on the Victorian Branch being registered under the Commonwealth Electoral Commission Act. The defendants submitted that registration had no particular significance and that the Commonwealth Act played no part in the conduct of pre-selections, but its only operation was after candidates had been pre-selected.
The plaintiffs’ improper purpose and unreasonableness grounds relied in part on the limited period of time allowed for nominations. The defendants pointed to the upcoming federal election, which could be held as early as September, and the need to pre-select candidates.
The arguments as to the balance of convenience were in summary as follows. The plaintiffs submitted that there was no right for candidates nominated and selected under the National Executive’s timetable to be treated as validly pre-selected candidates. The defendants argued that no harm would be done if no injunction was granted and the Court later decided in the plaintiffs’ favour. Further pre-selections could be held and, in the meantime, the ALP would have candidates on the ground in the electorates ready for the forthcoming Federal election.
Analysis
I repeat that this is an interlocutory application and that the views I express are not final views, but are expressed only to decide this application.
In my opinion, the plaintiffs have established a serious question to be tried. They are incorporated and affiliated organisations and their financial contributions to the ALP may present different issues from a person nominating unsuccessfully for pre-selection who seeks to challenge the pre-selection decision in the courts.
It is arguable that as a result of their affiliation, the plaintiffs obtain rights different from members and, as Ms Asmar's affidavit describes, particular rights to be involved in pre-selection based in part on the number of members for whom they pay affiliation fees. The quid pro quo for those rights, and other that come from affiliation, stem from the payment of affiliations fees of substantial amounts. Their case is that rights they receive in exchange for their affiliation fees, have been lost. I consider that the rights that affiliated unions obtain may arguably be regarded as a legal right and, therefore, there is a serious issue to be tried as to whether the requirements of Cameron v Hogan[9] are thereby satisfied.
[9](1934) 51 CLR 358.
I also consider that the effect of recent authorities that I tentatively sought to identify in Kairouz v Bracks,[10] and which I have set out in paragraph 14 above, may apply in the present dispute.
[10][2021] VSC 130.
In essence, this case is a dispute about who can pre-select candidates for the Australian Labor Party in 22 Victorian federal electorates. The pre-selection will nominate a candidate whose vote at the election will have a connection with the payment of public money under the electoral funding process. Courts in recent years have been prepared to treat intra-party disputes as justiciable when they have an effect on who governs political parties which receive public funding. The plaintiffs contend that the National Executive’s intervention into the Victorian Branch, at least to the extent of controlling these pre-selections, is invalid.
The related serious question to be tried is the extent to which National Executive intervention entitles it to put to one side the Victorian Branch pre-selection regime and impose its own regime. While I accept, as was submitted by counsel for the defendants, that the National Executive has wide powers under cls 16(d) and 16(f) of the National Constitution, in my opinion there is a serious question to be tried whether the conduct of the pre-selections should be conducted in accordance with the Branch Rules.
So far as the balance of convenience is concerned, in my opinion, particularly with an early hearing date being granted, it is appropriate that the selection of candidates should not occur until the conclusion of the hearing of this proceeding and probably its determination. I consider that if the pre-selected candidates were announced and later it was held that the pre-selection process under the short timetable contained in the National Executive Resolution was invalid, then a state of affairs would be created where people who have been nominated as candidates would have to stand for pre-selection again and people who had not had the chance to nominate because of the short nomination period would have to stand against people who had previously been declared the pre-selected candidate.
Where an election or declaration of candidates of a political party has not yet been completed, and a serious challenge to the validity of the nomination process is before the Court, I consider that on balance it is preferable to pause the completion of the pre-selection process until the completion of the court case. While I accept that the Court could make orders undoing the outcome of the pre-selection ballots if the plaintiffs’ case is successful, I consider it may well be an unwieldy process that may have unintended consequences.
So for those reasons, I consider that the Court should continue the interlocutory injunction granted yesterday afternoon with any necessary variations, until at least the completion of the trial of the proceeding. The order can be reviewed then, when I will have some idea of how long it will take to deliver the judgment.
Undertaking
HIS HONOUR: I take it the undertaking given yesterday is an ongoing undertaking? So it could be recited again in the order as having been given by you as counsel, Mr Nekvapil?
MR NEKVAPIL: Yes, Your Honour.
HIS HONOUR: Very well, so I will in those circumstances, order that until the completion of the trial of this proceeding or until further order, the defendants, whether by themselves, their servants, agents, or howsoever, are restrained from acting upon or giving effect to any nominations received in respect of the 22 Federal House of Representatives seats in Victoria which are identified in paragraph 2A of the National Executive Resolution of 4 May 2021, and from conducting any ballot as foreshadowed in the said National Executive Resolution.
Liberty to apply is reserved and costs are reserved.
SCHEDULE OF PARTIES
DIANA ASMAR IN HER CAPACITY AS SECRETARY OF HEALTH SERVICES UNION VICTORIA NO 1 BRANCH T/A THE HEALTH WORKERS UNION
First Plaintiff
HIBA SALEM IN HER CAPACITY AS DELEGATE OF THE VICTORIAN BRANCH OF THE AUSTRALIAN LABOUR PARTY’S ADMINISTRATIVE COMMITTEE
Second Plaintiff
HEALTH SERVICES UNION VICTORIA NO 1 BRANCH Third Plaintiff
CONSTRUCTION FORESTRY MARITIME MINING ENERGY UNION
Fourth Plaintiff
AUSTRALIAN WORKERS UNION Fifth Plaintiff
HEALTH AND COMMUNITY SERVICES UNION (HSUA NO 2) Sixth Plaintiff
PLUMBERS AND PIPE TRADES EMPLOYEES UNION Seventh Plaintiff
COMMUNICATION WORKERS UNION VICTORIA Eighth Plaintiff
UNITED FIREFIGHTERS UNION Ninth Plaintiff
AUSTRALIAN MEAT INDUSTRY EMPLOYEES UNION Tenth Plaintiff
MARITIME UNION OF AUSTRALIA Eleventh Plaintiff
v
THE HONOURABLE ANTHONY ALBANESE First Defendant
SENATOR TIM AYRES Second Defendant
STEVEN BAKER Third Defendant
NICK CHAMPION Fourth Defendant
KATE DOUST Fifth Defendant
GERARD DWYER Sixth Defendant
DAVID GRAY Seventh Defendant
ROSE JACKSON Eighth Defendant
TIM JACOBSON Ninth Defendant
GRAEME KELLY Tenth Defendant
SENATOR SUE LINES Eleventh Defendant
TARA MORIARTY Twelfth Defendant
BOB NANVA Thirteenth Defendant
MICHAEL O’CONNOR Fourteenth Defendant
MICHAEL RAVBAR Fifteenth Defendant
AMANDA RISHWORTH Sixteenth Defendant
WENDY STREETS Seventeenth Defendant
SHANNON THRELFALL-CLARKE Eighteenth Defendant
SENATOR RAFF CICCONE Nineteenth Defendant
SUSIE BYERS Twentieth Defendant
LINDA WHITE Twenty-First Defendant
BEN DAVIS Twenty-Second Defendant
MICHAEL DONOVAN Twenty-Third Defendant
LLOYD WILLIAMS Twenty-Fourth Defendant
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