Asmar v Albanese (No 3)
[2021] VSC 334
•9 June 2021
| 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: | 2, 3, 7 June 2021 |
DATE OF JUDGMENT: | 9 June 2021 |
CASE MAY BE CITED AS: | Asmar v Albanese (No 3) |
MEDIUM NEUTRAL CITATION: | [2021] VSC 334 |
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ASSOCIATIONS – Australian Labor Party – National Executive intervention in Victorian Branch – National Executive resolution concerning preselection of candidates for House of Representative electorates – Whether resolution valid – Interlocutory injunction granted – Trial completed – Whether interlocutory injunction should continue until judgment delivered – Balance of convenience.
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APPEARANCES: | Counsel | Solicitors |
For the Plaintiffs | Mr R Merkel QC with Mr E Nekvapil, Mr T Borgeest and Ms C Mintz | 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, Mr J H Kirkwood and Mr G Jegatheesan | Holding Redlich |
| For the 4th, 10th, 12th-13th and the 22nd Defendants | Mr D J Batt QC and Dr A T Hoel | Patrick & Associates |
HIS HONOUR:
On 7 May 2021, I granted an interlocutory injunction until the conclusion of the trial or further order by which the defendants were restrained from acting upon or giving effect to any nominations received in respect of the 22 Federal House of Representative seats in Victoria, which were identified in the order.[1] The defendants are the members of the National Executive of the Australian Labor Party.
[1]Asmar v Albanese [2021] VSC 263. I first granted an interlocutory injunction on 6 May 2021.
This case and the Kairouz v Bracks[2] proceeding were given an early hearing. I heard submissions and received affidavit evidence during the trials which together have taken 10 days. On Monday, I made orders directing that the two cases be heard together. Having completed the trials save for the determination of an application about the joinder of a trustee raised this morning by the plaintiffs, I consider that the delivery of judgments, which will require consideration of complex submissions, will take time, although the Court will attempt to deliver judgment as soon as possible.
[2]Kairouz v Bracks [2021] VSC 130.
The issue for decision is whether the interlocutory injunction should continue until judgment is delivered.
The plaintiffs, who are unions affiliated with the ALP, or representatives of them, sought a declaration that the resolution of the defendants made on 4 May 2021 concerning the conduct of preselections in Victoria was not authorised by the ALP’s National Constitution or its Victorian Branch Rules. They claim that the May Resolution was invalid, void and of no effect; was passed for improper purposes; was not a reasonable exercise of powers conferred by the National Constitution or the Victorian Branch Rules and was not authorised by the Victorian Branch Rules.
At the 7 May hearing, I found that the plaintiffs had established that there was a serious question to be tried. I noted that many of the plaintiffs were affiliated organisations who made financial contributions to the ALP and in return received rights to participate in the preselection of candidates for public office. I described the dispute as one about who could preselect ALP candidates in the Victorian Federal seats. I identified the related issue of whether intra-party disputes are justiciable because of the public funding received by political parties. I noted that a related serious question to be tried was whether the National Executive intervention empowered it to put to one side the preselection regime contained in the Victorian Branch Rules and impose its own regime.
I considered that, with the provision of an early hearing, the balance of convenience favoured the grant of an interlocutory injunction and that it was appropriate that the selection of candidates should not occur until the conclusion of the hearing of this proceeding and probably its determination. I said that I considered that the Court should continue the interlocutory injunction until at least the completion of the trial of the proceeding at which point the order could be reviewed when I would have some idea of how long it would take to deliver judgment.
I considered that if the preselected candidates were announced and later it was held that the preselection process was invalid then a state of affairs would be created where people who had been nominated as candidates would have to stand for preselection again. People who had not had the chance to nominate would have to stand against people who have previously been declared the preselected candidate. I considered that where an election or declaration of candidates of a political party had not been completed and a serious challenge to the validity of the nomination processes was before the Court, it was preferable to pause the completion of the preselection process until the completion of the Court hearing. While I accepted that the Court could make orders undoing the outcome of the preselection ballot if the plaintiffs’ case succeeded, I considered that it would be an unwieldy process that might have unintended consequences.
The parties differed on whether the interlocutory injunction should continue until judgment. The defendants have submitted that the interlocutory injunction should not continue. The plaintiffs argue that there has been no new intervening event to justify the ending of the interlocutory injunction and that the issue of its continuance was not raised until late in the current hearing.
But having heard the issues in the litigation debated over many days, I consider it appropriate to determine whether the interlocutory injunction should continue. Whether or not there has been a new event since 7 May, as a result of hearing the submissions, I now have a deeper perspective of the case and the prejudice that the parties may suffer if the interlocutory injunction continues or on the other hand did not continue.
I was not asked with any force to reconsider the question of whether the plaintiffs had established a serious question to be tried, but rather to redetermine where the balance of convenience lies.
All of the people who are parties to this proceeding are members of the ALP and I assume that they hope for its electoral success, but differ as to the appropriate means of the conduct and control of the Victorian Branch and who should preselect candidates for the forthcoming Federal election. To some extent, these differences appear to reflect factional alignments.
The plaintiffs emphasised that their case involves the enforcement of their legal rights. On their view, the only issue is whether the National Executive intervention resolution and the subsequent resolutions, especially the preselection resolution of 4 May 2021, were valid. They argued that the rules in the National Constitution relied on by the National Executive did not authorise the intervention and that every member of the ALP has an interest in the rules being observed. The subject matter of the litigation is the extent of the National Executive’s power to rely on the intervention to take over the preselection process and whether that is authorised by the National Constitution and the Victorian Branch Rules.
The defendants contend that the preselection process was validly adopted by the National Executive and followed from the national intervention into the Victorian Branch and the steps the National Executive has taken to eliminate branch stacking and establish a valid membership roll. The National Executive appointed Administrators to the Victorian Branch in June 2020 and they were succeeded in February this year by an Interim Governance Committee.
The defendants also contend that the dispute before the Court is not justiciable.
There was discussion about the status quo and its preservation, but I do not consider that question to be helpful as the status quo can be viewed from a number of perspectives.
The parties made conflicting submissions about prejudice if the interlocutory injunction is not continued. The plaintiffs pointed out that in that event, the National Executive will complete the preselection process for the 21 ALP-held seats and the new seat of Hawke, whose boundaries are yet to be finalised. Then the National Executive is likely to proceed to complete preselections for other Victorian seats.
The plaintiffs referred to three particular categories of prejudice that might occur if the preselections continue and are later found to be invalid. First, prejudice arising by reference to the membership pledge which requires each member of the ALP to work and vote for selected party candidates, the breach of which can expose a member to disciplinary action. I do not think that the pledge could be enforced to penalise the plaintiffs from continuing the present proceeding. Persons cannot be penalised or sanctioned for taking action in a court. However, it is possible that the pledge may dampen debate by other Party members about the subject matter of this proceeding. Secondly, the plaintiffs contended that campaigning activity would be disrupted and confusion caused and additional costs incurred if preselections were later found by the Court to be invalid. Unfairness would be caused to candidates for any further preselection ordered by the Court, because the candidates selected by the National Executive would have a status that no other candidate enjoyed. Thirdly, the plaintiffs argued that the preselections of candidates was not urgent and there were no indications that the election was imminent. In any event useful campaigning could be conducted prior to candidate selection. An overarching theme of the plaintiffs’ case was that they sought the recognition of their rights as members or affiliates of the ALP, which in turn has as an objective of the ‘recognition and protection of fundamental political and civil rights’.[3]
[3]National Constitution Objective 5(n).
It appears that a Federal election can be held as early as September 2021 but I consider that the issue of its date is entirely a matter of speculation and therefore cannot be decisive in my decision.
On the other hand the defendants submitted that the ALP and therefore its members would suffer prejudice from the continuance of the interlocutory injunction because it needed to have candidates in the field to contest the forthcoming federal election. They pointed to the National Secretary’s direction to State secretaries on 17 May 2021 that they complete preselections for seats where the ALP has sitting members and target seats by 25 June 2021 and other seats by 9 July 2021.
Likewise, the Federal Leader and first defendant, Mr Anthony Albanese’s letter of 2 May 2021 to the National Secretary stated:
The next Federal election could be held any time over the next 12 months and Labor must clear the way to ensuring the selection of strong community candidates in every seat in Australia to ensure the strongest possible Labor campaign. The National Executive must ensure that it exercises its particular responsibility in Victoria to achieve this vital objective.
While the final report of the Victorian redistribution is yet to be received, there is sufficient certainty around boundaries and the new seat of Hawke to enable the first phase of Victorian preselections to begin. It is, in my view, electorally imperative that the National Executive commence that process now.
A question arose whether, if the plaintiffs’ case succeeds, the Victorian Branch preselection rules could be used to conduct the preselections when there are vacancies to fill in the Public Office Selection Committee. For present purposes, I am not persuaded that preselections in accordance with the Victorian Branch Rules could not occur.
There is also the question of whether the Court could grant effective relief if the plaintiffs’ case succeeds but the interlocutory injunction does not continue in the meantime. If the interlocutory injunction is not continued, the National Executive will declare preselected candidates for the 21 ALP-held seats and the new seat of Hawke and will likely conduct preselections in other Victorian seats. On balance, again for the purposes of deciding this application, I consider that the Court would have the power to make orders declaring the preselections invalid if it finds that the National Executive resolution of 4 May 2021 was invalid.
Whichever decision the Court makes on the question of the continuance of the interlocutory injunction disadvantage and prejudice may be caused to one side in this litigation.
It is significant that the interlocutory injunction prevents the ALP, the political party to whom all the individuals involved in the litigation belong, from nominating candidates for Victorian House of Representative seats in Victoria. This is at a time when other political parties are free to nominate candidates.
I consider that the ALP’s inability to nominate candidates is a significant matter. There is some force in the defendants’ submission that campaigning is best associated with the promotion of the preselected candidate. I consider that on balance it is appropriate not to continue the interlocutory injunction. There is a lower risk of ultimate injustice with no injunction in place. I accept that if the plaintiffs succeed some confusion may occur if different candidates are thereafter preselected. If on the other hand, the plaintiffs do not succeed, the defendants and their political party have been politically prejudiced by not having candidates preselected and able to commence campaigning in electorates.
The plaintiffs’ case will still be determined and judgment delivered. If they succeed, the Court, if so persuaded, may order that the preselections were invalid.
I add that if the National Executive proceeds with the preselections it bears the risk of any electoral harm that may follow from a decision that those preselections were invalid and from consequential Court orders, if that be the outcome of the litigation. That situation also applies to preselection of a candidate for the new seat of Hawke where boundaries are yet to be finalised.
In my opinion, in the exercise of the Court’s discretion, the balance of convenience is in favour of not continuing the interlocutory injunction.
SCHEDULE OF PARTIES
BETWEEN:
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
********************.................................................................................................. Third Plaintiff
MICK MYLES, on behalf of himself as a Member of the Party and as a member of the Victorian
Divisional Branch of the Construction and General Division of the Construction, Forestry, Maritime, Mining and Energy Union (‘CFMMEU Construction and General Division Victoria’), and in a representative capacity on behalf of CFMMEU Construction and General Division Victoria and its members Fourth Plaintiff
BEN DAVIS, on behalf of himself as a member of the Party and as a member of the Victorian Branch of the Australian Workers' Union (‘AWU Victoria’), and in a representative capacity on behalf of AWU Victoria and its members........................................................................................................................ Fifth Plaintiff
PAUL HEALEY, on behalf of himself as a member of the Party and as a member of the Victoria No.2 Branch of the Health Services Union (‘HSU Victoria 2’), and in a representative capacity on behalf of HSU Victoria 2 and its members................................................................................................................ Sixth Plaintiff
EARL SETCHES, on behalf of himself as a member of the Party and as a member of the Victorian Branch of the Plumbing Division of the Communications, Electrical, Electronic, Energy,
Information, Postal, Plumbing and Allied Services Union of Australia (‘CEPU Plumbing Division Victoria’), and in a representative capacity on behalf of CEPU Plumbing Division Victoria and its members Seventh Plaintiff
********************................................................................................................ Eighth Plaintiff
PETER MARSHALL, on behalf of himself as a member of the Party and as a member the Victorian Branch of the United Firefighters Union (‘UFU Victoria)’, and in a representative capacity on behalf of UFU Victoria and its members...................................................................................................................... Ninth Plaintiff
PAUL CONWAY, on behalf of himself as a member of the Party and as a member of the Victorian Branch of the Australasian Meat Industry Employees Union (‘AMIEU Victoria’), and in a representative capacity on behalf of AMIEU Victoria and its members.................................................................... Tenth Plaintiff
SHANE STEVENS, on behalf of himself as a member of the Party and as a member of the Victorian Divisional Branch of the Maritime Union of Australia Division of the Construction, Forestry, Maritime, Mining and Energy Union (‘CFMMEU Maritime Victoria’), and in a representative capacity on behalf of CFMMEU Maritime Victoria and its members............................................................................ Eleventh Plaintiff
LUBA GRIGOROVITCH, as a member of the Party and as a member of the Victorian Branch of the Australian Rail, Tram and Bus Industry Union (‘RTBU Victoria’), and in a representative capacity on Behalf of RTBU Victoria and its members.............................................................................................. Twelfth Plaintiff
The United Firefighters’ Union of Australia............................................................ Thirteenth Plaintiff
and
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
********************.............................................................................. Twenty-Second Defendant
MICHAEL DONOVAN................................................................................. Twenty-Third Defendant
LLOYD WILLIAMS.................................................................................... Twenty-Fourth Defendant
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