Kairouz v Bracks (No 2)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2021 00274

MARLENE KAIROUZ	Plaintiff
v
THE HONOURABLE STEVE BRACKS AC THE HONOURABLE JENNY MACKLIN (In their capacity as Administrators of the Australian Labor Party Victorian Branch 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 and as Trustees of Trusts under Rule 21 of the Australian Labor Party Victorian Branch Rules respectively)	Defendants

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	2-4, 8-9 and 17 June 2021
DATE OF JUDGMENT:	19 October 2021
CASE MAY BE CITED AS:	Kairouz v Bracks (No 2)
MEDIUM NEUTRAL CITATION:	[2021] VSC 671

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ASSOCIATIONS – Political parties – Australian Labor Party – National Executive – Media allegations of branch stacking – Intervention in Victorian Branch – Administrators appointed – Whether intervention valid – Powers of the National Executive - ALP structure – Relationship between the National Constitution and Branch Rules – Branch Rules – Amendment by Administrators – Whether amendments valid – Disciplinary charges brought in respect of alleged branch stacking – Whether charges valid – Whether issues raised justiciable.

TRUSTS – Whether beneficiaries can bring claim for unlawful interference with the administration of trusts by third party – Whether special circumstances existed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J H Karkar QC, Ms M Pilipasidis and Mr N Walter	Cornwalls
For the 1^st – 11^th, 13^th and 16^th – 26^th Defendants	Mr P G Willis SC with Mr A D Lang, Mr J H Kirkwood and Mr G Jegatheesan	Holding Redlich
For the 12^th, 14^th and 15^th Defendants	Mr D J Batt QC with Dr A T Hoel	Patrick & Associates
For the 28^th Defendant	Hope & Co Lawyers

Table of Contents

Summary

Introduction

The Issues for Decision

Background

Media reports of branch stacking
Events following the media reports
The Administration Resolution
The Rule Amendment Resolution
The Administrators’ actions
The National Executive’s Resolutions of 27 November 2020
The Further Amendment Resolution
Events following the Further Amendment Resolution

Justiciability

Ms Kairouz’s arguments on justiciability
Ms Kairouz’s reliance on her proprietary interest in the trusts as an exception to Cameron v Hogan
The trusts
The trusts created by r 21.1 of the Victorian Branch Rules
The Capital Investment Fund
The Labor Services & Holdings Trust

The Administrators’ actions in changing the LSH shareholders and directors
Ms Kairouz’s submissions about her interests in the Victorian Branch trusts
The defendants’ submissions about Ms Kairouz’s interests in the Victorian Branch trusts
Joinder of the trustees
Can Ms Kairouz bring a claim for breach of trust?
Analysis of Ms Kairouz’s right to bring the trust claim
Analysis of the trusts exception submissions as a ground of justiciability
Has Ms Kairouz established her trust claim?

Ms Kairouz’s reliance on a contract claim as an exception to Cameron v Hogan
Analysis of Ms Kairouz’s reliance on the contract exception in Cameron v Hogan

Distinguishing Cameron v Hogan: the recognition of political parties by the Electoral Acts
Commonwealth Electoral Act
Victorian Electoral Act
Ms Kairouz’s submissions about the significance of the Electoral Acts
The Baldwin v Everingham line of authorities

The defendants’ submissions about the significance of the Electoral Acts
Analysis of the significance of the statutory recognition of political parties

Conclusions on the justiciability of Ms Kairouz’s claims

Ms Kairouz’s Standing

The Remaining Issues in Dispute

The Structure of the Australian Labor Party

The National Constitution of the ALP
The Victorian Branch Rules
The relationship between the National Constitution and the Victorian Branch Rules
Ms Kairouz’s submissions
The defendants’ submissions
Burton v Murphy
Jackson v Bitar
Setka v Carroll

Analysis of submissions about the structure of the Australian Labor Party

The Validity of the National Executive’s Resolutions

The Administration Resolution
Ms Kairouz’s submissions about the validity of the Administration Resolution
The defendants’ submissions about the validity of the Administration Resolution
Analysis of the challenges to the Administration Resolution
Was the Administration Resolution unreasonable, irrational or lacking in good faith?
Analysis of grounds of unreasonableness, irrationality, and lack of good faith

The Rule Amendment Resolution
Ms Kairouz’s submissions about the Rule Amendment Resolution
The defendants’ submissions about the Rule Amendment Resolution
Analysis of submissions about the Rule Amendment Resolution
Analysis of submissions about the Further Amendment Resolution

Ms Kairouz’s Challenge to the Charges Brought by the Administrators

The relevant rules
The charges
Charge One
Charge Two
Charge Three
Charge Four

Ms Kairouz’s submissions about the charges
The defendants’ submissions about the charges
Analysis of the challenges to the charges
The validity of the presumption introduced by r 26.4.4
Analysis of the challenge to the validity of the presumption of branch stacking

Conclusions on the disciplinary charges

Discretionary Grounds

Analysis of discretionary considerations

Overall Conclusion

HIS HONOUR:

Summary

Ms Marlene Kairouz is a member of the Australian Labor Party (the ‘ALP’), the member for Kororoit in the Victorian Parliament and a former Minister in the current Victorian Government. She has brought this proceeding to challenge the validity of the National Executive’s intervention in the Victorian Branch, amendments made to the Branch Rules and the disciplinary charges alleging involvement in, or knowledge of, branch stacking brought against her by the Administrators of the Branch. The Administrators were appointed as part of the intervention, which followed a television program and subsequent media coverage in June 2020 containing allegations of branch stacking in the Victorian Branch.

Ms Kairouz challenges resolutions passed by the National Executive providing for the intervention and the appointment of the Administrators and the amendment of the Victorian Branch Rules.

I immediately state that it is not the role of this Court to decide whether the disciplinary charges brought against Ms Kairouz have substance. I note that she denies them.[1]
[1]Court Book, Kairouz v Bracks (Supreme Court of Victoria, S ECI 2021 00274, Ginnane J, 26 May 2021) 737, 743, and 877 (‘Kairouz Court Book’).

The defendants are the Administrators, the members of the National Executive and the trustees of trusts under which the Victorian Branch’s property is held.

This case raises three particular questions that bear on the challenges to the National Executive’s Resolutions. The first question is whether Ms Kairouz’s case is of the kind with which a court will become involved. Using the legal term, is it justiciable? The defendants say that it is not justiciable because a court will not become involved in an internal dispute of a political party, which is an unincorporated association. They rely on Cameron v Hogan,[2] a decision of the High Court in 1934, in which Mr Edmond Hogan, the Labor Premier of this State, sought unsuccessfully to challenge his expulsion from the ALP following a disagreement about economic and employment policies during the Great Depression. I must apply the decision in Cameron v Hogan as there is no subsequent High Court decision which questions it. Legislation now exists enabling political parties and other associations to obtain incorporation and thereby bring some of their internal disputes within the jurisdiction of courts, but most major political parties have not taken advantage of it. However, Ms Kairouz relies on exceptions to the general principle in Cameron v Hogan and also submitted that it could be distinguished from the facts or circumstances of this case.
[2](1934) 51 CLR 358.

The second question is whether the Victorian Branch of the ALP is a separate entity to what was described as the Federal ALP. Both of them are unincorporated associations. If the Victorian Branch is a separate entity, that might influence the interpretation of the National Executive’s powers in respect of Branches conferred by the National Constitution and also influence the interpretation of the Victorian Branch Rules.

The third question is whether the disciplinary charges brought against Ms Kairouz are valid. In particular, the question is whether the charges, which rely on Branch Rules as amended by the National Executive on 14 September 2020, are able to apply to Ms Kairouz’s conduct alleged to have occurred prior to the amendments.

I have decided that Ms Kairouz’s claim that the National Executive’s intervention by the Administration Resolution was an unlawful interference with the trusts upon which the Victorian Branch property is held is justiciable. I also consider that she has the legal standing to bring that claim. This claim comes within one of the exceptions recognized in Cameron v Hogan. Having decided that the Court can and will hear that claim, I next had to decide whether the claim has been proved or established. My conclusion is that Ms Kairouz has not proved or established her claim that the National Executive has interfered with the administration of the Branch trusts by passing and implementing the Administration Resolution.

I have decided that Ms Kairouz’s other grounds for challenging the National Executive’s Resolutions and the disciplinary charges are not justiciable, meaning that they are not claims with which the Court will become involved, or will decide, because they are internal disputes within a political party, which is an unincorporated association. The claims do not fall within any of the exceptions recognized in Cameron v Hogan nor do I consider that any grounds have been established for distinguishing that decision from the facts or circumstances of this case.

However, as I am required to do, I have considered Ms Kairouz’s other grounds of challenge to the National Executive’s Resolutions. Having done so, I have reached the conclusion that, even if they were justiciable, none of her grounds of challenge would have succeeded in establishing that the Resolutions were invalid.

In answering the second question, I have decided that the Victorian Branch of the ALP is not a separate legal entity, but as the word Branch, which is part of its name, indicates, it is part of the ALP.

In answering the third question, so far as the disciplinary charges against Ms Kairouz are concerned, if contrary to my conclusion, I had found that her challenge to the charges was justiciable, I would have found that Charges One and Two were invalid and that Charge Three was valid. For reasons that I give in the judgment, I would have expressed no opinion about Charge Four.

The proceeding must therefore be dismissed.

Introduction[3]

[3]The parties filed an Agreed Statement of Facts. Much of the description of events that follows is taken from that Statement.

The plaintiff, Ms Marlene Kairouz, has been a member of the ALP since 1997 and the member for Kororoit in the Victorian Legislative Assembly since 2008. Between December 2014 and 16 June 2020, she was Cabinet Secretary and then Minister in the Victorian Government. Under ALP practice, as an MP, Ms Kairouz was required to pay, and has paid, to the Victorian Branch 6.28% of her salary since her election to Parliament.

On 16 June 2020 the National Executive of the ALP (‘the National Executive’) appointed the first and second defendants, Mr Steve Bracks, formerly the Premier of Victoria and Ms Jenny Macklin, previously a member of the House of Representatives and a Minister in the Australian Government, as Administrators of the Victorian Branch (‘the Administrators’). On 31 January 2021, the final day of their appointment, the Administrators, purporting to act under rr 26.4.2 and 26.6.5 of the Amended Rules, charged Ms Kairouz with alleged contraventions of the Amended Rules relating to branch stacking. The Acting State Secretary served the charges on Ms Kairouz at 10:53pm on that day.

Ms Kairouz seeks an injunction restraining the defendants from proceeding with the charges brought against her by its Disputes Tribunal. She challenges the National Executive’s resolution to appoint the Administrators to control the Victorian Branch, its making of amendments to the Victorian Branch Rules, including those under which she was charged, the action of the Administrators in laying the charges and their validity. She also challenges other resolutions of the National Executive.

The third to twentieth, twenty-second and twenty-third defendants constituted the National Executive as at 16 June 2020, and remain members of it. After 16 June 2020, the twenty-first defendant was appointed to the National Executive to fill the vacancy occasioned by the resignation of Mr Adem Somyurek.

The twenty-second to twenty-sixth defendants constitute the Interim Governance Committee of the Victorian Branch appointed by the National Executive with effect from 1 February 2021 to replace the Administrators (‘the Interim Governance Committee’). The twenty-seventh and twenty-eighth defendants, Mr James McWhinney and Labor Services & Holdings Pty Ltd, who are trustees of Victorian Branch trusts, were joined as defendants during the trial and are sued in their capacity as trustees.

The twelfth, fourteenth and fifteenth defendants in this proceeding, all of whom were members of the National Executive, and who were also the tenth, twelfth and thirteenth defendants in S ECI 2021 01465 Asmar v Albanese (‘the Asmar Proceeding’), were separately represented and made separate submissions on a number of issues, some of which were to similar effect as the other defendants. I will refer to them, where it is necessary to distinguish their submissions or their claims, as the Three Defendants. Otherwise, I will refer to all defendants, including the Three Defendants, as the defendants.[4] Although the Three Defendants had chosen to be separately represented in both proceedings, they said ‘for the avoidance of doubt… their participation in, and role on, the National Executive is not relevantly different to that of the other members of the National Executive named as defendants in the Asmar Proceeding and the Kairouz Proceeding’.[5]
[4]Where it is necessary to refer to the defendants other than the Three Defendants, I use the term ‘the majority defendants’.
[5]Kairouz Court Book, 1978.

Connection between this case and the Asmar Proceeding

This proceeding was heard immediately after the Asmar Proceeding, which includes a challenge to the National Executive’s Preselection Resolution of 4 May 2021 to take over the preselections of candidates for safe Victorian ALP seats in the House of Representatives. The Asmar plaintiffs also challenged the validity of the other resolutions of the National Executive, which Ms Kairouz challenges in this proceeding.

The first of these is the Administration Resolution of 16 June 2020 (‘the Administration Resolution’), whereby the National Executive intervened in the Victorian Branch, took over and directed the conduct of its affairs and appointed Administrators to it. The second is the Rule Amendment Resolution of 14 September 2020 (‘the Rule Amendment Resolution’) by which the National Executive amended the Victorian Branch Rules, particularly those prohibiting branch stacking. The third is the Further Amendment Resolution of 29 January 2021 (‘the Further Amendment Resolution’), by which the National Executive made further amendments to the Victorian Branch Rules and appointed the Interim Governance Committee.

Because of common issues in the proceedings, I allowed the parties in the Asmar Proceeding to participate in this proceeding as appropriate and allowed Ms Kairouz to participate in the Asmar Proceeding. I later made an order that the proceedings be heard together and that evidence in one be evidence in the other. Many issues and submissions were common to both proceedings. Where issues overlapped I have considered all the submissions about them made in both proceedings, although I have only recorded the submissions in the proceeding in which they were made. However, some issues only arose in one proceeding, for example the issue of the disciplinary charges in the Kairouz Proceeding or the Preselection Resolution in the Asmar Proceeding. I have determined those issues in the proceeding in which they arose.

The Issues for Decision

The main issues for decision in this proceeding are as follows:

1. The justiciability of Ms Kairouz’s claims, requiring consideration of:

(a) the decision in Cameron v Hogan;

(b) exceptions to the principle in Cameron v Hogan,

(i) the proprietary interest, trust, exception,

(ii) the contract exception; and

(c) grounds for distinguishing the decision in Cameron v Hogan — the statutory recognition of political parties.

2. The validity of the following resolutions of the National Executive:

(a) the Administration Resolution;

(b) the Rule Amendment Resolution; and

(c) the Further Amendment Resolution.

3. The validity of the Administrators’ disciplinary charges against Ms Kairouz.

Background
Media reports of branch stacking

On 14 June 2020, Channel 9 broadcast a report on its 60 Minutes program titled ‘The Faceless Man’. The report contained allegations of branch stacking within the Victorian Branch, focusing on the activities of the then Victorian Minister for Local Government and Small Business within the Victorian Labor Government, Mr Adem Somyurek.

The defendants[6] described the program’s report as including video and audio recordings and depicting a significant branch stacking operation within the Victorian Branch. Among the principal speakers in the recording were Mr Somyurek and Ms Kairouz. Among other things, the recordings were said to depict the funding of party memberships for other individuals who were apparently unwilling to pay for their own subscriptions, the recruitment of members who did not live at, and were not enrolled to vote at, their claimed addresses, and attempts to procure the forgery of branch members’ signatures. Those activities were alleged to have been engaged in to gain advantage in local party meetings or ballots. The recordings included statements alleged to have been made by Ms Kairouz about the renewal of memberships.
[6]Meaning in this section of the judgment the majority defendants.

The defendants tendered a copy of the 60 Minutes program and played it as part of their case. The defendants described the events that it addressed and depicted as including: Mr Somyurek making efforts to stack branches in the south-eastern suburbs of Melbourne; Mr Somyurek meeting with a person who was said to be branch stacking for him and who was his preferred candidate to replace a sitting Labor MP; Mr Somyurek’s efforts to enlist the Indian community; Mr Somyurek’s use of a parliamentary employee ‘to deliver Indians’ for him; and that persons use of fake addresses to deliver new members for him. They said that it also addressed payments for membership including payments made by Mr Somyurek himself for memberships and handing cash payment and membership forms to a staff member of Ms Kairouz.[7]
[7]Kairouz Court Book 1955-1956.

Ms Kairouz was described in the program as Mr Somyurek’s ‘trusted left hand’ and the program made allegations that she helped him ‘take over the Labor Party branch by branch’.[8] In one audio recording Ms Kairouz is said to be ‘directing Labour staffers to find even more fake members to join the party’[9] when stating:
[8]Ibid 2022-2023.
[9]Ibid 2023.

Marlene Kairouz: You guys have come in now. We are in charge. We’re it. Everyone looks to us now for leadership, like whether it’s in the Parliament. People come to Adem and I, particularly Adem, and they don’t know anything. So, we are in charge now, and I think — I mean you guys know that, but I think you need to show that we are as well.

Adem Somyurek: We need to strut around town.
Marlene Kairouz: Yeah. Yeah. No. Don’t be arrogant about it. But I’m just saying we’re it. People don’t do things without us. But we don’t want to treat people disrespectfully as well, because we’re very big. But if we can continue to grow, well why not.[10]

[10]Ibid.

On the evening of 14 June 2020, following the broadcast of the 60 Minutes report, The Age newspaper published a number of articles on its website relating to the matters covered in it. The Age also published further reports on these matters on its website and in its print editions on 15 and 16 June 2020. For example, one article published 15 June 2020 in The Age stated:

Victorian minister Adem Somyurek handed over thousands of dollars in secret cash drop-offs and used political advisers meant to be working for other MPs to stack branches with fake members and amass significant political power inside the Australian Labor Party.[11]

[11]Nick McKenzie, Joel Tozer, and Sumeyya Ilanbey, ‘Somyurek Secret Tape Scandal Rocks Labor’, The Age (Melbourne, 14 June 2020); Kairouz Court Book, 1662.

That evening and the following morning, The Age published extensive reports on its website covering the matters in the 60 Minutes report, and providing further detail from the audio and video recordings. The defendants referred by way of example to the following statements in one article:

The Age and 60 Minutes have obtained more than 100 audio and video surveillance files…
“Our people have been putting like industrial-scale numbers, you know, just

f---ing masses for a year,” [Mr Somyurek] says on one recording in which he describes his state-wide activities…
He claims that across Victoria, his operation involves placing fake members into branches every month. “We’ve got f---ing massive numbers” being stacked in seats, he tells several young Labor operatives on one tape. He describes stacking in the federal seat of Calwell…and putting “massive numbers in Lalor”…
Somyurek is dismissive of the idea that some of the members he’s signing up are actually interested in joining the ALP, scoffing at the prospect that “by some stroke of amazingness, that some people joined [the ALP] of their own accord”.
He can easily “rock up f---ing 50 people to a branch meeting” and discusses with zeal how to cover up branch stacking through a practice called “warehousing”. This involves getting members to sign up with false addresses, only to later move them to different branches in different locations after their membership addresses have been accepted as genuine.
“I think we do need to do some warehousing. So you put some people in now. And in about a year later, put them in…another area,” he says in one recording…
[Ms Kairouz] complains on one recording that renewing the membership of hundreds of party members takes forever and “my staff were just working on that, it was terrible.
…
Somyurek is forced to dip into his own pocket to pay for other fake members, including his Somali recruits. “I’ll have to pay for them,” he says of Somalis. “They didn’t want to do it because they were stretched. …”[12]

[12]Nick McKenzie, Sumeya Ilanbey and Joel Tozer, ‘F**k the premier’: ‘Labor’s secret tapes reveal industrial scale stackathon’, The Age (Melbourne 15 June 2020); Kairouz Court Book, 1694-1718, 1956-1957.

The article contended that some of the audio and video captured what appears ‘to be attempted falsification of documents.’[13]
[13]Ibid.

The article also referred to Ms Kairouz, stating:

Kairouz, who did not respond to efforts to contact her, is taped having discussions about using staffers on the public purse, including her adviser Nick McLennan, for political work. She complains on one recording that renewing the membership of hundreds of party members takes forever and ‘my staff were just working on that, it was terrible’.[14]

[14]Ibid.

Between 14 and 16 June 2020, the matters reported by 60 Minutes and The Age were also reported extensively by other media outlets, both in print and online, across Australia, including the ABC, The Sydney Morning Herald, The Australian Financial Review, The Australian and other News Ltd publications, The Guardian, The Canberra Times and The New Daily.[15]
[15]Ibid 1654-1657, 1755-1827.

Events following the media reports

On 15 June 2020, Mr Daniel Andrews, the Premier of Victoria, wrote to the National Secretary of the ALP, stating:

I write to notify you of my intention to charge Mr Adem Somyurek with offences under the Australian Labor Party Victorian Branch Rules, and to request that the National Executive hear and determine those charges and, if satisfied that offences have been committed, expel Mr Adem Somyurek as a member of the Australian Labor Party.
Reports broadcast on 60 Minutes on 14 June 2020 and published in The Age newspaper on 15 June 2020, show Mr Somyurek making threats about a Cabinet Minister, and derogatory remarks about Members of Parliament, Young Labor members and others. The reports also identify significant evidence of offences relating to party memberships. In my view, the ALP should not have as a member someone who conducts himself in this manner.
I will write to you further shortly in relation to the charges.
I also advise you that the Victorian Attorney General has referred all of these matters to Victoria Police and the Independent Broad-based Anti-corruption Commission for investigation.[16]

[16]Ibid 23.

At 10:26am on 15 June 2020, Mr Andrews’ Chief of Staff, Ms Lissie Ratcliff, sent an email attaching his letter to Mr Tim Gartrell, the Chief of Staff of Mr Anthony Albanese, the Federal Parliamentary Leader of the ALP, requesting that it be brought to Mr Albanese’s attention.[17] At 11:15am, Mr Gartrell replied to Ms Ratcliff’s email stating ‘He’s got it’.[18]
[17]Ibid 2044.
[18]Ibid.

At 10:53am on 15 June 2020, Mr Somyurek resigned his membership of the ALP.[19]
[19]Ibid 24.

At 7:03pm on 15 June 2020, Ms Susie Byers, the President of the Victorian Branch sent an email, authorised by the State Secretary Ms Clare Burns, to Victorian Branch members stating:

Many Labor members will have watched recent media reports with a sense of dismay and betrayal. Adem Somyurek’s behaviour has no place in our party and the Premier has acted swiftly to ensure that he has no future in our party.
The types of behaviour that were reported in the media are serious and will be dealt with through the appropriate channels as outlined by the Premier.
So many Labor members work tirelessly to see our party succeed and help elect Labor Governments. So many of us are disappointed when actions like these cast a shadow over that hard work. We can’t let these actions undermine the progressive change we see out Labor Government create every day.
How we run our party matters. Our members deserve a party that is open, transparent and democratic. Where we treat each other with respect, and build the respect and trust of the wider community.
Members need to have a voice, and I will work with all Victoria Labor members — individuals, and affiliated unions — to ensure that the most progressive government is Australia is backed by the most progressive and democratic party. Our members — and the Victorian community — deserve no less.[20]

[20]Ibid 2042.

At 8:58am on 16 June 2020, Paul Erickson, the ALP National Secretary, sent an email attaching a document he described as ‘my understanding of the discussions between the Federal Leader and the Victorian Leader’.[21] That document stated:
[21]Ibid 2045.

DRAFT Victorian Branch matters
Objectives
Restructure the Victorian branch of the ALP.
Reconstitute the branch membership so that it comprises genuine, consenting, self-funding party members.
Break the business model of the branch stackers.
Principles of action
The structures and processes of the Victorian branch will not be capable of achieving these objectives.
An extended period of national oversight is required.
There must not be any bias — actual or perceived — towards or against any one faction or group.
The requirement for a National Executive involvement is not a reflection on any current or former Party officials.
Intervention
ALP National Executive exercises its powers under Rule 16(f)(ii) to appoint Steve Bracks and Jenny Macklin as administrators of the Victorian Branch.
In doing so, ALP National Executive is taking over the affairs of the Victorian Branch.
The National Executive administrators are appointed for an initial term extending to 31 January, 2021.
For the term of the National Executive intervention:
•All Committees of the Victorian State Conference, as defined in the Victorian Rules, are suspended.
•All officials and staff of the Victorian Branch will report to the National Executive administrators.

Administration Roadmap
National Executive directs the administrators provide an initial report setting out an Administration Roadmap to the National Executive by 31 July 2020.
The Roadmap will include recommendations to the National Executive on integrity measures for the Victorian Branch membership, including a membership audit.
The Roadmap should also include processes for consulting with the Party membership.
The Administrators should develop the Roadmap in consultation with the Victorian State Secretary and the Victorian Branch President.
Reform plan
The National Executive requests that the administrators report back by 1 November, 2020, with a Victorian Branch Reform Plan.
The Reform Plan will include recommendations on how the Victorian Branch should be restructured and reconstituted so that the branch membership comprises genuine, consenting, self-funding party members.
Suspension of voting rights
National Executive notes the request of the Victorian Labor Leader that all voting rights in the Victorian Branch be suspended until at least 2023.
National Executive will exercise its powers under Rule 16(f)iii to conduct all preselections for the next federal and state elections.
Administration support
For the term of the National Executive intervention, officials and staff of the Victorian Branch shall report to the Administrators.
National Executive will consider the need for an Executive Director, to support the work of the Administrators.
Should the Administrators require special advice or professional services, these shall be appointed with the approval of the National Executive Committee.[22]

[22]Ibid 2046-2047.

On 16 June 2020, Mr Andrews wrote again to the National Executive stating:

I write to request your endorsement of a process for reform of the Victorian Branch of the Australian Labor Party to guarantee integrity and probity in all of our affairs.
This plan has my full support as both leader of the Victorian Parliamentary Labor Party and Premier of Victoria.
I have no confidence in the integrity of any voting rolls that are produced for any internal elections in the Victorian Branch. Accordingly, we must suspend those elections and begin a long and critical process of validating each and every member of the Labor Party in Victoria as genuine, consenting and self-funded.
I cannot accept yet another review that, while well intentioned, cannot and will not deliver the profound reform that is required.
I have asked Steve Bracks and Jenny Macklin to serve as administrators of the Victorian Branch while this process is undertaken and I ask that you appoint them to those roles. I have full confidence that they are best placed to undertake this work.
I seek your agreement to the detailed plan attached to this correspondence and I look forward to your support and assistance in making these fundamental reforms so that we can, in all ways, be a party that lives its values.[23]

[23]Ibid 25.

Mr Andrews attached to his letter a document titled ‘National Executive oversight of reforms to the Victorian ALP’ which stated:

National Executive Oversight
ALP National Executive exercises its powers under Rule 16(f)(ii) to appoint Steve Bracks and Jenny Macklin as administrators of the Victorian Branch.
The administrators are appointed for an initial term extending to 31 January, 2021.
For the term of the National Executive oversight:
•All Committees of the Victorian State Conference, as defined in the Victorian Rules, are suspended
•All officials and staff of the Victorian Branch will report to the administrators.

Initial scoping report
National Executive directs the administrators provide an initial scoping report by 31 July 2020.
The scoping report will include recommendations to the National Executive on integrity measures for the Victorian Branch membership.
The scoping report should also include processes for consulting with the Party membership.
The administrators should develop this scoping report in consultation with the Victorian State Secretary and the Victorian Branch President.
Final Report
The National Executive requests that the administrators report back by 1 November 2020, with a final report.
The final report should include recommendations on how the Victorian Branch should be restructured and reconstituted so that the branch membership comprises genuine, consenting, self-funding party members.
Suspension of voting rights
National Executive notes the request of the Victorian Labor Leader that all voting rights in the Victorian Branch be suspended at least until 2023.
National Executive will exercise its powers under Rule 16(f)iii to conduct all preselections for the next federal and state elections.
Administration support
For the term of the National Executive oversight, officials and staff of the Victorian Branch shall report to the administrators.
National Executive will consider the need to further support the work of the administrators.
Should the administrators require special advice or professional services, these shall be appointed with the approval of the National Executive Committee.[24]

[24]Ibid 26.

At 5:42pm on 16 June 2020, the agenda for the meeting together with Attachments A and B, were emailed to the members of the National Executive. The agenda for the meeting referred to meetings of the National Executive Committee[25] occurring on 15 and 16 June 2020. Mr Andrews’ correspondence of 15 and 16 June and an email from Mr Somyurek to the State Secretary resigning his membership were also attached.
[25]The National Executive Committee consists of some of the National Executive and meets at least once between each meeting of the National Executive for the purpose of preparing the agenda and making recommendations to expedite the business of the National Executive: see National Constitution, cl 17.

The Administration Resolution

The National Executive met via telephone between 7:00pm and 7:28pm and passed the Administration Resolution which in effect implemented the ‘oversight’ requested by Mr Andrews. The steps which were taken under the National Executive ‘oversight’ might also be described as the National Executive’s intervention in the Victorian Branch.

The Administration Resolution was in the following terms, which were very similar to the attachment to Mr Andrews’ letter sent earlier that day:

National Executive notes the correspondence from the Premier of Victoria in relation to necessary reform of the Victorian Branch.
National Executive resolves to exercise its powers under Rule 16(f)(ii) to appoint Steve Bracks and Jenny Macklin as administrators of the Victorian Branch. The administrators are appointed for an initial term extending to 31 January, 2021.
For the term of the National Executive oversight:
•All committees of the Victorian State Conference, as defined in the Victorian Rules, are suspended
•All officials and staff of the Victorian Branch will report to the administrators.

National Executive directs the administrators to provide an initial scoping report by 31 July 2020. The scoping report will include recommendations to the National Executive on integrity measures for the Victorian Branch membership. The scoping report will include recommendations on how to maintain affiliate representation in the Victorian ALP. The scoping report should also include processes for consulting with the Party membership and affiliated unions. The administrators should develop this scoping report in consultation with the Victorian State Secretary and the Victorian Branch President.
The National Executive requests that the administrators report back by 1 November 2020, with a final report. The final report should include recommendations on how the Victorian Branch should be restructured and reconstituted so that the branch membership comprises genuine, consenting, self-funding party members.
National Executive notes the request of the Victorian Labor Leader that all voting rights in the Victorian Branch be suspended at least until 2023. National Executive will exercise its powers under Rule 16(f) iii to conduct all preselections for the next federal and state elections.
For the term of the National Executive oversight, officials and staff of the Victorian Branch shall report to the administrators. National Executive will consider the need to further support the work of the administrators. Should the administrators require special advice or professional services, these shall be appointed with the approval of the National Executive Committee.[26]

[26]Kairouz Court Book, 2049-2050.

On 31 July 2020, the Administrators provided a ‘Scoping Report’ to the National Executive, which included details on the progress of an audit of the Party’s membership in Victoria by Deloitte and feedback from members to the Administrators regarding rule changes and other matters. It also recommended the adoption of a revised resolution that would include amending the existing Victorian Branch Rules to prohibit cash and cash like payments for memberships and membership renewals.

The Rule Amendment Resolution

On 14 September 2020, the National Executive resolved that the ‘Victorian Branch Rules be adapted in order to confirm the Administrators’ powers’[27] which included r 26 titled ‘Temporary Rules Applicable During the Period of the Administration’.[28] These new rules gave the Administrators powers during the period of the administration to 31 January 2021, including the power to charge a member with a breach of the branch stacking rules and to revoke the membership of a member.
[27]Ibid 2048.
[28]Ibid 2085.

By the Rule Amendment Resolution, the National Executive amended the existing rules by:

(a) changing the definition of ‘branch stacking’ from:

5.17.1.1Branch stacking is conduct unacceptable to the Party. Branch stacking is defined as the enrolling of persons to the Party by offering inducement or enrolling persons for the principal purpose of influencing the outcome of ballots of members within the Party.

to
5.17.1.2.Branch stacking is conduct unacceptable to the Party. Branch stacking means any activity relating to enrolling members, renewing memberships or transferring members between branches:
5.17.1.2.1Engaged in for the predominant purpose of influencing the outcome of ballots of members within the party; or
5.17.1.2.2.That has the effect, or is likely to have, or intended to have, the effect of enrolling a member, or retaining as a member, a person who is not a genuine member.

(b) adding r 26.4 ‘Breach of branch stacking rules’ in the following terms:

26.4.1. This Rule applies when the Administrators allege that a member has breached the branch stacking rules.
26.4.2. The Administrators may, in their absolute discretion, charge a member with a breach of the branch stacking rules.

26.4.3. In the event that the Administrators charge a member under sub-rule 26.4.2, the charge will be dealt with by the Disputes Tribunal in accordance with Rule 20 of these Rules, subject to sub-rules 26.4.4 and 26.6.
26.4.4. For the purposes of sub-rule 26.4.3, a member charged with branch stacking is presumed to have engaged in the activity or activities in question;
26.4.4.1. for the predominant purpose of influencing the outcome of ballots of members within the Party; and/or
26.4.4.2. with the intention of enrolling as a member, or retaining as a member, a person who is not a genuine member;

unless the member satisfies the Disputes Tribunal otherwise.

26.4.5. Despite anything in these Rules to the contrary, the Administrators may suspend the membership of a member who has been charged under sub-rule 26.4.2 pending a decision by the Disputes Tribunal in accordance with sub-rule 26.4.3.’

(c) adding rr 26.6.4 and 26.6.5 empowering the Administrators to charge members with breaches of the branch stacking rules and other disciplinary offences; and

(d) adding r 26.6.7 to the effect that ‘[a] decision made by the Administrators in relation to the administration is not subject to review by the Disputes Tribunal’ constituted under the Rules of the Victorian Branch.

The Administrators’ actions

On 20 November 2020, Mr Bracks and Ms Macklin wrote to Ms Kairouz, notifying her that, as the appointed Administrators of the Victorian Branch of the ALP, they were ‘tasked with ensuring all members of the Victorian branch are genuine, consenting, and self-funding’.[29] The Administrators also asked questions about Ms Kairouz’s alleged involvement in branch stacking. Extensive correspondence and communication followed. Some of the Administrators’ questions concerned statements by Ms Kairouz when she took part in a meeting in early 2020 held in a Ministerial conference room, at which Mr Somyurek and staff were present. The discussion at that meeting was covertly recorded by a person unknown and an ALP employee later prepared a transcript of the discussion by listening to that recording. The recording is said to have been destroyed. The charges that Ms Kairouz now faces appear, in part, to be based on the recording of that discussion. Many of the questions the Administrators posed to Ms Kairouz sought her explanation of terms that she and others were alleged to have used in the meeting.[30]
[29]Ibid 859.
[30]Ibid 860.

Ms Kairouz responded to the Administrators in a number of letters. She initially said that as she was surreptitiously recorded, unless she knew the context of the conversation, she could not recall what she meant by some terms that she was said to have used.[31] She requested access to the recording. In later correspondence, Ms Kairouz corrected and clarified some of the words attributed to her by the Administrators and confirmed that her reference to ‘checklists’ at the first meeting was for the purpose of good administration and organisation and not because of any plans made with Mr Somyurek.[32] She denied involvement in, or knowledge of, any branch stacking. She described the role that her office and staff performed in processing membership applications in accordance with the prescribed rules. She denied being involved in membership renewal processes, stating that this was left to voluntary activists and that it was common for paid staffers also to be party activists. She clarified the role that one member of her staff performed and denied any knowledge of membership transfers between different branches. She explained her attendance at the meeting as occurring by chance when, while walking past the conference room, she was invited into a meeting that was taking place there.[33]
[31]Ibid 868, 874.
[32]Ibid 758.
[33]Ibid 757.

On 23 November 2020, the Administrators provided their Final Report to the National Executive. It contained 37 recommendations to rebuild the Branch, including that the National Executive amend the Victorian Branch Rules in relation to membership, the payment of membership fees, renewal of memberships, and to establish a Party Monitor. The Administrators also recommended that the National Executive appoint an Interim Governance Committee, to stand in the stead of the Administrative Committee and be responsible for good governance until a new Administrative Committee was elected. The Final Report also described the Administrators’ investigation into Branch Stacking, stating:

In addition to cleansing the membership roll of non-genuine members, we considered it was critical to investigate the actions of some members in the Party, including those identified in the media, in order to hold them to account for the damage they inflicted on the Branch.[34]
[34]Ibid 1866.

The National Executive’s Resolutions of 27 November 2020

On 27 November 2020, the National Executive passed two resolutions. In the first resolution, the National Executive:

(a) accepted the Administrators’ Final Report and adopted their recommendations;

(b) confirmed that the appointment of the Administrators would cease after 31 January 2021 and that, with effect on 1 February 2021, the affairs of the Victorian Branch would be managed by an Interim Governance Committee appointed by the National Executive, until the election of a new Administrative Committee;

(c) gave effect to recommendations 29 and 30 by making changes to the Victorian Branch Rules relating to membership by amending rr 5.7.6 and 5.12.2 and inserting new rr 5.3.6 and 5.3.7; and

(d) noted that, in order to give effect to recommendations requiring further changes to the Victorian Branch Rules, the National Executive would receive the Administrators’ recommended rules changes as an exposure draft to be considered by the National Executive no later than 31 January 2021.[35]

[35]Ibid 2102-2103.

In the second resolution, the National Executive appointed Victorian Branch President Susie Byers, Ben Davis, Michael Donovan and National Executive member Linda White to the Interim Governance Committee, and referred the matter of the appointment of a further member to the National Executive Committee for decision prior to 31 January 2021.[36]
[36]Ibid 2103-2104.

The Further Amendment Resolution

On 29 January 2021, the National Executive resolved to further amend the Amended Rules by:

(a) rescinding r 26 of the Amended Rules;

(b) providing for the appointment by the National Executive of the Interim Governance Committee to replace the Administrators and perform all the functions of the Administrative Committee and Party Officers of the Victorian Branch and to facilitate the progression of the Victorian Branch from the control of the Administrators from 31 January 2021 to the Interim Governance Committee; and

(c) adding r 26.8.1 in the following terms:

Notwithstanding that the appointment of the Administrators ceased as at midnight on 31 January 2021, charges laid by the Administrators during the period of the administration shall be heard and determined by the Disputes Tribunal in accordance with rule 26 as it applied during the administration and any suspension of the member in question shall continue.

Events following the Further Amendment Resolution

On their last day as Administrators, Mr Bracks and Ms Macklin charged Ms Kairouz with several contraventions of the Amended Rules relating to alleged branch stacking.

At 10:53pm, the Acting State Secretary, Mr Chris Ford, wrote to Ms Kairouz informing her of the charges. His letter stated:

I write to advise that a formal complaint has been made against you by the Party Administrators for allegedly breaching the Rules of the Party, namely:
Engaging in conduct that amounts to a disciplinary offence under Rule 20.5.1.4; and
Engaging in conduct that amounts to a disciplinary offence under Rule 20.5.1.3.1.
Please find attached a copy of the complaint containing the charges, the Statement of Facts, and the documents relied upon.
In accordance with Rule 20.8.5 you must respond to this complaint in writing by 5:00pm Friday 12^th February.
Please note you are entitled to request an extension.[37]

[37]Ibid 414.

The complaint states that the Administrators, exercising their powers under rr 26.4.2 and 26.6.5 of the Victorian Branch Rules, charged Ms Kairouz with four breaches of the Australian Labor Party Victorian Branch Rules relating to branch stacking.

The particulars of each charge described things alleged to have been said and done prior to the broadcasting of the 60 Minutes program and the National Executive’s intervention in the Victorian Branch.

In a letter of 3 February 2021 to Mr Ford, Ms Kairouz requested an extension of time until 8 March 2021.

On 8 February 2021, Ms Kairouz commenced this proceeding and on 19 March 2021 I granted her an interlocutory judgment which prevented the hearing of the charges until the hearing and determination of this proceeding, or further order.[38]
[38]Kairouz v Bracks [2021] VSC 130.

The charges are to be heard by the Disputes Tribunal constituted by a former judge. It is established by r 20 of the Victorian Branch Rules and is ‘specifically responsible’ for hearing and deciding charges relating to disciplinary offences. If it is satisfied that the member charged has committed an offence, it may impose penalties ranging from a reprimand to expulsion.

Clause 30 of the National Constitution establishes a National Appeals Tribunal, which is responsible on behalf of the National Executive for hearing all appeals by members that relate to compliance with the National Constitution or enforcement of the rights and obligations of members, affiliated unions and constituent units of the Party and making recommendations to the National Executive in relation to those appeals. The National Executive must promptly consider all recommendations of the Tribunal and may make any decision in relation to the appeal it thinks fit. But no appeal may be heard by the Tribunal until all practicable avenues of appeal have been exhausted under the rules of the relevant State Branch.

Justiciability

The term justiciability describes whether a claim for relief is appropriate and capable of being settled or decided by a court of law.[39] The defendants argued that Ms Kairouz’s claims were not justiciable because of the High Court decision in Cameron v Hogan. They relied on it for the proposition that, as Ms Kairouz could not establish a proprietary or contractual claim, her claims were not justiciable because Courts do not become involved in internal disputes in voluntary associations, including political parties. Ms Kairouz relied on exceptions to this principle and also sought to distinguish Cameron v Hogan because of developments including the statutory recognition of political parties.
[39]Jeremy Kirk, ‘Justiciability’ in Cheryl Saunders and Adrienne Stone (eds), The Oxford Handbook of the Australian Constitution (Oxford University Press, 2018) 510; G E Dal Pont, Law of Associations (LexisNexis Butterworths, 2018) [7.7].

Accordingly, much of the debate on justiciability concerned the High Court’s decision of Cameron v Hogan in 1934 and whether it made the plaintiff’s claims non-justiciable. That decision is of course binding on me as it is on all judges of courts below the High Court. In Cameron v Hogan the plaintiff was Mr Edmond Hogan, who was Premier of Victoria as Parliamentary Leader of the ALP in 1927 and 1928 and again between 1929 and 1932. In 1932 he was excluded from the ALP and not preselected as its candidate in the election of that year. His exclusion followed his refusal to oppose the ‘Premiers’ Plan’, which was an economic plan proposed during the Great Depression. Mr Hogan was re-elected as an Independent. He commenced proceedings in this Court seeking declarations that he was still a member of the ALP and that his exclusion was wrongful, alleging that he had suffered loss and damage by not being the leader of the Parliamentary Labor Party. At first instance Gavan Duffy J did not grant him an injunction but found that his contractual rights had been infringed, entitling him to nominal damages of one shilling.[40]
[40]Hogan v Cameron [1934] VLR 88, 94-95.

On appeal, the High Court decided that Mr Hogan’s claims were not justiciable. This was because at common law, as well as in equity, no actionable breach of contract was committed by an unauthorised resolution expelling a member of a voluntary association, or by the failure of its officers to observe the rules regulating its affairs, unless the members enjoyed some civil right of a proprietary nature under them.[41] The High Court found that, first, Mr Hogan’s membership of the ALP did not establish any legal or equitable interest that entitled him to the grant of a declaration or an injunction in respect of his exclusion from it, and secondly, that as the ALP was a voluntary unincorporated association, members were not in a contractual relationship and had no proprietary rights or interests in its property.[42] On the contract point, the plurality stated:

Hitherto rules made by a political or like organization for the regulation of its affairs and the conduct of its activities have never been understood as imposing contractual duties upon its officers or its members. Such matters are naturally regarded as of domestic concern. The rules are intended to be enforced by the authorities appointed under them. In adopting them, the members ought not to be presumed to contemplate the creation of enforceable legal rights and duties so that every departure exposes the officer or member concerned to a civil sanction. The matter has not been the subject of much, if any, discussion in English cases. For American authority it is enough to refer to McKane v Adams.[43]

[41]Cameron v Hogan (1934) 51 CLR 358, 370.

[42]Ibid 376, 378.

[43]Ibid 376.

Other relevant passages in Cameron v Hogan include the following. Starke J said that:

As a general rule, the Courts do not interfere in the contentions or quarrels of political parties, or, indeed, in the internal affairs of any voluntary association, society or club.[44]

[44]Ibid 384.

Rich, Dixon, Evatt and McTiernan JJ stated:

Judicial statements of authority are to be found to the effect that, except to enforce or establish some right of a proprietary nature, a member who complains that he has been unjustifiably excluded from a voluntary association, or that some breach of its rules has been committed, cannot maintain any action directly founded upon that complaint.
…
There are, however, reasons which justify the statement that, at common law as well as in equity, no actionable breach of contract was committed by an unauthorised resolution expelling a member of a voluntary association, or by the failure on the part of its officers, to observe the rules regulating its affairs, unless the members enjoyed them under civil right of a proprietary nature.[45]
[45]Ibid 370.

and

The foundation of the jurisdiction to grant an injunction is the existence of some civil right of a proprietary nature proper to be protected. The property under the control of the central executive and that under the control of the branches might, if all the members concurred in dissolving the association, be distributed among them, but if so, it would be by reason of a decision under the rules authorising that distribution. Except for this, the respondent has no interest capable of enjoyment.[46]

and

The organisation is a political machine designed to secure social and political changes. It furnishes its members with no civil right or proprietary interest suitable for protection by injunction. Further, such a case is not one for a declaration of right. The basis of ascertainable and enforceable legal right is lacking. The policy of the law is against interference in the affairs of voluntary associations which do not confer upon members civil rights susceptible of private enjoyment.
For these reasons the respondent is not entitled to invoke the jurisdiction of the Courts of law in reference either to his complaint that his nomination for selection was improperly withheld from ballot, or that a resolution for his expulsion was adopted without authority or justification under the rules. In these circumstances the question, whether, upon the true meaning of the rules, the central committee acted in accordance with or contrary to them is not one of which the Court takes cognisance.[47]

[46]Ibid 377.

[47]Ibid 378.

Cameron v Hogan was recently applied by Riordan J in Setka v Carroll,[48] which concerned actions by the National Executive to expel a member from the ALP pursuant to its ‘plenary powers’.
[48](2019) 58 VR 657.

Ms Kairouz’s arguments on justiciability

Ms Kairouz contended that her claims were justiciable and that she did have standing. She sought to bring her claims within the ‘exceptions’ to the principle in Cameron v Hogan of a proprietary or contractual claim. She also sought to distinguish Cameron v Hogan on the ground that its ratio did not extend to disputes in a political party registered under the Electoral Act 2002(Vic) (‘the Victorian Electoral Act’) or the Commonwealth ElectoralAct 1918 (Cth) (‘the Commonwealth Electoral Act’) (together, ‘the Electoral Acts’), or to disputes between members of the Victorian Branch and the National Executive of the ALP. The ALP is registered under the Commonwealth Electoral Act and the ALP, Victorian Branch, is registered under both Electoral Acts.

Ms Kairouz’s reliance on her proprietary interest in the trusts as an exception to Cameron v Hogan

As previously mentioned, I am bound by the High Court decision in Cameron v Hogan. Ms Kairouz sought to bring her claim within the proprietary interest exception recognized by the High Court, by relying on her rights under, or in respect of, the trusts upon which the Victorian Branch’s property is held. She claimed that the Administration Resolution had interfered with the due administration of the trusts and sought remedies to deal with that interference.[49] I will next describe the trusts under the Victorian Branch Rules.
[49]The plaintiff relied on Schmidt v Rosewood Trust [2003] 2 AC 709, Hartigan Nominees Pty Ltd v Rydge (1992) 29 NSWLR 405, and Fordyce v Ryan [2017] 2 Qd R 240.

The trusts

The parties generally agreed that the Victorian Branch’s property is held under a number of trusts, the rules of which were contained in the Victorian Branch Rules, and in the case of the LSH trust, in a trust deed.

The trusts created by r 21.1 of the Victorian Branch Rules

The first trust is created by r 21.1 which provides:

21.1. General
21.1.1.Subject to Rule 21.3, all property including all moneys, all books, stationary, furniture, office equipment and all other assets, whether of a like kind or not, of the Party shall be vested in three Trustees (“The Trustees”). The Trustees shall be the Officers of the Party for the time being, as elected in accordance with the Rules. The funds of the Party shall be banked in the name of the Party and no funds shall be drawn from the bank except by a cheque signed by a trustee or other person designated by the Administrative Committee, and counter-signed by the State Secretary. All such funds shall be applied to the management and conduct of the Party and furtherance of its aims and objectives. The Trustees shall be empowered to give indemnities on behalf of the Party.

The second trust, or possibly a sub-trust of the first trust, is created by r 21.1.2 which provides:

21.1.2.Subject to Rule 21.3, all property of any Branch, Conference or Assembly shall vest in the Trustees referred to, who shall hold such property on behalf of and for the purposes of the members of such Branch, Conference or Assembly. The income and property of the Party whensoever derived shall be applied solely towards the promotion of the objects of the Party as set forth in these Rules and no portion thereof shall be paid or transferred directly or indirectly by way of profit to members of the Party provided that nothing hereunder contained shall prevent the payment in good faith of remuneration to any Officers or employees of the Party in return for any services actually rendered to the Party nor for good supplied in the ordinary way of business nor prevent the payment of interest at a market rate on money borrowed from any member of the Party or reasonable or proper rent for premises demised or let by any member of the Party.

21.1.3.The Administrative Committee may, for any purpose set out in existing Rules and subject to any terms and conditions the Administrative Committee thinks fit to impose, authorise the Trustees to raise and borrow money and secure the repayment of that money by granting a mortgage, charge or other security over property belonging to the Party. Without limiting the generality of the foregoing, the Administrative Committee may authorise the Trustees to borrow money using a bill facility provided by a bank.

The Capital Investment Fund

A further trust, the Capital Investment Fund, is created by r 21.2 which provides:

21.2. Capital Investment Fund
21.2.1.There shall be a fund of the Party to be known (subject to Rule 21.2.2) as the “Capital Investment Fund” (in this Rule “the Fund”).
…

21.2.3. Subject to Rule 21.3, the Fund shall comprise:
21.2.3.1. all bequests made to the Party or its Trustees; and
21.2.3.2.all other donations made to the Party or its Trustees where the donor has expressed a wish that the donation be held in the Fund; and
21.2.3.3.interest earned on the Fund.

21.2.4. Subject to Rule 21.3, the Fund shall be vested in the Trustees.
21.2.5.The Trustees may use interest earned on the assets of the Fund but only for the purposes contemplated by these Rules. The Trustees must not use or apply, nor allow, permit or enable the use or application of, interest earned on the assets of the Fund for any other purpose.
…

21.2.10. Each Trustee of the Party shall on taking office make a declaration of trust that they will:
21.2.10.1. hold the Fund on the terms of this Rule; and
21.2.10.2.in particular, not permit any amount to be withdrawn from the Fund except in accordance with this Rule.

The parties differed as to the number of trusts created by rr 21.1 and 21.2 and their proper characterisation, but I do not think the differences matter. Insofar as the trusts were objects trusts, then the Court would identify beneficiaries who would include the members of the Victorian Branch.[50]
[50]Leahy v Attorney-General (NSW) [1959] AC 457 at 485; Bacon v Pianta (1966) 114 CLR 634 at 638; Re Goodson [1971] VR 801.

The trustees of the rr 21.1 and 21.2 trusts were Susie Byers, Shannon Threlfall-Clarke and James McWhinney, who are the President, Senior Vice-President and Junior Vice-President of the Victorian Branch.

The Labor Services & Holdings Trust

A further trust, the Labor Services & Holdings Trust (‘the LSH Trust’), is provided for in r 21.3 as follows:

21.3. Labor Services & Holdings Trust
21.3.1.There shall be a trust to be known as the Labor Services & Holding Trust (“LSH Trust”) and established to:
21.3.1.1.provide all necessary services, support and infrastructure to the Party and any other entity established and controlled by the Party; and
21.3.1.2.as determined by the Officers, to hold the property (including all monies, books, stationery, furniture and office equipment) and other assets of the Party on trust for all of the Members.

21.3.2.The trustee of the LSH Trust must be a proprietary limited company incorporated in Victoria and called “Labor Services & Holdings Pty Ltd” (“LSH Trustee”).
21.3.3.The shareholders and directors of the LSH Trustee must at all times be the Officers and 2 other nominees of the Administrative Committee determined with 22 votes in favour of the nomination (being a total of 5 persons).
21.3.4.Each director of LSH Trustee will hold one ordinary share in LHS Trustee. A person who ceases to be an Officer or whose nomination is withdrawn or cancelled by the Administrative Committee must promptly following his or her retirement or the withdrawal or cancellation of his or her nomination, do everything necessary to:
21.3.4.1.retire as a director of the LSH Trustee; and
21.3.4.2.transfer his or her share in the LSH Trustee to the person appointed as a director of the LSH Trustee in his or her stead.

21.3.5.Neither the trust deed constituting the LSH Trust nor the constitution of LSH Trustee may be changed in any way without the approval of a resolution of the Administrative Committee passed with 22 votes in favour of the resolution.
21.3.6.The Administrative Committee may at any time by resolution passed with 22 votes in favour of the resolution require the trust deed constituting the LSH Trust to be varied to limit the rights and powers of the LSH Trustee as trustee of the trust in respect of:
21.3.6.1.any change to the purpose of the LSH Trust; or
21.3.6.2.the creation or acquisition of any sub-trust or the acquisition of securities in or of any corporation; or
21.3.6.3.the sale or disposition of any assets of the LSH Trust; or
21.3.6.4.the acquisition of any asset having a value of over $100,000 by or for the LSH Trust; or
21.3.6.5.the incurrence of any liability of over $100,000 by the LSH Trustee; or
21.3.6.6.the giving of any security over the assets of the LSH Trust or the provision of any guarantee by the LSH Trustee either in its own right or as trustee of the LSH Trust.

21.3.7.Subject to Rule 21.3.5, the LSH Trustee has all the powers and may do anything necessary for the purposes of providing all necessary services, support and infrastructure to the Party, and any other entity established or controlled by the Party, including, without limitation, the power to employ such persons as may be necessary to provide those services, support and infrastructure.
21.3.8.The Officers may direct the Trustees to transfer any property or assets of the Party held by them including, but not only, assets held in or as part of the Fund to the LSH Trustee.

…
21.3.10.The LSH Trustee will hold all property and assets transferred or given to or acquired by the LSH Trustee on trust for the Members and for no other person and solely for the purposes of the promotion of the objects of the Party as set out in these Rules.
21.3.11.The LSH Trustee may use and apply all income derived from any property or assets held by it to fund the cost for providing services, support and infrastructure to the Party and any other entity controlled by the Party.
21.3.12.The LSH Trustee may at any time donate any surplus income (being income that is not required to fund the provision of services, support and infrastructure as contemplated by Rule 21.3.10) to the Party.

…
21.3.16.The LSH Trustee may charge the Party (and any other entity controlled by the Party to whom it provides services) a fee for the provision of those services. Any fee charged must be on a cost recovery basis only and limited to an amount equal to the actual cost (including any on-costs and indirect costs) of providing those services.

A significant feature of r 21.3 is that the LSH Trust holds all property and assets on trust for members for the sole purpose of promoting the objects of the Party as set out in the Rules. The beneficiaries of the LSH Trust are all members of the Australian Labor Party, Victorian Branch, at the relevant time. Furthermore, it gives the Administrative Committee and Officers powers in respect of the shareholders and directors of the trustee company and other aspects of the operation of the LSH Trust. For example, it provides a role to the Administrative Committee and the Officers concerning the variation of the Trust Deed and the transfer of trust property.

Clause 3 of the Trust Deed contains the purposes of the Trust:

PURPOSE OF TRUST
(a) The purposes of the Trust are to:
(i)provide all necessary services, support and infrastructure to the Association and any other entity established and controlled by the Association; and
(ii)as determined by the Officers, to hold the property (including all monies, books, stationery, furniture and office equipment) and other assets of the Association on trust for all of the Beneficiaries.

Clause 3 of the Trust Deed also gives the Trustee broad powers to give effect to the purpose of the Trust.

Ms Kairouz alleged that the Administration Resolution constituted unlawful interference with the trusts, and their administration, by:

(a) requiring the Trustees of the trusts created by r 21.1 and 21.2 of the Victorian Branch Rules and the Fund to report to the Administrators rather than act independently as trustees in administering the affairs of the Trusts;

(b) removing the Administrative Committee’s powers to authorise the Trustees of the trust created by r 21.1 of the Victorian Branch Rules to raise and borrow money, approve the making of advances by the Trustees of the Fund, nominate shareholders and directors of LSH Trustee, withdraw or cancel the nomination of a director of LSH Trustee, or change or vary the trust deed constituting the LSH Trust and the constitution of LSH Trustee;

(c) requiring the State Secretary to report to the Administrators in performance of her duties with respect to the trust created by r 21.1 of the Victorian Branch Rules;

(d) removing the power of the Officers to direct the Trustees to transfer property or assets without first reporting to the Administrators; and

(e) changing the governance and administration of the trusts created by r 21 of the Victorian Branch Rules, the Trustees and the LSH Trustee.

The Administrators’ actions in changing the LSH shareholders and directors

At the time the Administration Resolution was passed, the directors and shareholders of LSH Trustee were Ms Byers, Ms Threlfall-Clarke, Mr McWhinney, Ms Clare Burns, the branch secretary and Mr Mathew Hilakari. On 6 July 2020, the Administrators wrote to Ms Burns cancelling her nomination as a director and shareholder and stating:

As you are aware we have been appointed, by a resolution of the National Executive of the Australian Labor Party dated 16 June 2020, as administrators of the Victorian Branch of the Australian Labor Party. The resolution suspends the operation of all committees of the State Conference as defined in the Rules of the Victorian Branch, including the Administrative Committee.
In our position as administrators, all officials and staff of the Victorian Branch report to us. We are required to direct the conduct of the affairs of the Victorian Branch, including carrying out the functions that would otherwise be exercised by the Administrative Committee.
You will be aware that the powers of the Administrative Committee, under the Rules of the Victorian Branch, include nominating and cancelling the nominations of two of the Directors of the Trustee of the Labor Services & Holdings Trust, Labor Services & Holdings Pty Ltd (LSH Trustee).
We understand you were nominated by the Administrative Committee to serve as a Director of the LSH Trustee in 2019 and were formally appointed as a Director and Secretary of the LSH Trustee on 10 October 2019.
In the present circumstances, and in order to carry out our functions as administrators of the Branch, we hereby notify you that we are exercising our powers to cancel the nominations of the two current Directors of the Trustee nominated by the Administrative Committee being you and Mathew Hilakari. The cancellation is effective immediately.
In accordance with rule 21.3.4 of the Victorian Branch Rules, please promptly, and by no later than Tuesday 7 July 2020, complete and return to us the documents enclosed with this letter to retire as a Director of the LSH Trustee and transfer your appointed shareholding in the LSH Trustee to Steve Bracks.

A similar letter was sent to Mr Hilakari. The attached documents for Ms Burns and Mr Hilakari to sign recorded that they were ‘retiring’ as directors and shareholders. Upon their retirement as directors, and the transfer of their relevant shareholdings, the Administrators, Ms Macklin and Mr Bracks, became directors and shareholders of the trustee company in their place.

Ms Kairouz’s submissions about her interests in the Victorian Branch trusts

Ms Kairouz submitted that her case falls under the proprietary interest exception recognized in Cameron v Hogan, because, as a member of the Victorian Branch, she has a cause of action as a beneficiary to sue to restrain the unlawful interference with the trusts provided for in the Victorian Branch Rules. She alleged that the Administration Resolution constituted unlawful interference with these trusts, and that once the Court was able to consider the validity of the Administration Resolution, it could go further to consider the validity of the branch stacking charges.

Ms Kairouz referred to the following passage in the joint judgment in Cameron v Hogan as describing the trust exception to the principle in that case:

For example, in Forbes v. Eden … Lord Cranworth said: ‘Save for the due disposal and administration of property, there is no authority in the Courts either of England or Scotland to take cognizance of the rules of a voluntary society entered into merely for the regulation of its own affairs.[51]

[51]Cameron v Hogan (1934) 51 CLR 358, 370 (Rich, Dixon, Evatt and McTiernan JJ).

Ms Kairouz submitted that her proprietary interest based on her trust claim fell squarely within this passage. The Victorian ALP is possessed of property and, by its rules, expressly gives its members equitable interests in that property.

To support her submission that her claims were justiciable under the trusts exception, Ms Kairouz referred to the judgment of Lucas J in Rendall-Short v Grier.[52] In that case, his Honour referred to Cameron v Hogan, and the right of members of an association to see that its rules were observed, including in respect of the application of its property and income in promotion of its objects. Such a right was ‘a right of a proprietary nature’. Lucas J’s judgment has additional significance because he applied it when deciding Burton v Murphy,[53] at first instance, to explain why he was distinguishing Cameron v Hogan. Burton v Murphy, which I discuss later in this judgment, concerned the ALP Federal Executive’s intervention in the Queensland Branch in 1980 and is relevant to the issues to be decided in this case. In Burton v Murphy, Lucas J stated with reference to Cameron v Hogan:

The case has been distinguished many times, and I need only refer to what I said in [Rendell-Short v Grier]. In that case I distinguished Cameron v Hogan on the ground that what was sought was the due administration of the property of a voluntary association according to its rules, and the same considerations apply here, since one of the declarations and one of the injunctions sought by the plaintiffs are directed towards the receipt of moneys and the entitlement to property of the Interim Administrative Committee. The defendants did not rely on Cameron v Hogan to oust my jurisdiction, and I am content to distinguish it upon the basis which I have indicated. The right of the defendants to receive and deal with money and property of the Queensland body cannot be established unless the resolution of 1^st March 1980 is held to be binding upon the Queensland body.[54]
[52][1980] Qd R 100, 109–110.
[53][1981] QSC 274.
[54]Burton v Murphy [1981] QSC 274.

The defendants’ submissions about Ms Kairouz’s interests in the Victorian Branch trusts

The defendants accepted that in circumstances where property of a voluntary association is held on trust, members have a right as beneficiaries to seek remedies from the court if the trust fund is misapplied. However, that principle does not apply where, as in the present case, the dispute, in reality, only concerns who controls an association or political party, as that is a matter to be settled internally in accordance with the association’s rules.

The Victorian Branch trusts provide for the trust property to be applied solely towards the objects of the ALP and preclude any distribution of that property to members. Any right or interest of the plaintiff as a beneficiary of the trusts relating to branch property, for example, to compel the trustees to perform the terms of the trusts, is irrelevant to Ms Kairouz’s present claim. The joint judgment in Cameron v Hogan recognised that the property under the control of the central executive of the Victorian Branch could be distributed among its members if all the members agreed to dissolve the association, but regarded such an interest to be insufficient to support injunctive relief. That was because the organisation was a ‘political machine designed to secure social and political changes’; it was ‘reasonably clear that membership of the association carried with it no tangible or practical proprietary right’ to the assets belonging to the ALP; and the existence of such property was ‘incidental and accidental’ to the conduct of the association.[55] The defendants argued that Ms Kairouz was in no better position than Mr Hogan was, as she was not suing the trustees to prevent non-compliance with, or maladministration of, the trusts.
[55]Cameron v Hogan (1934) 51 CLR 358, 378 (Rich, Dixon, Evatt and McTiernan JJ).

To emphasise their argument that Ms Kairouz was not really bringing a trusts claim, the defendants submitted that the Administration Resolution had not led to any change to the trust objects, no alteration of trustees or of trust instruments, and no maladministration of trust property. After the Administration Resolution, the same trustees remained in place, the trust funds had not been transferred or spent in any unauthorised manner, there had been no change to the trust deed or the terms of the trusts on which the Victorian Branch’s property was held, and there was no change in the role or responsibilities of the trustees nor interference with the performance of their duties. The trustees reported to the Administrators and then the Interim Governance Committee, because those bodies stood in the shoes of the Administrative Committee. The change in the reporting duties of Ms Byers, Ms Threlfall-Clarke and Mr McWhinney arose in respect of their capacity as office-bearers, not in their capacity as trustees. The trust claims were a contrivance to attempt to overcome Ms Kairouz’s lack of a justiciable claim.

The plaintiff’s claim based on alleged unlawful interference with the LSH Trust lacked substance. Although two of the directors and shareholders of LSH Trustee were replaced, the trustee remained unchanged. The replacement of the two directors and shareholders was a matter for the corporate trustee, not the trust, and a beneficiary of the trust had no right to bring an action to prevent a change of the directors or shareholders of the corporate trustee.

The trusts rules were to be read and interpreted in the context of the relationship between, first, the Victorian Branch and its Rules, and second, the National Executive and the National Constitution. This included the overarching powers of the National Executive in cls 16(d) and 16(f) of the National Constitution. Because of those powers, the trustees were obliged to comply with the National Executive’s actions in the Administration Resolution to take over and direct the conduct of the Victorian Branch’s affairs.

Before considering the justiciability of Ms Kairouz’s trust exception arguments, I will deal with two matters that the defendants argued prevented her from making them.

Joinder of the trustees

An issue arose as to the right of the plaintiffs to make claims based on interference with the trusts when the trustees were not parties to the proceeding and had not commenced it. The plaintiffs in both proceedings filed summons seeking to add the trustees as parties and after hearing submissions I ordered that:

(a) Mr James McWhinney, in his capacity as a Trustee under rr 21.1 and 21.2 of the Australian Labor Party, Victorian Branch Rules, be joined as a defendant;

(b) The capacity in which the eighteenth defendant, Shannon Threlfall-Clarke, is sued be both in her capacity as a member of the National Executive of the Australian Labor Party and in her capacity as a Trustee under rr 21.1 and 21,2 of the Australian Labor Party Victorian Branch Rules;

Since the new definition of ‘branch stacking’ is inherently tied to the new understanding of membership and how membership fees are to be paid, that definition should not be applied with respect to the enrolment or retention of members under the Old Rules. The question of whether the Old Rules, and their definition of, and regulation of branch stacking, continue to apply to conduct engaged in before the commencement of the Amended Rules on 14 September 2020 was not discussed by the parties.

If, despite my conclusion, the amended definition of branch stacking and its related prohibition are found to operate retrospectively, then, I do not accept Ms Kairouz’s submission that the amendments exceeded the National Executive’s power and were beyond power. I consider that the National Executive possessed the power under cls 16(f)(ii) and 16(d) to make rule amendments introducing rule changes with retrospective effect. Once the National Executive had taken control of the Victorian Branch, it could exercise its powers to amend the Victorian Branch Rules without being constrained by r 6.4.6.8, as that rule is directed towards amendments made by State Conference. Nonetheless, applying the principles discussed in Maxwell v Murphy and Clarke v Australian Labor Party, to the extent that the National Executive seeks to amend the Branch Rules to remove members who engage in branch stacking, it must exercise that power consistently with the principles against retrospectivity and make it clear with ‘reasonable certainty’ that the rule amendment does apply retrospectively.

Charges Three stands regardless of the above as it was brought under a rule that was not changed by the Rule Amendment Resolution, except for a renumbering. Consequently, Charge Three was validly brought.

Charge Four is brought for alleged contravention of r 5.16.3 (‘General Conduct’), which obliges members to advise the relevant internal authorities of any matters that may bring the Party into disrepute. Nothing in this charge turns on retrospectivity or any other basis for invalidity. But as I have stated, there is a question about whether Charge Four was a branch stacking charge, and if it was not one, whether the Administrators had power to bring it. While the charge was particularised with allegations that would amount to branch stacking, the charge was for a contravention of a General Conduct provision. Consequently, a question arises whether it was a branch stacking charge that the Administrators could bring. I will express no opinion on this issue as it was not raised during the hearing.

In stating that the Charge Three was validly brought, I, obviously, say nothing about whether on the evidence before the Court, that charge against Ms Kairouz could be established. That is not my task in this proceeding.

The validity of the presumption introduced by r 26.4.4

I next consider the issue of the validity of the introduction by r 26.4.4 of the presumption that a member who is charged with branch stacking is presumed to have engaged in the activity, unless they prove to the contrary,

Ms Kairouz disputed the validity of this presumption and in addition contended is a denial of procedural fairness.

The defendants contended that the presumption of branch stacking contained in r 26.4.4 had a less severe effect than the provision in the Old Rules that a person was deemed to be guilty of branch stacking if the relevant facts were proved, as the new presumption could be rebutted. Further, the defendants submitted that, if necessary, the presumption of branch stacking contained in r 26.4.4 could be severed and the rest of the rules left standing.

Analysis of the challenge to the validity of the presumption of branch stacking

The issue of whether the presumption against retrospectivity applies to the presumption of branch stacking contained in r 26.4.4 depends upon whether it is a substantive or procedural provision. Although Ms Kairouz’s submissions about the presumption were directed to whether it denied her procedural fairness, she challenged its validity. The question of its validity again raised the issue of the application of the presumption against retrospectivity. There is some authority that the presumption against retrospectivity can apply where the legislation interferes with an important common law right regardless of whether the amendment is regarded as ‘procedural’ or ‘substantive’.[262] But, in my opinion, the High Court’s decision in Rodway v The Queen[263] establishes that this presumption of branch stacking is procedural and therefore that the presumption against retrospectivity does not apply to its operation. That case concerned the repeal of a provision of the Tasmanian Criminal Code requiring corroborative evidence of the evidence of the alleged victim of the crime. Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ stated:

Whether or not the previous requirement of the law that certain evidence require corroboration before it could safely be relied upon could be described as basic or fundamental, both in Attorney-General’s Reference No 1 of 1988 and in this case the statutory amendments were clearly intended to alter the existing law with respect to corroboration. Both amendments were procedural in character. They did not operate to affect existing rights or obligations. Rather, they operated to affect the way in which rights fell to be determined at trial and, for that reason, they did not fall within the presumption against retrospective operation. It follows that, in our view, Attorney-General’s Reference No. 1 of 1988 was wrongly decided and that the Tasmanian Court of Criminal Appeal was correct in declining to follow the decision.[264]

[262]Domaso v The Queen (2002) 168 FLR 103.

[263](1990) 169 CLR 515.

[264]Ibid 522-523.

The Full Federal Court judgment in O’Connell v Palmer[265] is an example of the application of this principle in a case of disciplinary charges.
[265](1994) 53 FCR 429.

I consider that the introduction of the presumption did not affect existing rights or obligations, but affected the way in which rights fell to be determined at trial or in this case, at the disciplinary hearing. I therefore conclude that r 26.4.4 containing the presumption was a valid amendment.

Many provisions in both civil and criminal law contain a statutory presumption that in effect reverses the onus of proof in respect of all, or particular, issues. This may occur where the reason for particular conduct lies peculiarly within the defendant’s’ knowledge.[266]
[266]GeneralMotors-Holden Pty Ltd v Bowling (1976) 51 ALJR 235 at 241; Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 at 519-520, 536, 547 concerning whether an employer has dismissed an employee for a proscribed reason.

An example of the application of the High Court decision in Rodway was the decision of the Tasmanian Court of Criminal Appeal in Attorney-General’s Reference (No 1 of 2004) (Tas),[267] which concerned amendments to the Misuse of Drugs Act 2001 (Tas). Section 7(2) of the Act had provided that if an accused cultivated a trafficable quantity of prohibited drugs it was presumed, in the absence of evidence to the contrary, that the accused had the relevant intention. An amendment came into operation after the alleged commission of an offence, but before the trial, placing the onus of proof on the balance of probabilities on the accused to displace the presumption. Underwood CJ, Crawford and Evans JJ agreeing, held that the amendment did no more than change the manner in which the statutory factual presumption could be displaced and did not affect the accused’s rights, obligations or liabilities that he had acquired or was subject to at the date of the alleged offence. Underwood CJ, referring to Rodway v The Queen, stated:
[267](2005) 152 A Crim R 146.

Of particular relevance to the present issue in the two passages I have just cited are the following propositions:
firstly, that there is no right to be tried in a particular way (at least not before the trial begins); and;
secondly, that the determinative factor is whether the amendment affects only the manner in which existing rights and obligations are to be determined. If it does no more than affect the way existing rights and obligations are to be tried, there is no presumption against retrospectivity.

These propositions are valid even if the amendment affects what might be generally regarded as a fundamental protection against wrongful conviction...
At the time of the alleged commission of the offence, Mr Crane ‘had acquired no right to a particular mode of procedure at his trial’, per Rodway at 523. The Act, s 7(2), before and after amendment, concerned only the nature and extent of the evidence required to establish the offence charged. The amendment did no more than change the manner in which the statutory factual presumption could be displaced. It did not touch Mr Crane’s rights, obligations or liabilities that he had acquired, or was subject to, at the date the State alleged he committed the offence charged. Although it might be said that the amendment touched an important protection, or made a fundamental change, it clearly did no more than affect the way the accused’s rights and obligations were to be contested in court, and therefore did not fall within the presumption against retrospectivity.[268]
[268]Ibid [16]-[18].

Conclusions on the disciplinary charges

While I concluded that Ms Kairouz’s claims in relation to the charges were not justiciable, if I was wrong in that conclusion, I would have found Charges One and Two to be invalid, as the rules under which they were brought did not apply retrospectively. But this conclusion would not have applied to Charges Three as it could have been brought under either the Old Rules or the Amended Rules. I would have expressed no opinion about Charge Four for the reason previously mentioned.

I would have considered the presumption of branch stacking in the Amended Rules to be valid and therefore capable of applying to Charges Three. It is not capable of applying to Charges One and Two which are not valid charges.

I also would not have considered the presumption of branch stacking in the Amended Rules constitutes a denial of Ms Kairouz’s right to procedural fairness when responding to the disciplinary charges. Rather, it deals with how charges are to be proved, which, procedure in this case, I do not consider was subject to the requirements of procedural fairness.

Discretionary Grounds

I have concluded that Ms Kairouz’s challenges to the Resolutions, with the exception of her challenge based on her trusts claims, are not justiciable and, in any event, do not succeed. But, I will expressly state my view on the defendants’ submission that Ms Kairouz should, in any event, be refused remedies in the exercise of the Court’s discretion because she delayed in commencing this proceeding with resulting prejudice to the ALP and because she did not use the available internal remedies under the Victorian Branch Rules and the National Constitution.

Ms Kairouz disputed that she should be denied remedies and submitted that her claims were not capable of resolution by the Disputes Tribunal or the National Appeals Tribunal.

Analysis of discretionary considerations

If I had otherwise found that Ms Kairouz were entitled to remedies, I would have granted the remedies despite the submissions made by the defendants. I do not consider that Ms Kairouz failed to exhaust any internal remedies that were available to her or, that even if she did, that she should be denied any remedy otherwise available to her. Her claims raised legal arguments that, if found to be justiciable, were appropriate to be determined by this Court.

I do not consider that any of the internal remedies which might be available through the Party Monitor, the Disputes Tribunal or the National Appeals Tribunal were appropriate to deal with all the claims Ms Kairouz made. It is not clear that any of those bodies could have dealt with her challenges to the validity of the Resolutions. The Victorian Disputes Tribunal may not be able to deal with jurisdictional issues. The National Appeals Tribunal cannot hear appeals ‘until all practicable avenues of appeal have been exhausted under the rules of the relevant state branch’ and can only make recommendations and not enforceable rulings.

Nor do I consider that Ms Kairouz unjustifiably delayed in bringing the proceeding. She acted promptly after the charges were brought against her on 31 January 2021.

Overall Conclusion

Ms Kairouz’s proceedings must be dismissed.

SCHEDULE OF PARTIES

BETWEEN:

MARLENE KAIROUZ...................................................................................................................... First Plaintiff

and

The Honourable STEVE BRACKS AC, in his capacity as Administrators of the Australian Labor Party Victorian Branch........................................................................................................................................... First Defendant

The Honourable JENNY MACKLIN, in her capacity as Administrators of the Australian Labor Party Victorian Branch...................................................................................................................................... Second Defendant

The Honourable ANTHONY ALBANESE, in his capacity as a member of the National Executive of the Australian Labor Party............................................................................................................... Third Defendant

Senator TIM AYRES in his capacity as a member of the National Executive of the Australian Labor Party.................................................................................................................................................. Fourth Defendant

STEVEN BAKER, in his capacity as a member of the National Executive of the Australian Labor Party.... Fifth Defendant

NICK CHAMPION, in his capacity as a member of the National Executive of the Australian Labor Party Sixth Defendant

KATE DOUST, in her capacity as a member of the National Executive of the Australian Labor Party.. Seventh Defendant

GERARD DWYER, in his capacity as a member of the National Executive of the Australian Labor Party................................................................................................................................................... Eighth Defendant

DAVID GRAY, in his capacity as a member of the National Executive of the Australian Labor Party..... Ninth Defendant

ROSE JACKSON, in her capacity as a member of the National Executive of the Australian Labor Party. Tenth Defendant

TIM JACOBSON, in his capacity as a member of the National Executive of the Australian Labor Party............................................................................................................................................... Eleventh Defendant

GRAEME KELLY, in his capacity as a member of the National Executive of the Australian Labor Party................................................................................................................................................. Twelfth Defendant

Senator SUE LINES, in her capacity as a member of the National Executive of the Australian Labor Party............................................................................................................................................ Thirteenth Defendant

TARA MORIARTY, in her capacity as a member of the National Executive of the Australian Labor Party............................................................................................................................................ Fourteenth Defendant

BOB NANVA, in his capacity as a member of the National Executive of the Australian Labor Party.. Fifteenth Defendant

MICHAEL O’CONNOR, in his capacity as a member of the National Executive of the Australian Labor Party.............................................................................................................................................. Sixteenth Defendant

MICHAEL RAVBAR, in his capacity as a member of the National Executive of the Australian Labor Party.......................................................................................................................................... Seventeenth Defendant

AMANDA RISHWORTH, in her capacity as a member of the National Executive of the Australian Labor Party............................................................................................................................................ Eighteenth Defendant

WENDY STREETS, in her capacity as a member of the National Executive of the Australian Labor Party........................................................................................................................................... Nineteenth Defendant

SHANNON THRELFALL-CLARKE, in her capacity as a member of the National Executive of the Australian Labor Party, and as Trustee under Rule 21.1 and Rule 21.2 of the Australian Labor Party Victorian Branch Rules.................................................................................................................................... Twentieth Defendant

Senator RAFF CICCONE, in his capacity as a member of the National Executive of the Australian Labor Party........................................................................................................................................ Twenty-First Defendant

SUSIE BYERS, in her capacity as a member of the National Executive of the Australian Labor Party, as a member of the Interim Governance Committee of the Victorian branch of the Australian Labor Party, and as Trustee under Rule 21.1 and Rule 21.2 of the Australian Labor Party Victorian Branch Rules.. Twenty-Second Defendant

LINDA WHITE, in her capacity as a member of the National Executive of the Australian Labor Party and as a member of the Interim Governance Committee of the Victorian branch of the Australian Labor Party Twenty-Third Defendant

BEN DAVIS, in his capacity as a member of the National Executive of the Australian Labor Party..................................................................................................................................... Twenty-Fourth Defendant

MICHAEL DONOVAN, in his capacity as a member of the National Executive of the Australian Labor Party and as a member of the Interim Governance Committee of the Victorian branch of the Australian Labor Party........................................................................................................................................ Twenty-Fifth Defendant

LLOYD WILLIAMS, in his capacity as a member of the National Executive of the Australian Labor Party and as a member of the Interim Governance Committee of the Victorian branch of the Australian Labor Party....................................................................................................................................... Twenty-Sixth Defendant

JAMES MCWHINNEY, in his capacity as Trustee under Rule 21.1 and 21.2 of the Australian Labor Party Victorian Branch Rules.............................................................................................. Twenty-Seventh Defendant

LABOR SERVICES & HOLDINGS PTY LTD, in its capacity as Trustee under Rules 21.3 of the Australian Labor Party Victorian Branch Rules...................................................................................... Twenty-Eighth Defendant

[2021] VSC 671

19 October 2021