Plaintiffs Oppose Preselections for House of Representative Seats

Asmar v Albanese (No 4) [2021] VSC 672 (19 October 2021)

The National Executive resolved to conduct the preselections for 21 safe ALP seats and one newly created seat with the nominations to close on 7 May 2021, 46 hours later (‘the Preselection Resolution’).  Members of the Australian Labor Party claim that the resolution was invalid under the ALP’s National Constitution or the Victorian Branch Rules and thus seek a declaration that nothing done based on the Preselection Resolution has legal effect.  

Facts:

On 4 May 2021, the National Executive acting under the power in cl.16(f)(iii) resolved to conduct the preselections for 21 safe ALP seats and one newly created seat with the nominations to close on 7 May 2021, 46 hours later (‘the Preselection Resolution’).  Some of the plaintiffs, as members of the Public Office Selection Committee or through selection by their local branches, may have been electors in those preselections if they had been conducted in the usual manner under the Victorian Branch Rules. 

The plaintiffs in this proceeding are members of the Australian Labor Party.  Due to the Resolution, the plaintiffs lost their opportunity to be part of the preselection process.   Most of the plaintiffs are also officers of branches of trade unions affiliated with the Victorian Branch of the ALP and sue as representing the members of their branches. 

They claim that a resolution of the National Executive of the ALP which took control over the preselection of candidates for safe ALP House of Representative seats in the forthcoming federal election was invalid because it was not authorised by the ALP’s National Constitution or the Victorian Branch Rules.  

The Preselection Resolution followed and was based on the National Executive’s intervention in the Victorian Branch in June 2020 under an Administration Resolution made following allegations of branch stacking, which they argue was also invalid.  They also argued that the Preselection Resolution was not a reasonable exercise of the powers conferred on the National Executive by the National Constitution or the Victorian Branch Rules, and was made for improper purposes.  

The plaintiffs seek a declaration that nothing done based on the Preselection Resolution has legal effect as a decision or act of the Victorian Branch for the purposes of the Commonwealth Electoral Act.  They seek a declaration that there was no reasonable, proper or lawful basis for the affirmation in the Preselection Resolution that the National Executive remained of the opinion that the Victorian Branch, or a section of it, was acting or had acted in a manner contrary to the National Constitution that warranted or justified an opinion that the conduct of the preselection process, the subject of the resolution, ‘remains necessary and justified’.  They also seek injunctive relief.

On 7 May 2021, the Court granted an interlocutory injunction restraining the defendants from acting upon or giving effect to any nominations received in respect of the 22 Federal House of Representative seats in Victoria identified in the Preselection Resolution and from conducting any ballot as foreshadowed in that Resolution following those nominations.  

Issues:

I. Whether or not the plaintiff's case is justiciable. 

II. Whether or not the Victorian Branch of the ALP is a separate entity to what was described as the Federal ALP.

III. Whether or not the beneficiaries can bring claim for unlawful interference with the administration of trusts by third party.

Applicable law:

National Constitution cl 16(f)(iii) - gives the National Executive power over preselections when it forms the opinion that any state branch or section of the Party is acting, or has acted, in a manner contrary to the National Constitution, the national platform or a decision of the National Conference.

Cameron v Hogan [1934] HCA 24; (1934) 51 CLR 358- 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.

Commonwealth Electoral Act 1918 (Cth) (‘Commonwealth Electoral Act’) - where both the ALP and the Victorian Branch are registered political parties under. 

Analysis:

The National Executive has power over preselections when it forms the opinion that any state branch or section of the Party is acting, or has acted, in a manner contrary to the National Constitution, the national platform or a decision of National Conference, as interpreted by the National Executive. 

In those circumstances, it may conduct any preselection that would otherwise have been decided by the State Branch.  The defendants argue that the plaintiffs' case is not justiciable because a court will not become involved in an internal dispute of a political party, which is an unincorporated association which exercises no public power.  In any event, the defendants contended that the plaintiffs had not established that the Resolutions were invalid.  

The plaintiffs have not proved or established their claim that the National Executive has unlawfully interfered with the administration of the Branch trusts by passing and implementing the Administration Resolution.

Conclusion: 

The Court dismissed the proceedings.  The Court concluded that one of the plaintiffs’ claims is justiciable, being their claim that the National Executive’s intervention by the Administration Resolution was an unlawful interference with the trusts upon which the Victorian Branch’s property is held and that they have the legal standing to bring that claim.  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. Thus the powers contained in the National Constitution and exercisable by the National Executive apply to all Branches and members of the ALP subject to limitations that I discuss in the judgment.