It’s my party: The enforceability of political party rules

Caught between Courts (High and Supreme)

Ned Hogan was Premier of Victoria for almost four years (and Labor leader from 1926 to 1932). But he lost the support of the ALP’s industrial wing over austerity measures that were part of the ‘Premiers’ Plan’ during the Depression. Hogan was disendorsed. Although re-elected to the Assembly on a makeshift ‘Premiers’ Plan Labor’ ticket, he was also then expelled from the party. ² A judge held that Hogan had enforceable rights under the party’s own rules. These were breached by the party executive – both in failing to put his nomination through the normal candidate selection processes and by assuming a right of expulsion that belonged to others. Either a declaration and nominal damages or, where suitable, an injunction might offer some vindication. ³ However the trial judge baulked at an injunction, unless the aggrieved member could point to a sufficient proprietary interest. ⁴

The party executive appealed to the High Court. And won. As Starke J put it, ‘[t]he rules of a voluntary association organized for political purposes are not agreements enforceable at law, or in other words, contracts.’ ⁵ The judges spent some pages discussing the complex and fluid nature of the ALP – then much more a mass movement than today. They inferred that, in paying their dues and agreeing to be bound by the party’s rules, neither ordinary members nor the executive warranted to each other that they would abide by the rules in any legal sense.

Such contractualism aside, the heart of the judgment was a value judgement, that party rules ‘are naturally regarded as of domestic concern’. ⁶ At law, the ALP was little different from a social club: it was ‘a political machine [and the] policy of the law is against interference in the affairs of voluntary associations’.

The Court had to admit that the party’s executive had acted improperly, so that its decisions were ‘void’. But there would be no redress, short of a revolution within the party. And in any event, in future cases ‘the question, whether, upon the true meaning of the rules, [a party executive] acted in accordance with or contrary to them [was] not one of which the Court takes cognizance.’ ⁷ The only exception lay in equity, and then only if there was a dispute about the control of property (say between warring factions about who formed the executive).

For many decades this decision stood as a testament to a gap between contract and equity, despite a growing realisation of its unrealistic nature. ⁸ The concept of a ‘voluntary association’ came under challenge in relation to professional and industrial associations, which can play roles in licensing or rationing access to certain vocations. Parties not only wield such career-making power. They are also inherently quasi-public entities, given their inescapable role in public law and governance. ⁹ More formally, each of the national and state/territory divisions of parties can – and invariably do – publicly register with the electoral commissions, on the basis of their constitutions. ¹⁰

Then, in 1993, this wall-of-a-precedent was not so much breached as skirted. In Baldwin v Everingham, ¹¹ Queensland Supreme Court Justice Dowsett distinguished Cameron v Hogan, in a case brought by a Liberal Party member whose application for candidate pre-selection had been improperly excluded by the state executive. Dowsett J’s decision rested squarely on the formal development of statutory law for the registration of political parties and their partial public funding in return for disclosure of significant donations to them. ¹² From a public policy perspective he also observed, with a tinge of understatement, that ‘where an albeit voluntary association fulfils a substantial public function in our society, it may appear indefensible that questions of construction concerning its constitution should be beyond judicial resolution.’ ¹³

This decision proved to be a quiet revolution rather than a dramatic one. A steady trickle of cases has filtered through the state Supreme Courts in the 30 years since. ¹⁴ In some instances parties sought to tighten ‘ouster’ clauses, to suggest that members agreed never to litigate the party’s dirty laundry. But parties often did not press such clauses. Either because the executive had no dog-in-the-fight – given some internal disputes are between otherwise balanced factions or powerful personalities, and independent judicial resolution may be a blessing for the organisation as a whole. Or because the Supreme Courts held that, while party rules could require members to exhaust internal grievance procedures, they could not deny all access to the courts, especially in urgent cases. ¹⁵

Party ‘rules’ here mean their divisional constitutions and any other formally adopted, detailed and structured sub-rules. However only particular rules that are clear and give rise to obligations – essentially significant process requirements – are enforceable. So, courts are not dragged into ideological debates about policy platforms or aspirational codes of conduct. Nor are ‘rules’ adopted by the parliamentary wings of a party enforceable. They are in reality malleable, private understandings: a caucus of MPs is not an organisation that one ‘joins’. Finally, any rules that are against public policy, particularly against parliamentary law or practice, are unenforceable. ¹⁶

Contractual reasoning also limits who may seek to enforce a party’s rules. Jane Public cannot, regardless of whether the issue might determine which candidates appear on her general election ballot paper. Nor can prospective members; they have no legitimate expectations of being accepted into a party, regardless of how welcomingly the rules are framed. While this means a dominant faction may keep rivals at bay through irregular means, it also meant that the Liberal Party of South Australia could rebuff an unwanted influx of members aligned with the shooters-rights movement. ¹⁷ Only disgruntled existing members can seek to regularise practice.

In other words, Supreme Court judges enforcing party rules are limited by standard private law reasoning: privity, in terms of who can bring a claim; solidity, in not arguing about vague rules; the four walls of the rules, in not implying natural justice principles but employing standard interpretive methods. ¹⁸

Party rules have thus not been rewritten by judges influenced by administrative law concepts; their rules are their rules, to shape as democratically or autocratically as the party cares to. This gives lie to the High Court’s loose use of the term ‘interference’, to describe merely interpreting and enforcing their rules like any other pact designed to carve up rights, obligations and power within a serious organisation.

First they came for the unionist …

The retreat from justiciability began in 2019, in a case involving a prominent Victorian construction union leader and ALP member, John Setka. Setka was not a sympathetic figure; he was on a good behaviour bond stemming from alleged domestic abuse. Then Opposition Leader (Anthony Albanese) publicly stated his determination to expel Setka. The problem for the party’s national executive is that it did not have power to expel; that was a matter for the Victorian Branch. ¹⁹ Even then, there was no power to expel for general ‘disrepute’ that did not involve activity within the party. A ‘serious criminal offence’ had to be involved for a member to be suspended, ²⁰ not to mention a modicum of due process through a local Disputes Tribunal.

A Victorian Supreme Court judge agreed: the national executive could intervene to exercise state divisional powers but could not ignore state rules in doing so. Yet the judge washed his hands of the matter by first deciding that he was bound by Cameron v Hogan, a position the ALP had pressed. ²¹ Had matters lain there, parties and their members would have just faced a welter of lower court case law favouring justiciability, and an outlier in Setka’s case. ²² Like a lot of areas of law involving social action rather than commercial money, matters are often resolved after an interim injunction hearing, rather than bubbling up to the appellate level. However, in 2021–22, both major parties experienced more momentous disputes and litigation.

In each instance factional or grass-roots resistance to national executive intervention or override was involved. In the ALP, this welled up from findings of branch-stacking in Victoria, made by a panel including former Premier Steve Bracks. This then involved formal intervention by the national executive, placing that state’s division into administration. In the NSW Liberal Party, it arose from simmering tension between local branches and key leaders such as then-Prime Minister Morrison and Minister Alex Hawke.

In the ALP matter, several cases were brought challenging the intervention and its consequences. In Kairouz v Bracks, a judge accepted there was at least a serious question of justiciability, so that orders could preserve key interests pending a fuller hearing. ²³ The main legal focus however lay in a series of judgments in proceedings brought by the secretary of the affiliated health services union, Asmar v Albanese. Initially, the same judge as in Kairouz’s case repeated the same position that justiciability was a serious question. ²⁴ However after nine days of hearings and in a long opinion on point, that judge followed Setka’s approach in hewing to Cameron v Hogan. ²⁵ ‘A member’s interests in a political party [is not recognized in law or equity]. Nor does the public character of political parties confer such rights or interests on members in public law …’. ²⁶ That left the applicants only able to argue a (losing) case about control of trust property, and not politically more tender questions like pre-selection of candidates or purging of members and officeholders.

Asmar appealed but lost. This time, however, the Victorian Court of Appeal floated a new position on justiciability. The developments in the power and regulation of parties in the previous 90 years could not be fully ignored. But just by registering to enjoy statutory benefits, parties were not yet juridified in the way that unions which registered with industrial commissions were. Any modern exception to Cameron v Hogan had to be ‘confined strictly to disputes which really do bear upon the matters addressed by [electoral] legislation’. ²⁷ Membership matters were not covered in that; but the identity of the party’s registered officer with the electoral commissions was. Pre-selection of candidates fell on the justiciable side, because the electoral acts configure parties as electoral machines. It lets them nominate candidates in bulk; candidates who then attract the all-important party label on the ballot papers.

In the Liberal Party battle, the national executive of the party decided in March to intervene to put candidate selection, for the national election held in May 2022, in the hands of three members of the parliamentary party. This sidelined local branches in NSW, upsetting not just rank-and-file members, but members of the executive of the state division, one of whom sued. (Party branches and activists tend to be more ideological than the party proper or its parliamentarians. ²⁸ The leadership, especially given compulsory voting in Australia, care less for branch democracy; they often crave control of pre-selections, to select candidates whom they perceive to be prominent or electable to the wider voting public.) The dispute came to national prominence, not least as the then-Prime Minister was the first named respondent: Camenzuli v Morrison. Indeed, at one point, his Attorney-General and Solicitor-General tried to remove the hearings to the High Court. ²⁹

The courts could have resolved this by simply noting that the Liberal Party’s rules (like those of many parties) gave broad discretion for party executives to ignore ‘normal’ pre-selection processes. Indeed, such overrides often occur close to an election period, at which time court involvement may be practically difficult. Urgency was such that the matter was removed from a single judge in the NSW Supreme Court’s Equity Division, for direct trial before the Court of Appeal.

The Court of Appeal, despite the rushed hearing, opted for the nuclear option. It ruled that party disputes were normally not justiciable, finding Setka’s case ‘persuasive’. ³⁰ The parts of modern electoral acts that provide for public registration of parties (let alone benefits that flow from that, such as control of public funding and party names on ballots) ‘do not purport to affect [a party’s] internal operations’. ³¹ No ‘public interest in the operation of major political parties provides [a] basis for not applying Cameron v Hogan. Indeed there is no reason to suppose that … the role, or manner of operation of political parties has changed materially since 1934.’ ³²

Adopting the lower Victorian courts’ approach, only rules disputes that had a ‘direct bearing on the proper application and operation of the Electoral Acts’ could be litigated. ³³ The sausage factory by which candidates are pre-selected within parties did not bear on electoral machinery. Only perhaps a dispute about the identity of the party’s registered officer who is entitled to file bulk nominations of candidates with the electoral commission would have such bearing. In doing so, the Court managed to both ape the test embraced by the Victorian Court of Appeal in the Labor Party dispute, yet be ‘comfortably satisfied’ that that the Victorian Court’s application of the test to pre-selection disputes was ‘wrong’. ³⁴

Camenzuli sought leave to appeal to the High Court. By then the calling of the election was only days away. Since the lower courts had held that the rules permitted national intervention, this was a desperate last throw of the dice. Two judges took 10 minutes to decide that the case was not an ‘appropriate vehicle’ to consider justiciability: given the breadth of the intervention power, and that the plaintiff had not framed the case in contract, so much as relied on the Asmar approach of arguing that candidate selection was interrelated with electoral law. ³⁵ There is a tantalising hint, however, that those two judges thought the NSW Court of Appeal approach reasonable. ³⁶

Pregnant with confusion or partying amongst the rules

So here we are. After 30 years of party disputes being resolved with the assistance of the Supreme Courts, Courts of Appeal in the two largest states have rolled up the carpet. In doing so, they have left a tripping hazard. First, it is unclear how other states or territories will go; it would be odd to have some courts enforcing party rules and others not, purely on geography. A single judge in Queensland has since followed the new cases rather than Baldwin. ³⁷ But, even more worryingly, the 2022 decisions are pregnant with uncertainty.

Unable to ignore the statutory registration and status of parties, they offer a cack-handed Solomonic ruling. Party disputes going beyond control of property will be justiciable in common law litigation, if they bear significantly (or perhaps directly) enough on electoral legislation. Yet, as we just saw, within the space of weeks, three Victorian appeal judges and three NSW appeal judges disagreed explicitly about how to apply that new test. And they did so in the most publicly significant domain of all: the pre-selection of candidates. As statutory rules covering party finances and other activities expand, so too will uncertainty over which internal disputes touch closely enough on those rules. On the other hand, it seems clear now that disputes over the make up of most executive roles within a party, ³⁸ or the proper convening of party conventions or AGMs, now will not be justiciable.

Forbes’ critique, of the post-1993 cases that allowed internal disputes to be generally heard, criticised Baldwin as being an act of ‘judicial legislation’, ‘pregnant with the uncertainty of ad hoc discretion’. Those criticisms are off-the-mark.

What was the High Court’s decision in Cameron, but an act of judicial law-making? It prioritised one type of interest (control of property) over another (the channelling of political power within party rules). That was problematic, even in 1934. (In some countries parties control significant investments and even play a quasi-charitable role as welfare agencies, but that is not the case in Australia.) Justiciability necessarily involves a judicial policy choice, within the bounds of common law contractualism. No deep contractual principle requires party rules to be put into a box of ‘private’ agreements, like Mrs Balfour’s clothing allowance in the notorious case of Balfour v Balfour.

Champions of freedom of association caution against interference with parties’ internal rules or processes. Given parties benefit from public funding, they should have a high level of financial transparency and probity, but not one-size-fits-all internal rules. ³⁹ Other arguments against justiciability include that parties are private and, to a significant extent (especially in their infancy or branches), run by volunteers. ⁴⁰

In the latest Queensland case, Émile Durkheim was cited as evidence of the importance of ‘voluntary associations as a form of organic solidarity’. ⁴¹ Valorising civil society is welcome; but it is not clear why ‘voluntary associations’ are less voluntary simply because their rules are enforceable. A trade union is no less a socio-political entity at heart than a political party, simply because unions that register are then incorporated – a status originally meant to simplify property affairs. The law is in an odd state when the rules of the local Model Railway Club Inc are justiciable, but not those of major political parties. ⁴²

Such caution is relevant to whether legislation should intrude further into party affairs, but not to enforcement of party’s own rules. The post-1993 cases do not involve judges meddling with parties’ internal rules. In these disputes, members are not asking courts to treat parties like public bodies that must be run according to a Rolls Royce standard of internal democracy and fair process. A party like the original Palmer United Party can still have a constitution that centralises and entrenches power in its founder and his family. If you don’t like that, join a party with greater internal democracy. The landscape is hardly uncompetitive. Even after a ‘cleanse’ of parties with limited membership, there were 35 distinct parties registered to vie for support at the 2022 national election.

Not enforcing ouster clauses may seem paradoxical – what justifies enforcing an agreement that says, ‘don’t enforce this agreement’? But not giving full credit to ouster clauses is in line with High Court doctrine that arbitration clauses in a commercial contract cannot exclude recourse to the general courts. ⁴³ (In Asmar, the Court offers a further justification, namely that the connection with the electoral legislation overrides any intention to oust justiciability.) That said, a party member cannot expect a quick hearing or equitable relief if they haven’t yet tried any internal grievance procedures laid down in the party’s rules.

In short, Baldwin’s reasoning – and that of many judges since – is not ad hoc or discretionary. It shows both intestinal fortitude and realism. If Parliament had disagreed, it has had 30 years to legislate to clarify that the increasingly detailed statutory regulation around the form, duties and privileges of parties was not meant to treat their rules as justiciable. Parliament could of course reverse Asmar and Camenzuli, and explicitly endorse Baldwin’s approach. (This is very unlikely; the current situation suits party executives/leaderships, as they can choose to plead the defence of no-justiciability whenever it suits them. ⁴⁴ ) Or, one day, a case will filter up through the appeal courts to the High Court. Until then, we are lumbered with a confused and patchwork position on an important social and political question.