Piercing the political veil: the future justiciability of pre-selection disputes in Victoria and NSW

Asmar v Albanese [2022] VSCA 19; Camenzuli v Morrison [2022] NSWCA 51

While the federal election is run and won, the (new) Prime Minister entered the race with a wet sail, having already secured a handy victory in the High Court, which confirmed the pre-selection of 22 ALP endorsed candidates in Victoria.

However, that victory masked a turning point in the applicability of Cameron v Hogan (1934) 51 CLR 358 in Victoria. It leaves in place a Court of Appeal decision that finds that federal pre-selection disputes have the necessary direct connection to the Commonwealth Electoral Act 1918 (the Act) to render them justiciable.

These are seismic moments for the piercing (or preservation) of the political veil indeed.

The citations

In Asmar & Ors v Albanese & Ors [2022] HCASL 71 Kiefel CJ and Gageler J refused special leave to challenge the Court of Appeal decision in Asmar v Albanese [2022] VSCA 19, an appeal from the decision of Ginnane J in Asmar v Albanese (No 4) [2021] VSC 672.

Kiefel CJ and Gageler J gave as their reasons:

Giving due weight to the context of Pt XIV of the Commonwealth Electoral Act 1918 (Cth), we are not persuaded that there are sufficient prospects of departing from the view of the construction and interrelationship of the Australian Labor Party National Constitution and the Australian Labor Party Victorian Branch rules adopted by the Court of Appeal to warrant the grant of special leave to appeal.

Yet one week after the special leave disposition, the NSW Court of Appeal expressly held that it was “comfortably satisfied” that the Victorian Court of Appeal’s decision was wrong: Camenzuli v Morrison [2022] NSWCA 51 at [46].

The facts

In 2021, in response to media reports of “extensive ‘branch stacking’” within the ALP Victoria Branch, the Premier of Victoria wrote to the National Executive of the ALP requesting “National Executive oversight” of that branch. The ALP is an unincorporated association, established by its National Constitution; the ALP Victoria Branch is also an unincorporated association, governed (in part) by the Victorian Branch Rules. In response, the National Executive passed several resolutions, including that it would conduct all Victorian pre-selections for the federal election, which it did.

The National Constitution contained certain rules said to support these measures: a general plenary power, and a specific power permitting the National Executive to conduct any pre-selection that would have been decided by a state branch.

To the extent the Act was relevant, it was so because since the mid-1980s it has provided for: the registration of different levels of political parties (s 130), that a party’s registered officer can sign a candidate’s nomination form (s 166), request their party name be printed on a ballot paper next to the name of an endorsed candidate by that party (s 169), and notify the Electoral Commissioner of that party’s endorsed candidates (s 169B).

The reasoning

The Court first considered whether the Victoria Branch was subject to the ALP and its National Constitution (the “construction decision”). The Court answered yes (at [151]-[173]) rendering the pre-selections valid. It then moved to justiciability.

The Court commenced without controversy: Cameron v Hogan remains binding authority for the proposition that disputes arising under the rules of an unincorporated association are not justiciable (with some exceptions: [183]; [208]).

The Court then considered competing lines of authority which have at times sought to distinguish Cameron v Hogan with respect to internal political party disputes. Critical was Baldwin v Everingham [1993] 1 Qd R 10, where Dowsett J distinguished Cameron v Hogan on the basis that the Act had (since Cameron) been amended to recognise and register political parties.

Ultimately, the Court reasoned that absent further High Court consideration, if one is to distinguish Cameron v Hogan, it must be “confined strictly to disputes which really do bear upon the matters addressed by the legislation” (at [211]).

The significance? In Victoria, federal pre-selection disputes are one such “matter”

The Court held at [213]:

“It seems to us that pre-selection disputes in relation to federal parliamentary elections would generally have the necessary direct connection with the Commonwealth Electoral Act to render them justiciable. […] The registered officer’s role is to act as the conduit for communicating internal party decisions to the Electoral Commissioner and the voting public. The purposes of the legislation would be significantly undermined if an endorsement which was invalid under the governing constitution of a registered party was to be given effect because it was immune from challenge.”

On this basis, the dispute was justiciable (at [214]) due to “the need to ensure that the provisions of the Commonwealth Electoral Act are not undermined by endorsements which are not in accordance with the registered party’s internal processes”:  [216].

The NSW position: the Victorian Court of Appeal is wrong

In Camenzuli v Morrison, the NSW Court of Appeal expressly rejected justiciability, finding: “The reasoning [in Asmar] is not persuasive; indeed, we are comfortably satisfied it is wrong” (at [46]). The Court then impugned the [213] passage (quoted in part above) on the basis that the registered officer plays no role, under the Act, in the internal processes of preselecting candidates (they are merely a messenger). Further, it was said that by assuming that such messages might be “invalid” the Victorian Court of Appeal (impermissibly) assumed there is an avenue for challenging the validity of the content of that message. That was “to assume the conclusion to the critical question [of justiciability] rather than to answer it” (at [54]).

This leaves the law in Victoria and NSW diametrically opposed.

Finally, it ought to be noted that s 166 and s 169B of the Act (both referenced in the full [213] passage of the Victorian Court of Appeal judgment) fall within Part XIV of the Act, which injects greater intrigue into the view expressed by Kiefel CJ and Gageler J in refusing special leave: should this be read as a concurrence with the justiciability conclusion? Whatever might be made of that, plainly this is now a matter in need of a “suitable vehicle” for a drive up (or down) the highway to Canberra.

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