supreme court of victoria - by originating motion filed 3 july ... · web viewsimilar to the...

IN THE SUPREME COURT OF VICTORIA Not RestrictedAT MELBOURNECOMMON LAW DIVISION

S ECI 2019 02998

JOHN SETKA Plaintiff

v

NOAH CARROLL & ORS Defendants

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JUDGE: RIORDAN JWHERE HELD: MelbourneDATE OF HEARING: 11 July 2019DATE OF JUDGMENT : 27 August 2019CASE MAY BE CITED AS: Setka v Carroll & OrsMEDIUM NEUTRAL CITATION: [2019] VSC 571

---UNINCORPORATED ASSOCIATIONS – Motion to expel member from the ALP – Jurisdiction of the Court to intervene for non-compliance with the constitution of the association – Constitution conferring no contractual rights – Whether jurisdiction arises from statutory recognition of political parties –Whether jurisdiction arises from plaintiff’s interests in ALP property or the effects of the motion on plaintiff’s livelihood and reputation – Whether Cameron v Hogan (1934) 51 CLR 358 is distinguishable – Edgar and Walker v Mead (1917) 23 CLR 29 considered – Baldwin v Everingham (1993) 1 Qd R 10 not followed – Proceeding dismissed.DECLARATORY RELIEF – Whether declaratory relief limited to protection or enforcement of rights and liabilities enforceable in the courts. CONSTRUCTION OF CONSTITUTION OF UNINCORPORATED ASSOCIATION – Principles to be applied considered – Motion to expel a member not in compliance with Victorian Branch Rules – Whether constitution conferred National Executive with unlimited powers to expel members.

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APPEARANCES: Counsel Solicitors

For the Plaintiff Mr Geoffrey Kennett QC andMr Christopher Tran

Doogue + George

For the Defendants Mr Michael Borsky QC andMs Simona Gory

Holding Redlich

TABLE OF CONTENTS

Reasons............................................................................................1

Summary...........................................................................................1

Background.......................................................................................1

The proposed expulsion motion.......................................................................2Structure of the ALP.........................................................................................7The National Constitution.................................................................................8Rules of the Victorian Branch of the ALP........................................................11

The issues for determination............................................................12

Question 1 - Whether the legitimacy of the expulsion motion is amenable to declaratory and/or injunctive relief............................13

Plaintiff’s submissions....................................................................................13Defendants’ submissions...............................................................................14Principles........................................................................................................14

Can Cameron v Hogan be distinguished on the basis of subsequent statutory recognition of political parties?......................................20

Cases applying Baldwin v Everingham...................................................28Can Cameron v Hogan be distinguished on the basis of rights to the

property of the ALP?......................................................................31Can Cameron v Hogan be distinguished on the basis of the financial and

reputational effects of expulsion?.................................................32Conclusion on justiciability.............................................................................34

Question 2 - Is the power of the National Executive to expel a member under cl 16(d) of the National Constitution subject to any limitation requiring compliance with cl 20 of the Victorian Rules?..................34

Principles of construction for rules of a voluntary association.......................34Plaintiff’s submissions....................................................................................36Defendants’ submissions...............................................................................37Conclusion on construction question..............................................................39

Textual considerations............................................................................39SETKA v CARROLL & ORS i JUDGMENT

Contextual considerations......................................................................40Clause 16(d) as a ‘plenary power’................................................40The context of the ALP structure..................................................41Amendments to cl 16(d)...............................................................41Previous applications of cl 16(d)..................................................42The plaintiff’s interpretation of cl 16(d) is practically unworkable

........................................................................................44

Question 3 - Should the Court refrain on discretionary grounds from granting relief?............................................................................45

Orders.............................................................................................45

SETKA v CARROLL & ORS ii JUDGMENT

List of Cases Cited

Actors and Announcers Equity Association of Australia v Fontana Films Pty Ltd (1982) 150 CLR 169Agricultural Societies Council of NSW Ltd v Christie (2016) 340 ALR 560Ainsworth v Criminal Justice Commission (1992) 175 CLR 564Amos v Brunton (1897) 14 WN (NSW) 69Australian Broadcasting Corporation v Lenah Games Meats Pty Ltd (2001) 208 CLR 199Baldwin v Everingham [1993] 1 Qd R 10Bonsor v Musicians’ Union [1956] AC 104Burn v National Amalgamated Labourers’ Union of Great Britain and Ireland [1920] 2 Ch 364Burston v Oldfield [2003] NSWSC 88Burton v Murphy [1983] 2 Qd R 321Butler v Mulholland [No 2] [2013] VSC 662Byrne v Australian Airlines Ltd (1995) 185 CLR 410Cameron v Hogan (1934) 51 CLR 358Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393Clarke v Australian Labor Party (South Australian Branch) (1999) 74 SASR 109Coleman v Liberal Party of Australia, New South Wales Division (No 2) (2007) 212 FLR 271Croome v Tasmania (1997) 191 CLR 119DEF v Trappett [2016] NSWSC 1698Echunga Football Club Inc v Hills Football League Inc (2014) 121 SASR 449Ecosse Property Holdings Pty td v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544Edgar and Walker v Meade (1916) 23 CLR 29Egan v Willis (1998) 195 CLR 424Farrah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89Fennell v Brough [2008] QSC 166SETKA v CARROLL & ORS iii JUDGMENT

Galt v Fleg [2003] QSC 290Garcia v National Australia Bank Ltd (1998) 194 CLR 395Green v Page [1957] Tas SR 66Greene v McIver (2012) 263 FLR 450Harbottle Brown & Co Pty Ltd v Halstead [1968] 3 NSWR 493Hogan v Cameron [1934] VLR 88JN Taylor Holdings Ltd (in liq) v Bond (1993) 59 SASR 432Johnco Nominees Pty Ltd v Albury-Wodonga (NSW) Corporation [1977] 1 NSWLR 43Kelly v National Society of Operative Printers (1915) 113 LT 1055Lewis v Heffer [1978] 1 WLR 1061Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd (2006) 156 FCR 1Live Group Pty Ltd v Rabbi Ulman [2017] NSWSC 1759McKinnon v Grogan [1974] 1 NSWLR 295Mickovski v Financial Services Ombudsman Service Ltd (2012) 36 VR 456Mutasa v Attorney-General [1980] QB 114Petros v Beru [2007] VSCA 226Plenty v Seventh Day Adventist Church of Port Pirrie (2009) 260 LSJS 313Popovic v Tanasijevic [2001] SASC 289R v North East Devon Health Authority, Ex p Coughlan [2001] QB 213R v Panel on Take-Overs and Mergers; Ex parte Datafin [1987] 1 QB 815R v Public Vehicles Licensing Appeal Tribunal of the State of Tasmania (1964) 113 CLR 207Re Judiciary and Navigation Acts (1921) 29 CLR 257Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1Rigby v Connol (1880) 14 Ch D 482Thornley v Heffernan (Supreme Court of New South Wales, Brownie J, 25 July 1995)Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165Tucker v MacDonald [2001] QSC 296

SETKA v CARROLL & ORS iv JUDGMENT

Webster v The Bread Carters’ Union of New South Wales (1930) 30 SR (NSW) 267

SETKA v CARROLL & ORS v JUDGMENT

HIS HONOUR:

Reasons

1 By originating motion filed 3 July 2019, the plaintiff claims:1. A declaration that clause 16(d) of the ALP National

Constitution, as adopted on 18 December 2018, does not permit the National Executive of the Australian Labor Party to expel the plaintiff from the Australian Labor Party otherwise than in accordance with rule 20 of the Australian Labor Party Victorian Branch Rules (authorised version incorporating amendments as at 27 May 2018), save that the National Executive may exercise the powers of and in place of the Disputes Panel under rule 20.

2. An injunction prohibiting the defendants (including by their agents or servants) from taking any further step to move to expel the plaintiff from the Australian Labor Party:

(a) on the grounds set out in the second defendant’s letter to the first defendant dated 21 June 2019; or

(b) following the procedure set out in the first defendant’s letters to the plaintiff dated 23 June 2019 and 1 July 2019.

Summary

2 In summary, the question of the legitimacy or otherwise of the motion to expel the plaintiff from the Australian Labor Party (‘the ALP’) is not within the Court’s jurisdiction. The Court does not interfere with internal decisions of voluntary unincorporated associations unless it is protecting or enforcing a contractual or other right recognised in law or equity. The plaintiff has not established any such underlying right.

3 In case I am wrong and the Court does have jurisdiction, I have determined that the powers of the National Executive of the ALP to expel a member under cl 16(d) of the National Constitution are subject to compliance with the preconditions set out in r 20 of the ALP Victorian Branch Rules.

SETKA v CARROLL & ORS 1 JUDGMENT

Background

4 The plaintiff:

(a) is employed as the Victorian Secretary of the Construction, Forestry, Maritime, Mining and Energy Union (‘the CFMMEU’) and has served in that capacity since 2012;

(b) has been a member of the Victorian Branch of the ALP for approximately 12 years; and

(c) has been a CFMMEU delegate at ALP state and national conferences, for a number of years.

5 The first defendant is the National Secretary of the ALP.

6 The second defendant is the leader of the Federal Parliamentary Opposition.

7 The third to twenty-second defendants are voting members of the National Executive of the ALP.

The proposed expulsion motion

8 By letter dated 21 June 2019 to the first defendant, the second defendant stated as follows:

I intend to move a resolution at the 5 July National Executive meeting to expel Mr John Setka from the Australian Labor Party.

I invite the members of the National Executive to support the resolution.

The basis for seeking his expulsion is that by his continuing membership of the ALP Mr Setka has caused, and will continue to cause, the ALP to suffer harm. There are two reasons. One is the cumulative effect of his conduct over the last few years. The other equally if not more important reason is the adverse media coverage of his actions and how that reflects on the ALP while he remains a member.


My reasons for seeking the expulsion of Mr Setka have nothing to do with the legitimate and necessary industrial campaigns for workers' rights and safety in the construction industry that the union movement undertakes every day.

I understand that construction remains one of the most dangerous industries and workers' rights, and particularly their safety, require strong and effective unions. Historically, some of Australia's greatest union leaders have come from the construction industry - proud, strong and effective leaders like Tom McDonald and Jack Cambourne.

In making its decision, the National Executive should not take into account any charges or allegations currently before the court or any previous charges against Mr Setka that have been withdrawn or dismissed.

But I may raise further incidents for consideration by the National Executive that arise between now and the 5 July executive meeting.

I rely on the following widely reported incidents in support of the motion: [set out were references to a number of attached news reports relating to the plaintiff].

I ask the National Executive to consider this material bearing the following in mind:

Some of these articles record statements made by Mr Setka in writing, by tweet or captured on video. The National Executive should act on the basis that those statements were in fact made.

Other articles allege that Mr Setka made certain statements or engaged in certain conduct. If Mr Setka does not deny these reports, I invite the National Executive to accept them as truthful.

To the extent that Mr Setka denies that reported events occurred or that alleged statements were made, I do not ask the National Executive to resolve any dispute of this nature or make any findings of fact. Instead, the National Executive should have regard to the impact on the ALP of the constant adverse media commentary about Mr Setka. Many of those reports refer to Mr Setka as a member of the ALP. In any case, his membership of the Party is well known.

Our party cannot continue to be associated with a person who is the constant subject of this kind of adverse media attention. The ALP has critical work to do. Australians are relying on us to fight for economic growth, good jobs, and opportunity for all. We cannot afford to be distracted from our goal.

It is also important that the ALP does not have as a member someone who conducts himself in this manner. Our party cannot condone intimidation, consistent denigration of others in the party or the community.


The reputational damage that has been suffered, and will continue to be suffered, by the ALP is self-evident.

This harm will not abate unless the National Executive takes action to disassociate the ALP from Mr Setka. In the circumstances, the only action that will achieve this is the expulsion of Mr Setka.

Mr Setka, through the cumulation of his actions, and the constant media attention he attracts, now brings the entire party into disrepute and I believe will continue to do so. He must be expelled from the party.

9 By letter dated 23 June 2019 to the plaintiff, the first defendant attached the above letter and stated as follows:

The National Executive Committee has resolved that at the next meeting of the National Executive, to be held on 5 July 2019, the National Executive will consider the following motion to be moved by the Federal Labor Leader, the Hon Anthony Albanese MP:

That Mr John Setka be expelled from the Australian Labor Party on the grounds that his continued membership is prejudicial to the Party and will hinder the achievement of its objectives.

The meeting will take place at 9:00 am in Canberra.

The submissions and material which the National Executive will be asked to consider are attached.

The National Executive Committee determined that the following process will apply to the consideration of the motion:

• You are invited to provide in writing any information or material that you would like the National Executive to take into account when considering the motion. Please provide this material by no later than the close of business on 3 July 2019 by email to [address provided].

• You will also be given an opportunity to put your case to the National Executive at the meeting. If you wish, you may make submissions through, or with the assistance of, a representative.

• It is proposed that you limit your submission to 30 minutes. Please advise by 3 July 2019 whether you wish to present an oral submission and if you require more speaking time, as the National Executive Committee will consider any reasonable request.

If you have any questions or would like any further information, please contact the office at the office address detailed below or via email.


10 By letter dated 27 June 2019 to the first defendant, the second defendant stated as follows:

The media has reported that yesterday Mr Setka was convicted in the Melbourne Magistrates' Court of persistently breaching a family violence intervention order and using a carriage service to harass (which refers to using emails, text messages, phone calls or social media) [A copy of an article from The Age newspaper website of 26 June 2019 was attached].

The Magistrate described the messages sent by Mr Setka as "nasty" and "unedifying" and expressed concern at the "misogynistic language" that he used.

Mr Setka was released on a 12-month good behaviour bond, with security of $500. He has been ordered to complete a men's behaviour change program and donate $1000 to Djiarra, an Aboriginal not for profit domestic violence organisation.

I ask that the National Executive take this information into account in considering the motion to expel Mr Setka from the Party. These convictions confirm that the ALP cannot afford to continue to be associated with Mr Setka.

11 By letter dated 27 June 2019 to the plaintiff, the first defendant attached a copy of the second defendant’s letter of the same date.

12 By letter dated 28 June 2019 to the first defendant, the plaintiff stated as follows:

I refer to your letter of 23 June 2019, which attached a complaint against me from Anthony Albanese.

I understand that Albanese intends to move at the National Executive meeting on 5 July 2019 to expel me from the Party.

In your correspondence, you required me to provide material by the close of business on 3 July 2019. I cannot do so, because there are a number of matters about which I need more detail. Without that further information, I cannot properly and fairly prepare a response.

In his letter, Albanese states that he seeks my expulsion from the Party because my membership has caused, and will continue to cause, harm to the Party.

My questions are:

1. What power is the National Executive being asked to exercise under the National ALP Constitution? If not under the National ALP Constitution, or not only that Constitution, then under what other process or rules?


2. I don't accept the allegation of damage to the Party but even if Albanese was right that my membership has caused/will cause harm to the Party, how does that allow the National Executive to expel me? What rules or policies (and which particular parts of them) is he accusing me of breaching?

3. Your letter sets out a process. Is that all the details of the process that will be in place? Does the National Executive intend to rely on the process in Rule 20 of the Vic Branch Rules? If not, why not?

4. Mr Albanese states that further incidents may be raised before the 5 July 2019 National Executive Meeting. I don't agree that he can try and change his position like this. Please advise if any further matters will be raised against me and if so, what they are?

5. Does Albanese intend to vote on his motion? He can't do so, given he proposes to move the motion.

Without proper answers to these questions, it's wrong to force me to respond to such unclear allegations, and under a process that is completely unclear.

I request that the proposed meeting on 5 July 2019 be adjourned to at least 15 July 2019, and that you respond to my requests above by 9 am on 1 July 2019. It's not possible to proceed on 5 July 2019, as I won't have enough time to properly deal with this matter.

13 By letter dated 1 July 2019 to the plaintiff, the first defendant acknowledged the plaintiff’s letter of 28 June 2019 and replied as follows:

The answers to the questions you have raised are as follows:

“1. What power is the National Executive being asked to exercise under the National ALP Constitution? If not under the National ALP Constitution, or not only that Constitution, then under what other process or rules?”

The National Executive is being asked to exercise its plenary power under cl 16(d) of the ALP National Constitution. That clause provides: “Subject only to National Conference, the National Executive may exercise all powers of the Party on its behalf without limitation, including in relation to the state branches and other sections of the Party.”

“2. I don't accept the allegation of damage to the Party but even if Albanese was right that my membership has caused/will cause harm to the Party, how does that allow the National Executive to expel me? What rules or policies (and which particular parts of them) is he accusing me of breaching?”

The basis upon which the National Executive is asked to act is that your continued membership of the ALP is prejudicial to the


Party and will hinder the achievement of its objectives. If that allegation is established to the satisfaction of the National Executive it has power to act under cl 16(d). It is not suggested that you are in breach of any particular rule or policy of the ALP.

“3. Your letter sets out a process. Is that all the details of the process that will be in place? Does the National Executive intend to rely on the process in Rule 20 of the Vic Branch Rules? If not, why not?”

The process to be followed is as explained to you in my letter to you dated 23 June 2019: The National Executive will consider the motion to expel you from

the party at its next meeting, to be held on 5 July 2019. You were provided with the submissions and material in support of

the motion that the National Executive will be asked to consider. You are invited to provide in writing any material that you wish the

National Executive to take into account by close of business on 3 July 2019.

You are invited to put your case to the National Executive at the meeting. If you wish, you can make submissions through, or with the assistance of, a representative.

It is proposed that you limit your submission to 30 minutes. The National Executive Committee will consider any reasonable request for more time.

You are asked to advise by 3 July 2019 whether you intend to present oral submissions and whether you require more time.

The National Executive Committee is of the view this process is reasonable and provides you with a fair opportunity to respond to the motion.

Rule 20 of the Victorian Branch Rules has no application to proceedings before the National Executive. It is exercising its plenary power under the National Constitution.

“4. Mr Albanese states that further incidents may be raised before the 5 July 2019 National Executive Meeting. I don't agree that he can try and change his position like this. Please advise if any further matters will be raised against me and· if so, what they are?”

I have provided to you under cover of my letter of 27 June 2019 the only additional information that the National Executive will be asked to take into account.

“5. Does Albanese intend to vote on his motion? He can't do so, given he proposes to move the motion.”

I have been informed by Mr Albanese that he will not vote on the motion.

I refer to your request to adjourn the meeting at which the National Executive will consider the motion to at least 15 July


2019. The National Executive Committee has considered this request and agreed to grant it.

The meeting will be adjourned to some time on or after 15 July 2019. The precise date has not yet been fixed. When it is, I will immediately let you know. The date for the provision of your written material will also be extended to a date that is three days before the new meeting date.

The National Executive Committee has asked me to inform you that it is extremely costly and logistically difficult to hold a meeting of the National Executive other than at a scheduled time. [Members may be required to attend the rescheduled meeting by teleconference or video link.] Once the time for the rescheduled meeting has been fixed, it will create too many practical and other problems to reschedule it yet another time.

14 By letter dated 1 July 2019 to the plaintiff, the first defendant stated that the National Executive had determined to consider the motion to expel on 15 July 2019.

15 On 3 July 2019, the plaintiff filed this proceeding and the trial was heard on 11 July 2019. At that time, I reserved my decision and the defendants (except for the 9th and 16th defendants) undertook not to proceed with the meeting to consider the proposed motion to expel until determination of the proceeding.

Structure of the ALP

16 The ALP is a voluntary unincorporated association formed for the purpose of promoting stated political objectives. The following relevant entities are included in the ALP structure:

(a) The National Conference is at the apex of the ALP’s structure. It is constituted by the National President and National Vice-Presidents; and delegates from the federal and state parliamentary parties, each state and territory branch and Australian Young Labor.1

(b) The National Executive is the ALP’s chief administrative authority.

1 National Constitution, cl 15. SETKA v CARROLL & ORS 8 JUDGMENT

(c) The ALP has branches in each State and Territory. The Victorian Branch of the ALP is constituted by affiliated unions and individual members of local branches and the central branch.2

The principal governance documents of the ALP are the National Constitution and the rules of the state and territory branches.

The National Constitution

17 The ALP National Constitution relevantly provides as follows:

(a) With respect to the legal status of the National Constitution, cl 2 provides:

(a) It is intended that the National Constitution and everything done in connection with it, all arrangements relating to it (whether express or implied) and any agreement or business entered into or payment made or under the National Constitution, will not bring about any legal relationship, rights, duties or outcome of any kind, or be enforceable by law, or be the subject of legal proceedings. Instead all such arrangements, agreements and business are only binding in honour.

(b) Without limiting clause 2(a), it is further expressly intended that all disputes within the Party, or between one member and another that relate to the Party be resolved in accordance with the National Constitution and the rules of the state branches and not through legal proceedings.

(c) By joining the Party and remaining members, all members of the Party consent to be bound by this clause.

(b) With respect to the authority of the National Conference, cl 14(b) provides:

The National Conference shall be the supreme governing authority of the Party and its decisions shall be binding upon every member and every section of the Party.

2 Victorian Rules, r 5.SETKA v CARROLL & ORS 9 JUDGMENT

(c) With respect to the National Executive, cl 16(a) provides that it is the chief administrative authority subject only to the National Conference and has the following powers and duties:

(c) Decisions of the National Executive are binding on all sections and members of the ALP subject only to appeal to National Conference. Pending the hearing of any appeal, the decision of the National Executive continues to operate.

(d) Subject only to National Conference, the National Executive may exercise all powers of the Party on its behalf without limitation, including in relation to the state branches and other sections of the Party.3

(e) Without limiting the plenary powers of the National Executive under clause 16(d), the National Executive:

(i) is the administrative authority of the Party responsible for:

(A) carrying out the decisions of National Conference;

(B) interpreting the National Constitution, the national platform and decisions of National Conference; and

(C) directing federal members;

(ii) must convene triennial National Conferences in accordance with the National Constitution;

(iii) may convene Special National Conferences for specified purposes;

(iv) must convene a Special National Conference for a specified purpose when requested by a majority of state branches;

(v) must elect a National Executive Committee and appoint twenty trade union representatives to the National Policy Forum;

(vi) may elect such other committees as it may determine from time to time;

(vii) must consider any matter submitted to it by a state branch, Australian Young Labor, the FPLP or a trade union whose state branches are affiliated with the Party in a majority of states in

3 Pursuant to cl 47, this power expressly includes the power to amend the rules of any state branch as required to implement the National Principles of Organisation.


which it operates (in this clause "affiliated organization");

(viii) may hear and decide appeals from any affiliated organization or individual member against a decision of a state branch alleged to be inconsistent with any national decision or matter; and

(ix) may hear and decide appeals by any person seeking to be a candidate for a federal election against a decision of a state branch affecting that person's preselection.

(f) Without limiting the plenary powers of the National Executive under clause 16(d), if in the opinion of the National Executive 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, the National Executive may:

(i) overrule the state branch or section;

(ii) intervene in the state branch or section, and take over and direct the conduct of its affairs; and

(iii) conduct any preselection that would otherwise have been decided by the state branch or section.

(d) With respect to the Federal Parliamentary Labor Party, cl 26 provides:

(a) No state branch may direct or discipline members of the FPLP in regard to matters affecting the national platform or policy or upon legislation before the parliament or any matters the subject of consideration by the FPLP.

(b) The power of direction, advice and/or guidance is reserved for the National Conference and between conferences, the National Executive.

(e) With respect to state branch rules, cls 36(c), 46 and 47 provide:36(c) Each state branch must adopt rules that establish an appeals

process in relation to compliance with and enforcement of branch rules by members, affiliated unions and constituent units of the branch, such rules to be submitted to the National Executive for approval by 1 November 2003. The appeals process must include compliance with the rules of procedural fairness, expedited hearings and written reasons for decision.


46 All state branch rules must be revised in accordance with these National Principles of Organisation as amended at the National Conference held in December 2011, and be submitted to the National Executive for endorsement no later than 31 December 2013.

47 Pursuant to clause 16(d), the National Executive is empowered to amend the rules of any state branch as required to implement the National Principles of Organisation.

Rules of the Victorian Branch of the ALP

18 The Rules of the Victorian Branch of the ALP (‘the Victorian Rules’) provide that the Victorian Rules are not enforceable in law; and in particular r 23 states:

23.1. It is intended that these Rules and everything done in connection with them, all arrangements relating to them (whether express or implied) and any agreement or business entered into or payment made by or under them, will not bring about any legal relationship, rights, duties or outcome of any kind, or be enforceable by law, or be the subject of legal proceedings. Instead all arrangements, agreements and business are only binding in honour.

23.2. Without limiting Rule 23.1, it is further expressly intended that all disputes within the Party, or between one member and another that relate to the Party be resolved in accordance with these Rules and the National Constitution and not through legal proceedings.

23.3. By joining the Party and remaining members, all members of the Party consent to be bound by Rule 23.

19 Rule 20 provides for a Disputes Tribunal. The relevant provisions are as follows:

(a) Rule 20.5.1 prescribes the following offences under the Victorian Rules:

(i) Disloyalty to the Party;

(ii) Publicly attacking:

(A) the Party; or

(B) any member of the Party.

(iii) Failure to comply with:


(A) these Rules; or

(B) the National constitution; or

(C) the State platform or policy; or

(D) the National platform or policy; or

(E) a decision of State Conference; or

(F) a resolution of the Administrative Committee passed by the affirmative vote of at least 17 members.

(iv) Branch stacking, as defined in Rule 5.17.

(b) Rule 20.5.2 provides that a member may charge another member with an offence under r 20.5.1 by making a complaint, which under r 20.8.1 must:

(i) be in writing signed by the member making the complaint;

(ii) state the specific rules that the complainant alleges have not been complied with or that the complainant seeks to enforce;

(iii) set out a concise statement of facts;

(iv) be accompanied by a deposit of $100;

(v) be given to the State Secretary;

and, under r 20.5.3, must be made within 6 months of the offence being committed, unless the Disputes Tribunal is satisfied there is a good reason for the delay.

(b) If the Disputes Tribunal is satisfied that the member charged has committed an offence under r 20.5.1, it may impose specified penalties under r 20.5.5, including expulsion from the Party indefinitely or for a specified period of at least 12 months.

The issues for determination

20 It is agreed that I should determine the following questions:


(a) Whether the legitimacy of the expulsion motion is amenable to declaratory and/or injunctive relief on any of the following grounds:

(i) The ALP fulfils a substantial public function in our society and has statutory recognition.

(ii) The expulsion would affect the plaintiff’s property rights.

(iii) The expulsion would affect the plaintiff’s reputation and employment.

(b) Whether the power of the National Executive to expel a member under cl 16(d) of the National Constitution is subject to any limitation requiring compliance with r 20 of the Victorian Rules.

(c) Whether the Court should exercise its discretion to grant declaratory and/or injunctive relief.

Question 1 - Whether the legitimacy of the expulsion motion is amenable to declaratory and/or injunctive relief

Plaintiff’s submissions

21 On behalf of the plaintiff, it was submitted as follows:

(a) The High Court’s decision in Cameron v Hogan4 should not lead this Court to conclude that the dispute before it is non-justiciable.

(b) Numerous authorities have distinguished Cameron v Hogan in the context of political parties, especially in light of Commonwealth and State regulation of those political parties. Commonwealth and State legislation has given these parties statutory recognition and made it appropriate and important for the courts to review their conduct for

4 (1934) 51 CLR 358 (Rich, Starke, Dixon, Evatt and McTiernan JJ).SETKA v CARROLL & ORS 14 JUDGMENT

compliance with their own rules. To do so furthers the objects of those statutes.

(c) Cameron v Hogan may also be distinguished on the following bases:

(i) Mr Setka’s interest in the disposition of the property of the ALP is a sufficient basis for the availability of equitable remedies to prevent him from being unlawfully deprived of that interest.

(ii) This Court may intervene, even in the absence of a proprietary interest, because a decision to expel Mr Setka would affect his livelihood, and reputation. Expulsion will impede him in the discharge of his functions as the Victorian Secretary of the CFMMEU (in particular, as a delegate to ALP conferences), which may imperil his ongoing election to and receipt of remuneration for that role. Mr Setka’s expulsion is sought effectively because of his inherent character, which is a matter harmful to his reputation.

Defendants’ submissions

22 On behalf of the defendants, it was submitted as follows:

(a) The ALP’s substantial public function is not a basis for justiciability because later decisions by single judges, beginning with Dowsett J in Baldwin v Everingham,5 which distinguish Cameron v Hogan and conclude that the conduct of political parties is justiciable because of legislative changes which govern them, are wrongly decided.

(b) The plaintiff’s proprietary interests are not affected. The plaintiff only has a proprietary interest in the ALP were it to dissolve. This

5 (1993) 1 Qd R 10.SETKA v CARROLL & ORS 15 JUDGMENT

interest did not motivate the plaintiff to become a member of the ALP, or his bringing of this application.

(c) The plaintiff’s employment rights are not affected. The plaintiff’s expulsion from the ALP does not terminate his current employment as Victorian Secretary of the CFMMEU. The plaintiff’s evidence, that expulsion would affect his ability to perform the duties of his employment and therefore create a risk that he would be voted out of his position by members of the union, is speculative. At most, the only direct impact on the plaintiff is reputational.

Principles

23 Courts have historically been reticent to interfere with or be otherwise involved in the internal workings of voluntary unincorporated associations. In Amos v Brunton,6 Manning CJ in Eq explained that:

[T]his is a most salutary rule that the Courts will not interfere with associations of this nature [voluntary associations]; that their members cannot force the officers of the association into Court, there to incur expense over the determination of any trifling point arising in the course of their management. If such disputes do arise the members must manage to settle them among themselves, or not at all.

24 In 1916, in Edgar and Walker v Meade,7 Isaacs J considered the justiciability of an application for declarations and injunctions with respect to resolutions of a union (the Federal Council of the Australian Society of Progressive Carpenters and Joiners) relevantly expelling one member (Edgar); and closing the Melbourne Branch.

6 (1897) 14 WN (NSW) 69, 70. See also Rigby v Connol (1880) 14 Ch D 482, 487 (Jessell MR).

7 (1916) 23 CLR 29.SETKA v CARROLL & ORS 16 JUDGMENT

25 The union was registered under the Commonwealth Conciliation and

Arbitration Act 1904-1911 (Cth) (‘the CCA Act’) which had as its chief objects:

I. To prevent lock-outs and strikes in relation to industrial disputes;

II. To constitute a Commonwealth Court of Conciliation and Arbitration having jurisdiction for the prevention and settlement of industrial disputes;

III. To provide for the exercise of the jurisdiction of the Court by conciliation with a view to amicable agreement between the parties;

IV. In default of amicable agreement between the parties, to provide for the exercise of the jurisdiction of the Court by equitable award;

V. To enable States to refer industrial disputes to the Court, and to permit the working of the Court and of State Industrial Authorities in aid of each other;

VI. To facilitate and encourage the organization of representative bodies of employers and of employees and the submission of industrial disputes to the Court by organizations, and to permit representative bodies of employers and of employees to be declared organizations for the purposes of this Act;

VII. To provide for the making and enforcement of industrial agreements between employers and employees in relation to industrial disputes.

26 The provisions of the CCA Act, with respect to organizations, included the following:

(a) Associations applying for registration under the Act were required to comply with the conditions set out in Schedule B, which included that the application be accompanied by:

(i) a list of members and officers of the association; and

(ii) copies of the rules of the association, which were required to make provision for specified matters including:


A. the terms on which persons may become or cease to be members of the association; and

B. the keeping of a register of members of the association (s 55).

(b) The Commonwealth Court of Conciliation and Arbitration may and, in some circumstances, shall direct that preference be given to members of an organization over other persons offering or desiring employment (s 40).

(c) The rules of the organization adopted in compliance with the conditions set out in Schedule B were binding on the members (s 56).

(d) Any organization or person interested or the Registrar could apply to the Commonwealth Court of Conciliation and Arbitration for cancellation of the registration of an organization on specified grounds including if it appeared that:

(i) the rules had been altered so that they no longer complied with the conditions set out in Schedule B, or have not bona fide been observed; or

(ii) the rules did not provide reasonable facilities for the admission of new members or were in any way tyrannical or oppressive (s 60).

(e) On registration, the organization was incorporated (s 58) and may sue or be sued (s 66).

(f) All fines, levies and dues payable to an organization may be recovered in a court of summary jurisdiction (s 68).


(g) Every dispute between an organization and any of its members was to be decided in accordance with the rules of the organization (s 69).

(h) The Commonwealth Court of Conciliation and Arbitration may order that any member of an organization shall cease to be a member (s 70).

(i) Each organization shall, as prescribed, forward to the Registrar returns of its members, accounts, and alterations of its rules as are prescribed (s 72).

27 Isaacs J found that neither Edgar nor the members of the Melbourne Branch were given a proper opportunity to resist the resolutions;8 and rejected the union’s submission that the matter was not justiciable because of the plaintiffs’ lack of a relevant property interest. He found that a member or members did have a right to assert in Court that they were legally entitled to remain in an organization for the following reasons:

(a) The organization was a creature of statute.

(b) The incorporation of employees in such an organization was a matter of public policy and for the purpose of effecting the objects of the CCA Act.

(c) If members could be excluded, contrary to the organization’s rules, the object of the legislative provisions in incorporating organizations and facilitating the settlement of industrial disputes might be defeated. His Honour said:

The very object of the legislative provisions in incorporating such associations and facilitating the settlement of industrial disputes might be defeated if members and branches could

8 Ibid 42-4.SETKA v CARROLL & ORS 19 JUDGMENT

be excluded by a governing body; contrary to rules, unless property was involved. The organization is therefore not in the same position as a voluntary club.9

28 In 1934, the High Court in Cameron v Hogan10 considered a claim for a declaration and injunction by a member of the ALP on the basis of his allegedly wrongful exclusion from the party and the non-endorsement of his candidature. The relevant facts were as follows:

(a) Prior to his expulsion, the plaintiff had been a member of the ALP, a member of the Legislative Assembly of Victoria, the leader of the State Parliamentary Labor Party and the Premier of the State of Victoria.

(b) On 23 April 1932, the Central Executive of the Victorian branch of the ALP decided not to endorse the plaintiff as a Labor candidate in the parliamentary elections to be held on 14 May 1932; and the plaintiff was expelled from the Party.

(c) The plaintiff was elected to the Victorian Legislative Assembly but, as a result of his non-endorsement, he was not eligible for re-appointment to the leadership of the State Parliamentary Labor Party and the emoluments attached to that position.

(d) The plaintiff sought, in substance, a declaration that the purported decisions to exclude him from the ALP and to not endorse him were each wrongful and sought an injunction restraining the defendants from excluding him from his rights and privileges as a member of the ALP.

(e) At first instance, the Supreme Court of Victoria held that the rules of the association did not give the Central Executive power to expel

9 Ibid 43-4.10 (1934) 51 CLR 358 (Rich, Starke, Dixon, Evatt and McTiernan JJ).SETKA v CARROLL & ORS 20 JUDGMENT

Hogan from the ALP or refuse to endorse him as a Labor candidate, unless they proceeded under provisions which in fact had not been invoked. Gavan Duffy J awarded nominal damages for breach of contract, however he refused to grant an injunction because the respondent did not have a sufficient proprietary right or interest, and refused to make a declaration.11

29 With respect to the non-justiciability of claims involving voluntary unincorporated associations, the plurality explained:

One reason which must contribute in a great degree to produce the result is the general character of the voluntary associations which are likely to be formed without property and without giving to their members any civil right of a proprietary nature. They are for the most part bodies of persons who have combined to further some common end or interest, which is social, sporting, political, scientific, religious, artistic or humanitarian in character, or otherwise stands apart from private gain and material advantage. Such associations are established upon a consensual basis, but, unless there were some clear positive indication that the members contemplated the creation of legal relations inter se, the rules adopted for their governance would not be treated as amounting to an enforceable contract.12

30 In substance, the Court held that a member could not maintain an action at law on the basis of:

(a) being unjustifiably excluded from a voluntary association; or

(b) a breach of the association rules;

unless the member could establish a proprietary right;13 or that the rules were contractually enforceable.14

31 With respect to the claim of a proprietary right, the plurality noted that the funds held by the ALP were for the promotion of the Party’s political end

11 Hogan v Cameron [1934] VLR 88 (Gavan-Duffy J).12 Cameron v Hogan (1934) 51 CLR 358, 370-1 (Rich, Dixon, Evatt and McTiernan JJ).13 Ibid 371, 376-7 (Rich, Dixon, Evatt and McTiernan JJ), 384-5 (Starke J).14 Ibid 377 (Rich, Dixon, Evatt and McTiernan JJ), 384 (Starke J).SETKA v CARROLL & ORS 21 JUDGMENT

and that individual members ‘could obtain no advantage from the funds susceptible of personal enjoyment’.15

32 With respect to contractual intent, apart from a number of procedural and technical difficulties identified by the Court,16 the plurality found that there was no intention to create legal relations, stating:

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.17

33 The Court allowed the appeal on the basis that:

(a) the rules of the ALP did not give its members any ‘civil right or proprietary interests suitable for protection by injunction’; and

(b) there was no ‘ascertainable and enforceable legal right’, which was a necessary basis for a declaration of right.18

Can Cameron v Hogan be distinguished on the basis of subsequent statutory recognition of political parties?

34 In McKinnon v Grogan,19 Wootten J considered the locus standi of the defendant to bring a cross-claim against the plaintiff, who had applied for an order that he be appointed as representative of the members of a

15 Ibid 375 (Rich, Dixon, Evatt and McTiernan JJ).16 These technicalities are not presently relevant and may no longer be applicable. See

Mark Aronson and Matthew Groves, Judicial Review of Administrative Action (Thomson Reuters, 5th ed, 2012) 929 [16.160]; JRS Forbes, Justice in Tribunals (The Federation Press, 4th ed, 2014) 39 [3.51]-[3.52].

17 Cameron v Hogan (1934) 51 CLR 358, 376 (Rich, Dixon, Evatt and McTiernan JJ). See also Starke J to similar effect at 384.

18 Ibid 378 (Rich, Dixon, Evatt and McTiernan JJ).19 [1974] 1 NSWLR 295.SETKA v CARROLL & ORS 22 JUDGMENT

football club for the purposes of the proceeding. In deciding that the defendant did have standing to make the cross-claims and resist the claims of the plaintiff, his Honour expressed the view that Cameron v

Hogan was based on a judicial policy (evidently one with which his Honour did not agree). He noted that it was decided over 40 years ago and opined that ‘its application in full rigour has been increasingly out of tune with the felt needs of the time’ and ‘has tended to justify judicial abdication from areas the orderly regulation of which has become of ever-increasing importance’.20 His Honour appeared to suggest that he was not obliged to follow Cameron v Hogan.

35 In Baldwin v Everingham,21 Dowsett J considered the justiciability of a dispute about a resolution to reject the plaintiff’s endorsement as a Liberal Party candidate by the State Executive of the Liberal Party of Australia (Queensland Division), an unincorporated association.

36 While his Honour expressed general agreement with the observations of Wootten J in McKinnon v Grogan,22 he acknowledged that the passage of years was insufficient to justify him in refusing to follow the High Court in Cameron v Hogan.23 However, he distinguished Cameron v Hogan on the basis of the statutory recognition of political parties by subsequent amendments to the Commonwealth Electoral Act 1918 (Cth) (‘the Electoral Act’) with respect to:

(a) the nomination of candidates under Part XIV of the Electoral Act; and

20 Ibid 297E.21 (1993) 1 Qd R 10.22 [1974] 1 NSWLR 295, 297.23 (1993) 1 Qd R 10, 17.SETKA v CARROLL & ORS 23 JUDGMENT

(b) election funding and financial disclosure under Part XX of the Electoral Act.

37 He concluded that statutory recognition meant that ‘disputes concerning the rules of political parties registered under the Commonwealth Electoral

Act are now also justiciable’.24 This was the sole ground on which he relied to distinguish Cameron v Hogan. As his Honour explained:

If it were not for the statutory recognition of political parties to which I have referred in some detail, I would be compelled to the conclusion that the case does so apply. I can see no other basis for distinction between the Labor Party as it was in the 1930s and the Queensland Branch of the Liberal Party as it now is. 25

38 His Honour commenced his analysis by observing:On general principles, 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. It is one thing to say that a small, voluntary association with limited assets, existing solely to serve the personal needs of members should be treated as beyond such supervision; it is another thing to say that a major national organisation with substantial assets, playing a critical role in the determination of the affairs of the country should be so immune.26

39 Dowsett J considered that his conclusion was consistent with the rationale adopted by Isaacs J in Edgar and Walker v Mead,27 being that disputes concerning the rules of a voluntary organization became justiciable when the voluntary association attained (what Dowsett J described as) ‘significance in public affairs’.28 As a ‘matter for judgment’, he decided that ‘the current legislative recognition of registered political parties confers such significance’.29

24 Ibid 20.25 Ibid 18.26 Ibid 17.27 (1916) 23 CLR 29.28 (1993) 1 Qd R 10, 20 line 43.29 Ibid 20.SETKA v CARROLL & ORS 24 JUDGMENT

40 With respect to Dowsett J, I am unable to agree that Isaacs J found that the rules of a voluntary organization became justiciable when it attained significance in public affairs. Isaacs J expressly found that the justiciability arose from the following:

(a) The incorporation of the organization under the statute.30

It is unremarkable that members of an incorporated body are entitled to enforce the rules of the corporation in the courts. It is trite law that rules of a corporation are contractual;31 and ‘[e]ach member has a contractual right, as against the association, to have the affairs of the association conducted in accordance with the rules’.32

(b) The legislative purpose of the CCA Act required that the rules of the organisation be legally enforceable particularly with respect to membership.33

The legislative intention that the membership of organisations was to be regulated was evident from the following provisions in the CCA Act:

(i) Members of organizations are entitled to preferential treatment.34

(ii) Rules of the organization had to include provision for admission and termination of membership.35

30 (1916) 23 CLR 29, 43-4.31 Forbes (n 16) 43 [3.61], 64 [5.10]. 32 Petros v Beru [2007] VSCA 226, [12] (Maxwell ACJ, Chernov and Kellam JJ).33 (1916) 23 CLR 29, 43-4.34 CCA s 40.35 Ibid s 55.SETKA v CARROLL & ORS 25 JUDGMENT

(iii) An organization could be deregistered if the rules do not provide reasonable facilities for the admission of new members.36

(iv) The Commonwealth Court of Conciliation and Arbitration was empowered to cancel memberships in prescribed circumstances.37

(v)Organizations were required to provide membership records to the Registrar.38

(vi) The rules of the organization adopted in compliance with the conditions set out in Schedule B were binding on the members.39

(vii) ‘Every dispute between an organization and any of its members shall be decided in the manner directed by the rules of the organization’.40

It is not surprising, in these circumstances, that Isaacs J construed the CCA Act as conferring a right of action on the member to enforce the rules against the statutory organization.41

41 Accordingly, the declarations and injunctions granted by Isaacs J were in aid of two recognised causes of actions being breach of contract and a right of action under statute.

36 Ibid s 60.37 Ibid s 50(b).38 Ibid s 72.39 Ibid s 56.40 Ibid s 69.41 Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 424 (Brennan CJ, Dawson and

Toohey JJ), 457-60 (McHugh and Gummow JJ).SETKA v CARROLL & ORS 26 JUDGMENT

42 The amendments to the Electoral Act,42 upon which Dowsett J relied in distinguishing Cameron v Hogan, were the following:

(a) ‘Political party’ is defined by s 4 to mean an organization the object or activity, or one of the objects or activities, of which is the promotion of the election to the Senate or to the House of Representatives of a candidate or candidates endorsed by it.

(b) The Electoral Act creates the position of the registered officer of a registered political party, who is the person shown in the Register of Political Parties as the registered officer of the party (s 4C(1)). The registered officer has functions under the Electoral Act including:

(i) the notification of a political party’s endorsement (s 169); and

(ii) the nomination of a political party’s candidates (s 169B).

(c) Part XI provides for the registration of a political party as follows:

(i) eligible political party means a political party that:

(a) either:

(i) is a Parliamentary party; or (ii) has at least 500 members; and

(b) is established on the basis of a written constitution (however described) that sets out the aims of the party. (s 123(1))

(ii) an application for the registration of an eligible political party is required to comply with s 126(2), which requires (inter alia) that the application includes:

A a statement of whether or not it wishes to receive public money under Division 3 of Part XX of the Act;

B a copy of the constitution of the party.42 As it stood at 1993.SETKA v CARROLL & ORS 27 JUDGMENT

(d) Part XX provides for:

(i) the funding of registered political parties, candidates and Senate groups, where a candidate who receives more than 4% of the total first preference votes cast in the election;43

(ii) disclosure of donations to candidates and registered political parties;44

(iii) disclosure of certain expenditure by political parties and others;45 and

(iv) annual returns by registered political parties setting out the total amount received, the total amount paid and the total amount of debts of the party.46

43 Dowsett J noted the requirement that an application for registration be accompanied by the constitution of the party, and stated:

In effect, the rules of such a party are required to be registered, as were the rules of registered industrial organisations under the [CCA Act], although it is true that there is no provision in the Commonwealth Electoral Act for registration of amendments to those rules.47

44 In my opinion, a reading of the Electoral Act demonstrates that the purpose of a copy of the constitution being provided, at the time of application for registration, is to verify compliance with the statutory requirements that the ‘Political party’ has:

43 Electoral Act ss 294-9.44 Ibid ss 304-5A.45 Ibid div 5 ss 308-9.46 Ibid div 5A s 314AB.47 Baldwin v Everingham (1993) 1 Qd R 10, 20.SETKA v CARROLL & ORS 28 JUDGMENT

(a) a written constitution;48 and

(b) the promotion of the election to the Senate or to the House of Representatives of a candidate or candidates endorsed by it, as at least one of its objects.49

45 In contrast to the CCA Act, I note the following:

(a) Although the Electoral Act provides for the registration of political parties, it does not incorporate them; and the definition of ‘organization’ includes both a body corporate and an association.50

(b) I am unable to discern any intention in the Electoral Act to give legal force to the constitutions of registered political parties, or to confer a right of action on members to enforce the provisions of such constitutions against registered political parties.

46 In fairness, Dowsett J did not say that he discerned any such intention in the Electoral Act. He found that the justiciability arose ‘because the Commonwealth Parliament, in conferring legislative recognition upon political parties has taken them beyond the ambit of mere voluntary associations’.51 This may be so; but the ratio of Cameron v Hogan was that the plaintiff had no cause of action. Dowsett J does not explain how legislative recognition gives rise to a cause of action or other ‘ascertainable and enforceable legal right’.52

48 Electoral Act s 123(1)(b). 49 Ibid s 4.50 Ibid.

51 Baldwin v Everingham (1993) 1 Qd R 10, 20.52 Cameron v Hogan (1934) 51 CLR 358, 378. See Forbes (n 16) 64 [5.9], where JRS Forbes

describes Dowsett J as determining judicial policy reserved for determination by the High Court.


47 The reference to justiciability arising from ‘the significance in public affairs’53 of the voluntary association suggests intervention based on the application of administrative law remedies arguably available where:

(a) private bodies perform public functions;54 or

(b) a member has a legitimate expectation of procedural fairness being applied by public tribunals and officials.55

However, Dowsett J did not rely on these principles, with respect, for good reason. Apart from the doubts about the applicability of these doctrines in Australia,56 the removal of the plaintiff by the defendants involved no public function and the defendants were not public officials; and ‘certiorari is not available in respect of a decision of a body whose powers derive only from private contract’.57

48 Although statutory recognition under the Electoral Act did post-date the decision in Cameron v Hogan, if ‘significance in public affairs’ enlivens the cause of action, it is far from clear that the ALP was less significant in public affairs in 1934 than it is now.

53 Baldwin v Everingham (1993) 1 Qd R 10, 20 line 43.54 R v Panel on Take-Overs and Mergers; Ex parte Datafin [1987] 1 QB 815. See also the

discussion in Anika Gauja, ‘From Hogan to Hanson: The Regulation and Changing Legal Status of Australian Political Parties’ (2006) 17 Public Law Review 282, 297 n 63. See also Agricultural Societies Council of NSW Ltd v Christie (2016) 340 ALR 560, 570 [48] (Meagher JA), 577-9 [89]-[94] (Leeming JA) for a discussion regarding the inapplicability of the Datafin principle where powers being exercised are not public.

55 R v North East Devon Health Authority, Ex p Coughlan [2001] QB 213.56 With respect to the Datafin principle see Mickovski v Financial Services Ombudsman

Service Ltd (2012) 36 VR 456, 466 [32] (Buchanan and Nettle JJA and Beach AJA); Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393, 410-3 [73]–[81] (Basten JA with whom Spigelman CJ relevantly agreed). With respect to the legitimate expectation principle see Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1, 27-8 [81]-[83] (McHugh and Gummow JJ).

57 D’Souza v Royal Australian and New Zealand College Of Psychiatrists (2005) 12 VR 42, 58 [112] (Ashley J).


49 I consider the following observations of the learned author of Justice in

Tribunals apposite: It is disappointing that this distinction [between the provisions of the CCA Act and the Electoral Act] was not more closely considered in Baldwin, which merely asserts that "it was the fact of statutory recognition which was important to the decision in Edgar and Walker v Meade, and not the quasi-corporate status conferred by the Act" and that "disputes concerning the rules of political parties registered under the Commonwealth Electoral Act are now also justiciable''. It is a long leap of logic from the comprehensive legislative scheme in Edgar and Walker v Meade to the conclusion that Cameron v Hogan is nullified by "funding" provisions tacked on to an electoral Act. The public interest in those provisions could be protected, if need be, by direct reference to the Act, without assuming general jurisdiction over internal party affairs. 58

50 An example of the Court exercising jurisdiction for the limited purpose of protecting the objects of an electoral Act can be found in Butler v

Mulholland [No 2].59 In that case, Robson J found that the issue of who was the secretary of the Democratic Labour Party was justiciable because, under the Electoral Act 2002 (Vic), an application for registration was required to be signed by the secretary of the political party; and the application determines the identity of the ‘registered officer’,60 who had other powers under the Electoral Act 2002 (Vic).61 Robson J held that ‘the identity of the secretary and his authority to make an application to the Commission for registration of the political party are important issues for the proper working of the Victorian Act’.62

58 Forbes (n 16) 65 [5.11] (emphasis added).59 [2013] VSC 662.60 By the combined effect of Electoral Act 2002 (Vic) ss 44, 45(2)(c), 50 and 51(2).61 [2013] VSC 662, [103].62 Ibid [104].SETKA v CARROLL & ORS 31 JUDGMENT

Cases applying Baldwin v Everingham

51 The decision of Baldwin v Everingham63 has been applied in a number of subsequent cases.

52 In Thornley v Heffernan,64 Brownie J considered the standing of a candidate for a seat in the House of Representatives to challenge the validity of a decision to cancel her endorsement by the New South Wales Division of the Liberal Party of Australia.

53 His Honour recognised the binding nature of the High Court decision in Cameron v Hogan; but recited the reasoning of Dowsett J in Baldwin v

Everingham and concluded:I see no sound basis for distinguishing that case from this case, and consider that I should follow the decision, as being one by a court of co-ordinate jurisdiction.65

54 In Clarke v Australian Labor Party (South Australian Branch),66 Mullighan J made declarations and granted injunctions sought by a member of the South Australian Branch of the ALP effectively against the State Executive of the South Australian Branch of the ALP and the State Convention with respect to alleged ‘branch stacking’.

55 His Honour accepted that the status and role of the ALP was as important in 1934, when Cameron v Hogan was decided, as it was at the time of his decision.67 Further, he did not assert that statutory recognition gave rise

63 (1993) 1 Qd R 10.64 (Supreme Court of New South Wales, Brownie J, 25 July 1995).65 Ibid 7.66 (1999) 74 SASR 109.67 Ibid 133 [68].SETKA v CARROLL & ORS 32 JUDGMENT

to a cause of action;68 but rather concluded that no cause of action is required for the court to make a declaration.69

56 However, his Honour considered as follows:

(a) The challenge to the reasoning in Baldwin v Everingham should be rejected; and, in particular, Dowsett J did have regard to the distinction between:

(i) the rules of unions under the CCA Act being registered and of binding legal effect; and

(ii) a copy of the rules only accompanying the application for registration, under the Electoral Act.70

(b) The power to make a declaration was limited only by discretion and he was satisfied that the qualifying matters referred to in JN Taylor

Holdings Ltd (in liq) v Bond71 were present.72

Accordingly, Mullighan J not only made declarations but also granted injunctions.73

57 With respect to the conclusion of Mullighan J in Clarke v Australian Labor

Party (South Australian Branch) that no cause of action was required before a court could make a declaration,74 I say as follows:

68 Ibid 134 [70]; in response to the defendant’s submission that the plaintiff must have a cause of action, his Honour said: ‘Much depends upon what is meant by cause of action’.

69 Ibid 134-5 [70]-[71].70 Ibid 136-7 [77]-[78].71 (1993) 59 SASR 432, 435-6 (King CJ, with whom Prior and Perry JJ agreed).72 Clarke v Australian Labor Party (South Australian Branch) (1999) 74 SASR 109, 134-5

[70]-[71], 139 [92].73 Ibid 150-1 [147]-[148].74 Ibid 135 [71].SETKA v CARROLL & ORS 33 JUDGMENT

(a) It is now well established that the Court does not have jurisdiction, under s 37 Supreme Court Act 1986 (Vic) or otherwise, to grant an injunction otherwise than in protection of a legal or equitable right enforceable by final judgment.75

(b) However, the proposition that declaratory relief is available in the absence of a cause of action is supported by the decision of the New South Wales Court of Appeal in Johnco Nominees Pty Ltd v Albury-

Wodonga (NSW) Corporation.76

(c) On the other hand, in Mutasa v Attorney-General,77 Boreham J found that the jurisdiction of the Court to make a declaration was limited to ‘matters which were justiciable by the court. In other words, with rights and liabilities that were enforceable in the courts’.78 Similarly, in Croome v Tasmania, the plurality confirmed ‘the proposition that declaratory relief must be directed to the determination of legal controversies, not to answer an abstract or hypothetical question’.79

(d) In Egan v Willis in the context of the justiciability of questions relating to powers and privileges of a legislative chamber, the plurality in the High Court cited both of the above authorities as supporting the following proposition:

Declaratory relief should be directed to the determination of legal controversies concerning rights, liabilities and interests of a kind which are protected or enforced in the courts.80

75 Australian Broadcasting Corporation v Lenah Games Meats Pty Ltd (2001) 208 CLR 199, 248 [105] (Gummow and Hayne JJ), 216 [8] (Gleeson CJ).

76 [1977] 1 NSWLR 43, 50-2 (Street CJ), 57 (Moffitt JA), cf 61-3 (Hutley JA).77 [1980] QB 114.78 Ibid 123.79 (1997) 191 CLR 119, 132 (Gaudron, McHugh and Gummow JJ) citing Re Judiciary and

Navigation Acts (1921) 29 CLR 257.80 (1998) 195 CLR 424, 439 [5].SETKA v CARROLL & ORS 34 JUDGMENT

(e) In Equity: Doctrines and Remedies, the learned authors opine that ‘[t]he perception that non-justiciability goes only to discretion, not jurisdiction, may need revision in light of more recent authorities’.81

(f) It is not necessary for me to resolve this question because, if the Court is unable to provide a remedy in support of the declaratory relief in this case, I would not think it appropriate to exercise any discretion to make an inutile declaration.82

58 In Coleman v Liberal Party of Australia, New South Wales Division (No 2),83 Palmer J made declarations with respect to an internal dispute in the New South Wales Division of the Liberal Party about the election of selectors from two party branches. He noted that the reasoning of Dowsett J in Baldwin v Everingham had been followed and applied on a significant number of occasions; and concluded that the decision was correct.84 In considering discretionary factors, he said:

Judges have called attention to the fact that a modern political party registered under the legislation governing elections is in itself an institution whose internal stability and good governance is important in the democratic process. Accordingly, there is a public interest in ensuring that a registered political party, which is entitled to funding assistance for electoral expenses from public monies, is administered in accordance with a correct construction of its rules.85

59 The reasoning of Dowsett J in Baldwin v Everingham has been applied in other cases involving applications arising out of internal disputes in

81 J D Heydon, M J Leeming and P G Turner, Equity: Doctrines & Remedies (LexisNexis Butterworths, 5th ed, 2015) 622 [19-135].

82 Plenty v Seventh Day Adventist Church of Port Pirrie (2009) 260 LSJS 313, [97] (Gray, Vanstone and Anderson JJ).

83 (2007) 212 FLR 271.84 Ibid 279-80 [36]-[40].85 Ibid 281 [48] (citations omitted).SETKA v CARROLL & ORS 35 JUDGMENT

political parties;86 but in each of these cases the issue of justiciability was the subject of a concession or not argued.

60 In my opinion, the cases that follow Baldwin v Everingham do not identify the cause of action or other ascertainable or enforceable legal right which would entitle the claimant to relief at law or equity; or otherwise provide a proper basis to distinguish Cameron v Hogan.

Can Cameron v Hogan be distinguished on the basis of rights to the property of the ALP?

61 The plaintiff submitted that Cameron v Hogan could be distinguished on the basis of the plaintiff’s interest in the disposition of the property of the ALP.

62 I reject this submission for the following reasons:

(a) In Cameron v Hogan, the plurality recognised that the property under the control of the Central Executive could be distributed among its members if all the members agreed to dissolve the association. However, it was held that such an interest was insufficient to support injunctive relief because:

(i) the organization was a ‘political machine designed to secure social and political changes’;

(ii) it was ‘reasonably clear that membership of the association carries with it no tangible or practical proprietary right’ to the assets belonging to the ALP; and

86 Tucker v MacDonald [2001] QSC 296, 18 (Muir J); Galt v Fleg [2003] QSC 290, [10] (Moynihan SJA); Burston v Oldfield [2003] NSWSC 88, [8] (Hamilton J); Fennell v Brough [2008] QSC 166 (Martin J); Greene v McIver (2012) 263 FLR 450, 457 [38] (Margaret Wilson J).


(iii) the existence of such property was ‘incidental and accidental’ to the conduct of the association.87

(b) There was no evidence or submission that the plaintiff’s interest in the disposition of the property of the ALP exceeded that of Mr Hogan, the respondent in Cameron v Hogan.

Can Cameron v Hogan be distinguished on the basis of the financial and reputational effects of expulsion?

63 The plaintiff contended that Cameron v Hogan could be distinguished because of the effects expulsion would have on the plaintiff’s livelihood and reputation.

64 With respect to the financial and reputational effects of expulsion on the plaintiff, the plaintiff relied on the following facts:

(a) He has been a CFMMEU delegate at every ALP State and National Conference for a number of years and believes that he has influence on policy including legislation on industrial manslaughter.

(b) If he is expelled from the ALP, he would no longer be entitled to be a CFMMEU delegate at these conferences, which would reduce his capacity to promote and effect change on behalf of the CFMMEU and its members. Accordingly, it would affect him performing the duties of his employment with the CFMMEU.

(c) As a result, he may lose his position as Secretary of the Victorian Division of the CFMMEU, if the membership considers it more appropriate for the Secretary to be a member of the ALP.

(d) His sole source of income is derived from his employment as the Secretary of the CFMMEU.

87 (1934) 51 CLR 358, 377-8 (Rich, Dixon, Evatt and McTiernan JJ).SETKA v CARROLL & ORS 37 JUDGMENT

(e) The basis for his proposed expulsion is his alleged inherent character, and therefore expulsion would be harmful to his reputation.

65 In Agricultural Societies Council of NSW Ltd v Christie,88 Meagher JA confirmed the state of the law as being that the Court may only grant a private law remedy, such as a declaration or injunction, in relation to a challenged decision of a private body when ‘enforcing or protecting an underlying contractual or other entitlement recognised at law or in equity’.89 Accordingly, the fact that the decision of the private body might have financial and reputational consequences was not sufficient to give the Court jurisdiction unless the enforcement of the decision or its publication would be tortious or involve an unreasonable restraint of trade.90

66 Similarly, in DEF v Trappett,91 Beech-Jones J, after an extensive review of the authorities, concluded:

In the end result, I do not accept that this Court has jurisdiction to review a decision of a private body or tribunal which does not rest upon contract, does not affect the property or effect a restraint of trade but which only affects their reputation. Instead, in such cases the relevant person’s remedy is an action for defamation.92

67 Further, whatever the financial and reputational effects on the plaintiff might be, it is insufficient to distinguish it from Cameron v Hogan. The

88 (2016) 340 ALR 560.89 Ibid 568-9 [35], [40]-[41] (Meagher JA, with whom Ward JA agreed), 578-9 [94] (Leeming

JA). See also Live Group Pty Ltd v Rabbi Ulman [2017] NSWSC 1759, [79] (Sackar J).90 Agricultural Societies Council of NSW Ltd v Christie (2016) 340 ALR 560, 568-9 [40] (with

whom Ward and Leeming JJA agreed).91 [2016] NSWSC 1698.92 Ibid [181]. At [135], Beech-Jones J noted that the passage from Cameron v Hogan, which

I have quoted at [29] above, as ‘much criticised’ but continues ‘however that criticism is of no present relevance. Neither a judge at first instance nor an intermediate Court of Appeal has the authority to revisit a High Court judgment on the basis that social conditions or circumstances may have changed since it was published’.


expulsion of the plaintiff, in that case the former State Premier, affected him financially and reputationally in that:

(a) he was no longer the leader of the State Parliamentary Labor Party; and

(b) he was no longer entitled to the emoluments attached to that position.

If the effects on the respondent, Mr Hogan, did not amount to ‘some civil right of a proprietary nature’ sufficient to ground jurisdiction to grant an injunction, I do not consider that the financial and reputational effects on the plaintiff in this case could do so.93

Conclusion on justiciability

68 For the above reasons, I am not satisfied that the statutory recognition of political parties in the Electoral Act is a proper basis to distinguish Cameron v Hogan. Of course, as a judge at first instance, it is not appropriate for me to decline to follow a decision of the High Court on the basis of perceived changes in social conditions or circumstances.94

69 However, in case I am found to be wrong, I will consider the further issues raised on this application.

93 Cameron v Hogan (1934) 51 CLR 358, 377, 377-8 (Rich, Starke, Dixon, Evert and McTiernan JJ). I note that there is no question that the plaintiff will not be afforded an opportunity to be heard. See, eg, Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ).

94 Garcia v National Australia Bank Ltd (1998) 194 CLR 395, 403 [17] (Gaudron, McHugh, Gummow and Hayne JJ). See also Farrah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, 149 [131], 159 [158] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ).


Question 2 - Is the power of the National Executive to expel a member under cl 16(d) of the National Constitution subject to any limitation requiring compliance with cl 20 of the Victorian Rules?

Principles of construction for rules of a voluntary association

70 The principles to be applied in interpreting the rules of a voluntary association are, like the construction of a corporate constitution,95 similar to the principles applicable to the construction of commercial contracts.96

71 The principles of construction are modified to recognise that the rules are not those of a trading corporation, but a voluntary association. In Echunga Football Club Inc v Hills Football League Inc, Stanley J described the modification of the approach to construction as follows:

[T]he Court must recognise that this association is not a commercial operation established with a view to generating profits but rather is what may be described as a non-profit making sporting organisation. In this regard it is proper to recognise that the by-laws are drafted in an ad hoc and piecemeal fashion by lay-persons rather than lawyers, couched in terms intelligible to them but which often lack the consistency, coherence, form and drafting that would be expected in a statute or commercial contract.

Accordingly, in my view, the Court must approach the construction of a particular by-law, when read in the context of the by-laws as a whole, with a degree of flexibility. This means that the courts should not make too much of infelicities of expression in the by-laws, nor be too quick to identify absurdity, illogicality or apparent inconsistencies. As French J (as he then was) said in the context of interpreting industrial awards, while fractured and illogical prose may be met by a generous and liberal approach to construction, the instrument must make sense according to its ordinary and grammatical language.97

72 As with the interpretation of a commercial contract, the terms are construed objectively; but the Court will consider not only the text and

95 For a discussion about the construction of corporate constitutions see Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd (2006) 156 FCR 1 (Weinberg, Kenny and Lander JJ) (‘Lion Nathan’).

96 Green v Page [1957] Tas SR 66, 81 (Burbury CJ); Popovic v Tanasijevic [2001] SASC 289, [42] (Williams J, with whom Doyle CJ and Martin J agreed); Echunga Football Club Inc v Hills Football League Inc (2014) 121 SASR 449, 453-4 [16] (Stanley J).

97 (2014) 121 SASR 449, 454 [18] (Stanley J).SETKA v CARROLL & ORS 40 JUDGMENT

the ordinary meaning, but also the context and known surrounding circumstances.98 However, because of the public nature of the rules:

(a) great emphasis is to be placed on the text of the rules; and

(b) the ambit of the surrounding circumstances to which the Court may have regard, may be constrained.99

73 The surrounding circumstances to which the Court may have regard include:

(a) the making of amendments to the rules; and previous versions of the rules may be relevant;100 and

(b) ‘established and well known and unquestioned practice in use in the association … which are accepted by persons joining the association’.101

74 For the purposes of interpreting a power of expulsion of a member, the following principles apply:

(a) Except where the association has no property, at common law an unincorporated association has no inherent power to expel a member.102

(b) Powers to expel must be expressly conferred. In Kelly v National Society

of Operative Printers,103 the English Court of Appeal held that there was

98 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165, 179 [40].99 Lion Nathan (2006) 156 FCR 1, 28 [124] (Kenny J); Echunga Football Club Inc v Hills

Football League Inc (2014) 121 SASR 449, 454-5 [18] (Stanley J).100 Lion Nathan (2006) 156 FCR 1, 51 [256] (Lander J).101 Burton v Murphy [1983] 2 Qd R 321, 339-41 quoting Lewis v Heffer [1978] 1 WLR 1061,

1076 (Ormrod LJ).102 Webster v The Bread Carters’ Union of New South Wales (1930) 30 SR (NSW) 267, 272

(Long Innes J).103 (1915) 113 LT 1055 (Swinfen Eady, Phillimore and Bankes LJJ).SETKA v CARROLL & ORS 41 JUDGMENT

no inherent or implied power of expulsion in a voluntary association.104

(c) Expulsion powers are strictly interpreted. As P O Lawrence J said in Burn v National Amalgamated Labourers’ Union of Great Britain and

Ireland, any power to expel ‘being in its nature penal, has to be exercised strictly in accordance with the language of the rule’.105 Similarly, in Harbottle Brown & Co Pty Ltd v Halstead, Street J said:

In approaching these questions of construction it is necessary to bear in mind that [the expulsion rule] is one of the terms of which are intended to be capable of affecting a member in what is probably the most important way that he could be affected, namely by being expelled from the association. In construing such a rule care must be exercised to ensure that the circumstances exposing a member to expulsion are stated with reasonable clarity and certainty.106

Plaintiff’s submissions

75 On behalf of the plaintiff, it was submitted as follows:

(a) Textually, the wording of cl 16(d), “the National Executive may exercise all powers of the Party on its behalf without limitation”:

(i) does not expressly confer a power to expel or any additional power on the National Executive that is not already exercisable by some other organ of the Party; and

(ii) does not vest any further powers in the National Executive or free it from any limits that apply to the existing powers of the Party; they merely confirm that no additional limits arise when the National Executive exercises such a power.

104 Ibid 1057 (Swinfen Eady LJ), 1059 (Phillimore LJ) and 1062 (Bankes LJ). Later overruled by the House of Lords in Bonsor v Musicians’ Union [1956] AC 104 but only on the question of the Court of Appeal’s refusal to award damages.

105 [1920] 2 Ch 364, 373.106 [1968] 3 NSWR 493, 497. SETKA v CARROLL & ORS 42 JUDGMENT

(b) Contextually:

(i) The National Constitution contemplates the State Branches being centrally involved with membership, not the national level. There is no rational explanation for the Victorian Rules clearly and carefully identifying the bases upon which a member can be expelled, and the procedures to be followed in doing so, if an entirely unregulated standalone power to expel a person could be exercised at the national level.

(ii) The phrase “plenary” should not be taken to mean that the National Constitution has conferred power upon the National Executive to do whatever it wishes, for any reason whatsoever.

(iii) The pre-2009 version of the power in cl 16(d) gave the National Executive a greater power to decide ‘any matters it thought fit’, whereas the current wording of cl 16(d) limits the National Executive to ‘the powers of the Party’.

(iv) The past examples of the exercise of powers by the National Executive under cl 16(d) includes only one example of expulsion and there is no evidence that these examples had common background facts known to members adopting cl 16(d) in its current form.

Defendants’ submissions

76 On behalf of the defendants, it was conceded that:

(a) in its terms, cl 16(d) does not include an express power to expel; and


(b) the procedure adopted by the defendants does not comply with r 20 of the Victorian Rules.

77 However, the defendants submitted that the relevant power of the National Executive to expel arises from cl 16(d) of the National Constitution, which ‘picks up’ the expulsion power found in r 20 of the Victorian Rules, but without any of the limitations or preconditions found in those Victorian Rules – for the following reasons:

(a) Textually, because the words ‘all powers’ establish the kinds of powers

which the National Executive may exercise, for the words ‘without limitation’ to have meaning, they must go to how the National Executive exercises those powers. Therefore, the National Executive has a power to expel as this is a power of the Party picked up from r 20 of the Victorian Rules; but it need not comply with any of the limitations on the exercise of that power found in the Victorian Rules, because how it exercises its powers is ‘without limitation’.

(b) Contextually, a broad reading of the powers under cl 16(d) is supported by the following:

(i) Clause 16(d) is a ‘plenary power’.

Clauses 16(e)-(f) of the National Constitution refer to cl 16(d) as a ‘plenary power’.

(ii) The context of the ALP structure.

Clauses 14(b)-(c), 16(a), (c), (e)-(f), 26, 36(c), 46-7 in the National Constitution elevate the National Executive above the state branches in the structure of the ALP.

(iii) Amendments to cl 16(d).


Clause 16(d) was expanded in 2009 by the removal of a limitation on its exercise, that the matter had to affect the ‘general welfare of the Labor Movement’.

(iv) Previous applications of cl 16(d).

There was evidence of several examples where the National Executive made pre-selection decisions, and one example in 2007 where the National Executive expelled a member, not in compliance with state rules.

(v) The plaintiff’s interpretation of cl 16(d) is practically unworkable.

It would be impossible for the National Executive to comply with various limitations in the Victorian Rules, such as those that require the involvement of the State Secretary (e.g. r 20.8.1.5); and it is unworkable to require the National Executive to comply with state rules where they differ substantially from State to State.

Conclusion on construction question

78 For the following reasons, I reject the defendants’ contention that, on a proper construction of the National Constitution and the Victorian Rules, the National Executive may exercise an expulsion power without the limitations and preconditions set out in the Victorian Rules.

Textual considerations

79 I do not accept the defendants’ contention that on a plain reading of cl 16(d) the effect of the words ‘without limitation’ means that the National


Executive has an unlimited power to expel members of the ALP – for the following reasons:

(a) The plain reading of cl 16(d) is that relevantly the National Executive may exercise all powers of the state branches; and the words ‘without limitation’ emphasise that none of the state branches’ powers are reserved to the state branch. The defendants’ construction, that the words ‘without limitation’ go to how powers are to be exercised, would require cl 16(d) to be reworded, at least, as follows:

Subject only to National Conference, the National Executive may exercise all powers of the Party on its behalf without limitation, including in relation to the state branches and other sections of the Party, without any of the prescribed limitations on the exercise of such powers.

In my opinion, even allowing for the latitude permitted in construing rules of voluntary associations, such a rewriting is unwarranted.

(b) Under r 20 of the Victorian Rules, the power to expel is confined to proven specified offences under the Victorian Rules. It does not contain a general power to expel with certain limitations. In my opinion, to construe cl 16(d) of the National Constitution as conveying an unlimited power to expel, which is not contained in the Victorian Rules, is to strain the language beyond any fair construction.

(c) The defendants’ construction is not consistent with the principle that any power to expel members from an unincorporated association must be exercised strictly in accordance with the language of the rule.


Contextual considerations

80 With respect to each of the contextual considerations relied upon by the defendants, I say as follows.

Clause 16(d) as a ‘plenary power’

81 ‘Plenary’ relevantly is defined in the Macquarie Dictionary as ‘full; complete; entire; absolute; unqualified’.107 I accept that, as it is expressed to be a plenary power, the power under cl 16(d) should be construed to be ‘free from … unexpressed qualification’;108 and ‘without making implications or imposing limitations which are not found in the express words’.109 However, for reasons already given, I do not consider the fact that the power is described as plenary founds a basis for construing the power conveyed to the National Executive under cl 16(d) as exceeding a power prescribed under the Victorian Rules.

The context of the ALP structure

82 The National Constitution elevates the National Executive above the state branches in the structure of the ALP, including a right to amend the state branch rules to implement the National Principles of Organisation. However, this fact does not support a construction of cl 16(d) which extends to the National Executive a power not contained in the Victorian Rules.

107 Macquarie Dictionary (6th ed, 2013) ‘plenary’ (def 1).108 Actors and Announcers Equity Association of Australia v Fontana Films Pty Ltd (1982)

150 CLR 169, 208 (Mason J).109 R v Public Vehicles Licensing Appeal Tribunal of the State of Tasmania (1964) 113 CLR

207, 225 (Dixon CJ, Kitto, Taylor, Menzies, Windeyer and Owen JJ).SETKA v CARROLL & ORS 47 JUDGMENT

Amendments to cl 16(d)

83 The current form of cl 16(d) of the National Constitution was introduced by resolution of the National Conference convened in 2009.110 The plenary power of the National Executive (formerly known as the Federal Executive) was incorporated into the national rules in 1924 and after amendments, prior to 2009, provided as follows:

The National Executive shall ... [h]ave plenary powers to deal with and decide any matters which, in the opinion of an absolute majority of members of the Executive, affect the general welfare of the Labor Movement, provided that no decision of the Federal Conference shall be abrogated under this rule.

84 The defendants submitted that the amendment, in 2009, from the plenary powers being ‘to deal with and decide any matters which … affect the general welfare of the Labor Movement’ to ‘all powers of the Party on its behalf without limitation’ was a significant expansion, which supports a broad construction of the current cl 16(d). Assuming that the amendment did broaden the powers of the National Executive,111 I do not consider that it supports a construction of the present cl 16(d) which extends to the National Executive a power not incorporated in the Victorian Rules.

Previous applications of cl 16(d)

85 The defendants relied on the following evidence, which was supported by newspaper reports, of the previous exercises of plenary powers by the National Executive:

a. In 2004, the National Executive decided that Peter Garrett would be preselected as the ALP candidate for the NSW electorate of Kingsford Smith (without compliance with purported requirements of the NSW State branch rules);

b. In 2007, the National Executive Committee on behalf of the National Executive decided to expel Joe McDonald (then the

110 The substance has not since changed although the National Constitution was reorganised and renumbered at the 2015 National Conference.

111 There is at least some merit in the plaintiff’s submission that the amendment narrows the National Executive’s powers. See [75] above.


assistant WA Secretary of the Construction Forestry Mining and Energy Union) from membership of the ALP with immediate effect (without compliance with purported requirements of the WA State branch rules);

c. In 2007, the National Executive conducted a new preselection for the NSW electorate of Cowper (without compliance with purported requirements of the NSW State branch rules);

d. In 2009, the National Executive conducted a preselection for the Party's nominee to fill the vacancy in the Southern Metropolitan Region of the Victorian Legislative Council caused by the resignation of Evan Thornley (without compliance with purported requirements of the Victorian State branch rules).

e. In 2011, the National Executive determined the preselection for the Victorian State Electorate of Broadmeadows by conducting a ballot of the members of the National Executive (without compliance with purported requirements of the Victorian State branch rules);

f. In 2016, the National Executive determined the preselection and order for ALP Senate candidates at the 2016 federal election by resolution, endorsing Senate tickets for a double dissolution election where there were to be twelve vacancies in each State rather than six (without compliance with purported requirements of the branch rules of any of the State branches);

g. In 2016, the National Executive resolved to dis-endorse the previously endorsed ALP candidate for the electorate of Fremantle, and to endorse a new candidate (without compliance with purported requirements of the Western Australian state branch rules); and

h. During the 45th Parliament, the National Executive determined the preselection of the ALP candidates for the by-elections held in New England, Bennelong, Batman, Longman, Braddon, Fremantle and Perth (without compliance with purported requirements of any of the relevant State branch rules in New South Wales, Victoria, Queensland, Tasmania and Western Australia).

86 Authorities support the fact that the Court can have regard to evidence of established practice and usage with respect to the application of rules, and that such practice may even form part of the rules. In Lewis v Heffer, Ormrod LJ explained:

Rules of association of this kind ultimately derive their legal effect from the acceptance, by the members, of the terms and conditions of the association when they join the group. Where there is an established and well known and unquestioned practice in use in the


association it is some evidence, and indeed it may be strong evidence, that this practice too is part of the terms and conditions which are accepted by persons joining the association … If one adopted the contrary view, it must require an extraordinarily strong and clear case to justify the court in holding a well-established practice like this to be unconstitutional or ultra vires, more particularly where the organisation concerned is a voluntary, unincorporated and essentially informal body.112

87 Although the evidence establishes a practice of the National Executive exercising powers over state branches, the examples principally relate to preselection, where under cl 16(f) of the National Constitution the National Executive has a specific and apparently unlimited power to ‘conduct any preselection that would otherwise have been decided by the state branch or section’.

88 The only relevant example of the exercise by the National Executive of powers with respect to expulsion is the expulsion of Mr McDonald in 2007. Even accepting the evidence of the first defendant that the expulsion was, in some unspecified way, ‘without compliance with the purported requirements of the relevant state branch rules’, I do not consider that the evidence establishes an ‘established and well known and unquestioned practice’ – for the following reasons:

(a) There is no evidence as to the extent of non-compliance with the purported requirements in the McDonald case – such as whether the non-compliance was procedural or substantive. For example, applying the Victorian Rules, there may be a substantial difference between an expulsion for an offence not recognised under r 20.5.1 (as in this case); and a failure to lodge the complaint with the State Secretary under r 20.8.1.5.

(b) A single incident does not constitute an ‘established practice’.

112 [1978] 1 WLR 1061, 1076, see also Denning MR at 1072; cited with approval in Burton v Murphy [1983] 2 Qd R 321, 340-1 (WB Campbell J).


(c) The evidence of the newspaper reports did not refer to the fact that the expulsion was without compliance with the WA state branch rules; and so there is no evidence that the ‘non-compliance’ was publicised or known.

(d) There was no evidence as to whether the expulsion was ‘unquestioned’.

89 Accordingly, I reject the submission that the National Executive has an unlimited right to expel members of the ALP on the basis of established, well known and unquestioned practice.

The plaintiff’s interpretation of cl 16(d) is practically unworkable

90 The Court should strive to adopt a construction which produces a sensible result.113 However, I do not accept that the defendants’ construction of cl 16(d) should be adopted on the basis of the alleged procedural difficulties that may arise on the National Executive exercising the powers of the state branches – for the following reasons:

(a) The National Executive could without difficulty apply the substantive requirement that the penalty provisions are enlivened by proof of the prescribed offences. The procedural requirements, referred to by the defendants, may well be merely directory, and a failure to comply with them may not invalidate an expulsion proceeding.114

(b) A reading of the National Constitution and the rules of the various state branches is consistent with an intention that expulsion should be carried out by the State branches. I would not readily infer that procedural difficulties in the National Executive exercising a power

113 Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544, 551 [17] (Kiefel, Bell and Gordon JJ).

114 Green v Page [1957] Tas SR 66, 81-2 (Burbury CJ);SETKA v CARROLL & ORS 51 JUDGMENT

of dismissal were unintended. For example, unlike an expulsion power, the power of the National Executive to intervene with respect to preselection is the subject of a specific provision in the National Constitution.

(c) The plaintiff concedes that, on a proper construction of cl 16(d), the National Executive may stand in the shoes of any other person in whom power is vested by the Victorian Rules, including r 20.

Question 3 - Should the Court refrain on discretionary grounds from granting relief?

91 Because I have found that the plaintiff’s claim is not justiciable, I consider that it would be hypothetical to consider whether, as a matter of discretion, I would refuse relief without the basis for a legal remedy being identified.

Orders

92 I dismiss the plaintiff’s claim.

---

CERTIFICATE

I certify that this and the 44 preceding pages are a true copy of the reasons for judgment of Riordan J of the Supreme Court of Victoria delivered on 27 August 2019.

DATED this 27th day of August 2019.

Associate


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