ELECTORAL reform
Shane Cuthbert Joins New South Wales Business man and Plaintiff in Camenzuli v Morrison (2022) NSWCA 51, Matthew Camenzuli, Ben Dawkins Member of the Legislative Assembly in Western Australia and the Plaintiff in Dawkins v the State Secretary, Australian Labor Party (WA Branch) (2022) WASC 75 and Tristan Cockman, former Federal candidate for the ALP in WA and Plaintiff in Cockman v Gorman (2023) WASCA 44, in a submission to the Joint Standing Committee on Electoral Matters.
Submission to Joint Standing Committee on Electoral Matters29 May 2023
Endorsed by
Ben Dawkins MLCMatthew CamenzuliTristan CockmanShane Cuthbert
Prepared by Tristan Cockman 1. IntroductionPolitical parties are largely unregulated. In fact, your local sporting club is more regulated than a political party. Yet, political parties play a significant role in our democratic processes. Some theorists argue that political parties are private institutions and should not be open to public scrutiny. However, political parties control the selection of candidates for Parliament (and therefore, who is ultimately elected to Parliament) and exert significant influence over the policy decisions of governments. They claim to represent the public and also receive substantial sums of public money. They unequivocally perform public functions and therefore, are in substance and practice a public institution.The decisions of political parties also have the capacity to profoundly impact people’s lives whether financially, personally, psychologically, professionally or reputationally. There are dozens of examples in recent years where political parties, or their office bearers, have faced allegations relating to their conduct. This includes branch stacking, bullying, intimidation, defamation and discrimination. This is often in the context of bitter and politically motivated preselections. However, it also extends to other conduct including alleged wrongful expulsions without affording natural justice and manipulating the interpretation of the rules of the political party to suit their needs at the time. In fact, the rules of the political party and democracy as a whole appear to be largely ignored. The honest and blunt truth is that most political parties are not democratic (and arguably never have been ) despite claiming to be so. They do not afford local members direct and exclusive say over preselections and other decision making. Power is centralised in the hands of a select few individuals. These individuals have been called many things – the faction leaders, factional warlords, power brokers, faceless men. However, the most apt description was that made by Ostrogorski in 1902 – the wire pullers. Another sad truth centres around political donations. Money buys influence. There is no simpler way of putting it than that. Political parties are subject to the interests of those people who fund them. The most effective way to remove such influence, or at least the perception of such influence, is to prohibit political donations and fully fund political parties. However, this would also require greater accountability in how the public funds are spent.There are normative needs to acknowledge the public importance of political parties and protect the rights of individuals. In our view, these needs are important now more than ever. 2. What is a political party?The Commonwealth Electoral Act 1918 (Cth) (CEA) defines a political party as ‘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.’ This is essentially correct. In its simplest terms, a political party is a type of voluntary association that selects candidates for Parliament. 3. What laws currently apply to political parties? The common law Since 1934, there have been several dozen legal cases involving political parties including at least 10 cases in the last 5 years. This is in addition to dozens of legal cases involving other voluntary associations to which the same common law applies. It begins with a rather perplexing High Court decision of Cameron v Hogan in 1934 which characterises political parties and other voluntary associations of purely domestic concern not justifying intervention by the courts. The court said that such cases were not ‘justiciable.’ In 1974, the case of McKinnon (a case involving a Rugby League Football club) highlighted the importance of voluntary associations and the importance of protecting the rights of individuals. For decades after, Supreme Courts found ways to distinguish the decision in Cameron in order to allow aggrieved members to bring disputes. This included an abhorrent case where a group of members of a sporting club created a fraudulent petition to falsely accuse a fellow member of child abuse. This resulted in that member losing her external job and suffering a mental illness. However, in a strange twist of fate, the 2022 Camenzuli case (which occurred shortly before the 2022 Federal election) upheld the decision in Cameron. The Camenzuli decision has reignited a conflict over how the rules of voluntary associations are to be treated at common law. It has also caused a conflict with the Victorian decision of Asmar which found certain disputes involving political parties justiciable under the Victorian Electoral Act. At common law, only the High Court can resolve these conflicts. If the decisions in Cameron and Camenzuli are to be upheld, people like the plaintiff in the case of Carter would be denied justice. Political parties and their office bearers continue to rely on the decisions in Cameron and Camenzuli. They in effect contend that they are an “Alsatia for Jack Shepherds”, an “island of power”, immune from supervision. They argue that their rules govern their conduct only when they choose, at their absolute discretion, to adhere to them.The High Court may in the near future be called upon to finally override the injustice of the decision in Cameron and allow members of voluntary associations to enforce the rules as a contract or otherwise. However, this will not address the issue that the rules of political parties remain stacked in favour of the wire pullers. Registration under the CEA Part XI of the CEA contains some requirements relating to political parties. To be an ‘eligible political party’, the political party must be either a Parliamentary party or have at least 1,500 members (First Requirement) and must be ‘established on the basis of a written constitution (however described) that sets out the aims of the party’ (Second Requirement). In other words, in order to be registered and enjoy the benefits of registration (such as public funding, appearing on the ballot paper and many more), a political party need only comply with the First Requirement and the Second Requirement. In this submission, it is the Second Requirement that is in issue. The Second Requirement is a toothless tiger. While it may require a political party to have a written constitution, this is a superficial requirement. It falls short of prescribing the contents of the constitution including any requirement that the political party be democratic or act appropriately or otherwise in accordance with its rules.In 2004, a review of the then federal election recommended changes to the CEA to clarify expectations around what constituted a “written constitution”. In particular, the Joint Standing Committee on Electoral Matters (Committee) recommended that the CEA should require constitutions to address certain issues (e.g., “detail the party structure”).However, this did not make any recommendation relating to crucial issues such as preselection (the core function of a political party), that political parties be bound by their rules (so that members can enforce them) or that political parties are bound by the principles of natural justice. Also, the recommendations were to merely “address” these issues, not address them in a certain way. In other words, it would have been sufficient to merely set out a party structure; however, that party structure could still be undemocratic. Incorporated associationsWhen a voluntary association incorporates under State legislation, it becomes subject to some standards specified in those Acts. In particular, the association is normally required to adopt model rules. These model rules typically enshrine democracy inside the association by, for example, mandating that office bearers are to be elected directly by the members. However, as of 15 March 2023, it appears from the AEC that only 4 out of 57 registered political parties are incorporated. In any event, the State legislation does not prescribe a democratic process for preselection, a process unique to political parties. Therefore, political parties that are incorporated can avoid the model rules.While (in 4 out of 57 cases) the legislation can help improve the accountability of political parties in other ways, it does not quite suit the core function of a political party – to select candidates for Parliament – or address other governance issues that specifically relate to political parties. Political donations under the CEA When part public funding was introduced in the 1980s, the objectives were to:(a) assist parties in financial difficulties;(b) lessen corruption;(c) avoid excessive reliance upon ‘special interests’ and institutional sources of finance;(d) equalise opportunities between the parties; and(e) stimulate political education and research. We would argue that every one of these objectives has failed. Political parties are just as reliant (if not more reliant) on private funding than ever before. While the CEA goes into some detail relating to disclosure of donations and the Committee is currently investigating tightening disclosure thresholds, this fails to address the core issues – that political donations create influence, or at least the perception of influence, over the decisions of governments. The most effective way to remove such influence or the perception of influence is to prohibit political donations.Aside from addressing the issues identified in the 1980s, prohibiting donations would also have a number of other benefits. Currently, spending decisions by political parties are skewed towards the interests of the donors and are often wasteful. Prohibiting donations would allow spending decisions to be made objectively, independently and wisely. Further, sourcing donations is a burden on political parties, candidates and Ministers who spend significant time and resources fundraising that could be better spent elsewhere (like representing constituents, developing policy or on their Parliamentary and Ministerial duties). Prohibiting donations would also end their tax deductibility which was estimated to save $31.4 million as at 2009/10. 4. Arguments for Reform The increasing frequency of legal cases involving political parties highlights that current laws are out of date with community expectations. Any person joining any political party has a right to expect that the rules would be binding against the political party and its office bearers as much as the rules are binding on each member. They would also have a right to expect that the political party and its office bearers would follow the principles of natural justice.Further, each member of a political party has a right to have a direct say in the affairs of the party. Like any other voluntary association, the members should directly elect the executive committee. In respect of preselection, the local members should directly elect the candidate in an open and transparent, competitive and merits-based selection process. The executive committee should have no say in preselection. However, most importantly, the wider community has a right to expect the above standards. The wider community are ultimately the ones who are affected by the policy decisions of government. Therefore, they have a right to expect that the preselection process inside a political party is democratic and aimed at selecting the most representative and most capable candidate. Opening up preselection will attract new members to political parties and ultimately more diverse candidates. It will also take away the ‘jobs for the boys’ which characterises and determines most preselections. The wider community also has a right to expect that policy decisions are not influenced by the interests of political donors. 5. Proposed framework for the Regulation of Political Parties If governments consider that it is in the public interest to regulate the affairs of a local sporting club, it is self-evident that it would be in the public interest to regulate the affairs of political parties.The Committee has jurisdiction over electoral matters and practices and has authority to propose legislative reform. It is currently inquiring into ‘all aspects of the conduct of the 2022 federal election’. This should include the regulation of political parties and the circumstances surrounding the Camenzuli case which threatened to derail the 2022 federal election. Current laws, including the CEA, are inadequate to prevent the types of improper conduct discussed above. The Committee should consider regulating political parties in much the same way as incorporated associations. Some aspects of regulation would be similar to that which applies to incorporated associations generally. However, other aspects of regulation would be different due to the unique functions of political parties.The table in Annexure A sets out proposed measures which we submit the Committee should consider and include in regulation. It is not intended to be exhaustive. The proposed measures are based on the following principles:(a) the separation of powers;(b) democracy;(c) equality;(d) transparency and accountability;(e) due process;(f) the rule of law;(g) independent tribunals;(h) avoiding conflicts of interest; and(i) protection of political freedoms and Parliamentary duties.
Endorsed by
Ben Dawkins MLCMatthew CamenzuliTristan CockmanShane Cuthbert
Prepared by Tristan Cockman 1. IntroductionPolitical parties are largely unregulated. In fact, your local sporting club is more regulated than a political party. Yet, political parties play a significant role in our democratic processes. Some theorists argue that political parties are private institutions and should not be open to public scrutiny. However, political parties control the selection of candidates for Parliament (and therefore, who is ultimately elected to Parliament) and exert significant influence over the policy decisions of governments. They claim to represent the public and also receive substantial sums of public money. They unequivocally perform public functions and therefore, are in substance and practice a public institution.The decisions of political parties also have the capacity to profoundly impact people’s lives whether financially, personally, psychologically, professionally or reputationally. There are dozens of examples in recent years where political parties, or their office bearers, have faced allegations relating to their conduct. This includes branch stacking, bullying, intimidation, defamation and discrimination. This is often in the context of bitter and politically motivated preselections. However, it also extends to other conduct including alleged wrongful expulsions without affording natural justice and manipulating the interpretation of the rules of the political party to suit their needs at the time. In fact, the rules of the political party and democracy as a whole appear to be largely ignored. The honest and blunt truth is that most political parties are not democratic (and arguably never have been ) despite claiming to be so. They do not afford local members direct and exclusive say over preselections and other decision making. Power is centralised in the hands of a select few individuals. These individuals have been called many things – the faction leaders, factional warlords, power brokers, faceless men. However, the most apt description was that made by Ostrogorski in 1902 – the wire pullers. Another sad truth centres around political donations. Money buys influence. There is no simpler way of putting it than that. Political parties are subject to the interests of those people who fund them. The most effective way to remove such influence, or at least the perception of such influence, is to prohibit political donations and fully fund political parties. However, this would also require greater accountability in how the public funds are spent.There are normative needs to acknowledge the public importance of political parties and protect the rights of individuals. In our view, these needs are important now more than ever. 2. What is a political party?The Commonwealth Electoral Act 1918 (Cth) (CEA) defines a political party as ‘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.’ This is essentially correct. In its simplest terms, a political party is a type of voluntary association that selects candidates for Parliament. 3. What laws currently apply to political parties? The common law Since 1934, there have been several dozen legal cases involving political parties including at least 10 cases in the last 5 years. This is in addition to dozens of legal cases involving other voluntary associations to which the same common law applies. It begins with a rather perplexing High Court decision of Cameron v Hogan in 1934 which characterises political parties and other voluntary associations of purely domestic concern not justifying intervention by the courts. The court said that such cases were not ‘justiciable.’ In 1974, the case of McKinnon (a case involving a Rugby League Football club) highlighted the importance of voluntary associations and the importance of protecting the rights of individuals. For decades after, Supreme Courts found ways to distinguish the decision in Cameron in order to allow aggrieved members to bring disputes. This included an abhorrent case where a group of members of a sporting club created a fraudulent petition to falsely accuse a fellow member of child abuse. This resulted in that member losing her external job and suffering a mental illness. However, in a strange twist of fate, the 2022 Camenzuli case (which occurred shortly before the 2022 Federal election) upheld the decision in Cameron. The Camenzuli decision has reignited a conflict over how the rules of voluntary associations are to be treated at common law. It has also caused a conflict with the Victorian decision of Asmar which found certain disputes involving political parties justiciable under the Victorian Electoral Act. At common law, only the High Court can resolve these conflicts. If the decisions in Cameron and Camenzuli are to be upheld, people like the plaintiff in the case of Carter would be denied justice. Political parties and their office bearers continue to rely on the decisions in Cameron and Camenzuli. They in effect contend that they are an “Alsatia for Jack Shepherds”, an “island of power”, immune from supervision. They argue that their rules govern their conduct only when they choose, at their absolute discretion, to adhere to them.The High Court may in the near future be called upon to finally override the injustice of the decision in Cameron and allow members of voluntary associations to enforce the rules as a contract or otherwise. However, this will not address the issue that the rules of political parties remain stacked in favour of the wire pullers. Registration under the CEA Part XI of the CEA contains some requirements relating to political parties. To be an ‘eligible political party’, the political party must be either a Parliamentary party or have at least 1,500 members (First Requirement) and must be ‘established on the basis of a written constitution (however described) that sets out the aims of the party’ (Second Requirement). In other words, in order to be registered and enjoy the benefits of registration (such as public funding, appearing on the ballot paper and many more), a political party need only comply with the First Requirement and the Second Requirement. In this submission, it is the Second Requirement that is in issue. The Second Requirement is a toothless tiger. While it may require a political party to have a written constitution, this is a superficial requirement. It falls short of prescribing the contents of the constitution including any requirement that the political party be democratic or act appropriately or otherwise in accordance with its rules.In 2004, a review of the then federal election recommended changes to the CEA to clarify expectations around what constituted a “written constitution”. In particular, the Joint Standing Committee on Electoral Matters (Committee) recommended that the CEA should require constitutions to address certain issues (e.g., “detail the party structure”).However, this did not make any recommendation relating to crucial issues such as preselection (the core function of a political party), that political parties be bound by their rules (so that members can enforce them) or that political parties are bound by the principles of natural justice. Also, the recommendations were to merely “address” these issues, not address them in a certain way. In other words, it would have been sufficient to merely set out a party structure; however, that party structure could still be undemocratic. Incorporated associationsWhen a voluntary association incorporates under State legislation, it becomes subject to some standards specified in those Acts. In particular, the association is normally required to adopt model rules. These model rules typically enshrine democracy inside the association by, for example, mandating that office bearers are to be elected directly by the members. However, as of 15 March 2023, it appears from the AEC that only 4 out of 57 registered political parties are incorporated. In any event, the State legislation does not prescribe a democratic process for preselection, a process unique to political parties. Therefore, political parties that are incorporated can avoid the model rules.While (in 4 out of 57 cases) the legislation can help improve the accountability of political parties in other ways, it does not quite suit the core function of a political party – to select candidates for Parliament – or address other governance issues that specifically relate to political parties. Political donations under the CEA When part public funding was introduced in the 1980s, the objectives were to:(a) assist parties in financial difficulties;(b) lessen corruption;(c) avoid excessive reliance upon ‘special interests’ and institutional sources of finance;(d) equalise opportunities between the parties; and(e) stimulate political education and research. We would argue that every one of these objectives has failed. Political parties are just as reliant (if not more reliant) on private funding than ever before. While the CEA goes into some detail relating to disclosure of donations and the Committee is currently investigating tightening disclosure thresholds, this fails to address the core issues – that political donations create influence, or at least the perception of influence, over the decisions of governments. The most effective way to remove such influence or the perception of influence is to prohibit political donations.Aside from addressing the issues identified in the 1980s, prohibiting donations would also have a number of other benefits. Currently, spending decisions by political parties are skewed towards the interests of the donors and are often wasteful. Prohibiting donations would allow spending decisions to be made objectively, independently and wisely. Further, sourcing donations is a burden on political parties, candidates and Ministers who spend significant time and resources fundraising that could be better spent elsewhere (like representing constituents, developing policy or on their Parliamentary and Ministerial duties). Prohibiting donations would also end their tax deductibility which was estimated to save $31.4 million as at 2009/10. 4. Arguments for Reform The increasing frequency of legal cases involving political parties highlights that current laws are out of date with community expectations. Any person joining any political party has a right to expect that the rules would be binding against the political party and its office bearers as much as the rules are binding on each member. They would also have a right to expect that the political party and its office bearers would follow the principles of natural justice.Further, each member of a political party has a right to have a direct say in the affairs of the party. Like any other voluntary association, the members should directly elect the executive committee. In respect of preselection, the local members should directly elect the candidate in an open and transparent, competitive and merits-based selection process. The executive committee should have no say in preselection. However, most importantly, the wider community has a right to expect the above standards. The wider community are ultimately the ones who are affected by the policy decisions of government. Therefore, they have a right to expect that the preselection process inside a political party is democratic and aimed at selecting the most representative and most capable candidate. Opening up preselection will attract new members to political parties and ultimately more diverse candidates. It will also take away the ‘jobs for the boys’ which characterises and determines most preselections. The wider community also has a right to expect that policy decisions are not influenced by the interests of political donors. 5. Proposed framework for the Regulation of Political Parties If governments consider that it is in the public interest to regulate the affairs of a local sporting club, it is self-evident that it would be in the public interest to regulate the affairs of political parties.The Committee has jurisdiction over electoral matters and practices and has authority to propose legislative reform. It is currently inquiring into ‘all aspects of the conduct of the 2022 federal election’. This should include the regulation of political parties and the circumstances surrounding the Camenzuli case which threatened to derail the 2022 federal election. Current laws, including the CEA, are inadequate to prevent the types of improper conduct discussed above. The Committee should consider regulating political parties in much the same way as incorporated associations. Some aspects of regulation would be similar to that which applies to incorporated associations generally. However, other aspects of regulation would be different due to the unique functions of political parties.The table in Annexure A sets out proposed measures which we submit the Committee should consider and include in regulation. It is not intended to be exhaustive. The proposed measures are based on the following principles:(a) the separation of powers;(b) democracy;(c) equality;(d) transparency and accountability;(e) due process;(f) the rule of law;(g) independent tribunals;(h) avoiding conflicts of interest; and(i) protection of political freedoms and Parliamentary duties.