Keeping the party under control: The legal regulation of Australia’s political parties

Anika Gauja, University of Sydney

In August 2003, One Nation founders Pauline Hanson and David Ettridge were convicted and gaoled for dishonestly registering One Nation as a political party in Queensland. The jury found that Hanson and Ettridge had produced a false list of members to the Electoral Commissioner, comprised of people led to believe they had joined the party, but who had in fact been enlisted as members of a separate and subordinate Hanson support movement. The only members of the ‘real’ One Nation were party leaders Hanson, Ettridge, and David Oldfield.

The case was fought against the broader ideological backdrop of protecting our system of democracy by maintaining the integrity of the electoral system. The crimes Hanson and Ettridge had committed affected confidence in the electoral process, which was not to be ‘thwarted or perverted’ (Hanson & Ettridge v DPP [2003] QSC 277 at [34]). Although the Queensland Supreme Court later overturned the convictions, the One Nation trial raises important questions about the internal operation and management of political parties and about how much these activities should be regulated by law.

Courts have turned a blind eye to democratic abuses within political parties.

What does it take to adversely affect confidence in the electoral process? The court in the One Nation trial was concerned with actions that directly threatened the integrity of Queensland State elections. However, it is curious that although the law steps in to protect this kind of democratic abuse, when a similar violation occurs within the processes of a political party, courts have turned a blind eye for the greater part of the 20th century. The intense media attention given to the trial and the typecasting of the pair as either political villains or martyrs obscured the origin of the case in an internal party dispute: a disgruntled former party member was seeking justice in a dispute over party preselection (Sharples v O’Shea [1999] QSC 190).

Parties And The Law

As a society, we tend to take the significance of political parties for granted. Most voters identify with parties rather than candidates; parties mobilise the electorate and serve as links between government and those governed (Jupp 1982, p. 185). As Jaensch (1994, p. 2) argues, ‘politics in Australia, almost entirely, is party politics’. Yet, only quite recently has the common law recognised political parties as anything more than mere ‘voluntary associations’, akin to social and sporting clubs. Historically this categorisation of parties as voluntary associations has not served party members well because it has restricted their legal rights and opportunities to seek redress for the wrongs committed by a party against them.

Can we accept the legitimacy of parties as actors in the political process if their internal organisation does not conform to the same democratic standards that underpin our electoral system? Should the law intervene to ensure that political parties, as organisations, conform to democratic principles? Should members have the legal right to participate in a party’s decision-making process? Or, at the very least, can a party be held legally accountable for failing to abide by its own rules and constitution?

Internal And External Regulation

There are two aspects to the current legal regime governing political parties. One is the regulation of parties’ ‘external’ activities—that is, how they operate within the framework of the electoral system and their interaction with other political players. These activities fall within the scope of electoral law in Australia. The other, the regulation of parties’ internal workings and management, is mostly governed by the application of the common law relating to associations.

The conception of political parties as essentially private organisations is contentious.

In Australia, numerous legislative provisions exist to regulate the external activities of political parties when they directly intersect with the broader electoral system. Most significantly, statutory regimes both federally and within the States oversee the public funding of elections, political broadcasting, advertising, and the disclosure of political donations (see Orr et al. 2003).

However, when it comes to regulating the internal affairs of parties, the law is remarkably restrained. There is no federal legal requirement in Australia that political parties be internally democratic, or that policy formulation and candidate preselection involve the participation of the membership. Although registered parties require a formal written constitution under the provisions of the Commonwealth Electoral Act, the structure and content of the constitution are regarded as internal matters for the party to determine. The Act requires only that the aims of the party be enumerated, in addition to the terms and conditions of membership (for example, the procedures for accepting or terminating membership). The current regulatory regime does not require parties to formulate rules for the appointment of office bearers and constitutional amendments, although it does recommend that they do. Nor does the Act require the party to submit at registration any details of its structure (AEC 2005, pp. 10–11).

Regulating Parties: Comparative And Historical Perspectives

The lack of any substantive legislative intrusion into the internal organisation of political parties could be regarded as a reflection of the ‘proper’ relationship between parties and the state in civil society—one in which the principles of freedom of association should enable parties to conduct their affairs autonomously (Ware 1987, p. 92). Nevertheless, this conception of parties as essentially private organisations is contentious (see Johns 1999), and needs to be debated more widely.

Other liberal democracies are not so reluctant to intrude upon the internal operation of political parties (Bennett 2002, pp. 9–12). Article 21(1) of the German Basic Law decrees that ‘parties help form the political will of the people’ and ‘their internal organization shall conform to democratic principles’. In Portugal, intra-party democracy is constitutionally protected—Article 51(5) provides that a party ‘must be governed by the principles of transparency, democratic organization and management and the participation of all of its members’. The internal organisation of Finish and Spanish parties must also be democratic (Act on Political Parties 1969 (Finland), Article 6 of the Spanish Constitution).

Many parties would be happy to keep their operations beyond the reach of the law.

Political parties in Australia were not included in the original Constitution drafted at federation, existing instead as ‘curiously private organisations’ (Reid & Forrest 1989, p. 10). This status was maintained throughout most of the 20th century thanks to the High Court’s longstanding decision in Cameron v Hogan [1934] 51 CLR 358, which established political parties as ‘voluntary associations’. Grouped with social, sporting, scientific and religious organisations, political parties were regarded as private entities—their rules generally unenforceable at law. The Court’s decision essentially barred party members from any right to litigate a dispute relating to a political party’s internal organisation and operation.

Many parties would be happy to keep their operations beyond the reach of the law. The constitutions of the Australian Labor Party and Fred Nile’s Christian Democratic Party both explicitly provide that the party’s internal rules and management should not be litigated. Bennet (2002, p. 3) argues that this view is shared by the Liberal and National parties and is consistent with the attitudes of parties in other liberal democracies.

Since the 1970s, however, the courts have taken a different view and have moved away from the rigid position established in Cameron v Hogan. The first significant development came in the NSW case, McKinnon v Grogan [1974] 1 NSWLR 295, where Wooten J (p. 297) criticised the general judicial culture of avoiding matters in the political realm:

One can understand that judges, who feel so keenly the importance of standing apart and being seen to stand apart from partisan politics would be reluctant to see the internal factional struggles of political parties brought into the courts. But the proper desire to avoid identification of the judiciary with partisan politics is not a justification for eschewing responsibility for legal questions which happen to arise in the political arena.

The insertion of political parties into the Constitution in 1977 via the referendum on casual Senate vacancies, and 1983 amendments to the Commonwealth Electoral Act providing for public election funding and party registration have effectively entrenched parties as actors in the political process and provided justification for the courts to intervene in what were traditionally considered parties’ ‘internal affairs’. Performing a ‘substantial public function’ and ‘playing a critical role in the determination of the affairs of the country’ could now differentiate political parties from other voluntary associations that are beyond the reach of the law (Baldwin v Everingham [1993] 1 QdR 10 per Dowsett J, p. 17).

Is The Current Regulatory Regime Working?

The most prominent impact of this shift is upon the conduct of party preselections. Following the South Australian Supreme Court’s decision in Clarke v Australian Labor Party [1999] SASC 365, the common law requires political parties, at the very least, to adhere to the processes prescribed by the party rules and constitution in preselecting candidates to stand in general elections.

A lack of intra-party democracy may disenfranchise and alienate party members.

Nonetheless, the current situation remains unsatisfactory for a number of reasons. The democratic rights that a court can enforce are limited by the content of a party’s constitution. However, as I have noted, there is generally no legislative requirement that a party provide rules governing its internal operation, or that those rules conform to some external democratic standard. The exception is Queensland. Amendments made in 2002 to the Electoral Act 1992 (Qld) provide that party constitutions contain a rule requiring that a preselection ballot ‘satisfy the general principles of fair and democratic elections’ (s 73A(1)(f)).

The suggestion that all parties ought to be organised democratically, or at least conduct preselections in such a way, is worth considering. On the one hand, documented instances of the abuse of party mechanisms, such as branch stacking, and the potential for their recurrence can undermine confidence in the political process (Coghill 2001). A lack of intra-party democracy may disenfranchise and alienate party members, in addition to weakening parties’ ability to provide a representative linkage between the community and parliament. On the other, exposing internal party organisations to greater regulation may threaten political independence and freedom of association in an electoral democracy. The logistical difficulties that may arise include the requirement of greater resources to administer democratic processes (staffing and training), the difficulty of conforming to an election timeframe (Tully 2003, p. 153) and formulating what is an acceptable uniform standard of internal party operation.

The more immediate problem is the uncertainty created when courts are faced with interpreting party constitutions that are not particularly detailed or do not provide a coherent set of rules governing party procedures. In this situation, internal party disputes are resolved by the court’s interpretation of what a constitution provides, or what it ought to provide. A relatively recent example occurred in 2003, involving a challenge to the preselection of One Nation Legislative Council candidates for the 2003 NSW State election. The provisions of One Nation’s Constitution, which were ‘more remarkable for what they do not contain than for what they do contain’, offered very little help to the court (Burston v Oldfield [2003] NSWSC 88, para. 12). The dispute could only be resolved by reference to the general body of incorporated associations law as to the proper conduct of extraordinary meetings.

Is it appropriate that the courts draw upon these external sources of law? Is the conduct of a political party analogous to that of an incorporated association? We need to recognise that in the absence of adequate rules signalling a party’s intention, the judiciary is making an essentially normative decision as to how parties should operate.

Options For Reform

Recent allegations of branch stacking at the Victorian ALP conference illustrate that the abuse of party processes is still a significant problem. The imposition of external democratic standards similar to those relating to preselections in Queensland is an option for reform. However, formulating and policing such standards creates significant difficulties. What exactly are ‘the general principles of fair and democratic elections’? Who should determine them? To which aspects of party activity should they apply? Further, as Tully (2003, p. 152) argues, as the Queensland legislation relies only on public embarrassment as an effective punishment, deterrence is not as strong as it could be.

Parties need to be more transparent in how they run their affairs.

At a minimum, a greater level of constitutional detail than is currently required by the federal scheme must be a prerequisite for party registration. This is not to suggest that all parties need to be organised democratically. Rather, parties need to be more transparent in how they run their affairs for the benefit of both the courts and the membership. At present, the Australian Electoral Commission suggests that parties include matters such as party structure, governance arrangements and constitutional amendment in their constitutional design (AEC 2005, pp. 10–11). This ought to be mandatory. One aspect of the One Nation trial that stirred significant public emotion was the fact that members did not know the true character of the organisation they had joined. Requiring parties to articulate their decision-making processes and party structure more clearly will encourage greater legal certainty, and aid members in ascertaining their rights and responsibilities within the party organisation.

The desirability of intra-party democracy is contentious, but Australia needs to debate it to achieve at the very a least a synchrony between judicial, legislative, and social conceptions of how parties ought to operate. Although the legal position of members has improved over the last decade, reform has been slow and patchy. Driven primarily by judicial reformulation of the common law (as opposed to statutory initiatives by Parliaments), it remains to be seen whether the current legal status of political parties and the adjudication of internal disputes adequately reflects the fundamental importance of these organisations in contemporary Australian society.

References

Australian Electoral Commission (AEC) 2005, Federal Registration of Political Parties Handbook, Canberra [Online], Available: http://www.aec.gov.au/_content/who/party_reg/handbook/political_parties_reg_handbook_2005.pdf [2005, Jul 1].

Bennett, S. 2002, Australia’s Political Parties: More Regulation?, Parliamentary Library Research Paper No. 21, Commonwealth of Australia, Canberra [Online], Available: http://www.aph.gov.au/library/pubs/rp/2001-02/02rp21.htm [2005, Jul 1].

Coghill, K. 2001, ‘Let the people decide: Primaries for preselections’, paper presented to the Good Governance Conference: Fair Elections and Ethical Parties, Monash University, 23 February.

Jaensch, D. 1994, Power Politics: Australia’s Party System, Allen & Unwin, St Leonards.

Johns, G. 1999, ‘Political parties: From private to public’, Commonwealth and Comparative Politics, vol. 37, no. 2, pp. 89–113.

Jupp, J. 1982, Party Politics: Australia 1966–1981, Allen & Unwin, Sydney.

Orr, G., Mercurio, B. & Williams, G. 2003, Realising Democracy: Electoral Law in Australia, Federation Press, Sydney.

Reid, G. & Forrest, M. 1989, Australia’s Commonwealth Parliament 1901–1988: Ten Perspectives, Melbourne University Press, Melbourne.

Tully, S. 2003, ‘Party registration and preselection: A minefield for electoral administrators?’, in Realising Democracy: Electoral Law in Australia, eds G. Orr, B. Mercurio & G. Williams, Federation Press, Sydney.

Ware, A. 1987, Citizens, Parties and the State, Polity Press, Cambridge.

Anika Gauja tutors in Australian Politics at the Discipline of Government and International Relations, the University of Sydney. She is also a final year student at the Sydney Law School, currently researching the history of political parties in comparative constitutional and electoral law.