By Paul Sakkal
Major Labor Party unions and figures aligned with former leader Bill Shorten are considering an appeal against a Supreme Court decision to throw out challenges to the federal intervention into the Victorian branch.
Supreme Court judge Justice Tim Ginnane said on Tuesday that the party’s national executive acted lawfully when it took over the Victorian branch in June last year amid branch-stacking allegations revolving around the faction led by former minister Adem Somyurek.
Labor leader Anthony Albanese, former party leader Bill Shorten and deputy leader Richard Marles.Credit: Alex Ellinghausen
Sections of the party aligned with Mr Somyurek – including the Australian Workers’ Union, CFMEU and MP Marlene Kairouz – launched court action to prove the national executive did not have the power to strip Victorian members of voting rights and take over preselections.
However, Justice Ginnane determined the rarely used plenary power of the Australian Labor Party allowed it to seize control of state branches when it deemed there were sufficient grounds. Crucially, the court determined the Victorian branch was not a separate legal entity to the federal one.
“My conclusion is the plaintiffs have not proved or established their claim that the national executive has interfered unlawfully in the administration of the branch trust by passing and implementing the administration resolution,” Justice Ginnane said.
“The national executive has power over preselection when it forms the opinion any state branch, or section of the party, is acting or has acted in a manner contrary to the national constitution.
This power is given by clauses in the national constitution … and also, in my opinion, by the plenary power.”
The decision is a significant victory for Premier Daniel Andrews’ Socialist Left faction, which now controls the Victorian branch in a coalition with the shop assistants’ union and the group loyal to the party’s deputy federal leader Richard Marles.
It represents a setback for former Labor leader Mr Shorten and other figures who have been excluded from power-sharing arrangements since Mr Somyurek’s fall left a power vacuum in the Victorian branch that is known for its internecine party warfare.
A source with knowledge of the unions’ and Ms Kairouz’s legal bids, speaking anonymously to detail confidential plans, said the groups were considering a challenge to the Court of Appeal. They have 28 days to appeal.
The judgment will allow the party to start conducting preselections for state and federal seats and moblising its election infrastructure for the federal election, due before May, and the state election next November. An appeal to the decision could delay these processes.
Importantly, Justice Ginnane deemed it appropriate for the court to cast judgment on the federal takeover.
The Cameron v Hogan High Court case from 1934 set a precedent that courts should not interfere in the internal affairs of unincorporated associations such as political parties. While Justice Ginnane applied this precedent to sections of Ms Kairouz’s challenge, he argued some legal principles in question were distinct from those covered by the 1934 case. This opens the door to future cases brought by applicants challenging decisions made by political parties.
The decision comes amid corruption hearings that are extracting more details on matters first aired in the branch-stacking exposé that prompted the intervention.
The takeover of the Victorian branch was swift and dramatic. Two days after The Age and 60 Minutes aired allegations of widespread branch stacking in June last year, Mr Andrews and federal leader Anthony Albanese authorised the party’s national executive to use the so-called plenary power to take over the state branch, which was deemed to be dysfunctional.
While the plenary powers have been used in the past, they have been reserved for extreme circumstances. Exercising this rule took power out of the hands of the dominant Somyurek-aligned Moderate Labor grouping and stripped Victorian party members of voting rights for years. Some in the party believed the takeover was unwarranted and self-serving because Mr Andrews benefited politically from ousting Mr Somyurek and because Mr Albanese diminished the power of Mr Shorten – his leadership rival and an ally of Mr Somyurek.
The winners from the intervention were those who were on the outer when the Moderate Labor group dominated the party. These included the Socialist Left and sub-factions in the Right including the one aligned to Richard Marles and Stephen Conroy.
Several proxy wars then pitted Shorten-aligned forces against those close to Mr Marles. The most public example was the battle to select a candidate for the new north-western federal seat of Hawke. Sam Rae, a former state secretary of Victorian Labor and ally of Mr Marles, was selected as the candidate by the national executive panel.
A Right faction source said the Supreme Court judgment had “destroyed any delusions that Bill has any influence in the Victorian branch”.
“His ambitions to return to the leadership are now dead in the water,” the source added.
Another source from the Right said Mr Marles’ “excitement” about “getting his factional ducks in a row for a tilt [at the leadership] ... shows a lack of faith in Albo’s chances at the election”.
Ten unions affiliated with the Moderate Labor faction, including the Australian Workers’ Union and the CFMEU, launched legal action in May to stop the Hawke preselection being decided by the national executive. The preselection went ahead and Mr Rae was chosen.
Ms Kairouz went to court in February to stop the party disciplining her for branch-stacking charges. Both she and the unions challenged the legitimacy of the federal takeover of the Victorian branch and Justice Ginnane decided to combine the two cases because of their similarity.
A statement from the Victorian Labor Party, released after the Supreme Court judgment, welcomed the decision and said it upheld the effort to reform the party.
“This last year has been tough for hard-working Labor members who have watched the actions of a few bring our party into disrepute. These actions don’t define who we are,” the statement said.
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