Judicial Review of Political Parties


Research Paper 21 1995-96

Dr John R S Forbes
Consultant to the Parliamentary Research Service Law and Public Administration Group

Contents

Major Issues

Introduction : Depression Days

Jurisdictional Limits in 'Club Cases': Background to Cameron v Hogan Hogan's Action for Breach of Trust

Hogan's Action for Breach of Contract

The Policy of Cameron v Hogan

Incorporation Creates Jurisdiction

Restraint of Trade

'Discrimination'

Statutory 'Recognition' as a Ground of Review

Judicial Review - Not an Appeal

Grounds of Review

Natural Justice

Bias

Can Natural Justice Be Excluded?

'Impersonal' Actions

Personal Actions against Political Parties

Recent Australian Cases: A New Province for Private Law Review?

Conclusions and Prospects

Endnotes

Major Issues

In an increasingly litigious Australia, political parties can no longer discount the risk that internal disputes will be translated to the public courts of law.

In 1934 an ex-Premier of Victoria failed in an attempt to have his expulsion from the Labor Party declared null and void. At that time the courts were disinclined to intervene in 'club cases', as they were called. There was (and is) no general power at common law to restrain breaches of the rules of voluntary associations. Traditionally political parties have enjoyed a high degree of immunity from legal action by disaffected members. Two technical reasons for this state of affairs are

  1. that as unincorporated non-profit societies their rules are not an enforceable contract and
  2. their members, as such, have no personal property in a political party's assets because (unlike the assets of a social club) they are devoted to a broad social agenda and not to the personal enjoyment of the members.

When these conditions apply a 'club case' cannot pass through the door of the court, let alone be heard on its merits.

For more than 50 years these legal technicalities have inhibited 'club cases' against unincorporated societies. (Political parties, unlike other non-profit bodies, have not followed the trend to incorporation.) While the problems which faced the Victorian ex-Premier in 1934 have been removed or reduced in other 'club cases', the internal affairs of political parties have remained a legal no-man's land.

Two recent Australian cases suggest that this position is changing. If a recent case brought by a disaffected member of the Liberal Party (Queensland) is correctly decided -- and some doubts are expressed in this Paper -- the 'privacy' of political party expulsion and pre- selection disputes may be about to end. This may be an 'unintended consequence' of amendments to the Commonwealth Electoral Act in 1983.

Introduction : Depression Days

Black Thursday, October 1929: 'Worst Break in History - Wild Scenes on `Change - Millions of Shares Sold'. The Great Depression descended and Australia could not be insulated. In July 1930 Sir Otto Niemeyer, leader of a delegation from the Bank of England, prescribed bitter fiscal medicine for our governments -- a 'Premiers' Plan' to slice 20%(1) from all government salaries and pensions.

The leader of Victoria's Labor government was Edmond John Hogan (1884-1964). His party told him to repudiate the Premier's Plan as a 'capitalist betrayal' of ordinary Australians. Hogan ignored this directive so the Party expelled him and inevitably his Premiership ended. The sequel was the most celebrated attempt to obtain judicial review of a political party's affairs in our legal history: Cameron v Hogan.(2) Such cases are still few and far between yet the most remarkable of them all occurred in a less litigious age, in the depths of the Depression.

The utter failure of Hogan's action goes far to explain the dearth of cases in that line. While our special industrial courts deal with numerous trade union disputes(3) political party cases are very difficult to find in Australia and in England and New Zealand(4)as well.

Mr Hogan's complaints were that his party's executive had no power to order him to reject the Premiers' Plan, and that the decision to expel him was made 'without ... any opportunity of being heard or of defending himself' -- that is, contrary to natural justice. We shall never know whether these claims were justified because the High Court held that it had no jurisdiction to examine them. Hogan tripped, so to speak, on the doorstep of the court. His grievances were not 'justiciable'.

Jurisdictional Limits in 'Club Cases': Background to Cameron v Hogan

There is an important distinction between judicial review of public administration and the patchwork of private law which provides limited review of the internal affairs of unincorporated, non-profit associations (here called 'societies'). Lawyers usually apply the term 'judicial review' to cases in the public arena, preferring to describe analogous actions against societies, a trifle patronisingly, as 'club cases' The category of club cases includes judicial review (or efforts to obtain review) of the internal affairs of social, sporting, religious, industrial, political and other societies. For present purposes there is nothing unique about political parties. They are simply one species of the many unincorporated societies that are often, but not always subject to limited supervision by the courts. So despite the shortage of political party cases, principles which apply to those societies can be drawn from club cases in general.

Commonly the plaintiff(5) in a club case seeks a ruling that the society's decision to expel or suspend that person is void because of some abuse or misapplication of its disciplinary rules. Other cases concern the validity of internal elections, the alleged misuse of the society's funds,(6) or decisions to disaffiliate from a parent organisation.(7)

The distinction between 'public' and 'private' review entails important procedural differences. Actions for review of government action are commenced by one of the 'prerogative writs'(8) or by a simpler form of application now used in some Australian jurisdictions.(9) But these procedures cannot be used to challenge private administration,(10) and the procedural difference sometimes leads to a substantial difficulty, namely the 'non justiciability' which thwarted Premier Hogan. Generally a person seeking judicial review of a society's affairs must frame the complaint as an action for breach of trust, or breach of contract, or (thanks to a recent and major addition to the law of club cases) as an action for unreasonable restraint of trade. If this cannot be done the dispute is probably an alleged wrong for which there is no legal remedy. In public administrative law a person affected by an absence of lawful authority, an error of law, or a denial of natural justice(11) is ipso facto entitled to judicial review.(12) But in a club case that is not necessarily so; a member of a political party who cannot present the grievance as a breach of contract or some other private cause of action will fall at the first hurdle. A club case is less likely to meet this fate today(13) but the risk has not been completely eliminated.

Now let us return to Cameron v Hogan.

Hogan's Action for Breach of Trust

Hogan prudently invoked both of the then-recognised methods of taking a club case to court, namely trust law and the law of contract. First, he alleged that the Party committed a breach of trust, depriving him of a share in its 'substantial property' by expelling him contrary to its rules. The legal theory here is as follows: An unincorporated society, unlike a company, has no existence (no 'legal personality') apart from the natural persons who belong to it from time to time. Therefore any property collected for the members' benefit must be held by trustees for all members as equitable co-owners. If a member is suspended or expelled contrary to the rules there is an unlawful interference with property, and that is a wrong which courts must deal with, no matter how reluctant they are to adjudicate the club quarrel which festers behind the facade of a property dispute.

But when a quest for judicial review is presented as a property claim the member must show a right to personal enjoyment of the society's assets. If this element is missing there is no interference with the plaintiff's property and the breach-of-trust action will not be available to challenge an expulsion or other personal grievance. It was on this point that Hogan's trust action failed, the High Court holding that the Labor Party's property was not held in trust for the members themselves (as in a wealthy social club) but for the advancement of an impersonal political agenda.(14) The possibility that a politically active member might receive some of the party's funds for electoral purposes was apparently not regarded as direct or substantial enough.

However, a member of such a society can take action to ensure that its funds are spent on authorised objects only: see 'Impersonal Actions against Societies', below.

Hogan's Action for Breach of Contract

Secondly, Hogan claimed that his expulsion amounted to a breach of a contract embodied in the rules of the Victorian Labor Party. This claim, too, fell at the first hurdle. The High Court held that the Party's rules were merely a social agreement and not an enforceable contract, because an essential element of a contract was missing; there was no evidence that members of the Party intended to make their rules enforceable in a court of law. In a commercial situation this is taken for granted, but not in the case of a voluntary society. No such intention was expressed here and none would be implied.

Legal precedent aside, the generality of the High Court's reasoning is questionable. Surely the presence or absence of an intention to contract is a matter of fact in every particular case? However, the Court, patently anxious to stand aloof from a burning political dispute,(15) adopted an a priori approach to the issue of intention to form a contract and gratefully adopted nineteenth-century authorities(16) which declared that:

Agreements to associate for scientific or philanthropic or social or religious purposes are not agreements which courts of law can enforce.(17)

Emphasis was placed(18) on a judicial comment seventy years before:

Save for the due ... administration of property there is no authority ... to take cognisance of the rules of [an unincorporated] society.(19)

A few minor rebellions aside,(20) Australian courts have loyally taken these generalisations to heart.

The Policy of Cameron v Hogan

The negative spirit of Cameron v Hogan was the result of a long-standing policy of non-intervention. Courts were fearful of intervening in religious,(21) trade union or social club controversies(22) however 'hard'(23) the society's decision might seem to be. Political party disputes are no less invidious. The jurisdictional barriers were seen as a 'salutary rule'(24) absolving judges from risking their prestige in places remote from familiar legal territory. There were several reasons for this self-restraint:

  1. nineteenth century views of the proper limits of judicial intervention;
  2. respect for the privacy of societies;
  3. a fear that courts could diminish their authority in areas where lawyers had no claim to expertise(25)
  4. a fear of encouraging trivial disputes and vexatious litigants (if societies' rules were treated as contracts every infringement would be a potential claim for damages(26)); and
  5. the familiar 'floodgates' argument:

It seems to me that if I were to ... grant ... the plaintiffs any relief ... I should be establishing a dangerous precedent ... [for I would] practically be deciding that it is the duty of the court to adjust any dispute ... [in a] club or voluntary association.(27)

Even in rights-conscious America the courts are slow to subject societies to judicial review or to the constitutional demands of 'due process':

We regard this case as ... presenting a non-justiciable political question ... Certainly we have here a lack of judicially discoverable and manageable standards.(28)

And elsewhere:

There is no known case to the effect that any jurisdiction exists over the internal rules or management of a political party.(29)

Sixty years after Cameron v Hogan the High Court has still to be asked to reconsider that decision.(30) There are several likely reasons for the silence. In 1934 or soon afterwards Australia had special industrial courts to deal with claims of maladministration in trade unions.(31) Thus a numerous and important class of club cases was removed from the ordinary courts and freed from the doubts and difficulties of the common law. By the same token Australian courts largely escaped pressure for change which the English courts, by 1950, found irresistible. English judges realised that in highly unionised industries, and especially where 'closed shop' unions were involved, the theory of 'voluntary' association is incapable of protecting the livelihood of individuals which was often at stake. Therefore -- in the absence of special industrial courts -- a way of relaxing the technical restrictions displayed in Cameron v Hogan had to be found. The English courts adopted a legal 'fiction'(32) that trade union rules, in view of their social importance must be intended by the members to have contractual status.(33) A few years later, without debate, this principle was extended to the constitutions of political parties. In England there was no Cameron v Hogan to bar the way. In two cases thrown up by branches of the British Labour Party(34) jurisdiction based on the contract theory was taken for granted: 'Rules of associations 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'.(35) The same assumption was made in a tax appeal where the Conservative Party was described as 'an unincorporated association with an identifiable membership bound together by identifiable rules ... a contract which such members have made inter se'.(36)

These English precedents were followed in a few Australian cases involving 'livelihood'(37) and in a rare case at common law(38) against a 'de-registered' union. Nevertheless our special industrial courts greatly reduced the pressure to abandon or to evade Cameron v Hogan. In 1971 the High Court further reduced that pressure when it confirmed that rules or rulings of a society which affect a plaintiff's livelihood can be challenged in a 'restraint of trade' action without proof of a property interest or a contract.(39) This is now a standard technique for seeking judicial intervention in professional sporting club cases but it is not so obviously applicable to a political party.

Incorporation Creates Jurisdiction

A third development which has improved plaintiffs' standing in club cases (and so diverted attention from Cameron v Hogan) is the increasingly common incorporation of societies.(40) The process is simpler and cheaper than in the past and it has the result (usually unintended) that many sets of rules otherwise non-justiciable become enforceable contracts according to company law.(41) However, political parties have not followed this trend; accordingly Cameron v Hogan must still be reckoned with when a member seeks judicial review against a 'club' of that kind.(42)

Restraint of Trade

This private law action is not strictly judicial review. Indeed, when available, it allows a broader scrutiny of the matters in dispute. However, it is yet to be used against a political party.

A rule or ruling of a society may be challenged as a restraint of trade whether the society is incorporated or not, and irrespective of whether its rules are a contract, provided that the matter complained of affects the plaintiff's economic interests.(43) This aspect of 'club' law was unknown when Cameron v Hogan was decided. Would that case now be decidedly differently, on the jurisdictional point at least? The question would be whether the party's executives unreasonably interfered with Hogan's 'trade' as a salaried member of parliament and minister of the Crown. Did the interference with Hogan's membership of the party (if it were unreasonable) have a sufficiently direct effect on his salaried positions, as distinct from his unpaid membership of the party? The robust answer might well be 'Yes'.

But there would be no livelihood issue if the plaintiff were contesting an honorary position within the party, or preselection as a parliamentary candidate who might or might not gain pre-selection, and, if preselected, might not win the popular vote.

'Discrimination'

This is another jurisdiction which should be mentioned although it is not judicial review in the traditional sense. Modern laws against 'discrimination' make it possible to challenge society activities which may not be justiciable at common law. The Racial Discrimination Act 1975 (Cth)(44) makes it unlawful to impose any distinction, exclusion or restriction on the ground of race, colour or ethnic origin which adversely affects 'any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life'.

The Sex Discrimination Act 1984 (Cth) seeks to eliminate discrimination on grounds of sex or marital status in ' ... the activities of clubs'.(45) 'Club' means an association (incorporated or unincorporated) of no fewer than 30 persons formed for social, literary, cultural, political, sporting, athletic or other lawful purposes.(46) Applicants for membership, as well as members, can invoke this Act.(47)

However, it seems most unlikely that a political party of any consequence would risk entanglement in this jurisdiction.

Statutory 'Recognition' as a Ground of Review

This novel ground of jurisdiction is considered below.

Judicial Review - Not an Appeal

Let us now assume that on one basis or another a court has accepted jurisdiction to review a political party dispute. What issues may it consider, and how may it deal with them?

Judicial review is not an appeal on the merits or a reassessment of the case as a whole. It must not be confused with the wide-ranging 'merits review' which is available against public authorities under the Administrative Appeals Tribunal Act (Cth). That legislation does not extend to societies but traditional principles of review have been adapted to club cases.

Judicial review is confined to a search for lack of power or error of law. Realistically it does leave some room for intervention on a broader basis(48) and sometimes judicial sympathy or activism is a silent factor. But the orthodox theory is that 'we must not use [judicial review] to give an appeal on the facts'(49) and that 'courts of law do not sit as courts of appeal from domestic tribunals'.(50) Findings and evaluations of facts, opinions on matters of credit and decisions as to sanctions are treated, within wide bounds of reasonableness(51), as matters for the society alone. So long as private administrators observe a society's rules and the essentials of fair procedure a judge should not intervene:

The court is not a Court of Appeal from the decisions of committees of clubs, provided that the committees are properly constituted ... and deal with the matter not contrary to the principles of natural justice.(52)

Judicial sympathy must not be elevated into a principle of law.(53)

 

If the action in question is invalid the court cannot substitute a 'correct' decision of its own. It may declare the internal action void and restrain any attempt to enforce it but it is not the court's prerogative to administer the society's affairs.(54) If a political party selects a parliamentary candidate in a manner not authorised by its rules, the court (if it has any jurisdiction) may declare the selection void but it may not choose another candidate. A society may decide for itself whether a criminal conviction, albeit not very serious, warrants the rejection of an application for membership.(55) It is for the committee of a sporting body to say whether a member's public statements warrant expulsion for conduct prejudicial to the club:

[T]he only question ... is whether the broadcasting to the public of the views expressed by the plaintiff was capable of being considered to be prejudicial ... [I]t is not the court's function to decide whether [those views] were or were not rightly to be regarded as prejudicial ... That was for the committee to decide.(56)

When a member of a golf club was deemed 'unfit for membership' for proclaiming that the club was 'run by archaic male chauvinists' who were 'embroiled in a sex discrimination row', the court rejected an argument that 'on any objective view it could not be held that the plaintiff had been guilty of misconduct which could render her unsuitable for membership of the club'.(57)

A court will not set aside an internal penalty unless it is so extreme as to indicate bad faith, bias, or irrationality on the part of the decision-maker. A sanction which is more severe than one which a court would impose may be needed to protect the interests of a society.(58)

Grounds of Review

(59) When jurisdiction does exist judicial review depends upon a finding that the authority in question did not have the legal power which it claimed to exercise, or (if it did) that it was not entitled to exercise the power in the manner, or in the circumstances of the present case. Specifically it may be alleged that:

  1. There was a denial of natural justice, as explained below.
  2. There was no power to take the action complained of.
  3. The action involves a misinterpretation of the rules.
  4. There are essential procedures or preconditions (such as a set form of notice, or a quorum rule) which were not observed.
  5. There has been an 'improper use' of the power; in other words a power which admittedly exists has been used in circumstances in which it is not intended to be used - on grounds that are irrelevant, or to serve an ulterior purpose, or in bad faith, or in the absence of any evidence(60) to warrant its exercise. (It is possible, but improper(61) to stretch the 'no evidence' rule to 'no sufficient evidence' as a covert means of reconsidering the merits.)
  6. The decision was obtained by fraud.
  7. The decision-maker surrendered a discretion to someone else, or subordinated it to a preordained policy regardless of the present circumstances.

In practice, most club cases involve one or both of the substantive claims made in Cameron v Hogan -- misinterpretation of the rules and/or a denial of natural justice.

Natural Justice

'Natural justice' is an expression apt to create real or pretended confusion. As used in the common law it does not mean ideal justice, let alone justice from the subjective viewpoint of the plaintiff. It is a relatively modest concept of due process. In a belated effort to make this better understood some judges now use the less pretentious term 'procedural fairness'.

Natural justice requires two things before a person's rights or reasonable ('legitimate') expectations are removed, reduced, or disappointed:

  1. A right to be heard (an opportunity to show why adverse action should not be taken); and
  2. a hearing by a decision-maker whose mind is open to persuasion (free from bias).

If natural justice is not specifically mentioned in the rules it is normally(62) taken to be implied.(63)

Elaborations of the right to be heard are not to be found in any code of supplementary legal rules. Its requirements in particular cases depend on a variety of circumstances such as the nature of the proposed decision, its likely consequences for the plaintiff, the information and resources available to the decision-maker, the urgency of the matter, the sophistication (or otherwise) of the society, and so on. There is no general rule that the hearing must be conducted orally in the manner of a court.(64) An opportunity to 'show cause' in writing will generally suffice.

Adequate notice is part and parcel of a genuine hearing; parties affected must be properly informed of the issues and be given sufficient time to prepare to deal with them. More complex and controversial questions about the ambit of natural justice relate to legal representation,(65) cross-examination and pre-hearing access to evidence.(66) On present authority these are not essential.

In disciplinary and other matters societies are not bound by the rules of evidence which apply in courts of law.(67)

In urgent cases temporary suspensions may be imposed without a hearing provided that the merits are not prejudged.(68) If there is a lengthy delay it may be appropriate to give the party an opportunity to show that the interim suspension is not necessary.

Bias

This aspect of natural justice is particularly important in disciplinary matters. A decision made under public law is invalid if an informed and reasonable observer would have a reasonable apprehension of bias ('apparent bias').(69) But less is expected of private administrators. In their case a plaintiff has to prove 'actual bias' -- that the decision-maker actually had a closed mind.

The 'actual bias' test can produce results which seem bizarre(70) to minds fixed upon the 'apparent bias' test of public law. In Maloney v New South Wales National Coursing Association Ltd (71) the plaintiff was accused of using 'filthy and obscene language' in the presence of ladies on one of the club's glittering social occasions. The disciplinary tribunal, which included one of Maloney's bitterest rivals in club politics, expelled him for 'conduct unbecoming'. The Court of Appeal rejected a claim that the decision was void for bias.

There are two rationales for the lower standard of impartiality in society affairs. The first is pragmatism, or the 'principle of necessity'. The second is the more or less realistic assumption that people who join a voluntary society agree to be bound by all its rules including those which govern a 'domestic tribunal' which may not be ideally impartial. Here is the argument from necessity:

[T]he requirements of natural justice are in some respects different [in] domestic tribunals ... the members cannot, in the nature of things, divest themselves of the manifold predilections and prejudices resulting from past associations with members ... If [reasonable suspicion were] a disqualifying consideration, the enforcement of consensual rules would be largely unworkable.(72)

The 'consent' explanation may be seen in Bowen v Australian Workers' Union (No 2)(73) where a faction leader sat in judgment upon his chief antagonist. Sir Owen Dixon saw 'no substance' in a plea of bias:

The reason lies in the constitution of the union. Choosing as a domestic forum a governing body ... the rules necessarily bring about, if they do not actually contemplate, [the very] situation [complained of]. Domestic tribunals are often constituted of persons who may, or even must, have taken some part in the matters concerning which they are called upon to exercise their quasi-judicial function.(74)

In Cains v Jenkins(75) the facts were more exotic than in Bowen or Maloney. However, the industrial court rejected an allegation of bias in the following circumstances. Members of the trade union tribunal had already supported motions condemning conduct of the union's secretary for which they proceeded to expel him. This was their second attempt to do so; their first exercise in domestic justice was invalidated by the industrial court. It was even suggested that one member of the tribunal had threatened to kill the plaintiff! However, the second expulsion was allowed to stand, two judges observing:

To a statutory tribunal the law applies a test based on the appearance of fairness ... In the case of a consensual tribunal the reality is considered.(76)

One need not assume that every court would take the same view. Applications of the broad principles of bias to particular cases do not amount to binding precedents. However, Cains v Jenkins is an antidote to unrealistic expectations of natural justice.

In 1986, in connection with an expulsion from a political party, it was reported that 'four members of the [party's tribunal] had indicated to the Press their views on the outcome of the hearing.'(77) The report went on: 'Members jeered as [the defendant] walked in ... [Tribunal] members remain adamant that [he] will be expelled and that the [vote] will break 11 to 7 in favour of expulsion'. Apparently that dispute did not reach the courts; if it had, one suspects that the burden of proving actual bias would, for once, have been satisfied.

Can Natural Justice Be Excluded?

In the field of public law it is quite clear that this can be done by suitable words in a statute. Natural justice is not a constitutional guarantee.(78) But what of society affairs?

In a case based on restraint of trade a rule excluding natural justice might be seen as an unreasonable restriction,(79) and in some jurisdictions(80) the Associations Incorporation Act insists that natural justice be observed in dealings with members.

However, in most cases concerning political parties these considerations will not arise. Restraint of trade aside there is strong support for the view that societies may exclude procedural fairness from situations where it would normally be implied.(81) This is recognised in the English political party case of John v Rees,(82) and in the Australian sporting club case of Calvin v Carr.(83) In Thorburn v All Nations Club (84) the court upheld the validity of a rule which declared:

If the Board shall be of the opinion that the continuance of the membership of any member is likely to be injurious to ... the club ... the Board may cancel [his] membership ... without ... assigning any reason .. or giving to any such member notice or any opportunity to be heard.

In Macqueen v Frackelton, (85) a church dispute which reached the High Court, O'Connor J observed:

Men may ... if they think fit, submit themselves absolutely to the will and pleasure of the association ... If they do so they have no right to complain of any exercise of power so long as it is not malicious.(86)

In Dickason v Edwards (87) the same judge said:

The rules of a society may give power to decide disputes on any principle ... [albeit] in violation of all principles of natural justice.

However, it is clear that a society cannot altogether oust the jurisdiction of the courts.(88) If the case is justiciable a society cannot make itself the final arbiter of all questions about the meaning and application of its rules.

'Impersonal' Actions

Nothing in Cameron v Hogan prevents a member of a political party from suing to uphold the principle that its assets be used for constitutional purposes only.(89) Sometimes an action which is formally impersonal or idealistic can be used in a factional contest for power, as in the contretemps between the 'New Guard' and the 'Old Guard' of the Queensland Labor Party in Burton v Murphy. (90) The defendants in that case correctly made no attempt to avoid jurisdiction by an appeal to Cameron v Hogan. The question was whether an 'Interim Administrative Committee' had been duly appointed by the Federal Executive to control the State branch's affairs. In the event Lucas J found for the 'New Guard', holding that the Queensland branch of the Party was subject to the rules of the federal organisation although it had never formally adopted them.

Personal Actions against Political Parties

Here we refer to actions challenging a disciplinary decision or other ruling which is said to affect some personal right of the plaintiff. A prime example is Cameron v Hogan itself and there are two English cases which combine personal and impersonal interests.

John v Rees (91) involved a disciplinary decision and a resolution to disaffiliate a branch from the British Labour Party. According to English law the dispute was justiciable as an alleged breach of contract. The local MP had been expelled from the Labour Party and there was an emergency meeting of his branch with the President (Mr John) in the chair. Without proper notice John tried to push through a vote of loyalty to the National Executive. Uproar followed and John adjourned the meeting indefinitely -- but invalidly. Most of the members remained at the hall. In John's absence they reopened the meeting, elected new branch officers and resolved to end their affiliation to party headquarters. The National Executive responded by suspending the branch and the new officers, and by banning the latter from a meeting to 'reorganise' the dissident society.

Ex-president John sought a declaration that the 'rebel' election was invalid and his opponents cross-claimed that he was no longer their leader. Both sides had their ups and downs; the court ruled that the election after John's walkout was valid but that the decision to disaffiliate was contrary to overriding rules of the British Party. The National Executive's suspension of the branch officers was in breach of natural justice and the 'reorganisation' meeting was invalid for want of proper notice.

Lewis v Heffer (92) also involved a factional disturbance in a branch of the British Labour Party. Once more the National Executive intervened and the branch officers were suspended. They sought a ruling that the intervention was unlawful and in violation of natural justice. The court accepted jurisdiction on the contract basis but rejected the plaintiffs' claims. As a matter of history the rules of the national Party had displaced the rules of the branch, and the suspensions, although imposed without a hearing, were a permissible form of urgent action(93) in the interests of the Party.

Recent Australian Cases: A New Province for Private Law Review?

In Baldwin v Everingham, (94) seemingly the first personal action against an Australian political party since Cameron v Hogan, it was the Liberal Party's turn to face the prospect of review.

At first sight Baldwin is remarkably similar to Cameron v Hogan. This time there was no expulsion but rather a contentious exclusion from a process of preselection. Mr Baldwin sought a declaration that the executive committee breached the Party's rules when it deleted his name from a list of members seeking pre- selection as the Liberal candidate at a forthcoming federal election. The executive had ruled that Baldwin's name should not go before the selection council because some years before he had been charged with forgery and other serious offences. No conviction resulted but understandably the executive saw the charges themselves as a severe political handicap.

In the event it was held that the executive had exceeded its authority. The plaintiff was restored to the list of nominees although on any realistic view of his political future it was a Pyrrhic victory. However, the importance of the case lies in its avoidance or evasion of Cameron v Hogan. The Party confidently relied on that authority to defeat the action on jurisdictional grounds. Dowsett J agreed that there was no prospect of basing jurisdiction on property or contract; there is no suggestion in Baldwin v Everingham that a trial court in Australia may adopt the English 'contract approach' to political party cases.(95) But Cameron v Hogan was 'distinguished' (that is, deemed irrelevant to the present case) on the basis of 1983 amendments to the Commonwealth Electoral Act to allow public funding of political parties' election expenses. The Baldwin theory is that this 'legislative recognition' ipso facto makes the rules of registered parties enforceable at the behest of any and every member, whether or not electoral funds are in issue.

This new insight was apparently the judge's own idea:

In the course of argument I inquired as to whether there had not been a change in the status of Australian political parties recognised by ... the Commonwealth Electoral Act ... For a very long time the parliamentary system functioned upon the assumption that parties had no official status ... such is no longer the case.(96)

His Honour contemplated an even wider revision of jurisdiction over voluntary societies:

It is fair to say that the expectation that the rules of a voluntary association will be enforced by the courts has become more widely held.(97)

And he continued:

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 central role in the determination of the affairs of the country should be so immune.(98)

Notwithstanding one or two genuflections to Cameron v Hogan, this is the language of judicial legislation with which students of modern High Court judgments have become familiar. In courts of first instance it is still an engaging novelty. Significantly the Baldwin judgment contains a lengthy quotation from McKinnon v Grogan, (99) a sporting club case in which a single judge simply ignored Cameron v Hogan on the broad principle that when a court thinks that a club case is of sufficient social importance it should avoid 'judicial abdication' and 'venture among political divisions ... to assist in settling the legal aspects of disputes which ravage great and small institutions in the community'. Suffice it to say that McKinnon v Grogan is an egregious case, irreconcilable with Cameron v Hogan, and without authoritative support. With this in mind the judge in Baldwin hastened to add that his 'general agreement' with McKinnon '[would] not necessarily justify [him] in refusing to follow Cameron v Hogan because of the passage of years'(100) or because of 'changing policy considerations'.(101) Perish the thought that a trial judge would 'determine matters of policy' which are reserved 'for determination by the High Court itself'.(102)

Still, His Honour was attracted by venturesome dicta in the New Zealand case of Finnigan v New Zealand Rugby Football Union Inc (103) (which prevented a football tour to South Africa) and the English trade union case, Breen v Amalgamated Engineering Union. (104) But the comments in Finnigan went to the question of whether the plaintiffs really were members of the NZRFU. Once it was decided that they were (and so had 'standing') there was jurisdiction upon no more exotic basis than the incorporation(105) of the defendant Union. The court in Breen had jurisdiction because of the English 'contract' theory,(106) which, in its broad form at least, is not the law of Australia. (Here Breen would go to an industrial court.)

Baldwin, given its ostensible rejection of the broad-brush approach of McKinnon v Grogan, depends on a trade union case decided by a single judge of the High Court nearly 20 years before Cameron v Hogan was heard of. In Edgar and Walker v Meade (107) Isaacs J held that the Commonwealth Conciliation and Arbitration Act gave him jurisdiction to examine the plaintiffs' claims. That Act, he thought, made a vital difference because it converted the previously unincorporated trade union into a corporation(108) -- a 'creature' of the Parliament. It is trite law that the constitutional rules of a corporation, whether it be registered under a general companies law or created by a special Act, are enforceable as between the members themselves, and by members against the body corporate.

But the Commonwealth Electoral Act makes no attempt to incorporate political parties. On the contrary it envisages that political parties may prefer to remain unincorporated societies,(109) as had the party in Baldwin v Everingham.(110)

Baldwin concedes that the legislation in Edgar and Walker v Meade controlled the defendant union 'more closely' than the electoral Act 'funding provisions' control political parties.(111) Indeed! Apart from incorporation the Act in Edgar gave unions statutory powers in industrial disputes and a right to sue for unpaid subscriptions, fines and penalties imposed on their members by union officials. How strange it would have been if the union had been able to sue its members while they could not sue it! These points are not closely considered in Baldwin; we are simply told 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 this interpretation of the 1923 case means that 'disputes concerning the rules of political parties registered under the Commonwealth Electoral Act are now also justiciable'.(112) With due respect, it a long leap of logic from the considerable legislative intervention in Edgar and Walker to the conclusion that Cameron v Hogan is abolished by the provisions for financial assistance in the federal electoral laws. The latter provisions have nothing to do with the relation of members to each other or to the party. They govern a single external affair between the Commonwealth and the party as a whole, leaving the party to retain the unincorporated character which has traditionally minimised the risk of judicial intervention.

Does any and every instance of legislative recognition confer statutory jurisdiction in club cases? If not, what kind of recognition is required? Baldwin v Everingham offers only a Delphic reply:

The point at which a voluntary association acquires the significance in public affairs contemplated by Isaacs J will always be a matter for judgment.(113)

If Baldwin v Everingham is correctly decided it follows that every society which accepts a 'government grant' ipso facto risks exposing all its internal affairs to judicial review, however remote they are from the financial relationship between the society and the State. This would be a sudden and remarkable extension of judicial supervision. No doubt, if a political party unlawfully claimed or misapplied public funds granted under the electoral laws the Commonwealth could institute recovery action but that is another matter.

However, Baldwin v Everingham has been followed by a single judge of the NSW Supreme Court(114)Thornley v Heffernan the plaintiff gained preselection but the State Executive, which initially approved that decision, later reversed it under a rule which allowed that to be done. Brownie J observed:

The debate starts, as always in cases of this kind, with the decision in Cameron v Hogan. It is perhaps not much loved, but ... there is no doubt that I am bound by it.

Four of the seven pages containing the Thornley judgment are occupied by lengthy quotations from the Party's rules; Baldwin v Everingham is adopted without any real analysis or discussion. When it came to the substantive hearing another judge decided that there had been no infringement of the rules and that the court should not 'second guess' the party's decision.(115)

Conclusions and Prospects

The rules which have afforded political parties substantial immunity from 'club cases' are essentially procedural. If, by one means or another, the jurisdictional hurdle is overcome there is a ready-made corpus of administrative law and legal interpretation which is apt to fill the void.

It is well settled that a member of an unincorporated political party may bring an 'impersonal' action to ensure that the assets are used constitutionally.(116) This form of action can sometimes be used to test the validity of internal elections or the legitimacy of a new regime.

There is a possibility that decisions of political parties may be challenged according to precedents established since Cameron v Hogan was decided if they are deemed 'unreasonable' and have a proximate ill-effect upon a member's economic interests. If Cameron v Hogan reappeared today it might be actionable in this way. But of course it will not be every decision of a political party which will effectively deprive a plaintiff member of a ministerial or parliamentary position. The 'livelihood' form of action is well tried against trade associations and professional sporting bodies but there appears to be no instance in which it has been used successfully against a political party.

There are no present signs that our courts will openly depart from Cameron v Hogan by allowing members of unincorporated political bodies to pursue their perceived rights within the organisation by suing for breach of trust or in contract. But if a party chooses to incorporate itself a non-observance of the rules would then be a breach of contract.(117)

However, the possibility now exists that Cameron v Hogan may no longer protect parties registered under the Commonwealth Electoral Act. If Baldwin v Everingham receives the approval (or at least escapes disapproval) of higher courts, Cameron v Hogan will no longer prevent judges from dealing with breaches of rules or denial of natural justice in parties of that kind. Although Baldwin, as a decision of a trial court, is open to criticism it would not be surprising if its broad, quasi-legislative spirit proved attractive to the High Court, a Full Court of the Federal Court, or the bolder spirits in the NSW Court of Appeal. In that event further debate about other bases of jurisdiction would be of academic interest only.

If, then, the litigious traffic became too heavy there are several techniques apart from the old jurisdictional bars which courts could use to slow it down. First, as in other civil cases, defendant may be awarded costs against unsuccessful plaintiffs. Second, the typical remedies (declarations and injunctions) are discretionary; they may be withheld if an action, albeit technically valid, is premature, vexatious, trivial or otherwise devoid of merit.(118) Third, a court which is not anxious to hear a club case can avoid or at least postpone it by telling the plaintiff to exhaust the internal remedies, such as a 'domestic' appeal or a special meeting, before returning to the court.(119) After all, private as well as public administrators have discretions, policies and insights into facts and personalities which are not amenable to judicial review.

Endnotes

  1. The reduction was compromised at 10% in 1931.
  2. (1934) 51 CLR 358.
  3. Cases concerning expulsions from, or maladministration of trades unions are beyond the scope of this paper. In Australia these disputes are handled in special courts where the technicalities of the common law 'club cases' do not arise. See eg Australian Workers' Union v Bowen (No 2) (1948) 77 CLR 601; Holmes v O'Toole (1957) 1 FLR 212; Hoolahan v Gietzelt (1960) 1 FLR 469 ; Cains v Jenkins (1979) 28 ALR 219. Some English cases in the ordinary courts are Annamunthodo v Oilfield Workers Trade Union [1961] AC 945; Leary v National Union of Vehicle Builders [1970] 3 WLR 434; Breen v Amalgamated Engineering Union [1971] 2 QB 175; Lawlor v Union of Post Office Workers [1975] Ch 712. Also beyond the scope of this paper are employer- employee relations between political parties and salaried staff.
  4. No example appears in the New Zealand Abridgment or in the NZ Law Reports Digest in more than 100 years. Federal and State reports in Australia are also barren save for two recent cases considered below. Halsbury's Laws of England does not deal with actions arising from of political party affairs.
  5. In some jurisdictions the technical description is now 'applicant'; however, the older term 'plaintiff' will be used here.
  6. Rendall-Short v Grier [1980] Qd R 100.
  7. John v Rees [1970] Ch 345.
  8. So called because originally they were a Royal command to a servant of the Crown to explain or to justify action taken in the name of the Sovereign, eg the writs of prohibition and certiorari, supplemented by declarations of right and injunctions. Damages are not available in such proceedings..
  9. In federal law, by the Administrative Decisions (Judicial Review) Act 1977 (Cth); see also Supreme Court Act 1970 (NSW) s 69; Rules of Supreme Court 1970 (NSW) Part 54 rr 1, 4; Administrative Law Act 1978 (Vic); Judicial Review Act 1991 (Qld); Laws of Australia Vol 2 Subtitle 2.6 Ch 11 [282]-[286].
  10. R v British Broadcasting Corporation; Ex parte Lavelle [1983] 1 WLR 23; R v Wilson; Ex parte Robinson [1982] Qd R 642; Dixon v Australian Society of Accountants (1989) 95 FLR 231; R v Disciplinary Committee of the Jockey Club; ex parte Aga Khan [1993] 2 All ER 853. The Administrative Law Act 1978 (Vic) is similarly confined to decisions by statutory authorities: Monash University v Berg [1984] VR 383.
  11. ie, lack of procedural fairness. This expression is discussed below.
  12. Provided that the applicant has locus standi, or 'standing', ie some personal interest over and above that of a member of the general public: Onus v Alcoa of Australia Ltd (1981) 149 CLR 27; Central Queensland Speleological Society Inc v Central Qld Cement Pty Ltd [1989] 2 Qd R 512. This is seldom a real difficulty in 'club cases'.
  13. Thanks to the relatively recent application of restraint of trade doctrine to club cases; see Buckley v Tutty (1971) 125 CLR 353, discussed below.
  14. Cameron v Hogan (1934) 51 CLR 358 at 375, 385
  15. Two members of the Court, a few years earlier, had been appointed to the High Court, amid considerable controversy, when they were members of federal Parliament representing the Labor interest. In politico-legal climate of the time they may well have been anxious to demonstrate their judicial detachment by joining their brethren in a decision based on strictly technical grounds. Perhaps the unnecessary absolutism of the contract approach in Hogan was due to that anxiety.
  16. (1934) 51 CLR 358 at 373, 384.
  17. Ibid at 373, quoting Murdison v Scottish Football Union (1896) 23 R (Ct of Sess) 449.
  18. (1934) 51 CLR at 370.
  19. Forbes v Eden (1867) LR 1 Sc & Div HL 568 at 581; see also Rigby v Connol (1880) 14 Ch D 482 at 487.
  20. Green v Page [1957] Tas SR 66; dissent was more open and bold in McKinnon v Grogan [1974] 1 NSWLR 295. Perhaps Baldwin v Everingham [1993] 1 Qd R 10 should now be added to the non-conformist list.
  21. 'I would not like to go down in history as the person who split the Anglican Church': Saxton v Dowling (Bishop of Canberra-Goulburn), unreported, Sup Ct of NSW (Rogers J) 28 January 1992: The Australian 29 January 1992 - 1.
  22. See Macqueen v Frackelton (1909) 8 CLR 673; James v Amott (1918) 14 Tas LR 99 at 113; Cameron v Hogan (1934) 51 CLR 358; Turner v Auckland Racing Club [1956] NZLR 1 at 16. An interesting but isolated exception is McKinnon v Grogan [1974] 1 NSWLR 295.
  23. See Macqueen v Frackelton (1909) 8 CLR 673; James v Amott (1918) 14 Tas LR 99 at 113; Cameron v Hogan (1934) 51 CLR 358; Turner v Auckland Racing Club [1956] NZLR 1 at 16. An interesting but isolated exception is McKinnon v Grogan [1974] 1 NSWLR 295.
  24. Amos v Brunton (1897) 18 NSWLR (Eq) 184 at 188 per Manning J; Bouzaid v Horowhenua Indoor Bowls Centre Inc [1964] NZLR 187 at 193-194.
  25. See Wylde v Attorney-General (NSW) (1948) 78 CLR 224 at 297 per Williams J: 'I have found this appeal difficult and distasteful, difficult because a civil court has to adjudicate in a suit which involves questions of ecclesiastical law with which it is not familiar, and distasteful because it is unfortunate that a suit of this sort should have reached a civil court at all.'
  26. This motive is still alive and well: 'Very considerable difficulty lies in the way of establishing an enforceable contract ... if there be such a contract, then presumably any member who claims to have suffered loss as a result of the perceived failure of a member of Parliament (elected with the Party's endorsement) to advance the policies of the Party ... could sue for damages' - Baldwin v Everingham [1993] 1 Qd R 10 at 15 per Dowsett J.
  27. Murray v Parnell [1909] St R Qd 65 at 77 per Shand J.
  28. Irish v Democratic-Farmer-Labor Party of Minnesota (1968) 399 F 2nd 119 at 121, in an action seeking reallocation of votes on the ground that the process of selection violated the 'one man one vote' principle.
  29. Smith v State Executive Committee of Democratic Party of Georgia (1968) 288 F Supp 371 at 376 per Smith J. See also Baker v Carr 369 US 186 at 187; Brown v O'Brien (1972) 409 US 816; V E Sloan 'Judicial Intervention in Political Party Disputes -- The Political. In federal law, by the Administrative Decisions (Judicial Review) Act 1977 (Cth); see also Supreme Court Act 1970 (NSW) s 69; Rules of Supreme Court 1970 (NSW) Part 54 rr 1, 4; Administrative Law Act 1978 (Vic); Judicial Review Act 1991 (Qld); Laws of Australia Vol 2 Subtitle 2.6 Ch 11 [282]-[286].
  30. But its authority was accepted in the High Court in Wylde v Attorney-General for NSW (1948) 78 CLR 224 at 296-297 and in Buckley v Tutty (1971) 125 CLR 353 at 374 (on the non-contractual character of unincorporated society rules).
  31. See now the Industrial Relations Act 1988 (Cth). Section 196 prohibits rules of an organisation which are 'oppressive, unreasonable, or unjust'. Under s 208 a member of an organisation may apply to the Industrial Relations Court for an order that a rule contravenes s 196, and under s 209 an application may be made for due performance of the rules. In an early Australian trade union case at common law the plaintiff was allowed to use the trust property form of action: Amalgamated Society of Engineers v Smith (1913) 16 CLR 537. This solution did not gain favour in England. See also Makin v Gallagher [1974] 2 NSWLR 559, involving a 'de-registered' union.
  32. Enderby Town Football Club Ltd v Football Association Ltd [1971] Ch 591 at 606 per Denning LJ.
  33. Lee v Showmen's Guild of Great Britain [1952] 2 QB 329.
  34. John v Rees [1970] Ch 345; Lewis v Heffer [1978] 1 WLR 1061.
  35. [1978] 1 WLR at 1076 per Ormrod LJ.
  36. Conservative and Unionist Central Office v Burrell (Inspector of Taxes) [1982] 2 All ER 1 at 7. Likewise, in John v Rees [1970] 1 Ch 345 at 399 Megarry J simply adopted the contract theory used in the trade union case of Lee v Showmen's Guild of Great Britain [1952] 2 QB 329.
  37. See eg the professional sporting club case of Hawick v Flegg (1958) 75 WN (NSW) 255. In Heale v Phillips [1959] Qd R 489, where a plea of contract was rejected, the court stressed that no economic interest was involved.
  38. Makin v Gallagher [1974] 2 NSWLR 559.
  39. Buckley v Tutty (1971) 125 CLR 353. This is now a regular method of challenging disciplinary decisions and 'transfer rules' of professional sporting bodies in the courts.
  40. Often under a State or Territorial Associations Incorporation Act. Upon incorporation, without any further action or intention of the members of the body corporate, the internal rules become a legally enforceable contract between the members and the body corporate, and among the members themselves.
  41. It is an axiom of company law that incorporation, however effected, makes the internal rules a contract between member and member, and between members and the organisation.
  42. Cases against unincorporated sporting club cases which were nipped in the bud by Cameron v Hogan include Heale v Phillips [1959] Qd R 489 and Pridmore v Reid [1965] Qd R 177.
  43. Buckley v Tutty (1971) 125 CLR 353.
  44. Section 9(1).
  45. Section 3(b).
  46. Section 4(1).
  47. Section 25(1).
  48. Particularly the 'no evidence' ground of review. See note 61.
  49. R v District Court at Sydney; ex parte Whyte (1966) 116 CLR 844 at 654 per Windeyer J. See also Lumiansky v Middleton (1934) 78 So Jo 223; Calvin v Carr (1979) 22 ALR 417 at 432; R v Brisbane City Council; ex parte Read [1986] 2 Qd R 22 at 43; Attorney General (NSW) v Quin (1990) 170 CLR 1.
  50. Stockwell v Ryder (1906) 4 CLR 469 at 485 per O'Connor J; Australian Workers' Union v Bowen (No 2) (1948) 77 CLR 601 at 609. The term 'domestic tribunal' is a sonorous title for club adjudicating internal disputes.
  51. Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223; Holgate-Mohamed v Duke [1984] AC 437; Shepherd v South Australian Amateur Football League Inc (1987) 44 SASR 579 (penalty of 7 years suspension not beyond reason); Chan v Minister for Immigration and Ethnic Affairs (1989) 63 ALJR 561.
  52. Young v Ladies' Imperial Club [1920] 2 KB 523 at 535 per Scrutton LJ; Fox v General Medical Council [1960] 1 WLR 1017 at 1022; Calvin v Carr [1980] AC 574 at 597.
  53. Faramus v Film Artistes' Association [1963] 2 QB 527 at 549 per Diplock LJ; Boulting v Association of Cinematograph, Television and Allied Technicians [1963] 2 QB 606.
  54. Faramus v Film Artistes' Association [1963] 2 QB 527 at 549 per Diplock LJ; Boulting v Association of Cinematograph, Television and Allied Technicians [1963] 2 QB 606.
  55. Faramus v Film Artistes' Association [1963] 2 QB 527; Malone v Marr [1981] 2 NSWLR 894 at 898.
  56. Malone v Marr [1981] 2 NSWLR 894 at 899 per Holland J. Emphasis added.
  57. Cox v Caloundra Golf Club Inc unreported, 27 September 1995, Sup Ct of Qld (Thomas J).
  58. Pratt v British Medical Association [1919] 1 KB 244 at 278; Byrne v Kinematograph Renters' Society Ltd [1958] 2 All ER 579; Laud v General Medical Council, Times Law Report 8 March 1970; Cameron v Duncan (1965) 8 FLR 148; Police Service Board v Morris (1985) 156 CLR 397 at 411-412.
  59. The Common law variations upon the 'no power' and 'misuse of power' are collected in the Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5. However, that Act does not apply to judicial review of 'private' administration, which continues to be governed by the common law of the 'club cases'.
  60. 'Evidence' is used here in a broad sense; generally speaking neither public nor private administrators are bound by the rules of evidence as applied in the courts.
  61. See J R Forbes Disciplinary Tribunals Law Book Co 1990 [6.35] - [6.39]; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 1. For criticism of unduly interventionist activity, particularly by the relatively new and expansionist Federal Court see Sir Anthony Mason 'Administrative Law: Form Versus Substance' AIAL Forum No 6 September 1995, 1 at 5.
  62. The possibility of excluding natural justice is considered in a later section of this paper.
  63. Baird v Wells (1890) 44 Ch D 661 at 670; Dickason v Edwards (190) 10 CLR 243 at 255; Australian Workers' Union v Bowen (No 2) (1948) 77 CLR 601. In this respect the law of clubs follows public administrative law as expressed in Cooper v Wandsworth Board of Works (1863) 14 CBNS 180; 143 ER 414; Commissioner of Police v Tanos (1958) 98 CLR 383 at 395-396; Ridge v Baldwin [1964] AC 40 at 69; Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487 at 500.
  64. Board of Education v Rice [1911] AC 179 at 182; R v Central Tribunal; ex parte Parton (1916) 32 TLR 476; Local Government Board v Arlidge [1915] AC 120 at 134, 138, 145; R v City of Melbourne; ex parte Whyte [1949] VLR 257; Bufalo v Legal Aid Commission (Victoria) [1992] 1 VR 631; Zhang de Yong v Minister for Immigration, Local Government & Ethnic Affairs (1993) 118 ALR 165.
  65. Forbes op cit Chapter 11.
  66. Ibid Chapters 8-14.
  67. Maclean v The Workers' Union [1929] 1 Ch 602 at 621; T A Miller Ltd v Minister for Housing and Local Government [1968] 1 WLR 992 at 995; Re Gyngell; ex parte Hardiman (1980) 54 ALJR 314; Re Ganchov and Comcare (1990) 11 AAR 468.
  68. Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487 at 514- 515; Kioa v Minister for Immigration and Ethnic Affairs (1985) 159 CLR 550 at 615; note 92 and related text.
  69. Stollery v Greyhound Racing Control Board (1972) 128 CLR 509 at 519; R v Watson; ex parte Armstrong (1976) 136 CLR 248 at 262.
  70. See eg Cains v Jenkins (1979) 28 ALR 219.
  71. [1978] 1 NSWLR 161.
  72. [1978] 1 NSWLR 161 at 170-171.
  73. (1948) 77 CLR 602.
  74. Ibid at 630.
  75. (1979) 28 ALR 219.
  76. (1979) 28 ALR at 226.
  77. The Australian 24 January 1986 - 2: 'Hartley Tells Executive Proceedings Are Biased'.
  78. Even in the USA 'due process' applies to public, not private administration.
  79. Hughes v Western Australian Cricket Association Inc (1986) 69 ALR 660 at 713.
  80. In Queensland for example.
  81. That is, when individual rights or legitimate expectations are involved. Decisions which are not of that kind do not raise a presumption of natural justice.
  82. [1970] Ch 345 at 400.
  83. [1977] 2 NSWLR 308 at 331-332. The point did not arise on appeal to the Privy Council, which upheld the decision of the trial judge.
  84. (1975) 1 ACLR 127.
  85. (1909) 8 CLR 673.
  86. Ibid at 700-701; see also 707-708 per Isaacs J.
  87. (1910) 10 CLR 243 at 255. See also Australian Workers' Union v Bowen (No 2) (1948) 77 CLR 601 at 631.
  88. Lawlor v Union of Post Office Workers [1965] Ch 712 at 733; Leigh v National Union of Railwaymen [1970] Ch 326.
  89. Cameron v Hogan (1934) 51 CLR 358 at 385; Stevens v Keogh (1946) 72 CLR 1; Flynn v University of Sydney [1971] 1 NSWLR 857; Baldry v Feintuck [1972] 1 WLR 552 (improper donation by one charity to another); Rendall-Short v Grier [1980] Qd R 100 at 109-110.
  90. [1983] 2 Qd R 321.
  91. [1970] Ch 345.
  92. [1978] 1 WLR 1061.
  93. See note 68, above.
  94. [1993] 1 Qd R 10.
  95. See note 33 and text.
  96. [1993] 1 Qd R at 15.
  97. [1993] 1 Qd R at 15.
  98. [1995] 1 Qd R at 17.
  99. [1974] 1 NSWLR 295 at 297.
  100. [1993] 1 Qd R at 17.
  101. [1993] 1 Qd R at 20.
  102. [1993] 1 Qd R at 18.
  103. [1985] 2 NZLR 159.
  104. [1971] 2 QB 175.
  105. See 'Incorporation Creates Jurisdiction', above.
  106. See 'Incorporation Creates Jurisdiction', above.
  107. (1917) 23 CLR 29.
  108. See now the Industrial Relations Act 1988 (Cth) s 192 and Williams v Hursey (1959) 103 CLR 30 at 52.
  109. Commonwealth Electoral Act 1918 (Cth) s 287(3).
  110. Consequently Everingham and other officials were appointed as defendants to represent the Party.
  111. [1993] 1 Qd R at 20.
  112. [1993] 1 Qd R at 20.
  113. [1993] 1 Qd R at 20.
  114. Thornley v Heffernan, unreported, (Brownie J) 25 July 1995.
  115. Thornley v Heffernan (Sup Ct of NSW, McLelland CJ in Equity) 12 September 1995, Noted in [1995] ALMD (Advance) No 2312.
  116. See '`Impersonal' Actions', above.
  117. See 'Incorporation Creates Jurisdiction', above.
  118. Burke v Liberal Party of Australia (SA Division), unreported, SA Sup Ct (Perry J), 23 February 1996: preselection dispute , nomination form filed late , signatures missing and not in proper form; delay in bringing action ; action dismissed.
  119. See J R Forbes Disciplinary Tribunals Chapter 16, paras [16.1] - [16.10].

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