Research Paper no. 21 2001-2002
Australia's Political Parties: More Regulation?
Scott Bennett
Politics and Public Administration Group
25 June 2002
Contents
Major Issues
Introduction
On the Edge of the Political System
Forces for Change
Parties in other Liberal
Democracies
Should Australian Parties be made more
Accountable?
Possible Changes?
The Queensland Reforms
In Summary
Endnotes
Bibliography
Major Issues
For much of their history, Australia's parties
have been private bodies, effectively acting free from any type of
redress from their members.
The private aspect of parties has provided no
means for aggrieved party members to challenge their parties'
actions in court. A pivotal 1934 High Court case reinforced the
view that their rules did not form a contract that was enforceable,
and as a matter of law it was held that party members had no
personal interest in a party's assets. The parties therefore
asserted their freedom to act without any type of external
oversight.
Today, however, various factors suggest that
they should have a greater level of accountability to the
Australian people. It is now much harder to sustain the case that
parties are private bodies, in some way beyond the law:
-
- of great importance is the fact that several recent courts
cases have thrown doubt on the extra-legal nature of parties
-
- parties now have a constitutional presence, as well as a
presence in legislation
-
- in addition, the establishment of public electoral funding has
produced legislative changes which have seen the first serious
parliamentary 'interference' in party operations
-
- some observers believe parties' own tough internal behaviour
has helped produce a loss of support in the wider community,
and
-
- there has been a shift in society towards expecting more
accountability and transparency in our institutions.
Not all political systems have allowed the same
degree of freedom to their political parties, and many Western
democracies moved to adopt regulatory arrangements well before it
became an issue in Australia. Such nations:
-
- have seen parties as public organisations which have not only a
responsibility to their members for their actions, but also to the
wider community
-
- have placed close-checking requirements on parties if they
received public funding
-
- believe parties have a role to preserve the democratic nature
of the state within which they operate, and
-
- see parties as having a responsibility to implement democratic
practices within their own internal operations.
The question therefore arises: does more need to
be done to make parties accountable to the Australian public, let
alone to their own members?
Some observers believe it is inevitable that
Australia's parties will be brought within a tighter legislative
framework. Such views have been expressed by both Queensland's
Shepherdson inquiry into electoral rorting practices, and the
Commonwealth Parliament's inquiry into electoral roll integrity
conducted by the Joint Standing Committee on Electoral Matters.
Suggestions for change in Australia include:
-
- reform of party constitutions
-
- tighter public funding rules
-
- democratisation of preselection procedures, and
-
- oversight of preselection ballots by electoral
commissions/offices.
In 2002 Queensland has acted to make the most
significant Australian changes to date. One impact of this might be
to put even greater pressure upon other legislatures to implement
similar changes.
Australian parties may well be facing a
watershed in their history.
Introduction
For much of their history, Australia's political
parties have been private bodies, effectively acting beyond the law
and free from any type of redress from their members. Although
stories of doubtful intra-party practices are part of Australia's
political folklore, effectively they have been able to run their
own affairs free from any type of regulation by outside bodies.
Today, however, a growing public awareness of, and disquiet over,
party activities has led some observers to wonder if this
privileged status should be curtailed as they cope with a society
in which there is 'an increasing emphasis on the external world of
the party'. Some have begun to argue that parties should be made
more accountable for their actions, particularly due to the
entrenchment of public funding in Commonwealth, New South Wales and
Queensland elections. This was certainly the view expressed by the
Commonwealth Parliament's Joint Standing Committee on Electoral
Matters in its May 2001 report into the integrity of the electoral
roll:
Although Australian parties have been firmly of
the view that they are private bodies that run their own affairs,
it is clear that this status has altered subtly in recent years. A
number of legislative and legal factors have combined to suggest
that the position of political parties within the Australian polity
is altering. This has opened up the question of whether there
should be a formalisation of their place in the political
system.
This paper gives some background to the question
of whether the Australian community should have greater control
over parties. It explores whether parties in this country can
continue to expect to enjoy the status of private organisations,
whether they should be brought under some type of public control,
as is the position in a number of other liberal democracies, and
whether they should be forced to be more answerable to their
members. It concludes by noting that with the Queensland Parliament
having been prepared to introduce some legislative changes in 2002,
this might well turn out to be a watershed for political parties in
this country, for now that such changes have been made in one
jurisdiction, it might be difficult to withstand calls for change
in others.
For much of our political history, parties have
been regarded as constitutionally non-existent'curiously private
organisations' was how Reid and Forrest put it in their history of
the Commonwealth Parliament. None of the colonial/State
constitutions gave them any recognition, nor did the Commonwealth
Constitution. A symbol of the way in which parties were officially
regarded was the fact that for many years official Australian
election results gave voting figures as if all candidates were
independents, treating the parties as electorally non-existent.
When payment of members of parliament was introduced by the various
parliaments, the party leaders received a loading above the base
salary, but this was due to their holding the positions of Prime
Minister, Premier or Leader of the Opposition, rather than because
they were leaders of their respective parties. This remains the
case.
This private aspect of parties provided no means
for aggrieved party members to challenge their parties' actions in
court. Challenges to pre-selection, for example, were typically
dealt with by internal, private appeal mechanisms. This was
encouraged by the reluctance of courts of law to intervene in party
disputes, on the grounds that parties, being privately organised
voluntary organisations, did not come within the jurisdiction of
the court system. In a Parliamentary Library Research Paper
published in 19956, academic lawyer, John Forbes noted that over
the years there were two technical legal reasons for this state of
affairs:
-
- as parties were unincorporated non-profit societies, courts
believed that their rules did not form a contract that was
enforceable, and
-
- it was the view of the legal system that party members had no
personal stake in a party's assets, due to the party 'being devoted
to a broad social agenda and not to the personal enjoyment of the
members'.
Such views were long buttressed by the 1934 High
Court decision of Cameron v Hogan. In a case brought by
former Victorian Premier, Edmund Hogan, seeking redress for his
expulsion from the ALP, the Court dismissed Hogan's case, noting
that:
The organization [i.e. ALP] is a political
machine designed to secure social and political changes. It
furnishes its members with no civil right or proprietary interest
suitable for protection by injunction.
The Cameron decision was long
considered the major protection for the continuing informal status
of the parties.
The parties built on this long-term lack of
constitutional or legal status by asserting their freedom to act
without any type of external oversight. The operation of
preselection processes, the administration of party conferences and
the administration of party funds, for example, were all subject
only to the parties' own rules and regulations. Although party
members had internal means of challenging acts by fellow-members,
the parties were not prepared to concede their having any recourse
to any outside avenues for redress of grievances. The ALP's
official website contains the words of a 1955 statement by the ALP
National Conference that are still official party policy:
This Conference resolves that as a general
principle it cannot concede the right of any member of the Party to
initiate legal proceedings for the purpose of establishing the
constitutional behaviour of the Labor Movement. We emphasise that,
with a few isolated exceptions, the history of our Party discloses
that we have functioned on a basis of complete determination in
accordance with our own rules and our own interpretation of them.
We insist we must continue to create our own procedures, taking
care of our own business without the introduction of lawyers and
law courts.
Such a view is probably regarded sympathetically
within the Liberal and National Parties, and is very much in line
with party attitudes in a number of other liberal democracies. In
his study of such parties, Alan Ware of Oxford University has noted
that:
The idea that they [i.e. political parties]
should be controlled, or even influenced, by the state is contrary
to the liberal idea of competition of ideas, leaders, and
policies.
In Canada in the early 1990s, the Royal
Commission on Electoral Reform and Party Financing acknowledged
that for much of their history Canada's parties enjoyed the status
of private organisations, and suggested that they should remain so
'for very good reasons'. The Commission was of the view that
citizens had 'the right to associate freely for political
purposes', and that any legislation to control parties must
therefore 'be careful not to invade their internal affairs or
jeopardize the right of individuals to associate freely'.
For many years, therefore, Australian parties
were largely free to operate as they wished.
Despite this history of party freedom, it can be
argued that changes in Australian society have gradually pushed the
political parties towards a position where it makes no sense to
continue to argue that they are private bodies, responsible only to
themselves. Various factors suggest that there is now a requirement
for them to have a greater degree of accountability to the
Australian people.
Despite efforts to regard them as
extra-constitutional, the parties have gradually become
constitutional entities, a development that began as long ago as
the war of 191418. In their eagerness to guarantee that overseas
service personnel could vote despite the ongoing hostilities, the
parties supported the Commonwealth Electoral (War-time) Act
1917. This ensured the overseas service vote, but to deal with
the problem of voters not knowing the candidates' names, voters
were required to specify that their vote be allocated to
'Ministerial' or 'Opposition' parties. Although this Act had been
repealed within two years, parties had clearly been given a
legislative presence. Since then they have been recognised in other
pieces of legislation, including the Commonwealth Electoral Act
1918 and the Broadcasting Act 1942. In 1977 the
parties also gained a reference in the Commonwealth Constitution,
when an amendment to s. 15 provided that a vacating Senator
who had been elected as an endorsed candidate of 'a particular
political party', must be replaced by 'a member of that party'.
The significance of such changes over the years
has been that they have effectively made it much harder to sustain
the case that parties are private bodies, in some way beyond the
law. As a New South Wales Parliament briefing paper puts it:
The shift away from the private, self-regulating
status of political parties has increased their susceptibility to
scrutiny and challenge.
Senator Andrew Murray (AD) is one who claims the
argument that parties are private organisations is now fallacious.
To begin with, he points to the fact of their receiving public
funding, which now requires an unaccustomed accountability from
them, which is likely to become more demanding (see below pp. 68).
Apart from this, though, Senator Murray is of the view that the
great power of parties simply demands that they be open to
scrutiny, for the 'private organisation' argument, even were it an
accurate representation of their position, no longer justifies
freedom from regulation by the state.
There has been a smattering of interest in the
States in the question of whether or not this should change. In
1996 the Western Australian Commission on Government looked at
whether political parties should be referred to in the Western
Australian Constitution. After acknowledging that the question
would necessitate 'much debate and detailed analysis', it
eventually avoided the issue by making no recommendation at all. In
Queensland the Constitutional Review Commission's Issues Paper
(2000) also wondered if the importance of political parties in the
political process should be recognised in the Queensland
Constitution. It invited interested members of the public to
comment on how that recognition might be given. Like the Western
Australians, the Queensland inquiry avoided the question by stating
that the issue of constitutional recognition was one 'whose time
has not yet come in Australia'. Both of these Commissions were
acknowledging the power of the tradition that Australia's parties
were long considered private bodies, with constitutional status
neither granted, nor sought.
The Cameron v Hogan judgement (see
above pp. 23) was not considered sound law by judges or academic
lawyers, due to what was regarded as its 'unsoundness' on the place
of private bodies before the law. Essentially, the judgment painted
a picture of parties that bore little relationship to their actual
position in Australian society. Deirdre O'Connor of Macquarie Law
School has been one lawyer who pointed to the judges'
over-fastidious desire to avoid any suggestion of partisan bias
which, in fact, took them down the wrong path in the
Cameron case:
A so-called 'proper' desire to avoid the
identification of the judiciary with partisan politics coupled with
a reluctance to say so, was resolved by [the High Court]
characterising the Australian Labor Party as an informal meeting of
friends.
According to the critics, then, the Cameron
v Hogan judgment bore no relationship to the reality of party
organisation, and it has been claimed that in the years following,
many judges dealt with the problems it posed by 'by quickly
ignoring its existence'. It has therefore always been an uncertain
platform upon which the parties have based their defence against
'interference' by the state and individual citizens.
This was eventually seen when the protection
that parties believed they were given by Cameron v Hogan
seemed to be undermined in the 1993 Queensland Supreme Court case
of Baldwin v Everingham. This dealt with a dispute over a
Liberal Party preselection contest. The plaintiff asserted that the
party's procedures had flouted the Liberal Party constitution, but
the defendant relied on Cameron v Hogan to support the
view that the Court should not intervene in such an internal party
matter. Mr Justice Dowsett was therefore forced to consider whether
Cameron v Hogan did or did not apply to this case. In
looking at the question, he analysed Justice Isaacs' view in the
1917 Edgar and Walker v Meade case, wherein
Isaacs had stated that a private member of a body registered under
legislation had the right to take that body to court for the
redress of grievances. Dowsett concluded that it was the fact of
statutory recognition of trade unions in that case that was central
to the earlier decision. This led him to conclude that, 'disputes
concerning the rules of political parties registered under the
Commonwealth Electoral Act are now also justiciable':
This conclusion differs from the conclusion in
Cameron v. Hogan not because changing policy
considerations dictate a different result, but rather because the
Commonwealth Parliament, in conferring legislative recognition upon
political parties has taken them beyond the ambit of mere voluntary
associations.
The Baldwin judgment has since been
given judicial support by two South Australian cases. Former Labor
member of the South Australian House of Assembly, Ralph Clarke,
twice took his party to court in the 1990s to challenge internal
party decisions, winning on each occasion. Speaking in judgement on
the first case, Mr Justice Mullighan spoke approvingly of the
Baldwin decision, further putting a nail in the coffin of
Cameron v Hogan:
It may be seen that the South Australian
Legislature has given statutory recognition to political parties in
this State with the same consequence as discussed in Edgar v
Meade and Baldwin v Everingham. They are not in the
same position as a 'voluntary club'.
Not all party members are upset by this apparent
shift in legal status. Former New South Wales Labor MLA, Rodney
Cavalier, sees the most valuable outcome of the Clarke cases as
being 'the proof to the ALP in the rest of Australia that the law
does apply to the processes of the ALP'.
The consequence of this is that it seems likely
that parties will find themselves increasingly required to defend
themselves in court over matters once considered part of their
private operations. Indeed, in recent years they have found it
increasingly difficult to withstand calls for greater
accountability.
One important alteration in the relationship of
Australian parties to the electorate came with the introduction of
public electoral funding and financial disclosure. This first
occurred in 1981 in New South Wales, was followed in 1984 for
Commonwealth elections, and ten years later for Queensland
elections. With these changes the argument that parties are private
bodies became harder to sustain, for the receipt of public funds
inevitably put a focus on how such funds were used by the
recipients. Members of these three parliaments appreciated this
point, and the respective electoral legislation was altered in an
effort to guarantee the proper use of such funds. The 'private
body' view of parties became steadily more unrealistic. When the
question of public funding had been investigated in United Kingdom
in 1976, the Houghton Committee noted the dangers this posed to
party independence in that country. The committee believed that
there was every likelihood that the state would begin to
'interfere' in party matters if public funding were introduced: '
if the state helps to pay the piper, the state may want to call
some part of the tune'. In New South Wales, early Liberal
opposition to public funding was based in part on a similar fear
that public funding could pose a threat to the freedom of
association long enjoyed by the parties in this country.
Such fears were justified. Where parties once
benefited from the freedom which came from their legislative
non-existence, the introduction of public funding produced
legislative changes which began to see parliamentary 'interference'
in their operations. This mirrored what had occurred in Western
Europe, where parties in countries like Belgium and Norway have
become obliged to account for what has been done with money
received from the state. In Australia an example of such
'interference' was in the way that the Commonwealth Electoral
Act 1918 now made various prescriptive references to parties.
Most strikingly, the legislation even defined a 'political party'
for the purposes of the Act, as:
an organisation 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 (s. 4).
Today, then, parties are obliged to abide by
certain requirements if public funding is to be received. In
national elections:
-
- To be eligible for such funding, a political party must:
-
- either have at least one member of the Commonwealth
Parliament, a parliament of a State, or one of the Legislative
Assemblies of the Northern Territory or the Australian Capital
Territory, or have at least 500 members, and
-
- be established on the basis of a written constitution that
sets out the party's aims (s 123 (1)).
-
- Legislative definitions even extend to members of political
parties, who are defined as persons who are formal members of
specific political parties (or related political parties). They
must also be entitled to be enrolled under the Commonwealth
Electoral Act 1918 (s. 123 (3)).
-
- An application for registration of a political party must give
the name of the party, the preferred abbreviation (if desired) of
that name, give the details of the registered officer of the party,
state whether or not the party wishes to receive public moneys, and
include a copy of the party's constitution (s. 126 (2)).
-
- The Australian Electoral Commission (AEC) has discretion to
refuse an application for registration if the party's name is
believed to infringe certain requirements. These include the number
of words in the title (a maximum of six), a belief that the name is
obscene, or the similarity of the name to the name of another
registered political party (s. 129).
-
- Parties can be deregistered voluntarily (s. 135). A registered
political party can also be deregistered if it has not endorsed an
electoral candidate for more than four years, or if four years have
elapsed since the last election for which the party endorsed a
candidate. For a 'parliamentary' party, deregistration can occur
when it has ceased to be a parliamentary party and the party has
fewer than 500 members (s. 136 (1)). Deregistration can also occur
on other grounds, including amalgamation of the party with another,
or if the original registration was obtained 'by fraud or
misrepresentation' (s. 137 (1)). The Register of Political Parties
is open for public inspection, without a fee being required,
and
-
- The names of all parties that fulfil the registration
requirements of the legislation are included on the Register of
Political Parties that is maintained by the AEC (s. 125).
The New South Wales and Queensland electoral
legislation also has similar legislative provisions that have
helped alter the place of parties within those constitutional
systems.
The impact, therefore, is that the carrot of
public funding has been used, however inadvertently, to alter the
place of parties in the Australian constitutional system. Former
Labor Member of the House of Representatives, Les Scott, believes
that these are reasonable requirements. He has stated that because
parties receive public funding, they should be required to have
'rules and procedures that make them accountable' to the Australian
public.
Parties perhaps need to be alert to dangers
posed by a decline in public support for their activities, both
inside and outside parliament. In many democratic societies the
level of public support has reportedly fallen to a record low. This
is confirmed in the case of Australia, where it has been claimed by
Professor Ian McAllister of the Australian National University that
one in three voters believe politicians use public office to line
their pockets, and even fewer believe that their political leaders
have 'a high moral code'. Discussions in the Labor Party since the
2001 Commonwealth election have linked such matters to the decline
in party memberships: 'For those without political ambitions who
simply wish to make a contribution, rank-and-file membership of the
ALP is profoundly unappealing', was the observation of Lindsay
Tanner MP.
Some observers of Australia's parties have made
quite sombre warnings about the threat they pose to the very health
of the political system. In Victoria, for instance, former Labor
Member of the Legislative Assembly, Ken Coghill, has claimed that
party preselections in his State 'have severe weaknesses which
threaten the health of our democracy'. In his report into electoral
fraud in Queensland, Mr Justice Shepherdson maintained that voters
are entitled to expect 'that in any political party the procedures
whereby that party chooses or selects its candidates will be
transparently fair and not affected by fraud or coercion'. As Prime
Minister John Howard put it in 2001:
More and more people in Australia are looking to
have representatives who resonate and connect with their local
communities. They are becoming increasingly impatient with
political parties and political movements who believe they can move
candidates around as though they were pieces on a chessboard.
At the end of the day, it may be that the major
parties' loss of support in the general community may force them to
accept change. Ralph Clarke is one public figure who has expressed
his concern over the alienation of people from the political
process, an alienation that the lack of democratic forms within
parties probably exacerbates. He has stated that if Parliament does
not act to break down the 'closed shop' nature of the political
parties this will 'only further widen the alienation between the
Parliament and its institutions and the average Australian
citizen'. Parties seem to act as if stories of branch-stacking, of
memberships being paid, of false addresses, of people able to vote
in pre-selections though resident overseas, as if they are of no
consequence to ordinary voters. For example, research conducted in
New South Wales indicated that half of a survey of New South Wales
MPs did not think that members of the public have a sustained
interest in politicians' ethics. As indicated though, it is likely
that this view ignores changing attitudes in the wider society.
Election results during the 1990s indicate a
falling off in support for the major parties in both Commonwealth
and State elections, a development that is said to be strongly
related to an increased voter disillusionment with the major
parties. Parties run the danger that eventually sufficient voters
will reject their message and begin electing people who come from
outside the major party ranks. Although in all elections between
1949 and 2001 only 14 such MPs have been elected to the
Commonwealth Parliament, 12 of these successes have occurred since
1990. In 2001 the 'country independent' push was very much related
to rural communities' resentments towards their treatment by the
major parties, and the election of Tony Windsor in New England no
doubt reflected his strong anti-party stance in the New South Wales
State electorate of Tamworth since his first election to the New
South Wales Parliament in 1990. The election of such 'outsiders'
has been seen even more starkly in State elections in recent years,
and is a reminder of political commentator Antony Green's assertion
that 'the weak link in Australian democracy' is 'the
unrepresentative nature of political parties and the unregulated
conduct of their internal affairs'.
The position in Australia is very different from
many other liberal democracies.
Not all political systems have allowed the same
degree of freedom to their political parties, for since the 1960s
many Western democracies have moved to adopt arrangements designed
to regulate party activities. Ware has investigated the changing
place of parties in liberal democracies and has concluded that:
On balance, the pressures of electoral
competition are probably forcing parties to modify their procedures
to make them more 'responsive' than they have been, but these
pressures are by no means uniform.
Some nations, in fact, see parties as public
organisations which have not only a responsibility to their members
for their actions, but also to the wider community. Various nations
illustrate this in three main ways:
-
- parties' role in the nation
-
- intra-party democracy, and
-
- requirements for the receipt of public money.
Some constitutions describe parties as occupying
a positive place in the nation, seeing their guaranteed presence as
enhancing its democratic nature. The Constitution of France states
that 'Political parties and groups shall be instrumental in the
exercise of the suffrage'. In the case of Spain, parties are
described as expressing 'democratic pluralism', of assisting in
'the formulation and manifestation of the popular will', and of
being 'a basic instrument for political participation'. The Israeli
Constitution describes 'the function' of parties as being to give
expression to the will of the people and to seek political ends 'in
a democratic manner'. The Basic Law of the Federal Republic of
Germany states that, 'The political parties participate in the
forming of the political will of the people', and guarantees that
they 'may be freely established'.
The reverse of this is to proscribe activities
and policies that might threaten the nation's existence. The German
Basic Law, drafted within four years of the end of the war of
193945, is quite categoric:
Parties which by reason of their aims or the
conduct of their adherents seek to impair or do away with the free
democratic basic order or threaten the existence of the Federal
Republic of Germany shall be unconstitutional.
In Portugal, the principal of freedom of
association includes 'the right to establish and join political
associations and parties', but this has its limits. Parties cannot
use names connected with any religion or church, nor may they use
emblems that might be mistaken for national or religious symbols.
In Israel, the right to found and maintain a party is protected,
but such protection is forfeited if the party opposes the existence
of the State of Israel as 'the state of the Jewish people', negates
the democratic nature of the State of Israel, or incites citizens
to racism. In the Netherlands, the executive has the power to ban
extremist parties without recourse to the Supreme Court. The
Swedish Instrument of Government guarantees freedom of association,
though that may be restricted for bodies 'whose activities are of a
military or a quasi-military nature, or [which] constitute
persecution of a population group of particular race, colour, or
ethnic origin'.
Despite the Canadian Royal Commission's
uncertainty cited above (p. 3), it actually went on to acknowledge
the changing nature of the partypolity relationship in that
country. There was no doubt that political parties were responsible
for 'a number of critical functions in the electoral process', and
therefore they 'constitute an integral part of democratic
governance'. Interestingly, the conclusion drawn by the Royal
Commission was that:
For certain purposes, then, parties deserve
special acknowledgement in law and must be subject to some public
regulations.
Even in Britain, so long determined to maintain
the stance that parties were private bodies beyond the reach of
statute, the Blair Government's efforts to modernise the British
constitution have seen an effort to bring parties under some type
of control. An important raison d'etre for the Registration of
Political Parties Act 1998 (UK), was the need to register parties
in order that lists of their candidates could be officially
included on the proportional representation ballot papers. This was
initially a voluntary provision, but the Political
Parties, Elections and Referendums Act 2000 (UK) made it
compulsory.
A different, though clearly related, approach is
to focus on intra-party activities. In many countries there is a
constitutional prescription that parties' internal operations be
transparent, and in accordance with the general democratic mores of
the nation. In Germany, parties' internal organization 'must
conform to democratic principles', and they have to publicly
account for the source of their funds and other assets, as well as
for the use of such funds. A Portuguese party 'must be governed by
the principles of transparency, democratic organization and
management and the participation of all of its members'. In both
Finland and Spain, parties' internal structures and operation must
be democratic.
In some systems there is a requirement for the
registration of parties, usually with a requirement to give
evidence of a reasonable number of members. Most notably, only
registered parties can win seats in the Swedish Riksdag, and even
then only if they receive a fixed percentage of the popular vote.
As noted below, (pp. 1213), party registration is often linked to
the question of public funding. In Norway, however, there is a
requirement for party registration irrespective of any question of
public funding. An application for party registration:
must be supported by the minute book of the
constituting meeting, the names and signatures of those elected to
the party's central committee, and the signatures of at least 3000
electors who declare they wish the organization to be registered as
a party.
Sweden may well be moving towards making
political parties even more accountable for their activities. In
2000 the Commission on Swedish Democracy reported on a wide range
of matters that impacted upon democracy in Sweden. These included
such questions as civics education, the means citizens have of
seeking redress against government decisions, and the need for more
opportunities for open fora for citizens to express their views.
The Commission also considered the part played by political
parties, which were described as having a 'key role' in
representative democracy. The Commission believed that this role
was based on:
-
- parties' role in constituting 'links between citizens and
political power'
-
- their role in 'balancing various interests', and
-
- their assumption of responsibility for the structure of
political power.
The Commission's conclusion was severe, however.
Swedish parties, it believed, demonstrate 'an inadequate capacity'
to adapt to political change, and point to an increasing difficulty
in attracting citizens. The Commission pointed to a need for
parties to adapt for the good of Swedish democracy; it concluded
that in order to reinforce representative democracy, the parties
must develop both ideas and working forms that match the needs and
requirements of citizens.
If any legislation were to be introduced in
Australia, the work of Dan Avnon of the Hebrew University of
Jerusalem warns that protection is probably as important as
control:
-
- continuity of the democratic features of the political system
must be ensured
-
- the state must not be given excessive powers of intervention in
the development of parties that express different ideas from those
in power
-
- a legal framework for the resolution of intra-party disputes
should be created, and
-
- the legitimate activities of parties should be
definedparticularly if they received public funding.
If rules are legally enforceable, this removes
some of the devices that party elites use to block newer
participants from exerting too great an influence upon party
matters:
when those who are being excluded have recourse
to law, and especially when the state itself is responsible for
overseeing aspects of the selection process, the discretion of
elites in being able to exclude unwanted newcomers is much
reduced.
In various countries that have moved to put some
controls upon parties' internal operations, there is a realisation
that not only must candidates be attractive to voters, but they
must also be seen as coming from a system that is not obviously
unfair. This, in turn, has had the effect of modifying the
behaviour of party elites.
The third main area in which regulations are
placed on parties relates to the receipt of public money. Many
countries have established partial public funding of parties,
recognising that political parties play a public interest role;
they make an essential contribution to political contestability and
the decentralised expression of diverse values and interests.
Public funding is seen as reducing the scope for private interests
to 'buy influence', and also helping reinforce limits on spending,
because of the electorates resistance to excessive public
expenditure. Among the nations that have introduced some level of
public funding have been Austria, Belgium, Canada, Finland,
Germany, Italy, Norway, Spain, Sweden and the United States. A
great deal of party organisation and activity is influenced by
regulations imposed by state bodies as a consequence of the
introduction of public funding of parties, particularly tied in
with electoral activity. Typically, the introduction of a system of
public funding leads to alterations in the law relating to
partiessuch requirements as lists of members, lodging of party
constitutions and details of how money is accounted for. In many
countries this has become so important a part of the relationship
between party and society that opponents of public funding have
suggested that the obligation to publish party accounts and meet
with other regulations has changed the relationship to such an
extent that it has given the state power to interfere in the
internal activities of parties, something that would have once been
regarded as inconceivable in a democratic state.
In some countries public funding comes with no
controls placed on how the funding is spent. In others, though,
efforts are made to prescribe how parties may spend such money. In
Ireland, for example, the relevant legislation provides that public
funding may be used by the qualified parties only in relation
to:
-
- general administration of the party
-
- research, education and training
-
- policy formulation, and
-
- coordination of the activities of branches and members of the
party.
The funding is also deemed to include the
provision for the parties to spend it on the promotion of
participation by women and young persons in political activity. It
is not permitted to apply the funding to offset expenses incurred
at elections.
Irish qualified parties must account for their
use of their funding annually. This is done by the Appropriate
Officer of each party providing an Exchequer Expenditure Statement
to the Public Offices Commission which details the amount of the
funding and how it was utilised during the period in question. A
Public Auditor is required to audit the Statement and that
Auditor's report is submitted with the Statement to the Commission.
The material is made available by the Commission at its offices for
public inspection and copying.
The earlier discussion showed that legislative
requirements relating to public funding already place a number of
non-negotiable requirements upon the major parties in two States
and in relation to Commonwealth elections. In this, Australia has
simply put in place the type of legislative provisions that can be
found in systems of public funding in other countries. The
question, though, is whether more needs to be done to make parties
accountable to the Australian public. In describing Australian
parties as 'self-governing fiefdoms', Antony Green, has stated that
there is a need for them to be brought within 'a sensible legal
framework', while former Commonwealth MP, Gary Johns, believes that
such a development is inevitable.
In South Australia, Ralph Clarke has spoken of
the need for 'a proper legislative framework governing our
political parties'. He believes, for example, that the
Commonwealth Electoral Act 1918 should state that the
rules of parties that receive public funds should provide for
'their democratic control by their members'. The views of such
political figures have been accepted by at least one editorial
writer, who has attacked the 'ridiculous anachronism' that parties
are not governed by any laws specifically designed to deal with
them. The public has 'a real interest' in the organisation and
practices of political parties, 'because taxes raised from the
public are handed over to political parties to subsidise their
electoral operations'. It is, therefore, time that laws were passed
providing for, among other matters, 'proper, public, financial
accounting'.
The Joint Standing Committee on Electoral
Matters has referred to what it calls the 'minimalist view' on this
matter, that seems to underline the attitude of the Australian
Electoral Commission (AEC). Evidence given by the AEC to the
Committee suggests that the existing system of party control found
in the Commonwealth Electoral Act 1918 is essentially
sound. If there are any problems, they are small, and their
eradication is simply a matter of modifying the existing
arrangements so as to tighten the party registration requirements.
Such a view notes that proposals announced by the Liberal and Labor
parties to introduce internal pre-selection reforms in Queensland,
'suggest that it is not the federal electoral system that requires
major reform'. The Commission's cautious view would also seem to
favour the parties being left alone to get their houses in order by
their own, unaided, efforts. As we shall see below, (pp. 201), this
may well be influenced by the AEC's concern about the possible
undermining of its reputation for evenhandness were it expected to
take any part in administering a tighter legislative control over
the parties.
This is not to suggest that the AEC sees the
present arrangements as without flaw, believing that there are a
number of areas where improvements can be made. For example, in a
submission to the inquiry into the 1998 Commonwealth election by
the Joint Standing Committee on Electoral Matters, it noted that
party constitutions tend to be scant, giving insufficient
information on the internal functioning of the political parties.
Information on what constitutes a member, let alone the terms and
conditions of membership, are felt to be generally inadequate. If
there is to be any point in parties lodging such documents, it
seems to follow that they should be more informative, both for
party members and for the general community.
The AEC has stated that the Commonwealth
Electoral Act 1918 should be amended to make political party
membership status clearer. This is particularly important as party
numbers are crucial to a political party's registration, but they
also are important in regard to the power to deregister a party.
The AEC therefore has recommended the addition of further
requirements:
-
- a person must be accepted as a member by the party's own
rules
-
- a member must have joined a party (or renewed membership)
within the previous twelve months, and
-
- he or she must have paid an annual membership fee of at least
$5.
Of lesser magnitude, perhaps, is the AEC
suggestion that parties be charged a $500 fee for registration.
This would help cover AEC advertising costs and it might discourage
frivolous applications. The Joint Standing Committee on Electoral
Matters has agreed with the principle of an application fee, but
has suggested that it should bear more relationship to what a
registration really costs the AEC. It might be 'more realistic' to
charge about $5000. The levying of such a charge would be akin to
many other government charges, such as the fee required for the
lodgment of a trade mark application with the Trade Marks
Office.
On balance, AEC sees a need only for moderate
changes to those parts of the electoral law that deal with
parties.
Others, however, believe the present
arrangements, while important in themselves, do not go far enough
in what they see as the necessary democratising of political
parties in this country. For such observers, a key principle that
needs to be accepted is that parties can no longer realistically be
considered as private bodies, performing, as they do, a key role in
the public affairs of the nationthey are part of the formal
structure. Former Australian Electoral Commissioner, Professor
Colin Hughes, for example, has gone much further than the AEC,
making various recommendations that attempt to lock parties into
the legal system in a more obvious fashion. He favours a strong
approach.
Hughes notes that there are benefits for parties
that register under the Commonwealth Electoral Act 1918.
He asserts that this should be used to force parties to take steps
towards making their internal processes fair and transparent.
Therefore, partiesat the very leastshould be required to submit
their pre-selection rules to the registering authority. Such rules
should state quite clearly the party's own procedures for the
gaining of party membership. They should also make quite clear how
the keeping of membership lists is conducted.
Hughes has no truck with the 'parties as private
bodies' defence used against the opening up of parties. He says
that the Commonwealth Electoral Act 1918 should be amended
to make it quite clear that 'departure from the party's own rules
would allow an application to the courts' by aggrieved party
members, as well as 'the opportunity to overturn the outcome if
deficiencies are proven'. Hughes then shows how the parties should
be forced to change their ways:
A party that does not wish to meet these
requirements could operate as a cadre party and select its
parliamentary candidates by a committee or indeed the nomination of
a single leader, but they would not then be able to pretend to
follow democratic practices. Neither would they be able to receive
public funding or display a party label on the ballot paper.
Hughes is adamant that such a change would be an
improvement on the current arrangements:
In some recent controversial episodes the
present system of registration appears to have a minimal link with
democratic standards, but there is no reason why a better system
should not.
Of the parties, only the Australian Democrats
have made any attempt to run on this issue. They focus on the fact
that although parties are central to Australian democracy, there is
little public accountability for their internal processes. Because
the parties are now publicly funded in national elections;
the public has a right to know the ways in which
parties receive and spend their funds.
Further:
the public influence and purpose of political
parties demand that they be open to public accountability.
A constitution is an important management tool
in any large public organisation, and the parties can all point to
the fact that their constitutional documents spell out democratic
processes. If a constitution is to work, however, there must be a
reasonably good alignment between its provisions and the practices
of the organisation involved. Too large a contrast between the
provisions claimed in the constitution and actual practice can lead
to cynicism and a crisis of authority. The Canadian Royal
Commission on Electoral Reform and Party Financing cited earlier
noted that there is a great danger of this occurring if party
practices essentially remain hidden from the public gaze. Gary
Johns has noted that the closed nature of electoral competition,
combined with the public status of parties, implies that 'their
internal affairs should be conducted democratically'. This is not
guaranteed at present.
This can be seen in Australia in the debate over
the so-called '6040 rule' which gives unions a majority of votes at
most ALP state conferences. Although it can be argued that this has
more to do with factional interests than union dominance, it is the
apparently undemocratic and anachronistic nature of the rule that
is said to hurt the party:
While I do not intend to single out my own party
for criticism, it is clear that unionshonourable contributors to
Labor history and policyexercise disproportionate influence through
the 60:40 rule and through their affiliated membership, many of
whom have no direct connection with the party. One vote, one
valuethe prime condition for a democracyis not observed in the
party's rules
The Australian Democrats discussed
one-vote-one-value in their dissenting report to the Joint Standing
Committee on Electoral Matters' inquiry into the 1998 election,
claiming that when instituted within parties it would mean that all
members' votes would be equal, and it would do away with
undemocratic internal party ballots. Three years later the Joint
Standing Committee on Electoral Matters made a similar
recommendation despite strong opposition from Labor members who saw
this as a simply a partisan attack.
Some observers see a change in the nature, or
the use of, a party's constitution as a way of making party affairs
more transparent. There could be more emphasis on requiring that
party practices match the words of the party constitutions so as to
ensure that public perceptions match party rhetoric. In Canada, for
instance, the Royal Commission on Electoral Reform and Party
Financing recommended that parties have constitutions:
that promote democratic values and practices in
their internal affairs and that are consistent with the spirit and
intent of the Canadian Charter of Rights and Freedoms.
The Australian Democrats are the only Australian
party to make a sustained critique of the place of parties in the
Australian political system. They have stated that registration
provisions should require that the Australian Electoral Commission
take into account the extent to which, and the manner in which, a
party's constitution provides for the following matters:
-
- the aims of the party
-
- the qualifications for membership of the party
-
- the rights and obligations of members of the party, including
voting rights
-
- the method of choosing office bearers
-
- the obligations and duties of office bearers
-
- the procedures for selecting candidates to represent the party
at elections
-
- the number and nature of any party committees
-
- the powers and composition of any party committees and the
method for selecting members
-
- the use of secret ballots in party decision-making and the
decision-making processes generally
-
- the method of selection party employees
-
- procedures for convening and conducting meetings, including
provisions for a quorum, chair and voting
-
- the requirement for an annual general meeting
-
- the documentation for and of meetings
-
- the rights of members to request a ballot
-
- the rules governing the use of proxies
-
- the period of notice required for resolutions or any particular
class of resolution
-
- provision for the inspection of minutes and correspondence
-
- the mechanism for changing the constitution, and
-
- the procedures for resolving disputes.
The Australian Democrats have stated that the
AEC 'must refuse' a party's registration application, if 'the
constitution of the party does not sufficiently provide for the
affairs of the party to be conducted in an open, democratic and
accountable manner'.
The problem here, however, is that parties will
not necessarily seek to do so voluntarily. Gary Johns has suggested
that a compromise between the need for parties to be more
transparent, and their desire to retain their privacy, would be to
use the party constitution as a pledge of faith. What he calls a
'reasonable compromise' would be, as part of the registration
process, to make party constitutions available to the public:
If the parties' candidate selection rules were,
as a condition of funding, to be made available to the public so
that voters may judge for themselves the fairness of the processes,
then the parties would, insofar at their formal practices are
concerned, be more likely to comply with basic democratic
standards.
One obvious focus for public concern about
political parties lies with the way in which party pre-selections
are conductedthe so-called Labor 'electoral rorts' in Townsville
and the Liberal pre-selection controversies in the division of Ryan
during 200001 are a reminder of that. Professor Hughes has
commented that party ballots 'have brought and continue to bring
discredit on the parliamentary electoral process'. With so many
House of Representatives and Senate seats considered safe for
either the Coalition or the ALP, the pre-selection of the candidate
for the party likely to win a particular seat is the crucial
election, and with careers at stake, party members can play fast
and loose with the party arrangements. Some people have suggested
that the step from fraudulent enrolments for influencing party
pre-selections to fraudulent enrolments for influencing
Commonwealth or State elections is a small one. Former South
Australian Premier and member of the Commonwealth Parliament,
Steele Hall, is one who has spoken of the need for 'an ethical
system of candidate selection'.
An example of what can be done comes from New
Zealand, where the Electoral Acts 19891995 requires that registered
parties 'follow democratic procedures in candidate selection'.
Every registered party is required to ensure that provision is made
for all members to participate equally in the selection of
candidates representing the party for election as members of
Parliament.
The German Federal Electoral Law is far more
prescriptive. Article 21 deals specifically with the selection of
party candidates. Article 21 (1) states that a person can be named
as a candidate for a party in a constituency only if he or she has
been selected for this purpose in a properly-constituted assembly
of party members. The appropriate assembly is defined. Article 21
(3) specifies that candidate selection shall be by secret ballot.
It also sets the period that must elapse after the start of a new
Bundestag before such an assembly can be heldthough this becomes
inoperative if a Bundestag term ends prematurely.
Technically, changes such as these would be easy
to implement in Australia.
Coghill has noted the problems with party
preselections, including the fact that very few people actually
vote in many such ballots, yet winning candidates often end up with
a parliamentary seat. Not only are such preselections
unrepresentative, but they are easily manipulated by party
powerbrokers. He talks of a 'fracturing of the relationship between
politicians and citizens' that is swinging many voters to minor
parties, and worries about the threat they pose to Australian
democracy.
Coghill wonders if Australia should look for
alternative arrangements, and he has floated the idea of party
preselections being replaced by party primaries as run in the
United States of Americasomething spoken of by Wayne Swan MP (ALP)
as well. Instead of a party's candidate being chosen by intra-party
processes, this would be done by a public vote. He believes this
would introduce a process whereby voters would be able to vote in
the party preselection process as well as in a general election.
Although he notes the problems in America with the great cost of
such primaries, he thinks this is a practical weakness that could
be overcome. The overall benefit, though could be immense, and he
states that Australia 'should explore the possibility of extending
democracy to allow voters to affect the selection of political
party candidates to public office'. In support of this Rowena
Johns' research for the New South Wales Parliament suggests that
primaries are an improvement on party ballots due to their being
'more democratic', and she has suggested that it 'should remove
much of the incentive for branch-stacking.
Another option would be to remove power over
party pre-selections from the parties altogether. Ought the various
electoral commissions and electoral offices conduct party
pre-selection ballots? This suggestion has been made in the
Shepherdson Inquiry report, and at least one newspaper editorial
has suggested that such a responsibility be made mandatory for the
AEC. Professor Hughes has also made the suggestion in regard to
Commonwealth elections, though he modified it by proposing that if
a party preferred, the relevant State electoral body could run
internal ballots, rather than the AEC. Senator Andrew Murray has
claimed that such a change could 'help secure an authentic ballot',
as well as bring about public assurance that the pre-selection
process 'was not some private, corrupt, dishonest, and rigged
intra-party affair, and that the successful candidate got up
fairly'. The Senator's party recommended this to the 1998 Joint
Standing Committee on Electoral Matters inquiry into the 1998
Commonwealth election, calling for:
All important ballot procedures within political
parties to be overseen by the AEC to ensure proper electoral
practices are adhered to.
Although such a change could be seen as
analogous to the long-standing practice of the AEC conducting union
or Aboriginal and Torres Strait Islander Commission elections, the
AEC is less than enthusiastic about such a prospect for
Commonwealth elections. It has noted, perhaps disingenuously, that
this would involve 'substantial' establishment and running costs,
that would have to be 'specially resourced'. Rather more
significantly, its worry seems to be that no matter how carefully
the Commission acted in such matters, there would be an
ever-present danger of this being seen as the Commission
compromising its hard-earned reputation for neutrality:
AEC involvement in the preselection of
candidates for elections conducted by the AEC could be seen as
compromising [its] political neutrality.
Despite the AEC's unease on this, the May 2001
Joint Standing Committee on Electoral Matters inquiry into the
integrity of the electoral roll seemed to believe the benefits for
Australian society might outweigh the Commission's concern. It
therefore made a recommendation which left the door open for AEC
involvement:
That the Australian Electoral Commission allow
political parties to use its services to conduct internal party
ballots. Such services should be provided on a cost recovery
basis.
A month before the 2001 election Queensland
Premier Peter Beattie made a public commitment that if his
Government were to be returned he would implement reforms that
would bring Queensland parties under tighter legislative control.
This was said to be in response to 'political and community
concerns' that had been highlighted in the reports of three
separate inquiries; The prevention of electoral fraud, a
Legal, Constitutional and Administrative Committee report tabled in
the Queensland Parliament on 14 November 2000; The Shepherdson
Inquiry, tabled in the Queensland Parliament on 1 May 2001;
and User friendly, not abuser friendly, the Commonwealth
Parliament's Joint Standing Committee on Electoral Matters report
tabled in the Commonwealth Parliament on 18 June 2001. Despite
the massive victory of the Government in the February election
which might have persuaded the Premier to push this promise aside,
new legislation was introduced on 6 March 2002, was debated and
passed without division on 16 April, and became law three days
later.
On the face of it, this legislation takes the
legislative control of parties in this country much further than
ever before. Unlike the Commonwealth, New South Wales and earlier
Queensland legislation, the Electoral and Other Acts Amendment
Act 2002 (Qld) enters the areas of protection of the
democratic state and the matter of intra-party democracy referred
to earlier as a feature of some overseas legislation, (see above,
pp. 1012). This has taken the legislative control of Queensland
parties beyond the provision for the simple registration of parties
as a requirement for public funding. The most significant changes
are found in relation to:
-
- party constitutions
-
- preselection ballots, and
-
- how-to-vote cards.
The Commonwealth and New South Wales legislation
require the lodging of a party's constitution (however described)
or rules and platform. There is no attempt to proscribe what, if
any, must be provided for in such a constitution. By comparison,
the new Queensland legislation goes much further than simply
demanding the lodging of the party constitution.
The tone of the Queensland document is struck by
the name of the new section (s. 73A) that was inserted into the
Electoral Act 1992'complying constitution'. A 'complying
constitution' is one that meets certain obligatory legislative
requirements. The most significant are the following:
-
- the procedure for amending the constitution (s. 73A (1)
(b))
-
- party membership rules, which must include:
-
- a rule stating the procedure for accepting
members
-
- a rule stating the procedure for ending a
membership
-
- a rule prohibiting membership of any person who has been
convicted of a 'disqualifying electoral offence' in the previous
ten years; and
-
- a rule prohibiting a person from continuing as a member if
the person has been convicted of a 'disqualifying electoral
offence'. (s. 73A (1) (c) (iiv))
-
- a statement of how the party manages its internal affairs; this
must include a statement about the party's structure and dispute
resolution procedures (s. 73A (1) (d))
-
- the rules for selection of both party office-bearers and party
candidatesthe latter to include local government as well as
parliamentary candidates (s. 73A (1) (e))
-
- a rule requiring that a preselection ballot must satisfy 'the
general principles of free and democratic elections' (s. 73A (1)
(f))
-
- the 'general principles of free and democratic elections' as
they would apply to a preselection ballot are then defined in s.
73A (2). Among the requirements are:
-
- only members of the party who are eligible to vote under the
party's constitution may vote (2 (b))
-
- each member has only a single vote (2 (c))
-
- voting must be by secret ballot (2 (d)), and
-
- a member 'must not be improperly influenced in voting' (2
(e)).
One of the most controversial aspects of party
behaviour relates to the way in which party pre-selection ballots
are conducted.
Part 8A of the Queensland legislation, headed
'Commission oversight of preselection ballots', breaks further new
ground in its use of the Queensland Electoral Commission (QEC).
Essentially the QEC is given oversight responsibilities regarding
party preselections, including the power to audit cases, to conduct
inquiries and to advise the minister of any pre-selection ballot in
which a person voted in contravention of either the model
procedures established by regulation, or the party's official
constitution. A copy of the regulation prescribing model procedures
for the conduct of a preselection ballot must be given by the QEC
to each registered political party. The regulation was duly
gazetted on 31 May 2002.
How-to-vote cards have also been an aspect of
elections that have been largely left alone by the legislators,
despite occasional stories such as that involving payments by a
Labor MP to the Australian Democrats during the 1996 Commonwealth
election.
At least seven days before polling day the
person authorising a how-to-vote card must lodge with the
Queensland Electoral Commission the required number of cards. There
must also be lodged a statutory declaration relating to 'any
financial contribution received from another registered political
party or another candidate in relation to the production of the
how-to-vote card'. The declaration must state who the financial
contribution was received fromor on behalf ofand the nature and
amount of the contribution (s. 161B (1), (2)). The Commission
is obliged to reject a how-to-vote card that does not comply with
the legislation (s. 161B (3)). How-to-vote cards that have not been
rejected must be made available for public inspection at no charge,
and must be available for inspection at each polling place on
polling day (s. 161B (4), (5)). Rejected cards may not be
distributed on polling day, and if such a card is distributed it
may be confiscated by the Commission (s. 161B (7), (8)).
Australian political parties may well be facing
a time of change. They have to date functioned very much as private
bodies, but public demand may be forcing them to be more directly
accountable for their activities than could once have been
envisaged. Academic lawyer, Graeme Orr believes that we can expect
'a continuing trend to juridify the once purely political realm of
party machinations'. There are two basic matters for parties to
address; should they be brought under greater community control,
and if so, how might such control be implemented? On the first of
these, the fight might well be lost. On the second, the dilemma of
how this might be done is not so easily judged. Nearly forty years
ago the question was posed in the USA:
it seems impossible to create procedural devices
which would protect against abuse and yet permit the requisite
degree of autonomy [of political parties].
The Queensland Parliament has been prepared to
make an attempt in 2002, and this might well turn out to be a
watershed for political parties in this country, for once such
changes are made in one Australian jurisdiction, it can be
difficult to withstand calls for change in others.
-
- Jon
Pierre and Anders Widfelt, 'Party Organisations in Sweden: Colusses
with Feet of Clay or Flexible Pillars of Government?', in Richard
Katz and Peter Mair eds, How Parties Organize. Change and
Adaptation in Party Organizations in Western Democracies,
Sage, London, 1994, p. 349.
- Teresa Somes, 'The Legal Status of Political Parties', in
Marian Simms ed., The Paradox of Parties. Australian political
parties in the 1990s, Allen & Unwin, Sydney, 1996, p. 180.
- Joint Standing Committee on Electoral Matters, User
Friendly, not Abuser Friendly: Report of the Inquiry into the
Integrity of the Electoral Roll, Canberra, May 2001, p. 73.
- For other papers on this topic, see Rowena Johns, 'Electoral
Misconduct and the Regulation of Political Parties', New South
Wales Parliamentary Library, Briefing Paper no. 5, 2001;
Gary Johns, 'Desirability of Regulating Political Parties',
Agenda, vol. 8, no. 4, 2001.
- G. S. Reid and Martyn Forrest, Australia's Commonwealth
Parliament 19011988. Ten Perspectives, Melbourne University
Press, Melbourne, 1989, p. 10.
- John R. S. Forbes, 'Judicial Review of Political Parties',
Research Paper no. 21, 199596, Parliamentary Library,
Canberra, p. i,
http://www.aph.gov.au/library/pubs/rp/1995-96/96rp21.htm
- Cameron and others v Hogan (1934) 51 CLR 378.
http://www.alp.org.au/about/rules/index.html#38.
- Alan Ware, Citizens, Parties and the State, Polity
Press, Cambridge, 1987, p. 92.
- Royal Commission on Electoral Reform and Party Financing,
Final Report Volume 1 Reforming Electoral Democracy,
Canadian Communications Group, Ottawa, 1991, pp. 2312.
- Section 8 (c).
- Rowena Johns, op. cit., p. 36.
- Senator Andrew Murray, Submission to Finance and Public
Administration Legislation Committee, consideration of Electoral
and Referendum Amendment Bill (No. 2), June 1998, p. 7.
- Commission on Government Western Australia, Report No.
5, 1996, p. 128.
- Queensland Constitutional Review Commission, Report on the
Possible Reform of and Changes to The Acts and Laws that Relate to
the Queensland Constitution, Brisbane, 2000, p. 88.
- Shannon Lindsay, 'Jurisdiction to Review Expulsion from a
Political Party', Melbourne University Law Review, vol.
16, 198788, p. 329.
- Deirdre O'Connor, 'Actions Against Voluntary Associations and
the Legal System', Monash University Law Review, vol. 4,
December 1977, p. 111.
- Lindsay, op. cit., p. 330.
- 1 [1993] Qd. R. 14.
- Edgar and Walker v Meade (1917) 51 CLR 30.
- 1 [1993] Qd. R. 20.
- Clarke v Australian Labor Party (South Australian Branch),
Hurley and Others and Brown (1999) 74 SASR, pp. 111, 139.
- Rodney Cavalier quoted Rowena Johns, op. cit., p. 27. For a
discussion of the cases, see Gary Johns, 'Clarke v Australian Labor
Party', Australian Journal of Political Science,
vol. 35, no. 1, March 2000.
- Bob Bennett, 'Candidates, Members and the Constitution',
Research Paper, no. 18, 200102, Parliamentary Library,
Canberra, p. 46.
http://www.aph.gov.au/library/pubs/rp/2001-02/02rp18.htm
.
- At the time this paper was being written, legislation to
introduce public funding of elections was before the Victorian
Parliament.
- Report of the Committee on Financial Aid to Political Parties,
Chairman The Rt Hon Lord Houghton of Sowerby, CH, Cmnd 6601, 1976,
p. 58.
- Ernie Chaples, 'Public Campaign Finance: New South Wales Bites
the Bullet', Australian Quarterly, vol. 51, no. 1, Autumn
1981, p. 9.
- Klaus Von Beyme, Political Parties in Western
Democracies, Gower, Aldershot, 1985, p. 203; Kris
Deschouwer, 'The Decline of Consociationalism and the Reluctant
Modernization of Belgian Mass Parties', in Katz and Mair, op. cit.,
p. 103.
- Parliamentary Electorates and Elections Act (NSW), part 4A;
Electoral Act 1992 (Qld), part 5.
- Joint Standing Committee on Electoral Matters, The 1998
Federal Election. Report of the Inquiry into the Conduct of the
1998 Federal Election and Matters Related thereto, Canberra,
p. 92.
- Russell J. Dalton, Citizen Politics. Public Opinion and
Political Parties in Advanced Industrial Democracies, Chatham
House, Chatham, 1996 (2nd ed), p. 269.
- Ian McAllister, 'Keeping them Honest: Public and Elite
Perceptions of Ethical Conduct among Australian Legislators',
Political Studies, vol. 48, 2000, p. 22.
- Phillip Hudson, 'Labor on the Skids, warns top MP',
Age, 18 March 2002.
- Ken Coghill, 'Let the People Decide: Primaries for
Preselections', Good Governance Conference: Fair Elections and
Ethical Parties, Monash University, 23 February 2001, p. 3.
- Queensland Criminal Justice Commission, The Shepherdson
Inquiry: An Investigation into Electoral Fraud, Brisbane,
April 2001, p. 170.
- Quoted in editorial, 'MPs slaves to Party System', Canberra
Times, 26 June 2001.
- Joint Standing Committee on Electoral Matter, Inquiry into
the Integrity of the Electoral Roll, 2001, Submissions, pp.
5601.
- Michael Jackson and Rodney Smith, 'Everyone's Doing It! Codes
of Ethics and New South Wales Parliamentarians' Perceptions of
Corruption', Australian Journal of Public Administration,
vol. 54, no. 4, December 1995, p. 492; see also, Rodney Smith,
'Visible and Invisible Cultures of Parliamentary Ethics: The
"Sports Rorts" Affair Revisited', Australian Journal of
Political Science, vol. 34, no. 1, March 1999.
- Scott Bennett, 'The Decline in Support for Australian Major
Parties and the Prospect of Minority Government',,
Research Paper, no. 10, 199899, Parliamentary Library,
Canberra, http://www.aph.gov.au/library/pubs/rp/1998-99/99rp10.htm
see also Scott Bennett and Gerard Newman, 'Queensland Election
2001', Current Issues Brief, no. 15, 200001, Parliamentary
Library, Canberra, pp. 67,
http://www.aph.gov.au/library/pubs/CIB/2000-01/01cib15.htm
.
- Antony Green, 'There's just no Accounting for Party Animals',
Sydney Morning Herald, 30 November 2000.
- Alan Ware, Political Parties and Party Systems, Oxford
University Press, Oxford, 1996, p. 278.
- Germany is often referred to as the most significant example,
see Thomas Poguntke, 'Parties in a Legalistic Culture: The Case of
Germany', in Katz and Mair, op. cit., ch. 8.
- Constitution of France, Article 4.
- Constitution of Spain, Article 6.
- Constitution of the State of Israel, Article 189.
- Basic Law of the Federal Republic of Germany, Article
21 (1).
- ibid., Article 21 (2).
- Constitution of the Portuguese Republic, Article 51
(3).
- Constitution of the State of Israel, Article 190.
- World Encyclopedia of Political Systems and Parties,
3rd ed 1999, vol. II, p. 783.
- The Instrument of Government, Chapter 2, Article 1
(5), Chapter 2, Article 14.
- Royal Commission on Electoral Reform and Party Financing, op.
cit., pp. 2312.
- Paul Webb, 'Parties and Party Systems: Modernisation,
Regulation and Diversity', Parliamentary Affairs, vol. no.
54, 2, April 2001, p. 313.
- Basic Law of the Federal Republic of Germany, Article
21 (1).
- Constitution of the Portuguese Republic, Article 51
(5); Constitution of Spain, Article 6.
- Act of Parties (Finland) 1969; Constitution of
Spain, Article 6.
- The Instrument of Government, Chapter 3, Article 7.
- Ware, Citizens, Parties and the State, op. cit., p.
91.
- Report of the Government Commission on Swedish Democracy, 2000,
http://www.governments-online.org/articles/5.shtml,
p. 2.
- ibid., p. 8.
- Dan Avnon, 'Party Laws in Democratic Systems of Government',
Journal of Legislative Studies, vol. 1, no. 2, Summer
1995, p. 296.
- Ware, Political Parties and Party Systems, op. cit.,
p. 261.
- Peter Mair, 'Party Organizations: From Civil Society to the
State', in Katz and Mair, op. cit., 1994, p. 10.
- Von Beyme, op. cit., p. 207.
- Electoral Act 1997, s18 (1) (a) and s18 (1) (b).
- Antony Green, 'There's just no Accounting for Party Animals',
Sydney Morning Herald, 30 November 2000.
- Joint Standing Committee on Electoral Matters, Inquiry into
the Integrity of the Electoral Roll, Submissions, pp. 1315.
- 'Rules for Party Organisations', Courier-Mail, 19
August 2000.
- Joint Standing Committee on Electoral Matters, User
Friendly, not abuser Friendly, p. 81.
- Joint Standing Committee on Electoral Matters, Inquiry into
the Integrity of the Electoral Roll, Submissions p. 878.
- Joint Standing Committee on Electoral Matters, The 1998
Federal Election, p. 136.
- ibid., p 135.
- ibid., p 137.
- Joint Standing Committee on Electoral Matters, Inquiry into
the Integrity of the Electoral Roll, Submissions, pp. 3834.
- ibid., p. 383.
- ibid., p. 384.
- 'Making Political Parties more Accountable', Keeping the
B*****ds Honest. Democrats' accountability package, n.d.
[2001], part 1; see also Murray, op. cit., Appendix A, p. 2.
- Royal Commission on Electoral Reform and Party Financing op.
cit., p. 237.
- Gary Johns, 'Party Democracy: An Audit of Australian Parties',
Australian Journal of Political Science, vol. 35, no. 3,
November 2000, p. 401.
- See for example, Stephen Long, 'The Future of the Workers'
Party', Australian Financial Review, 6 April 2002.
- Carmen Lawrence, 'A Democracy in Crisis', Age, 23
August 2000.
- Joint Standing Committee on Electoral Matters, The 1998
Federal Election, p. 179.
- Joint Standing Committee on Electoral Matters, Inquiry into
the Integrity of the Electoral Roll, Recommendation 18, p. 89;
for Labor members' response, see 'From Witch-Hunt to Wimp-Out. A
case study in abuse of the Parliamentary Committee system', pp.
1034.
- Royal Commission on Electoral Reform and Party Financing, op.
cit., Recommendation 1.5.1, p. 246.
- Murray, op. cit., Appendix A, p. 2; for a briefer list see
Royal Commission on Electoral Reform and Party Financing, op. cit.,
Recommendation 1.5.1, p. 250.
- Murray, op. cit., p. 2.
- Johns, 'Party Democracy', op. cit., 423; see also Johns,
'Clarke v Australian Labor Party', op. cit., p. 141.
- Scott Bennett, 'The Ehrmann CaseAberration or Symptom?',
Research Note, no. 10, 200001, Parliamentary Library,
Canberra,
http://www.aph.gov.au/library/pubs/rn/2000-01/01RN10.htm
.
- See for example, Greg Roberts and Louise Dodson, 'Stacking Row
in Moore's Seat', Age, 21 December 2000.
- Joint Standing Committee on Electoral Matters, Inquiry into
the Integrity of the Electoral Roll, Submissions, p. 382
- Scott Emerson and Stefanie Balogh, 'Mayor Denies a Role in
Theft, Rorts', Australian, 7 October 2000.
- Steele Hall, 'Making Members Count', Advertiser, 24
October 2000.
- Electoral Acts 19891995 (NZ), s.71.
- Under MMP in Germany, party candidates contest single-member
constituencies, while the party organisations also nominate who
shall occupy at-large seats.
- Coghill, op. cit., pp. 2, 3.
- Stephen Long, 'The Future of the Workers' Party',
Australian Financial Review, 6 April 2002.
- ibid.
- Rowena Johns, op. cit., p. 34.
- Queensland Criminal Justice Commission, The Shepherdson
Inquiry, op. cit., pp. 163, 1712.
- 'Voter ID no solution to rorts', Canberra Times, 19
June 2001.
- Joint Standing Committee on Electoral Matters, Inquiry into
the Integrity of the Electoral Roll, Submissions, p. 383.
- Murray, op. cit.
- Joint Standing Committee on Electoral Matters, The 1998
Federal Election, Submission p. S1614.
- Joint Standing Committee on Electoral Matters, Inquiry into
the Integrity of the Electoral Roll, Submissions p. 521.
- Joint Standing Committee on Electoral Matters, User
Friendly, not abuser Friendly, Recommendation 17, p. 86.
- Electoral and other Acts Amendment Bill 2002 (Qld),
'Explanatory Notes', pp. 12.
- Electoral Regulation 2002 (Subordinate Legislation
2002 No. 125),
http://www.legislation.qld.gov.au/LEGISLTN/SLS/2002/02SL125.pdf
- Michelle Grattan and Greg Roberts, 'Labor MP Accused of Poll
Payment', Sydney Morning Herald, 28 November 2000.
- Graeme Orr, 'Of Electoral Jurisdiction, Senate Ballot Papers
and Fraudulent Party Registrations: New Developments in Electoral
Case Law', Constitutional Law & Policy Review, vol. 2,
no. 2, August 1999, p. 37.
- Judicial Control of Actions of Private Associations',
Harvard Law Review, 1963, p. 1060.
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