The federal Liberal party’s ability to appoint candidates for key NSW seats including two ministers and a sitting MP hangs in the balance, with the state’s court of appeal reserving its decision in a long-running preselection dispute.
Sydney businessman Matthew Camenzuli, a member of the Liberal state executive, is seeking to overturn the preselections of the immigration minister, Alex Hawke, in Mitchell, the environment minister, Sussan Ley, in Farrer, and North Sydney MP, Trent Zimmerman.
They were re-endorsed as candidates in their seats in March by a three-person committee appointed by the federal branch. The committee comprised Morrison, the NSW premier, Dominic Perrottet, and former federal president of the party Chris McDiven with the intervention denying local party members a say.
The court on Friday declined to make an immediate ruling even though the prime minister could call the election as soon as this weekend.
A ruling is expected next week – probably on Monday – and it could force the Liberal party to hold rank and file preselections in at least eight winnable NSW seats on the eve of the election.
The election must be held by Saturday 21 May with 14 May mooted as a possible polling day. The writs dissolving parliament must be issued 33 days before polling day by the governor general and nominations to stand as a candidate close 10 days after the writs are issued.
If the federal party wins the court of appeal case it will be free to parachute candidates into seats. But it is also likely the losing camp will attempt to appeal to the high court – plunging the Liberals into further unwanted legal drama.
The latest chapter in the Liberal party’s crisis over preselections played out before the NSW court of appeal on Friday after the high court remitted it to the NSW courts.
Camenzuli is seeking a declaration that the committee was acting beyond its powers and that only members of branches are empowered by the NSW constitution to choose candidates. He also wants injunctions to restrain the committee from handpicking candidates for a further five seats.
The NSW Liberals introduced the so-called Warringah rules in 2018 which require candidates to be chosen by branch plebiscites – with 25% of votes reserved for the party machine.
Championed by former prime minister Tony Abbott, the rules were meant to introduce more democracy and curtail the power of factional leaders.
But internal manoeuvring has prevented preselection votes from occurring, plunging the NSW division into crisis and prompting the federal intervention.
Counsel for Camenzuli, Scott Robertson SC, said the Liberal party was structured very much as a federation with the key administrative unit being the branches.
The state divisions had the primary responsibility for the management and control of the party on a day-to-day basis while the federal division had the power to intervene in the affairs of the state divisions in limited circumstances, he told the court of appeal on Friday.
This included insolvency, non-compliance with the federal constitution, or if there were actions that, in the opinion of the federal division, “substantially prejudice the ability of the party to effectively contest or win a federal election”.
The federal executive relied on the last ground when it appointed the committee to take over the NSW branch.
But Robertson said this power was limited “to intervening in management”, and they could not take on powers that were not powers of management.
“The federal executive was entitled to say: ‘You have hit the wall here, and we are taking over management.’ They could have held the review committees, booked the halls and held the preselections,” he said.
But it could not take on powers given to rank and file members to select candidates, the barrister said.
But counsel for Morrison and the other members of the committee, Guy Reynolds SC, said the rules allowing the federal executive to intervene “only really operated in an emergency” and it was clearly designed to let “it cut right through any problems”.
Preselections are one of those issues that can be complex for large political parties, he said.
The federal division was given some shared responsibility for federal preselections – it has the power to revoke a preselection in limited circumstances – and for making a federal election campaign run smoothly, so the Liberal party clearly envisaged a sharing of responsibilities, Reynolds said.
The constitutions of political parties were not drafted with the precision of a statute and so had to be interpreted with an eye to workability, he said.
A threshold issue before the court is whether it can involve itself in a dispute within a voluntary unincorporated association like a political party.
In a 1934 high court case, Cameron v Hogan, the 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”.
But Robertson said on Friday times had moved on.
“This is a matter that arises under federal law because the federal Electoral Act gives the Australian electoral commission the power to list candidates endorsed by political parties on the ballot paper,” he said.
Candidates were given the status of being a party-endorsed candidate under the Electoral Act, and this valuable official recognition meant a court could judge the matter.
“It would be a surprising result if the court said this is a matter arising under federal law, but we do not have the power to deal with it,” Robertson said.
But Reynolds said the cases were similar and Cameron v Hogan was binding.
“There is a lot of jurisprudential meat on the bones of this judgment,” he said.
A more recent case brought by ALP member Diana Asmar against the federal opposition leader, Anthony Albanese, over intervention in Labor preselections in Victoria was resolved by the high court this week when it refused to accept an appeal.
The Victorian court of appeal considered it did have power to deal with that case despite it involving an internal party dispute.