Mood:
chattyTopic: legal
Based on the Herald story today some initial comments, preliminary legal advice even. The Herald story is here:
26 Nov 2008 Sacked minister could be expelled - National - smh.com.au
Prof George Williams is on ABC just after 8.30 in a brief Q&A this morning and we think we can add to that also.
1. There is some precedent of a SA ALP MP Ralph Clarke who sued over preselection rorting back in 2005
Labor Seats for Sale, http://sunday.ninemsn.com.au/sunday/cover_stories/transcript_369.asp
He won but was booted out of the ALP eventually, and lost preselection regardless. (He later also initiated defamation proceedings against that state's ALP AG but that's another chapter in 2005: The World Today - Former Labor MP tells of SA Govt corruption.)
The significance of the case was that the general law applies to party rules because they use public funds to sustain themselves, hence the law of judicial review and administrative law applies e.g. natural justice to be heard, relevant and irrelevant factors, bias, improper purpose (and see no.4 below) etc etc
2. As George notes even if he wins he may still have the reconsidered decision against him anyway in a replay of the decision making process. So this is all about saving face.
3. Two matters I haven't considered - will taxpayers pay the legal costs? And would expulsion be contempt of court? George stated it would depend on timing and efficacy of that expulsion decision.
4. But one thing we add building on point 1 above in the Clarke case, the ALP disciplinary rules shouldn't be allowed (and question is this good law) to use their membership contract (incorporating party rules for explusion eg rule not sue another ALP member in the SMH story) to contract out of the general administrative law. It is a general principle of contract law you can't have terms of a contract that break the general law, invalid for illegality. It's a fairly small step from there to say terms of a contract (eg ALP membership) have to be read down so they don't promote breach of the general law: In this case threat of expulsion for seeking the benefit of administrative law. That surely would be an improper purpose again under administrative law picking up George's point at 3 above about efficacy of an explusion.
In conclusion fact is the ALP like all parties are publicly funded and to allow explusion for seeking to enforce administrative law of the land that applies to the ALP and all parties, would be to victimise a theoretical whistleblower. As happened with Ralph Clarke in SA and was a travesty of justice.
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Having said all that - we think Tony Stewart after 13 years as a backbencher has run his race and should withdraw and save the taxpayers the legal fees, even if he were to win (which he well may).
