The Labor Party has rejected former cabinet minister Marlene Kairouz’s claim that she is in imminent danger of losing preselection for her safe seat if the Supreme Court does not intervene in internal ALP affairs to stop an internal branch stacking probe.
However, Ms Kairouz’s lawyers argue the MP’s livelihood and reputation are at risk if Justice Tim Ginnane does not grant an injunction.
Marlene Kairouz says she is in danger of losing preselection if the court doesn’t grant an injunction. Credit:Eddie Jim
The MP for the seat of Kororoit in Melbourne’s outer west has taken 26 high-ranking Labor officials to court, claiming she is being unlawfully pursued by the party after administrators charged her with a string of branch stacking offences and referred her to an internal disputes tribunal.
Her barrister, John Karkar, QC, argued on the second day of the hearing that the rules governing the disputes tribunal had been “polluted” by the actions of the national executive and administrators, and the court should step in as an independent arbiter to grant an interlocutory injunction.
“The consequences for Ms Kairouz if an injunction is not granted are severe,” Mr Karkar said on Thursday.
“There are issues at risk of losing preselection, or the national executive can at any time disendorse her, she will not be able to participate in the ALP processes because of the complaint that is before the tribunal. Your honour, she will suffer in her livelihood and her reputation.”
Mr Karkar had told the court on Wednesday that the actions taken by two administrators – party veterans Steve Bracks and Jenny Macklin – following an investigation by The Age and 60 Minutes in June last year that revealed then Labor ministers Adem Somyurek, Ms Kairouz and Robin Scott were allegedly involved in the largest branch stacking scandal to engulf the ALP, were “outside of its power and … null and void”.
The court must determine whether the internal disciplinary action taken against Ms Kairouz is “justiciable” – or subject to trial in a court of law. Mr Karkar said the matter should not be treated as a “domestic dispute within a voluntary unincorporated association”, and courts should step in as independent arbiters.
The defendants’ barrister, Peter Willis, SC, reiterated his submission from day one of the hearings, saying the matter was not within the court’s jurisdiction and there was nothing to suggest Ms Kairouz had been treated unfairly.
“There is no threat to the position of the plaintiff, no imminent danger of any alteration of her position, no impending call for a freeze or a suspension of the status quo,” Mr Willis said.
“The status quo is that there is in course a disciplinary charge within the internal rules of the Labor Party to be heard in due course subject to procedural fairness.
“There’s nothing that the plaintiff has put forward she has been treated unfairly, that, in the course of the conduct so far, there has been any matter which would call for urgent intervention to suspend or to prevent the charge proceeding in the ordinary and proper course within the domestic rules of the association.“
He said political parties had chosen to remain as unincorporated associations to be able to manage their own affairs.
He cited the 1934 Australian High Court case of Cameron v Hogan that confirmed the rules of political associations would not be treated as an “enforceable contract”, and courts have since been reluctant to provide a remedy unless there is a propriety interest or trust at risk.
“The court says ‘the organisation is a political machine designed to secure social and political changes’,” Mr Willis said.
“That is true today as it was in 1934. The court went on immediately to say in the next sentence: ‘It furnishes its members with no civil right or proprietary interest, suitable protection by injunction.’”
Ms Kairouz’s lawyer, however, contended political parties should be treated “differently to golf clubs”, because they have responsibilities under the Commonwealth Electoral Act.
Mr Karkar also argued that Ms Kairouz’s payment of 6 per cent of her salary to the ALP was indicative of an existing contract.
Justice Ginnane is expected to hand down his judgement within two weeks.
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