NATIONAL ACTION DAMNED AS
UNLAWFUL BY PARTY LEGAL ADVISER
The infamous Regulation 6.7.1 stayed on the books until mid-1996, when it was formally challenged at a meeting of the Democrats' National Executive. In a surprise move, photocopies of a letter written by the party's National Legal Advisor Peter Finkelstein to National Secretary Ms Sam Hudson nearly three years earlier [full text below]were distributed to all members of the National Executive by WA delegate Dion Giles. The long-ignored advice unequivocally damned the regulation as "unconstitutional" and "neither democratic nor lawful".
The fully considered legal advice is essentially the same as that provided to the WA Divisional Council and tabled by President Peter Nettleton at the meeting with Keith Lees on 29 July, 1993.
As was clearly necessary, despite the vocal protests of two delegates (Jack Evans of WA and John McLaren of Victoria), Regulation 6.7.1 was rescinded though it was not removed from the 1999 version of the party's constitution as appearing on the Democrat website until after May 1999.
Nor has any action ever been taken to correct the damaging effects of its use to ambush WA or make due amends to the members unjustly wronged. Those members included a former senator and Deputy Senate Leader of the party, Jean Jenkins, who was expelled in 1994 (and subsequently refused readmission) in consequence of her legitimate actions to protect the party in WA Supreme Court proceedings which arose directly from the National Executive's unlawful application of the unconstitutional regulation.
The rescinded regulation has since been replaced by a new (balloted) disciplinary provision (4.10) developed by a committee headed by Andrew Bartlett, who has boasted that it provides even more draconian power.
TEXT OF LEGAL ADVICE:
From Australian Democrats National Legal Advisor Peter Finkelstein
To National Secretary Sam Hudson
October 18 1993
Re: Legal Advice -- Status of National Resolution 7/93/2
Now that I have completed the fairly lengthy trial which had taken me out of Melbourne for several weeks, I have been able to give attention once more to the question of the legal status of the above Resolution, which sought to introduce a new Regulation 6.7.1 giving the National Executive in effect the power to restrain a particular member from seeking office within the structure of the Australian Democrats, for a period of not more than two years.
It is my considered opinion that this Regulation is unconstitutional, and therefore unlawful as being "ultra vires" (beyond the power) of the National Executive to make even though in purported exercise of its admitted regulation-making power.
The reason is quite simply that this Regulation has the effect of disenfranchising any member to whom it is subsequently directed, by preventing participation in seeking office within the Democrats, whether at State or Federal level.
Whilst this may occasionally be seen to be desirable, it is neither democratic nor lawful in my view, even when it is argued that the suspension from entitlement would persist for a period of not more than two years. The reason is quite simply, that the ability rests with the National Executive to give repeated renewals to the prohibition, such as to make for a continuous period extending beyond the two years limit, by the process of repeated Resolutions just prior to the expiry date of each period of prohibition.
A fair example of the unacceptability of such a provision to the law can be readily obtained from the policies followed by the Australian Securities Commission, and prior to that by the individual Corporate Affairs Offices, where incorporation is sought for a non-profit patriotic organisation such as a political party. You will find that one of the primary requirements in assessing the Constitution of the organisation concerned is to determine that there are no provisions therein which would restrict or prohibit any one member from seeking office in the organisation.
In other words, it is a fair sort of "litmus test" simply to explain that if the National Executive of the Australian Democrats sought to incorporate the Australian Democrats as a whole, there would be no possibility in my view with a provision of this kind present.
However, it is not necessary even to attempt that exercise, as the sanction obviously exists already in the National Constitution itself. The purported power sought in Regulation 6.7.1 is in the nature of an amendment to the eligibility provisions of Clause 6.3 of the Constitution, and as such is in the nature of an alteration to the Constitution which would require the 70% majority contemplated by Clause 1.4 of the Constitution.
There is no difference whether the prospect of nominating for office in the Federal executive, or alternatively in the State Executive of a particular Division, may be at stake; the reason is that the National Constitution dominates over the State Constitutions anyway. Further, and in any event, the provision in question as being part of the Regulations to the Constitution would certainly comprise a "party document" within the meaning of Clause 1.3 of the Constitution and as such would be subordinate to the Constitution itself.
In the circumstances, given the illegality of the provision contained in the purported Regulation 6.7.1, Resolution No. 7/93/12 must be regarded as invalid and any Resolutions made consequently in purported exercise of that power would likewise be invalid.
As I have been in receipt of correspondence separately both from Peter Nettleton and Jean Jenkins on this matter, I am forwarding a copy of this letter to each of them as a convenient means of notifying my view of the matter.
I realise that this leaves the difficulties which appear to be continuing between the Western Australian Division and the National Executive still unresolved. I do not think that the purported exercise of the Regulation making power in giving the National Executive such extensive and dangerous rights to alter the status of members entitlements is the proper way to go about it.
Peter L. Finkelstein
National Legal Advisor