Cameron
v Hogan

Judges: Rich J, Dixon J, Evatt J, McTiernan J

Starke J

Subject References:
Voluntary associations
Political organization
Membership rights
Contractual relation
Expulsion
Candidature for political election
Pre-selection

Sydney

Judgment by:
Starke J

STARKE J. An action was brought in the Supreme Court of Victoria by Edmond John Hogan against Donald Cameron and others, who were described as the central executive of a political party known as the Australian Labor Party, State of Victoria. Hogan claimed declarations that he was a member of the party, and entitled to his rights and privileges as such, that his exclusion or expulsion, or purported exclusion or expulsion from the Party was wrongful, and that his withdrawal from selection or his non-endorsement as a labor candidate at an election for members of Parliament in the State of Victoria was wrongful; an injunction restraining Cameron and others from acting on or carrying into effect the said exclusion or expulsion, or what purported to be an exclusion or expulsion, and from continuing to exclude him from his rights and privileges as a member of the party; damages, and such further and other relief as might seem just. Gavan Duffy J., who heard the action, awarded Hogan one shilling damages, and from this judgment special leave to appeal was given by this Court.

The action arises out of dissensions in the Australian Labor Party. The object of that party is the socialisation of industry, production, distribution and exchange, and its membership consists of members of affiliated industrial unions, and persons enrolled as members of the organizations who pledge themselves to uphold the constitution, platform and pledges of the organization. Branches of the Party may be established in any centre, and one method of joining the party is election by a Branch. All members of a Branch must on election sign the platform, pledge and constitution of the Party. An annual ticket of membership must be obtained; each ticket bears a declaration that the holder is pledged to loyally support the principles and constitution of the Australian Labor Party, and to vote for the selected labor candidate. The central executive is the managing and administrative authority elected by conference delegates, and the rules provide that it shall administer the constitution according to its letter so far as it goes, and where the letter fails, according to its spirit. The annual conference is the supreme ruling authority within the State constituted by delegates from (a) the Australian Labor Party membership in each State electorate, and (b) affiliated Unions as separate entities. The Australian Labor Party, State of Victoria, is also part of a larger organization known as the Australian Labor Party; it is a federal organization, and has a federal constitution, in which provision is made for federal conferences, to which each State is entitled to send six delegates, and a federal executive. But I must now return to the rules of the organization.

Branch rules provide as follows:"87. (j) No person shall be eligible to become or remain a member of the A.L.P. whose conduct or actions are contrary to the principles and solidarity of the Political Labor Movement, or if he violate the pledge of membership, or does not faithfully uphold to the best of his ... ability the A.L.P. Constitution and Platforms and vote and work for the selected Labor candidates. 88. Any person guilty of disloyal or unworthy conduct may be ... expelled upon a resolution of the Branch at a meeting of which the accused member has had seven days' notice in writing in which he shall be notified of the charges made against him, and the Central Executive notified of the fact of such expulsion. Such member shall have the right of appeal to the Central Executive." The constitution, rule 25, gives an appeal to annual conference by any member against the decision of the central executive respecting the imposition of any penalty or relative to any charge. The conference has power to censure, suspend for any period, or deprive of such rights and privileges under the constitution as it deems fit or expel any person or persons adjudged guilty. Under the federal constitution, the federal executive is competent to hear appeals from the decision of any State conference or State executive, where leave to appeal is granted to the appellants by the State conference or State executive concerned. But the federal executive is also competent to hear and decide appeals from the decisions of any State conference or State executive on any matters affecting the federal labor platform or federal policy, or the attitude of any member of the Australian Labor Party thereto. The federal executive decision is binding, subject to the right of appeal to the federal conference. Elaborate provisions are also made for a State electorate council, and the contesting of State and other elections. The central executive arranges for the selection of labor candidates. All candidates' nominations and all labor selections must be submitted to the central executive for approval and endorsement or otherwise. It has power to withdraw any candidate on the ground of unfitness for the position, or whose past career renders him in its opinion unworthy of confidence, provided that such candidate has first had an opportunity of defending himself before such investigating committee as the central executive approves. Should any member resign from or leave the party and join any party opposed to the Labor Party and/or actively oppose the party, or fail by his own default to nominate after endorsed selection without permission from the central executive, he shall be declared expelled by the central executive. The funds of the party are dealt with in various rules. A small annual fee for membership is prescribed; the Branch pays an affiliation fee and certain dues to the central executive, and also a percentage of membership contribution to the State electoral council, and the Branches control what is left. It appears from the evidence that about July 1932 the central executive had assets in its hands or under its control of the value (approximately) of PD2,500. But there is no evidence as to the financial position of the Branches, except that they owed the central executive approximately PD1,400.

Hogan was for many years a member of the Australian Labor Party. He was also and still is a member of the Parliament of Victoria, and he was Premier of the State from the end of 1929 to 16th May 1932. A financial crisis developed in Australia towards the end of 1929. But in September of 1930 a special conference of the Australian Labor Party, State of Victoria, was held, and resolutions were passed that the Victorian Federal and State Parliamentary Parties give an assurance that they would not support or enforce or advocate dismissals, or reduction of wages, or extension of hours, and that the executive be instructed to obtain such assurance. The State Parliamentary Party decided to comply with this resolution; Hogan presided over the meeting of the Parliamentary Party, and stated that he concurred in the decision. But the central executive demanded a personal assurance from Hogan that he would comply with the resolution. He demurred, and objected that the demand was contrary to the rules of the party and that compliance with it would be contrary to his duty as a Minister of the Crown, and impossible in the financial condition of the State. In May and June 1931, a conference of representatives of the Governments of the Commonwealth and the States was held in Melbourne to consider the financial position, which had grown more acute. It is known as the Premiers' Conference. A scheme was agreed upon, involving the reduction of expenditure of all kinds, including wages, salaries, pensions and interest. It is known as the Premiers' Plan, and may be found in the Commonwealth Year Book 1933, pp. 884-897. The central executive declared its uncompromising opposition to the Premiers' Plan, and instructed all State Labor members to vote against such proposals. The Hogan Government was, however, committed by agreement at the conference to the plan, and was bound to implement it, by reason both of its agreement and of the necessities of the financial position. The central executive, however, persevered with its demand upon Hogan for the assurance already mentioned. In June of 1931, Hogan was informed that if the assurance were not given his endorsement would be withdrawn, but he remained adamant in his refusal. In August of 1931 a special federal conference was held. It was resolved that the reduction of wages, pensions and social services ran counter to Labor's platform, and could not be accepted as any part of Labor's policy, and that Federal and State Labor Parties be instructed that there should be no further reduction in wages, pensions and social services, and that proposals in this respect should be resisted. In October of 1931, the central executive asserted that Hogan was still infringing his pledge as a member of the Australian Labor Party, and advised him that his conduct rendered him liable under rule 87 (j) to be declared ineligible as a member of the Australian Labor Party, and required that he accept the resolution of the special federal conference. But nothing seems to have happened until April of 1932, when nominations were called from members of the Australian Labor Party eligible to contest selection ballots for the next State election. Hogan's nomination was lodged for his old seat, Warrenheip and Grenville. The central executive never endorsed his nomination, and withdrew it from the selection ballot. In May of 1932, the Hogan Government resigned. Hogan attributed its fall to the foolishness of the central executive, and want of loyalty on the part of the Minister whom he left in charge during his absence from the State. On 26th May 1932 the central executive sent a cable to Hogan, who was abroad at the time, calling upon him to "show cause against exclusion from party for breach last annual conference decisions regarding continued support portion Premiers' Plan re wages, pensions, social services." Hogan replied by cable asserting that the proposed action was contrary to the rules, and declaring that he held members of the executive personally responsible for any action on their part. On 1st July 1932 the central executive resolved that Hogan be excluded from the party for his breach of the decisions of conference as interpreted by the executive.

In my opinion, no such power of exclusion or expulsion is conferred upon the central executive under the rules and regulations of the Australian Labor Party. The express powers of expulsion are contained in rules 57 and 88. That given in rule 88 is to the Branch executive and not to the central executive. That given by rule 57 has no application to this case: it relates to what I may call cases of disloyalty in connection with elections, and Hogan did not (following the words of rule 57) resign from or leave the Labor Party and join any party opposed to labor; he did not, actively or at all, oppose the Labor Party, nor did he fail by his own default to nominate after endorsed selection without permission from the central executive. Indeed, it is not contended that the central executive acted or purported to act on rule 57. It is contended, however, that a necessary implication of the rules is that a power of exclusion or expulsion is conferred upon the central executive. It is the managing and administrative authority, and is empowered to administer the constitution according to the letter so far as it goes, and where the letter fails, according to its spirit. It may be that where there is not any property in which the members of a voluntary association have a joint interest, the majority may by resolution exclude or expel any one member (Innes v Wylie ^[[20]] ). But I cannot agree that any such authority is reposed in a chairman or committee, or other executive body, without express and explicit authority to that effect. A general authority to manage and administer the constitution of the association according to its letter, and where the letter fails, according to its spirit, cannot and does not, in my opinion, confer any authority to expel.

Has Hogan, however, any redress in a Court of law for such unauthorized act? It may be unlawful in the sense that it is void (Graham v Sinclair ^[[21]] ). But to give him a right of relief at law or in equity, Hogan must establish some breach of contract with him, or some interference with his proprietary rights or interests. As a general rule, the Courts do not interfere in the contentions or quarrels of political parties, or, indeed, in the internal affairs of any voluntary association, society or club. "Agreements to associate for purposes of recreation, or an agreement to associate for scientific or philanthropic or social or religious purposes, are not agreements which Courts of law can enforce. They are entirely personal. Therefore, in order to establish a civil wrong from the refusal to carry out such an agreement, if it can be inferred that any such agreement was made, it is necessary to see that the pursuer has suffered some practical injury, either in his reputation or in his property" (Murdison v Scottish Football Union ^[[22]] , at pp. 466, 467). Contractual rights, therefore, appear to me out of the question. The rules of a voluntary association organized for political purposes are not agreements enforceable at law, or in other words, contracts. Members of such associations who have grievances must resort to the remedies and the redress afforded them by the rules of their associations, and not to the Courts of law. Further, the central executive acted or purported to act as a tribunal constituted and endowed under the rules with jurisdiction to exclude or expel members of the party; suppose that it wrongly assumed such jurisdiction and that its act is void, how can any contract be inferred between Hogan and the members of the central executive, whom he sues, binding them not to exert jurisdiction, or to expel him except in accordance with the rules? They are only acting or purporting to act as a tribunal established and organized under the rules, and for the purpose of enforcing them. Further still, the rules give an appeal from the central executive to the annual conference, and, finally, to the federal conference, and even if the rules were binding as a contract between Hogan and the members of the Australian Labor Party, there could, in my opinion, be no breach of that contract until Hogan had resorted to the remedies or redress provided by the rules for any unwarranted action on the part of the central executive. But Hogan also claims relief because his exclusion or expulsion from the Australian Labor Party deprives him of some proprietary or pecuniary right or interest.