Scott Morrison’s captain’s picks for 13 New South Wales seats in the upcoming federal election have been confirmed as valid clearing the way for the prime minister to go to the governor general and call an election.
The NSW court of appeal, comprised of three senior NSW judges, on Tuesday declined to overturn the preselections, ruling that there was no “right” arising out of the electoral laws that could be enforced in the courts, and that in any event, the constitution of the federal Liberal party gave its executive very broad powers to intervene.
Guardian Australia understands that the unsuccessful plaintiff, Matthew Camenzul, who is a member of the NSW state executive, will seek to appeal to the high court, although time is running out.
The election is expected to be called by this weekend and nominations close 10 days after the writs for the election are issued. Camenzul would need to make an urgent application for leave to appeal to the high court in the next day or so.
At a hearing on Friday, the chief justice of the high court, Susan Kiefel, suggested an urgent application could be heard by delisting another case scheduled for Wednesday and Thursday – but warned the right to appeal was not automatic.
“Urgency is a matter that the court deals with all the time. You should not assume that an application for special leave would be granted, of course,” she told Morrison’s counsel who had sought for the case to go straight to the high court.
The court of appeal decision means that the political careers of two ministers, Sussan Ley and Alex Hawke as the candidates for Farrer and Mitchell, are likely to continue. Both are running in safe seats.
Trent Zimmerman has been confirmed as the Liberal candidate for North Sydney, where he is facing a challenge from independent Kylea Tink and from Labor candidate Catherine Renshaw. Once a safe seat, Zimmerman now faces a challenge to hang on.
Lawyer Jenny Ware will run in the winnable seat of Hughes, where she is up against two independents and the former member, Craig Kelly, who defected to the United Australia party.
In Warringah, another lawyer, Katherine Deves, who has campaigned against transgender women being included in women’s sport, will run against independent Zali Steggall.
The NSW court of appeal case challenged the actions of a three-person committee appointed by the federal Liberal party which included Morrison. The committee intervened in March after factional brawling within the NSW Liberal party had stalled the usual preselection processes, leaving the party without candidates in several important seats.
The committee briefly took over the troubled NSW branch and bypassed rank and file preselections to confirm the three MPs to run again.
A second intervention by the federal party last weekend to select and endorse a further nine candidates is likely valid too as a result of the court ruling.
The court of appeal confirmed earlier precedent that the courts were reluctant to intervene in so-called “club cases” involving disputes over the rules of voluntary unincorporated associations unless there are proprietary or contractual rights at stake.
The internal rules of the Liberal party over preselection were “non-justiciable”, it said.
Any right under the electoral laws, which use the term “endorsed candidate” only arose later when the registered officer of the party conveyed the names of endorsed candidates to the Australian Electoral Commission, Justice John Basten said when he handed down the judgement.
The court explicitly rejected the arguments that political parties had changed in their character since the high court ruled on the matter in 1934.
“There was, in 1934, and still is, no provision in the Electoral Act requiring that rules be registered with the commissioner, nor that changes in rules be notified to the commissioner,” the court said. “There is, therefore, no general regulation of the rules of political parties which might warrant the court intervening whenever a dispute arises with respect to the operation of those rules.”
Basten also ruled, “in the interests of finality,” that the constitution of the federal Liberal party gave it a broad power to intervene in the affairs of the divisions.
The federal constitution gave the party power to take over when there is “the existence of circumstances that, in the opinion of the federal executive, substantially prejudice the ability of the party to effectively contest or win a federal election”.
It also had the power to veto a preselection where a person was deemed unsuitable.
“It is difficult to infer a limitation on the power of the committee appointed by the federal executive in this case, for the purpose of preselecting candidates in particular seats,” the judges said.
While the judges agreed this had the effect of overriding the NSW constitution, which says candidates should be chosen by branch plebiscite, it said this was an exercise of power that was justified by the federal constitution.
The decision may bring an end to the chaos that has stemmed from the factional war in NSW over preselections. But it is likely to leave bitterness among branch members who have fought for a bigger say in preselection processes within the NSW Liberals.
