Scott Morrison and the New South Wales premier, Dominic Perrottet, have urged the high court to preserve their power to handpick candidates for the federal election.
With just days before the expected start of the federal election campaign, the NSW Liberal party’s preselection saga has become a full-blown crisis, and is heading either to the high court or the NSW court of appeal for an urgent hearing.
Morrison and Perrotet have asked a challenge against the preselection of sitting MPs Alex Hawke, Trent Zimmerman and Sussan Ley to be sent straight to the high court to prevent sore losers appealing a lower court decision closer to the May election.
Ongoing factional warfare has left the Liberals without candidates in five potentially winnable federal seats in NSW, where the party had hoped to pick up seats.
So how did we get here, what’s the latest, and what might happen next?
What’s the backstory here?
The NSW Liberal party’s preselection crisis has been running for months and basically comes down to whether factional leaders should determine who is the candidate for parliament or the grassroots members of the party.
The seeds of the turmoil go back to 2018 when the NSW division agreed to adopt new rules in its constitution, known as the Warringah rules, championed by the former prime minister Tony Abbott and the right wing of the party.
They give branches the right to hold plebiscites involving all eligible branch members to choose local, state and federal candidates. The NSW Liberal party’s governing bodies, the NSW state executive and the state council, still get 25% of the votes, giving them a say.
The right faction pushed hard for the more democratic process because it believes the members are more conservative than the governing bodies of the party, which are controlled by the moderates. The plebiscites certainly reduced the power of factional powerbrokers.
What sparked the current turmoil?
Many of the nominations for seats closed in May last year, but the nominations committee, which vets prospective candidates, failed to meet.
Hawke, the prime minister’s representative, who runs the centre-right faction and is the PM’s numbers man in the party, was not available for months.
This meant plebiscites were not held. Time has been running out, and the election, which must be held by May, is looming.
The factional leaders tried to carve up the remaining nine winnable seats among the factions.
This required the NSW state executive to override the constitutional requirements for plebiscites with special powers. But it needed 90% support to achieve this, and despite several tries, there was always a few members, including the Sydney businessman Matthew Camenzuli, who wanted a democratic process.
By late February, the NSW Liberal party was dancing on the edge of a cliff.
The federal executive of the party, at the urging of Morrison and Hawke, considered intervention, but the body, made up of key officials and state presidents, was reluctant.
It eventually agreed to step in and appoint the sitting members as the candidates, meaning their jobs were saved. It gave the NSW party a 25 March deadline to resolve preselections.
The limited intervention was achieved by appointing a committee of three, including the prime minister and the former president, who took over the NSW branch for three days, but handed control back to the division.
The NSW state executive then agreed to resolve a couple of seats such as Dobell, where only one candidate was left standing, and Bennelong, which had a preselection, and to proceed with plebiscites in Hughes, Parramatta and Eden Monaro where there was more than one nominee. The votes were due to be held this week.
But last Sunday, the federal executive intervened again – this time for a week.
So what’s happened now?
In an application, seen on Wednesday by Guardian Australia, the Liberal applicants including Morrison and Perrottet have asked for the entire case to be removed from the NSW supreme court to the high court.
They asked for the proceeding to be expedited, with a hearing to be listed on Thursday, to answer questions including whether courts have jurisdiction to hear intra-party disputes, which the applicants argued were “important points of law” that needed to be settled.
The application notes that on 6 March the committee endorsed Hawke in Mitchell, Ley in Farrer and Zimmerman in North Sydney, but Camenzuli sought to challenge the preselections in the supreme court.
“The validity of a large number of additional party preselections depends upon the outcome of the present dispute,” they said.
The applicants noted the matter is listed before NSW court of appeal Justice John Basten on Thursday, but said the hearing is “unlikely to go ahead” due to constitutional issues in the case.
The applicants warned if the high court doesn’t hear the case, the unsuccessful parties in any NSW court of appeal case would likely appeal to the high court anyway.
At an urgent hearing on Wednesday morning, the counsel for Camenzuli, Scott Robertson, said it was now urgent that the court rule on whether the actions of the federal branch of the Liberal party were lawful.
Camenzuli alleges that the committee, appointed by the federal party to run the affairs of the NSW party, and which included Morrison, Perrottet and the former party president Chris McDiven, acted beyond its powers.
Robertson told Basten that as federal parliament could be dissolved by the weekend and an election called, the case needed to be resolved as a matter of urgency.
Basten said the NSW court of appeal stood ready to hear the case on Thursday.
This offer of a court of appeal hearing would remove one level of appeal and would involve three judges hearing the issue.
Counsel for the federal Liberal party and Morrison, Guy Reynolds SC, indicated his client was seeking to have the case removed to the high court. He argued that hearing in the NSW court of appeal “would not achieve finality” because an appeal to the high court was available.
But access to the high court is not automatic and would require an application and hearing for leave.
Basten said he was not inclined for the supreme court of NSW to “wash its hands of the case”, but acknowledged that “the jurisprudential meat” in the case was large.
He has now set it down for Friday, pending the outcome of the application in the High court.
