Australia's Prime Minister and Attorney-General are facing questions about whether they abused their powers to instruct the Commonwealth Solicitor-General for partisan reasons in a bid to resolve a Liberal Party preselection stoush.
Solicitor-General Stephen Donaghue, QC, brought on an urgent hearing in the High Court on Thursday in a bid to leapfrog a New South Wales Court of Appeal hearing.
It came as bitter factional brawling has thrown the party's NSW preselections into chaos and, ultimately, triggered a federal takeover of the NSW branch — on the eve of a federal election — to select candidates in several key seats.
The takeover enabled Cabinet ministers Sussan Ley, Alex Hawke — a close political ally of the Prime Minister — and backbencher Trent Zimmerman to have their preselections locked in.
Those matters — which are at the hearts of a dispute between the New South Wales branch of the Liberal party and the Federal Executive over who has control of preselections — have been brought to the High court as a constitutional issue.
The parties in the case are listed as Prime Minister Scott Morrison and Matthew Camenzuli from the New South Wales state executive, who were each represented by their own lawyers.
Mr Donaghue said the legal matters in the case touched on constitutional matters associated with chapter three, which sets out the power of the courts.
He told the court the proximity of the election, which could be called within days, gave extra impetus to the case.
"If it can finally be determined here, that will be in the public interest … to end the uncertainty," Mr Donaghue said.
Chief Justice Susan Kiefel described the constitutional points as tenuous.
"It would be helpful to know when the election is going to be called," she said.
"I don't have instructions to tell you," Mr Donaghue replied.
Lawyers for Mr Camenzuli disputed that there were constitutional issues arising and told the court there was no need to resolve the case before the election was called, as there would be time before the writs were issued.
However, the court was also told that, if the NSW Court of Appeal matter went ahead, the loser would be bringing an appeal to the High Court in any case, and the court may have to hear an urgent application at a weekend or over Easter.
In the end, the Chief Justice decided to send the matter back to the court in New South Wales.
Labor attacks Coalition's use of Solicitor-General
The government argues that the use of the Solicitor-General — who generally represents the Commonwealth in legal matters — is in line with normal protocols.
However, Labor frontbencher Ed Husic said the Liberal Party should be funding its own representation.
"The Liberal Party rakes in enough dollars of its own to be able to fund its own cases. It does not need to use taxpayer funds to sort its political mess out," he said.
"And I think people want to see taxpayer funds used wisely, and for the things that matter most and make a difference in their lives."
Cabinet minister Paul Fletcher — who represents the Attorney-General, Senator Michaelia Cash, in the House of Representatives — insisted the use of Mr Donaghue was appropriate.
"As the House would be aware, there [are] well-established protocols under which Commonwealth representation in matters of this kind occurs," he told parliament.
The Law Officers Act dictates that the Solicitor-General is to "carry out such other functions ordinarily performed by counsel as the Attorney-General requests".
Labor argues the Solicitor-General should have never been instructed to handle the matter, arguing it is a Liberal Party matter and not a question about the constitution.
Further fuelling Labor's attack is another matter that was heard in the High Court earlier on Thursday.
The court dismissed an application by the Victorian branch of the Labor Party — which wanted to challenge the federal branch over its control of the preselection process — after a branch-stacking scandal.
In that matter, the Commonwealth Government played no role.
The NSW Court of Appeal will hear the Liberal preselection matter tomorrow.
