Replacement of Mr John Mulholland with Mr Anthony Zegenhagen as the registered officer of the Democratic Labor Party (DLP) of Australia
File reference: Reg3733
The decision of the delegate of the Australian Electoral Commission (the Commission) to accept the application to replace Mr John Mulholland with Mr Anthony Zegenhagen as the registered officer of the Democratic Labor Party (DLP) of Australia (DLP) under the Commonwealth Electoral Act 1918 was affirmed at a meeting of the three persons who comprise the Commission on 28 May 2010.
The most recent application to change the registered officer of the DLP from John Mulholland to Anthony Zegenhagen was received on 3 December 2009. The application included minutes on DLP letterhead of a meeting referred to by the applicants to change the registered officer at a 'federal conference'. The office bearers for the party were elected at this meeting.
Given that he had not signed the application to change the registered officer form submitted by the applicants, Mr Mulholland was given 7 days within which to respond to the application stating reasons why the change should not be made pursuant to paragraph 134(5)(a) of the Electoral Act. Mr Mulholland responded on 4 January 2010.
The delegate made a decision on 8 January 2010 to accept the application to replace John Mulholland as the registered officer of the DLP with Anthony Zegenhagen. Both the applicant and Mr Mulholland were informed of the outcome on 8 January 2010.
Mr Mulholland submitted an application for review of this decision on 5 February 2010. Mr Mulholland makes the application in his capacity as a person affected by the decision who is dissatisfied with the decision as per subsection 141(2) of the Electoral Act.
The arguments put forward by Mr Mulholland are:
Mr Mulholland argues that there was no relevant circumstance that warranted a departure from the letter of the DLP constitution.
The AEC's position throughout the DLP dispute has been that the terms of the DLP constitution must be observed in assessing whether any application to change the registered officer should be accepted. This remained the case for the application most recently received by the AEC.
As previously outlined in the correspondence sent to Mr Mulholland and Mr Zegenhagen on 12 November 2009, the following provisions of the DLP constitution remain relevant in resolving the current matter:
Each error of law that Mr Mulholland alleges has occurred is addressed separately.
Both Mr Mulholland and Mr Zegenhagen were informed in correspondence sent on 12 November 2009 that the AEC would not accept an application to change the registered officer until a DLP federal conference was held. Alongside the fresh application to change the registered officer received on 3 December 2009, the AEC received the minutes of a Federal Conference of the DLP, on DLP letterhead, held on Saturday 28 November 2009, at which Mr Tony Zegenhagen was elected as the federal secretary of the DLP.
Mr Mulholland proposes that the state branches that attended the 28 November 2009 Federal Conference were not validly re-constituted state branches of the DLP and accordingly, the 'purported' conference was 'bogus'. Mr Mulholland argued in his previous submission dated 4 January 2010 that:
'… it is for the members at State level, jointly with the Federal Executive, rather than DLP members in any State, alone, to determine whether a State Branch has re-constituted under the Constitution and Rules. A DLP State Branch may only exist as a constituent part of the DLP Federation. To re-constitute itself, a State Branch must therefore acknowledge the federal body of which it is to become part'.
Mr Mulholland appears to be drawing on clause 2 of the DLP constitution which states that the DLP is a 'Federation' of constituent states and territories. However, there is no explicit reference in the constitution itself to the requirements for the constitution and re-constitution of state branches, nor is there any detail on any 'acknowledgement' or 'recognition' by the federal body. Mr Mulholland is most likely inferring this requirement from clause 2 of the constitution.
In the absence of an explicit provision in the DLP constitution stating acceptance of re-constitution by the Federal Executive as a prerequisite to proper re-constitution of a state branch, it seems contrary to the 'spirit' of the constitution to determine that these state branches are not actually state branches, due to an alleged failure to 'officially communicate' their re-constitution to the Federal Executive. This is the case despite the status of the party as a 'Federation'.
Emails sent from Mr Mulholland to the NSW, WA and Queensland branches of the DLP state that each branch must submit an annual return. Under the Electoral Act, the parties that must submit an annual return are registered political parties and their unregistered branches. Only the federal branch of the DLP is registered with the AEC, but the AEC has records of the Queensland, Victoria, Western Australia and New South Wales branches of the party as being unregistered branches of the DLP. Regardless, the emails demonstrate that an implicit recognition process, if required under the DLP constitution, has previously taken place.
Mr Mulholland attempted to explain these emails in his submission received by the AEC on 26 March 2010 by claiming that the effect of the disclosure provisions of the Electoral Act is to treat effective campaign committees of a party as unregistered branches of that party. On a related note, he alleges that the issues surrounding the valid constitution of the state branches is an internal party issue in which the AEC should not interfere. However, the AEC is required to keep a record of the unregistered branches of registered political parties in order to track the parties that have a disclosure obligation under Part XX of the Electoral Act. The issue is also definitive of a dispute over an office bearer, which is extremely significant for AEC and Electoral Act purposes.
Mr Zegenhagen stated in his response to Mr Mulholland's application for review of the AEC delegate's decision to replace Mr Mulholland with him as the registered officer of the party that it does not state anywhere in the DLP constitution that reconstituted states must be recognised by the Victorian secretary. This line of argument is based on Mr Zegenhagen's belief that Mr Mulholland was not the federal secretary simply by virtue of his position as the Victorian secretary. Mr Zegenhagen contends that a state branch of the DLP is reconstituted simply by virtue of forming according to DLP constitutional requirements. There is no constitutional requirement relating to recognition as a state branch by the federal executive. Mr Zegenhagen addresses this in his submission to the AEC, where he states that a state branch of the DLP is reconstituted simply by the act of forming according to DLP constitutional requirements.
In relation to Mr Mulholland's additional contentions that the federal conference held on 28 November 2009 was 'bogus' Mr Zegenhagen stated that members of the federal executive were invited to the conference held on 28 November 2009, with offers to pay for travel and related expenses, until two days before the day of the conference. The argument holds no weight once it has been established that the states have been properly formed. Clause 34 provides that a federal conference may be requested by a majority of states.
In correspondence sent on 12 November 2009, Mr Mulholland was advised by the AEC's Chief Legal Officer that the Federal Executive of the DLP should hold a lawful Federal Conference to elect and change its existing Federal office bearers. The reason for this statement was that the AEC determined that clause 34 of the DLP constitution had not been adhered to, and that this was the primary cause of uncertainty and conflict as to the position of registered officer within the party.
It appears that where, as per clause 34 of the DLP constitution, an obligation is imposed on the Federal Executive of the party to hold a federal conference at the 'earliest practicable opportunity' [emphasis added] and this had not happened, there has clearly been a failing in the letter of the constitution that warrants a departure from its letter to take into account its 'spirit' as provided in clause 149. This idea is pursued in detail below. This is the basis on which the AEC interpreted the constitution, according to its 'spirit'.
Mr Mulholland seeks to draw on, in particular, clause 2 and clause 37 of the DLP constitution to emphasise that the Federal Executive of the DLP is the governing and ruling body of the party and that it maintains full discretion in relation to the relevant matters specified in the constitution, such as the timing of the federal conference.
The Commission disagreed with Mr Mulholland's approach in relation to the purported 'extent' of the power conferred upon the Federal Executive of the party to control the federal conference. The Commission stated that the key requirement as determined from the DLP constitution was that the federal conference had to be held as 'early as practicable'.
The federal executive of the party is clearly stated in the constitution to be the governing body of the party. However, the constitution also states that where its word fails, resort to its 'spirit' is warranted, as outlined above. It appears clear that a failure in the letter of the constitution had occurred when it requires a federal conference to be called at the 'earliest practicable opportunity' and the federal executive did not hold the federal conference. Further, it cannot be convincingly argued that the constitution of the party would have been intended to contain such a significant amount of decision making power, to the point that a small group can determine, without consultation, when or even whether a federal conference will be held. Where this happens, again, there has been a failing in the letter of the constitution that warrants departure to its 'spirit'.
Mr Mulholland claims that the AEC acted prejudicially to his interests by becoming involved in internal party matters. He also claims that the AEC prejudged or pre-determined the issues surrounding Mr Zegenhagen's application to change the registered officer to his detriment.
The AEC is required to reach a conclusion on issues of fact that are essential to the decision that it has been asked to make. The pre-judgement that Mr Mulholland refers to relates to issues on which the AEC had to reach a conclusion on in order to make a decision. The issues Mr Mulholland refers to as being 'prejudicial' against him were the determination that the federal conference of 28 November 2009 was valid; that the AEC had prejudicially referred to him as 'former registered officer' in correspondence sent on 25 May 2009; the 'assumed' validity of the state branches of the DLP and the statement in the correspondence from the AEC's Chief Legal Officer on 12 November 2009 which stated that the AEC would consider a fresh application to change a registered officer following a DLP federal conference. However, it appears clear that all these demonstrate is that the AEC had formed an opinion as was required to make a decision on the key matter at hand.
This argument appears contentious because the matters on which Mr Mulholland claims that the AEC has been prejudicial were all key issues of fact on which the AEC needed to form an opinion. The mere fact that the decision made by the AEC on the facts presented to it was contrary to what Mr Mulholland was arguing does not render any statement or finding 'prejudicial'.
Mr Mulholland also contends that the AEC has interfered in DLP internal matters.
The AEC received an application to change an office bearer from the party, on which it had to take relevant action. The most recent application to change the DLP registered officer was the third received by the AEC. This is an area for which the AEC is responsible. The AEC did initially inform the party in correspondence sent on 12 June 2009 that it could not decide the application until it was certain about the surrounding circumstances and the party then took steps to clarify the situation.
The AEC needed to interpret the DLP constitution as the AEC itself needs to clarify the office bearers of the party in order to adequately perform its role as defined under the Electoral Act. In fact, Mr Zegenhagen stated in his response to Mr Mulholland's application for review that he believed that the appointment of a registered officer was an 'AEC matter' and that the AEC has a responsibility to ensure that the registered officer is appointed according to the requirements of the Electoral Act.
Mr Mulholland also claims that the AEC should have known that Mr Zegenhagen's application to change the registered officer amounted to an abuse of process. The AEC takes applications to change party office bearers as they come to it and assess those applications for compliance with the Electoral Act.
The Commission found that Mr Mulholland's argument that the AEC should not have interfered in internal matters was spurious, given the importance of the position of registered officer for AEC purposes.
Mr Mulholland argues that since the decision by the delegate of the Commission of 12 November 2009 to reject the application to change the DLP registered officer, there has been no change in circumstances that would warrant the AEC now accepting a change to the registered officer. This argument is linked to Mr Mulholland's submission that the federal conference held in late November 2009 was not a 'legitimate' federal conference. It was this 'circumstance' that needed to 'change', as per the correspondence sent by the Chief Legal Officer of the AEC, in order for the AEC to take any action on any applications to change the party office bearers.
The delegate's opinion is that a key fact had changed since the AEC's previous decision and that is that a federal conference was held. The emails sent by Mr Mulholland to the state branches are evidence that if there is a DLP constitutional requirement that the federal branch of the party 'recognise' the state branches, this process has taken place, albeit implicitly. The validity of the conference is a key issue of fact in this matter and the AEC has formed the opinion, due to the reasons provided above, that the conference was valid, and was held in accordance with the DLP constitution. In addition, it should be noted from the outset that the DLP constitution states at clause 34 that a federal conference may be requested by a majority of the states. The Commission agreed with this approach.
Mr O'Donohue submitted correspondence to the AEC that he had sent to Mr Zegenhagen stating that he did not recognise his claim to be the federal secretary of the DLP, and stated his opinion that a majority of state branches can only request a federal conference and it is up to the Federal Executive of the party to make a decision in relation to the request.
A range of additional issues in relation to previous applications to change the registered officer from Mr Zegenhagen had been rejected by the AEC. The correspondence also raised a number of matters heard in the Victorian Supreme Court and before the Victorian Electoral Commission. It also alleged that a 'smear campaign' was being undertaken against Mr Mulholland. The correspondence made various allegations against Mr Zegenhagen that were unrelated to the matter at hand.
The Commission considered the matters mentioned in Mr O'Donohue's correspondence and concluded that it did not raise any issue that would change the decision.
On Monday 31 May 2010 correspondence from Mr Mulholland was received. The correspondence contained attached Minutes of a purported 'Victorian and Federal Conference' that was held in 2007. Mr Mulholland claims that this conference met the DLP constitutional requirements to be a 'federal conference'.
Mr Mulholland alleges that the Minutes 'contradict' the claim of Mr Zegenhagen that until 28 November 2009, there had been no federal conference in 'almost three decades'.
The documents were received after the meeting of the full Commission. The AEC assessed the materials provided by Mr Mulholland and is of the opinion that the additional correspondence from Mr Mulholland has no bearing on the decision that was reached by the Commission on 28 May 2010.
The Commission formed the opinion that the terms of the DLP constitution had been adhered to in electing the federal secretary, and thus the registered officer of the party. Accordingly, the delegate's decision to accept the application to change the DLP registered officer from Mr Mulholland to Mr Zegenhagen was affirmed.
28 May 2010