Registration of the Rise Up Australia Party – decision affirmed by the Australian Electoral Commission
Updated: 30 May 2012
File reference: Reg4465, 11/1077-2
Statement of Reasons
An application for registration as a political party under the Commonwealth Electoral Act 1918 (the Electoral Act) from the Rise Up Australia Party (the RUA) was received by the Australian Electoral Commission (the AEC) on 4 November 2011. After examination and membership testing, a delegate of the AEC approved advertisement of the RUA's application in the press and the Commonwealth Gazette on 30 November 2011 as required by s.132(1) of the Electoral Act.
The AEC received written particulars under s.132(2)(b) of the Electoral Act from Mr Alex Stewart giving reasons for his belief that the RUA should not be registered. The RUA was given an opportunity to comment on Mr Stewart's submission. A delegate of the AEC considered the written particulars lodged by Mr Stewart as well as the RUA's response and, on 3 February 2012, approved the registration of the RUA.
On 10 March 2012, Mr Stewart lodged an application for review of the delegate's decision by the three Commissioners of the AEC. The AEC acknowledged Mr Stewart's application for review and provided the RUA with a copy, inviting it to respond by 9 April 2012.
The issues raised by Mr Stewart in his application for review of the delegate's decision were:
- that the AEC did not conduct a proper investigation into his allegations that two successive constitutions meant that early members of the RUA had joined one organisation and later members had joined a different organisation which might not have a properly approved membership form. He argued that there were two successive organisations joined by the members and neither might have had 500 members. He proposed that the nature of the organisation was changed by the second constitution and that previous members could not be members of the new organisation.
Or, alternatively that the newer members were not properly members of the RUA because he, as a Director, was not at the Board meetings that accepted their applications, having been improperly dismissed. He maintained the position that following his allegations of possible irregularity by the RUA, it was then the responsibility of the AEC to conduct a full investigation and provide the evidence uncovered in the investigation to Mr Stewart: and
- that he was not validly removed as a Director and Company Secretary of the RUA. An amended RUA constitution was lodged with ASIC on 13 October 2011 and Mr Stewart contended this was not a valid RUA constitution before being lodged with ASIC on that date. Mr Stewart put the view that a general meeting called for Friday 2 September 2011 to remove him as a director and secretary could not be called under the amended constitution which had not then been lodged with ASIC. He argued that the meeting was not validly called under the original RUA constitution either.
The RUA's application for registration was not lodged until 6 November 2011, but Mr Stewart argued he was still validly the secretary of the organisation and did not sign the application for registration, making the application invalid under s.126(1)(b) of the Electoral Act.
The RUA responded that:
- it had already dealt with Mr Stewart's claim that he was not lawfully dismissed as a Director and Company Secretary in its response to his previous written particulars. In that response, the RUA gave a detailed rebuttal of Mr Stewart's claim including the details of Mr Stewart's removal as Party and Company Secretary at a properly constituted extraordinary general meeting on 2 September 2011;
- in regards to Mr Stewart's allegation that there were two RUA constitutions at different points in time and that the members joining under the first constitution could not be members under the second constitution, the RUA pointed out that the amended constitution lodged with ASIC on 13 October 2011 was lodged with the ASIC Form 205J Notification of Resolution Altering The Constitution and that there could therefore be no question of a new organisation. That use of the particular ASIC form was confirmed by the printout from ASIC lodged by Mr Stewart to support his application for review.
The delegate in registering the RUA on 03 February 2012, had taken the following views as expressed in the relevant statement of reasons published on the AEC website:
- that the documents put forward by the RUA in its application for registration and its response to Mr Stewart's written particulars (including a statutory declaration from the party secretary) appeared to accord with the RUA constitution. They were to be preferred to the unsubstantiated allegations from Mr Stewart;
- as regards the allegation that the RUA might not have sufficient members, the delegate was satisfied that the amended constitution did not constitute a new organisation and that the RUA had at least the 500 members necessary to be eligible for registration. The delegate was further satisfied that the RUA Board had the power to revoke Mr Stewart's appointments as director and company secretary and that such revocation did not invalidate later Board meetings so as to render a membership form illegal. No evidence was provided by Mr Stewart that any membership forms were contrary to the RUA constitution;
- as regards the allegation that Mr Stewart was still properly the party secretary at the time of the RUA's application for registration and that the application was therefore not properly made, the delegate took the view that both the statutory declaration by the current party secretary and ASIC records support the view that Mr Stewart was no longer party secretary at the time of the application.
It is not the role of the AEC to mount an investigation to uncover alleged evidence to then be made available to a dissatisfied RUA member. Where an applicant alleges possible irregularities to support an application for review, it is for the applicant claiming the possible irregularity to provide evidence to support that allegation.
There is no obvious reason why an organisation should not change its constitution or its membership form, from time to time. That would not be a reason to view it as a different organisation after the change.
The responses by the RUA to Mr Stewart's allegations seem, as far as the matters raised relate to an application for party registration under the Electoral Act, to be the account of proceedings that should be preferred by the AEC.
The delegate's decision on 3 February 2012 to register the Rise Up Australia Party is affirmed.
The Hon Peter Heerey AM QC
25 May 2012
25 May 2012
25 May 2012