Although an increasing number of election candidates are independents, with no ties to political parties, most successful candidates are members of political parties. The stability of Australian voting patterns means that the Labor, Liberal and National parties each win certain lower house electorates, so-called ‘safe seats’, at nearly every election. These parties are also guaranteed of winning a number of Senate places.
In safe seats, the greatest contest in an election is over who will become the winning party’s candidate. The rules for these preselection contests vary from party to party and among its state and territory branches.
Hot Tip: Preselection
Preselection is the process by which a party selects official candidates to run for it at particular elections.
Apart from the issues of who may nominate for a preselection contest and which members are eligible to vote, the main point of difference is the composition of the body that selects the candidate (the selectorate). Some examples are given in the following table:
|1. Ballot of eligible local party members||NSW Branch of the ALP for House of Representatives candidates.|
|2. Delegates from local branches vote||NSW Division of the National Party for House of Representatives candidates.|
|3. Local members and a central panel drawn from other parts of the party vote||Victorian Branch of the Liberal Party for House of Representatives candidates.|
|4. Local delegates and a central panel drawn from other parts of the party vote||SA Branch of the ALP for House of Representatives candidates.|
|5. Members of a state convention or conference vote.||Queensland Branch of the ALP for Senate candidates.|
The most common types of major party preselection panels in House of Representatives elections are types 3 and 4 in the table. Local party members or their delegates have some say in who their party’s candidate will be. This say is balanced by votes from a central panel drawn from other branches, members of the party executive, parliamentarians and, in the case of the ALP, delegates of trade unions formally affiliated with the party. The most common Senate preselection panels are type 5, in which delegates meeting at a state-wide conference vote to decide who their Senate candidates will be.
Critics of preselections based solely on branch members' votes argue that this process encourages ‘branch stacking’. Branch stacking occurs when large numbers of members with no real interest in a party are signed up just to support a particular preselection candidate, sometimes in return for expected favours if that candidate wins a seat. Critics of preselections in which a central panel has a large say, argue that this process can preselect candidates who have no real connections with, or feel for, the seat they are contesting.
In each of these types of preselection, decisions about who will contest (and therefore win) safe seats are often taken by no more than a few hundred people, often meeting in private.
In recent years, a number of political parties have experimented with preselection contests in which members of the local community who are not party members may also vote. Commonly called ‘community preselections’, these contests have been trialled in a handful of seats by the Victorian ALP, the NSW National Party and by the NSW Branch of the Labor Party. The NSW National’s community preselection for the NSW State Parliament seat of Tamworth in 2010 attracted 4,293 voters (or 10 per cent of the electorate).
Preselection and the Law
Some commentators argue that Australian electoral law should focus more on how people become preselected as candidates for their parties. Until recently, the law treated Australian political parties essentially as private bodies, voluntary organisations whose internal arrangements were not the business of courts. This treatment, and the legal arguments for it, rested on the High Court’s 1934 judgment in Cameron v Hogan  HCA 24; (1934) 51 CLR 358. The political parties were happy to determine their own affairs away from the courts. Unsuccessful candidates for preselection were expected to accept internal party decisions, even when they appeared unfair or against the party’s rules.
Since the Queensland Supreme Court’s 1993 judgment in Baldwin v Everingham, the courts have begun to develop a new position on the reach of the law into political parties. This new position rests on the fact that political parties are now registered for public funding under the Commonwealth Electoral Act (see Party registration and funding). They are required to lodge their constitutions as part of their registrations. The courts, while continuing to acknowledge Hogan v Cameron, have argued that this statutory recognition brings with it a public interest in the enforcement of internal party rules.
Baldwin won his case, which was that he was wrongly excluded from a Liberal preselection; however, he did not recontest the preselection. In 1999, South Australian MP Ralph Clarke won two cases against the ALP that forced the ALP to rerun the preselection for Clarke’s electorate (see box). As a result of these cases, the parties now recognise that their preselection practices are open to legal scrutiny and challenge. In September 2012, the NSW Branch of the Liberal Party was forced to postpone its Annual General Meeting following a writ issued by the NSW Supreme Court in a legal battle over preselection reform within the party.
The Clarke v ALP cases
Ralph Clarke, Member for Ross Smith in the South Australian House of Assembly and a former Deputy Parliamentary Leader of the Labor Party in South Australia, lost a 1999 preselection for his seat for the forthcoming South Australian state election. He took the ALP to the South Australian Supreme Court on two occasions later in the year, alleging that 2000 new members had joined the ALP in South Australia in January 1999. Without fulfilling a six month membership requirement, these new members participated in electing delegates to the Convention at which Clarke lost his preselection.
When Clarke and another member raised the matter within the ALP, it was not properly investigated or resolved. Instead, the ALP state executive proposed to change party rules retrospectively to allow the invalid memberships to stand. The Court found in Clarke’s favour, against the retrospective rule change and finding that the new members should not have participated in electing convention delegates.
In the second case, the Court found against another plan by the party executive to hold a new preselection convention involving only delegates appointed in 1997. This would have excluded legitimate members who joined after 1997. In a recontested preselection held as a result of the court cases, Clarke lost to another candidate. The legal costs awarded against the ALP in the cases were estimated at around $250,000.
Clarke v ALP (SA Branch)  SASC 365, Clarke v ALP (SA Branch)  SASC 415, Costs decision Clarke v ALP (SA Branch)  SASC 433.
Some commentators and politicians argue that the law should go further than simply enforcing current party rules. They argue that the law should prescribe particular types of democratic preselection. This is the case in democracies such as New Zealand and Germany, which prescribe that registered political parties and preselections must be internally democratic, as well as the United States where political parties are mandated by law to conduct open primaries in order to select candidates for public office.
Political parties’ preselection contests in Australia are exempt from anti-discrimination legislation such as the Sex Discrimination Act 1984(Cth). This allows political parties to implement affirmative action measures to increase the number of women selected as candidates in winnable seats. Initiatives such as the ALP’s 40:40:20 rule (in which at least 40 per cent of all party positions, including public office positions, should be held by women) have increased the presence of women in the Parliament. However, they have not been supported by all Australian parties.
Questions for Discussion
- What are the advantages and disadvantages of making the requirements for nominating as an election candidate more stringent?
- Should parties have been left to run their own preselections, including dealing with any disputes over party rules, or is legal action in the courts a legitimate means of ensuring fairness in preselections?
- Should the law force parties to adopt particular approaches to preselections, such as adopting community preselections or ballots in which all party members vote?
- Is the application of affirmative action measures to party preselection an appropriate way to increase the presence of women and minorities in public office?