The common law as a driver to changes to the rules of the Victorian Labor Party (1906–1981)

Tristan L Cockman

This thesis studies the relationship between the common law and the rules of the Victorian Labor Party (‘Party’). It aims to determine whether, and if so how, the common law may have driven the Party to change its rules. In particular, this thesis focuses on legal disputes relating to the rules of unincorporated voluntary associations, or otherwise involving the Party, between 1906 and 1981. This period is broken down into three smaller periods – 1906 to 1933, 1934 to 1954 and 1955 to 1981. This is because these periods correspond to periods of change in the Australian common law on the question of whether disputes relating to the rules of such associations are justiciable. The question of whether disputes relating to the rules of unincorporated voluntary associations are justiciable is central to the analysis in this thesis. Prior to 1934, the Australian and English courts were united, both accepting that disputes relating to the rules of associations were justiciable. In 1934, the Australian common law diverged from English common law, finding that such disputes were not justiciable. Then, from approximately 1955, the Australian Supreme Courts began to accept that such disputes could be justiciable, influenced largely by the English common law. Consequently, this thesis will include a comparison of the Australian and English common law on the question of justiciability relating to each of the three periods. It will also consider Australian Supreme Court decisions from 1955. The analysis in this thesis shows many examples of where the common law may have driven the Party to change its rules and that such rule changes appear to have occurred across all three periods. Some rule changes could have been in response to questions of law that arose in specific legal cases. Other rule changes could have been deliberate attempts by the Party to frustrate the ability of members to bring legal action. The analysis also reveals that the rule changes tended to centralise power and control, possibly for the purpose of further avoiding members bringing legal action. The findings suggest that political parties take steps to change their rules in an attempt to avoid the courts’ interference, or potential interference, in their internal disputes.

The common law as a driver to changes to the rules of the Victorian Labor Party (1906–1981)

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