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South Australian Court May be Precedent For NZ

An historic decision handed down by the South Australian Supreme Court over Australian Labour Party (ALP) branch-stacking has caused chaos but could also have ramifications in New Zealand because it could be used as a precedent. John Howard reports.

The court has said 2000 people signed up to the ALP in January this year cannot vote in the preselection of candidates.

Labour MP and former deputy leader, Mr Ralph Clarke, alleged the 2000 people were part of an ochestrated branch-stacking exercise by a faction known as "The Machine" which controls the ALP in South Australia.

At the heart of the case was the question whether the court could make a ruling about the constitution and rules of a voluntary and private organisation such as the ALP.

In his judgment, Justice Mullighan ruled the issues before the court were justiciable in view of their nature and importance.

"The issues concern the governance of the SA branch, the membership and entitlement to vote in the context of serious allegations of allowing large numbers of persons not entitled to vote, to do so in elections," the judgment says.

"I merely observe that the matter is of considerable importance to the party, the SA branch including the sub-branches, the existing membership, including the plaintiff and, in my view, the community, given the status and role of the party and the SA branch in the political life of this country," he said

One senior ALP source said the decision has left the pre-selection process in limbo. "It's just a bloody mess." he said.

The decision that a court can rule on the constitution and rules of a voluntary and private organisation could have ramifications in New Zealand, not only as a precedent, but also through the NZ Bill of Rights Act 1990.

Section 3b of our Act extends its operation to: "any person or body in the performance of any public function, power, or duty conferred or imposed on that person or body pursuant to law."

Public function is not defined but it would seem that any voluntary and private organisation can be operating in a "public function" way such as to bring it sufficiently under the jurisdiction of the NZ Bill of Rights Act and thus the courts.

For instance, it may well be the private banking and financial sector is operating in the manner of a "public function" because they possess a piece of public property - namely a licence to operate a bank under the Reserve Bank Act.

It could be that new ATM banking fees and charges announced recently could be challenged on the basis that some New Zealander's don't have access to a particular bank's ATM machine and it would be unreasonable to charge them for using another bank's ATM in those circumstances.

Under the NZ Bill of Rights Act it could be an "unreasonable seizure" of a customers money through no fault of the customer.

Are bank's a "public body" and are they exercising a "public function?" The courts may have to determine that sooner rather than later. There are many other so-called private and voluntary organisations who may now have to consider their positions, including the political parties.

In any event, lawyers are about now probably reaching for their lawbooks.

ENDS

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