State Regulation and the Internal Organisation of Political Parties: The Impact of Party Law in Australia, Canada, New Zealand and the United Kingdom

Abstract

This paper presents a comparative analysis of the extent to which party law influences the internal organisation of parties in four Commonwealth common law states: Australia, Canada, New Zealand and the United Kingdom. The research engages with recent comparative party literature that emphasises the increasingly close relationship between political parties and the state, in particular the cartel party thesis. My findings indicate that over the last few decades parties have become subject to greater legal regulation, which supports the claim that parties are now managed more closely by the state. However, it is important to distinguish between legislative and common law (judicial) regulation, as each has a different impact on the organisational autonomy of the cartel party. I argue that parties (as autonomous actors and the authors of parliamentary decrees) have been able to shape legislative regulation to their advantage by eliciting significant financial support from the state, yet minimising the corresponding degree of legislative intrusion into their internal activities. However, cartel parties have not been able to prevent judicial scrutiny of their internal workings, and have lost a significant degree of organisational independence as principles of administrative law (usually reserved for state bodies) are being increasingly applied to their structure and behaviour.

Notes

1. For example, the New Zealand constitution comprises of the Constitution Act 1986, the New Zealand Bill of Rights Act 1990, the Electoral Act 1986, the Treaty of Waitangi, the Standing Orders of the House of Representatives, and various conventions.

2. Nonetheless, the state provides other important benefits that amount to significant subsidies such as free postage to candidates, tax credits and broadcasting time.

3. The Representation of the People Bill 1968–69 attempted to register political descriptions, but was opposed by the Conservatives as it did not fit with the party's structure and would make registration of all the party's constituent organisations impractical.

4. This provision was inserted to overcome the problem of candidates adopting similar names to the parties to confuse electors. For example, in one instance a candidate stood as a Literal Democrat (Sanders v Chichester (1994) SJ 225).

5. Given the significance of the judicial interpretation of parties' place in society and importance in influencing subsequent judgments, I have directly quoted from some judgments at greater than usual length to preserve the accuracy and tenor of these interpretations.

6. See John v Rees 1970 Ch 345, in which Megarry J simply adopted the contract theory used in the trade union case of Lee v Showmen's Guild of Great Britain; Lewis v Heffer 1978 1 WLR 1061.

7. The principle was more recently upheld in Weir v Hermon 2001 NICh 8. See also Mortimer and Ors v Labour Party; Ch D (Parker J) 14 January 2000 (unreported).

8. The Act defines the term ‘political party’ and contains provisions for the registration of parties, the nomination of party candidates and the provision of public funding.

9. This reasoning was subsequently followed in Clarke v ALP 1999 SASC 365, a case concerning ‘branch-stacking’ within the South Australian Labor Party.

10. Baldwin v Everingham was followed by the New South Wales Supreme Court in Thornley v Heffernan (Unreported, Brownie J, 25 July 1995); Sullivan v Della Bosca 1999 NSWSC 136 (3 March 1999), Clarke v ALP, and Tucker v MacDonald unreported, Supreme Court of Queensland (Muir J) 3 August 2001 (BC 200105064).

11. Subject to the principle of ‘good administration’. For example, immediate suspension pending an inquiry does not require a hearing. See Lewis v Heffer 1978 1 WLR 1061 at 1073 per Lord Denning MR.