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Common(wealth) Knowledge #27: Are political parties unconstitutional?

Updated: Apr 7, 2023

Fact-checking a claim that political parties are illegal under Australia's constitution.

Following the re-election of Victorian Premier Dan Andrews and his Labor government, numerous claims have been made that the election and/or electoral system are fraudulent. Among these claims are that the writs issued by the Governor to dissolve Parliament and call the election were unconstitutional, or that the voting was rigged.

The latter uses arguments similar to those made by Donald Trump and his supporters following the 2020 US election. However, one claim that stood out was that the mere existence of political parties violates the Australian Constitution.

In this edition of Common(wealth) Knowledge, we will take a look at this claim and how it is wrong.

This argument is based on the first paragraph of Section 24 of the Constitution, which states that members of the House of Representatives are to be “directly chosen” by voters.

It is claimed that this means people should be voting for individual candidates, not parties. Among the supporters of this argument are members of The Great Australian Party and the unregistered AustraliaOne party, including the latter’s leader, Riccardo Bosi.

Except this does not mean those candidates can voluntarily choose to join a political party, and many politicians choose to stay independent. At best, this clause can be interpreted to mean that the electoral system should allow people to vote for individual people, not for a party. This is how our system works, and the fact that some voters choose to vote along party lines does not invalidate the system.

In fact, elections in close seats are often determined by ‘swing voters’ who only care about individuals and policies, not party names.

It is somewhat ironic that the people who claim that state-level political parties are unconstitutional are themselves ignorant of the Constitution, because there are multiple ways to prove that political parties are constitutional.

The simplest way is to look at Section 15 of the Constitution, which contains numerous references to political parties. Section 15 deals with filling casual vacancies in the Senate. Casual vacancies arise when a Senator vacates their seat, usually through death or resignation, between elections.

Because Senators represent States, if a casual vacancy arose, the Governor of the relevant State, on the advice of the Premier, after a vote by the State’s Parliament, would appoint a replacement. It was constitutional convention that a replacement from the same party as the vacating Senator would be appointed unless the vacating Senator was an independent.

However, in 1975 Gough Whitlam appointed Senator Lionel Murphy to the High Court of Australia, and Senator Bertie Milliner died. Neither Labor Senator was replaced by someone from Labor, costing Labor their Senate majority. The provision was repealed in a 1977 referendum, and replaced with one that turned the constitutional convention into a constitutional provision. This system recognised that most Senators belonged to political parties, but explicitly states that the Senator is still “chosen by the people of the State.”

But okay, let’s pretend that Section 15 in the Constitution is the one prior to the 1977 amendment. In that case, Section 24 of the Constitution specifically states that it only applies to the House of Representatives in Federal Parliament, which is the wrong level of government, as the claim is about state elections. And more recent State Constitutions explicitly refer to political parties.

The phrase ‘political party’ appears six times in Section 27A of the State Constitution Act 1975 (Vic), which deals with filling casual vacancies in the Victorian Legislative Council, while Section 34 reflects the language of Section 24 of the Australian Constitution. Section 106 of the Constitution protects and preserves State Constitutions from unconstitutional Commonwealth interference. Given that Section 24 only applies to the Federal House of Representatives, it cannot affect the State Constitutions.

Even if we accept that Section 24 is open to interpretation, we can look outside of the Constitution for proof that its framers intended for political parties to exist. The Constitution was written mostly by sitting and former politicians, who belonged to political parties, especially in Victoria and New South Wales, where colonial parties were more formally established than in other colonies. These politicians knew that they had to call an election within three months of Federation, which is why the last paragraph of Section 64 exists, allowing for unelected Ministers to run the country for three months, while the election was being organised.

Although Labor was not completely organised, the NSW Protectionist and Free Trade parties were adopted federally. Their leaders, Edmund Barton and George Reid, had led their parties in NSW, and were both involved with drafting the Constitution. If the framers had not intended for this system of political parties to continue, they would have made this clear.

Just because something is not explicitly mentioned in the Constitution does not mean that it is not part of the government. This series has repeatedly discussed the notion of ‘constitutional conventions,’ especially in Common(wealth) Knowledge #16, which are unwritten constitutional rules. For example, the Prime Minister is not mentioned in the Constitution, and yet exists through conventions handed down to Australia from the UK. The Cabinet isn’t mentioned in the Constitution either. The Federal Executive Council is established in Section 62, and consists of all Ministers and the Governor-General, but most important decisions are made by the Prime Minister and a core group of Ministers, known as Cabinet.

The same can be said of political parties, with the Free Trade and Protectionist parties being similar to the Whig and Conservative parties. This isn’t true for Labor, which predates its British counterpart, instead being partly inspired by the US labour movement, which may be why Labor uses the US spelling of ‘labour.’

Modern Australian political parties are arguably more democratic than the parties present at 1901 election. Many parties give their paying members a say in choosing local candidates. In 2013 Labor changed its caucus rules to give party members a say in who the new leader would be, and other parties have since followed this move.

So, if anything, one could argue that modern Australian political parties are more consistent with the constitutional principles of responsible and representative government than previously, despite what some might say.

Stuart Jeffery is the host of Between Parkes Place and Capital Hill on 6 News. His views on personal social media pages are his & his only, and do not reflect the views of 6 News or our journalists. He abides by 6 News' editorial standards relating to fairness & accuracy.

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