AUSTRALIAN LABOR PARTY

NEW SOUTH WALES BRANCH

INTERNAL APPEALS TRIBUNAL

RE CHARGE BY HARRY STRATTON (NO. 2)

1. On 26 February 2020, Mr Harry Stratton charged the former General Secretary of the
NSW Branch of the Party, Ms Kaila Murnain, with bringing the Party into disrepute as
a consequence of, amongst other things, being investigated by a public authority –
namely, the Independent Commission Against Corruption (“ICAC”) – for improper
conduct. That charge has been the subject of a number of procedural disputes, including
a contest as to whether the Party Officers were permitted under the Rules of the Party
to defer referring the charge to this Tribunal. In accordance with directions made by
the Tribunal, the Party Officers resolved to refer the charge on 25 May 2020. At issue
now is whether the charge should be heard on an expedited basis, as Mr Stratton
submits, or adjourned until such time as ICAC has published its report in respect of the
public inquiry styled “Operation Aero”.

2. In seeking expedition of the matter, Mr Stratton relies on Rule J13(a)(ii), which

provides that “[t]he appellant and the respondent have the right to … [h]ave their case
heard expeditiously.” It should be said at the outset that the right to have a matter heard
expeditiously is not unqualified, in the sense that it does not enjoy primacy over the
rules of procedural fairness, particularly in cases involving serious allegations of
wrongdoing. Nor does it entitle a party, in the absence of special circumstances, to
accelerate the hearing of a charge when there are other matters in the Tribunal’s list
awaiting hearing and determination.

3. Moreover, contrary to Mr Stratton’s submission, the circumstance that the current

pendency of the charge against Ms Murnain has attracted adverse media comment is
not, of itself, a basis for expediting the hearing of that charge. This Tribunal enjoys a
 measure of independence from Party Officers and from holders of elected public office
that distinguishes it from its predecessors. That independence also ensures that the
Tribunal is not swayed by public or media comment from the proper course of hearing
and determining a matter in accordance with the requirements of procedural fairness.
Of course, this Tribunal is part of a political organisation, and it is not within the
mandate of the Tribunal to conduct itself in a manner calculated to damage or reflect
adversely on that political organisation. However, Mr Stratton’s suggestion that until
the charge is determined, the scandal in which Ms Murnain has been ensnared is “a
running sore in NSW Labor’s side” is, at best, a rhetorical flourish, and in any event,
no more than a bare assertion, at least insofar as it is sought to establish that the scandal
is so damaging to the Party that the Tribunal should not await the findings of ICAC
before proceeding with hearing the charge.

4. There is a further point to note. The Party Officers seek to have the determination of
the charge against Mr Murnain deferred until after ICAC has published its findings. In
taking that position, the Party Officers have no doubt formed a political judgment about
the consequences for the Party of deferring the hearing of the charge, as distinct from
proceeding with its resolution in advance of the conclusion of Operation Aero. In the
absence of clear and compelling evidence of harm to the Party, this Tribunal is ill-
placed to substitute its own political judgment for that of those persons whose function
it is to manage the political aspects of the Party’s operations. Mr Stratton offers no
such clear and compelling evidence.

5. To this may be added that contrary to Mr Stratton’s submission, there is a factual

dispute concerning a key aspect of Ms Murnain’s alleged conduct. It concerns whether
or not Ms Murnain relied on the legal advice of the Party’s then solicitors in omitting
to report an illegal donation to the Party. The resolution of that factual dispute may
bear upon whether Ms Murnain’s alleged conduct warrants her expulsion from the
Party. Given that the resolution of that factual question will turn upon an assessment
of Ms Murnain’s credit as a witness before ICAC and of the credit of other individuals,
none of whom this Tribunal will be in any position to observe, the findings of the ICAC
will be crucial to the ultimate determination of the charge.

6. It is true that the Party Rules allow for members to be charged and subject to sanctions
whilst they are being investigated by a public authority for improper conduct.
 However, it does not follow from this that where the investigation discloses a factual
dispute, the Tribunal is bound to proceed with resolving that factual dispute on its own.
This is especially the case where the allegations against the relevant Party member are
serious and a decision by the Tribunal might inflict grave reputational harm on him or
her.

7. The Tribunal is accordingly satisfied that in the exercise of its discretion with respect
to questions of what may be termed case management, it should defer the hearing of
the charge against Ms Murnain until such time as ICAC has published its findings on
the matters the subject of Operation Aero.