A fortnight ago, New Matilda published a three-part series by Michael Brull on a pre-selection battle within the Greens NSW. One of the lawyers who advised on that battle, Brian Walters, responds.
In the middle of an internal Greens pre-selection, Michael Brull, a Greens member, has written for New Matilda a series of articles attacking a candidate – Cate Faehrmann.
As he must know, candidates for pre-selection are not permitted to speak to journalists, and therefore have no right of reply. It is an archetypal act of cowardice to attack a person who is unable to defend herself. Brull bases his farrago on a bizarre series of falsehoods.
The articles arise from proceedings in the Supreme Court of New South Wales seeking an urgent interpretation of the NSW Greens constitution. The case is reported here.
On 5 February 2018, Cate Faehrmann transferred her Victorian Greens membership to New South Wales. She wanted to stand for pre-selection for the Legislative Council.
She was a paid up member of the Greens in Victoria. She had previously been a member of the Greens in NSW and served there as a Greens Legislative Councillor from 2010 to 2013.
Astonishingly, Alex van Vucht, the membership officer of the Greens in NSW, treated Cate Faehrmann’s transferred membership as merely provisional for three months, thus denying her the right to nominate for pre-selection before the close of nominations on 9 April 2018. This was contrary to the constitution of the NSW Greens and the constitution of the Australian Greens.
To break the impasse, Cate Faehrmann sought legal advice.
I was one of those who advised, in a written advice provided to the Greens NSW, that there was no basis for treating her membership as provisional. Similar advice was rendered by a senior solicitor in New South Wales.
Neither the membership officer nor the Greens NSW obtained any contrary advice.
Ultimately, Cate Faehrmann sought a ruling on the correct interpretation of the constitution from the NSW Supreme Court (I was not involved in that proceeding). The court ruled comprehensively in her favour.
Mr Brull repeatedly asserts that Cate Faehrmann was attempting to change the constitution. That is patently false. Cate Faehrmann was seeking to have the terms of the constitution obeyed. That was the whole point of the advice and of the subsequent legal proceeding.
The matter was taken to the Greens NSW State Delegates Council (‘SDC’). Mr Brull writes that the SDC was ‘was able to have a say about whether the rules should be changed. The membership declined to do so.’ This is not true. There was no decision to ‘decline’ to have a say, and nor was there any question of changing the rules. Rather, the position was that the issue of interpreting the constitution was deadlocked, and no decision was forthcoming.
As Hon Justice Ward, Chief Equity Judge of the NSW Supreme Court, put it to counsel for the NSW Greens:
There was no decision. So if there’s no decision, what does somebody do? If a dispute is to be resolved by the delegates council and the delegates council is unable to resolve it, they’re just left in limbo, are they?
Mr Brull goes on to assert about this process that ‘Greens processes had been followed and Faehrmann had lost’. This is a blatant reinvention of history. As Justice Ward’s judgment states:
… there was ultimately no determination by the SDC as to the proper Interpretation of the constitution. The SDC neither resolved to determine in favour of the construction put forward by Ms Faehrmann nor resolved to determine in favour of the construction put forward by the Membership Officer.
Leaving aside the question whether members of The Greens NSW would be bound by an incorrect interpretation of the constitution were that to be adopted by the SDC, the fact is that the dispute as to the interpretation of the constitution on the issue in question has not been able to be determined by resolution of the SDC.
Mr Brull’s narrative is one of hardworking party members following process and Cate Faehrmann blindly taking the party to court to pursue her own selfish agenda. Brull implies that Cate Faehrmann was seeking an ‘exception’ to the rules and asking office bearers to ‘bend the rules’. He writes ‘people who determine the rules – the officer bearers – are not supposed to have the autonomy to make exceptions, to help people out if they’re well-connected or prominent.’
Cate Faehrmann was not seeking an exception to the rules, rather the correct application of them. It is of course wrong for office bearers to bend the rules to prevent a legitimate candidate from running.
Brull criticises Cate Faehrmann for not trying mediation. Why should she, especially when she faced an urgent deadline? She had already handed over legal advice. The office bearers had made no attempt to obtain any contrary advice, but rather maintained a bull-headed persistence in abusing the constitution. As Justice Ward put it:
… it is difficult to see what scope there would have been for a mediated resolution of the dispute in the present case. You either agree that the rules allow for Greens members to transfer from another state as full members or not.
In the Supreme Court proceedings, lawyers for the Greens NSW (presumably on instructions), perhaps desperate to avoid the obvious wording of the constitution, tried to rely not on the published version of the constitution, but rather on a version of the constitution that sat with Fair Trading and was last updated in 2002. The judge rejected this attempt, but said that the relevant provisions were not materially different anyway, and the same result would have come from the older document.
Office bearers of the Greens NSW went to great lengths to stop Cate Faehrmann from running for pre-selection, risking the party’s reputation and finances in the courts.
Brull’s attack looks like a last desperate attempt of the NSW old guard to protect its patch. It is a nasty coda to very poor behaviour by NSW Greens office bearers.
Hopefully, at some time in the future, Cate Faehrmann will have an opportunity to comprehensively respond.
* New Matilda editor Chris Graham is preparing a response to this article over the weekend.
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