Scott Morrison and the New South Wales premier, Dominic Perrottet, have failed in a bid to have the high court rule on their power to handpick candidates for the federal election.
On the same day, the high court also refused to hear challenges to the federal Labor intervention in the Victorian branch.
After a dramatic afternoon in court, it is now guaranteed that Labor’s Victorian candidates can contest the federal election, while the NSW Liberals must argue the legality of preselections in the NSW court of appeal.
It comes after an extraordinary application from the attorney general, Michaelia Cash, in support of Morrison and Perrottet, who all called for the dispute to be sent straight to the high court.
The shadow attorney general, Mark Dreyfus, has blasted the move, questioning why “taxpayers are paying for the commonwealth’s most senior lawyer … to go to the high court to take sides in a NSW Liberal party factional war”.
In question time Paul Fletcher, representing the attorney general, answered that the government had followed “protocols” and the case involved “important constitutional questions”.
The NSW Liberal dispute was brought by Sydney businessman Matthew Camenzuli against the preselection of immigration minister, Alex Hawke, in Mitchell; environment minister Sussan Ley, in Farrer; and MP Trent Zimmerman, in North Sydney.
But a ruling in Camenzuli’s favour would also imperil the right of a three-person committee, which includes Morrison and Perrottet, to handpick the candidates in a further five seats.
Morrison and Perrottet asked the high court to remove the entire case from the NSW court of appeal, which is due to hear it on Friday, arguing that a lower court hearing the case would risk ongoing uncertainty as the loser could later appeal to the high court.
Cash applied on Thursday to similarly seek the case to be moved to the high court.
Cash was represented at the hearing by the solicitor general, Stephen Donaghue, who acknowledged he was in a “weak position” because the attorney general had not even decided yet whether to intervene in the case.
Donaghue argued the high court should take the case to resolve inconsistency between decisions of federal courts and courts of appeal about whether internal party disputes are matters on which courts can decide.
This included a constitutional dimension of whether it is within courts’ power to make declarations about whether candidates are validly preselected, he argued.
Chief justice Susan Kiefel described this as a “very tenuous” constitutional question, and warned that the effect would be to delay the matter, as the court of appeal is ready to hear it on Friday.
Donaghue insisted that if there were a constitutional issue, a high court hearing was guaranteed as a matter of right if the attorney general applied for it.
Camenzuli’s counsel, Scott Robertson, found an ingenious solution: the high court could agree to take the case, but then immediately remit it back to the NSW court of appeal for determination exercising federal jurisdiction.
Robertson warned the case was urgent, with the May federal election able to be called as early as the weekend and nominations to close 10 days after the writs were issued. The utility of challenging preselections “diminishes hour by hour, day by day”, he said.
Morrison and Perrottet’s counsel, Guy Reynolds, suggested the court of appeal hearing the case could cause delay by risking a further appeal to the high court, at even later notice.
“You’re not scaring me,” chief justice Kiefel replied drily. “Urgency is a matter we deal with all the time. And you shouldn’t assume special leave would be granted.”
Chief justice Kiefel sided with Camenzuli, ruling the case should be removed to the high court then remitted back to the NSW court of appeal for reasons of “urgency, efficiency and utility”.
A spokesman for Cash said she had “not intervened” in the case and “no view on the merits of either case has been expressed”.
“The application for removal to the high court was merely in recognition of the fact that a serious constitutional issue has been raised that needs to be determined.”
Earlier, Kiefel and justice Stephen Gageler combined to defeat a bid by sections of the Victorian Labor party to overturn the federal intervention in the Victorian branch.
The national executive’s takeover, triggered by allegations of branch-stacking, had twice been upheld by the Victorian supreme court and Victorian court of appeal.
The Health Workers Union secretary Diana Asmar and other allies of the late senator, Kimberley Kitching, sought to challenge the takeover on the basis it disenfranchised Victorian members voting in preselections.
But justices Kiefel and Gageler refused to grant the applicants special leave to appeal from the Victorian court of appeal.
The decision is the end of the line for Asmar, and a win for Labor leader, Anthony Albanese, and national secretary, Paul Erickson, who in 2021 pushed on with preselections in Victoria despite the risk of a court later overturning the intervention.
