My draft submission to the Greens has been blown off course by the resignation of Alex Bhathal from the Greens. You can read about that here, here, here, here and here.
I was aware of the possibility that Alex might be taking legal action against the Greens and have therefore for some time been trying not to comment on Alex's situation, although it was that situation that sparked my plan to do a submission in a sense. I had pretty much given up worrying about my own poor treatment by the Greens, and had continued to support the party for policy reasons, until I saw what was happening to Alex last year and thought I could not stand by and let this go.
Alex's resignation means I need to rethink my position. Should I continue with this submission, or should I be calling for a new party, because the Greens are - currently - a lost cause? I've talked about this with various family and friends, and I don't have a clear view.
In the meantime, I will just paste here the most recent readings and notes from preparing my submission, without trying to write them up properly. I think they are still relevant, and hopefully I will have time and inclination to extract the key points in another post soon.
Notes for (possible) submission:
Anika Gauja 'The Legal Regulation of Political Parties: Promoting Integrity?' Election Law Journal 15(1) 2016
- introduction to issue of journal on this topic
- "Together, the articles in this symposium strive to draw deeper connections (through both theoretical and empirical approaches) between the intentions, the substance, and the effect of party laws, build- ing on the concept of ‘‘electoral integrity’’ as an overarching heuristic device (Norris 2014; 2013). Grounded in international commitments and global norms, electoral integrity can be defined as the ‘‘universal standards that apply to all countries worldwide throughout the electoral cycle, including during the pre-electoral period, the campaign, on polling day, and in its aftermath’’ (Norris 2014: 9). A prominent example is the requirement set out in Article 21(3) of the Universal Declaration of Human Rights (1948), which provides that: ‘‘the will of the people shall be the basis of the authority of government; this will shall be expressed in peri- odic and genuine elections which shall be by univer- sal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures’’ (see also Davis-Roberts and Carroll 2014: 21–24). While the concept lends itself to the evaluation of a multi-stage electoral process (see Norris 2014: 34), the authors in this symposium have been asked to focus specifically on how these norms of regulation affect the operation of political parties in a diverse range of democratic settings (for exam- ple, as voluntary associations, as electoral competi- tors, and as legislative groupings) and across their various functions" p 1
-
- Discusses article by Cross which looks at internal party regulation and idea that representation should be encouraged or regulated (sees regulation as too limiting?)
Anika Gauja 'The Legal Regulation of Political Parties: Is There a Global Normative Standard?' Election Law Journal 15(1) 2016
"Given the diversity of regulation across the globe, the primary objective of the analysis is to determine whether there is a consistent set of universally ac- cepted principles that govern the regulation of polit- ical parties (particularly as electoral actors), and where there is not, to determine the opposing prin- ciples and competing rights that are at play" p 5
- Elections a partic concern inc "free" vs "fair" elections, finance in elections
- "core values such as equality, liberty, participation/deliberation, and integrity are still actively contested" p 6
- Concept of free elections reasonably well understood and regulated, fair elections (including conduct/regulation of parties) not so much
- "the role and place of political parties in demo- cratic societies have always been contested" p 7
- "For example, should party government be privi- leged at the expense of assemblies of independent legislators? Are political parties voluntary associa- tions—free to determine their structure, or should a particular organizational form be imposed upon them?" P 7
- Looking at international law, there appear to be clear regulations on conduct of elections but not so much on conduct of political parties
- Only two binding international treaties specifically mention political parties
- "one report from the UN Human Rights Committee mentions political parties— acknowledging their existence insofar as they facil- itate the individual freedoms of political association and expression provided for in Article 25 of the ICCPR.6" p 8, and there are several other reports from international orgs (found about 6 in total)
- Generally parties seen as important in ensuring participation and representation
- "most pro- lific source of international principles on the legal regulation of political parties is found within elec- tion handbooks." P 8 , tend to be from NGOs, found 25 sources
- "Are there consistent international standards for the regulation of political parties?
The international documents that contain men- tion of political parties do so in the context of five main aspects of the electoral contest that cut across stages in the electoral process: freedom of politi- cal association, freedom of political expression, electoral competition, public funding and state sub- sidies, and political finance. The role and accep- tance of parties within each of these five elements varies between sources, as do the regulatory pre- scriptions that follow" p 9
"The role of political parties as facilitators in en- abling individuals to exercise their freedom of polit- ical association and expression is the most accepted global norm" p 9
Also appears to be some norm around the need for electoral competition, therefore multiple parties, hence an "open and inclusive" process of party regulation p 9
- there are issues around conflicting needs for open and inclusive processes and the need to ban or restrict unacceptable or "frivolous" parties p 10
Issues around public funding - lack of clear norms in this area
However general norms around party accountability and transparency of funding, and at least the possibility of limiting or capping finance (eg donations)
"The internal organization of political parties is a dimension of party politics that is left virtually un- touched by international norms and standards. None of the public international law documents in the Carter Database prescribes a particular organi- zational form or any standards of international best practice for matters relating to membership, in- ternal party decision making such as candidate
or leadership selection, as well as policymaking— activities that could all be regarded as core functions of political parties in representative democracies. The closest international law comes to setting stan- dards for the internal organization of parties is the requirement that political parties embrace equal op- portunity and endeavor to balance the number of male and female candidates. States must take appro- priate measures to ensure that political parties do not discriminate against women.24 Hence [author suggests there is a norm that]:
9. Political parties should be supported through appropriate regulatory measures to facilitate gender parity in candidate selection and equal access to public office.
[although there seems to be no positive regulation around this nor enforcement]
There is no general requirement that candidate or leadership selection should be inclusive, nor for that matter any suggestions that party organizations be internally democratic." P 11
Overall:
"The source and scope of international public law standards
A number of interesting findings arise from an analysis of international public law contained in the Carter Database concerning the legal regulation of political parties. The first is that binding interna- tional standards found in treaties and interpretive sources are extremely rare and have only been utilized by states with very limited or no experience of stable party systems, for example the CIS and the AU. The bulk of international norms come from state-level documents and reports authored by re- gional bodies such as the EU and a variety of NGOs. The second finding is that within this body of law there is general agreement upon the regula- tion of parties in a number of areas. Political parties should be recognized in facilitating the individual freedoms of political expression and association, that regulation should seek to establish minimum levels of party competition, that state support consistent with the principles of equality may be provided to parties, that party finance should be transparent and may be legitimately restricted, and finally that political parties should encourage the equal representation of women. All of these princi- ples are expressed in broad terms, however, and very few detailed prescriptions are made with re- spect to the specific type of regulatory measures (for example, provisions for registration and levels of expenditure caps). These are matters for individual states to determine. In addition, international law con- tains practically no standards that relate to the internal organization and form of political parties." P 11-12
The Carter database does not include constitutions and state docs so have looked more generally at these as illustrative of differences and tensions. Eg many constitutions don't mention parties, but German constitution specifies that they should be "freely established" and that their organisation should "conform to democratic principles" (response to Nazism) cited p 12
"This type of con- stitutional provision is common to other states with previous experiences of authoritarian and fascist re- gimes." P 13
Similar provisions may be found in "developing and transitional" democracies p 13
"In this context, parliamentary common law states, such as the U.S. and the U.K., as well as Canada, Australia, and New Zealand, now appear as curious outliers (Gauja 2010: 24–5). In one sense, this omis- sion could be seen as a response to practical consid- erations: political parties were not significant organizational entities at the time when many of the first influential constitutional documents were drafted. It might also be viewed as a product of ‘‘min- imalist’’ constitutional designs as mechanisms for preserving flexibility in the design and regulation of future forms of representative democracy (Gauja 2010: 28). However, debates surrounding the inclu- sion/omission of political parties from constitutional documents also reveal the dominant social attitudes towards parties at the time: parties were viewed negatively and not seen as appropriate or desirable constitutional actors worthy of codification. The
dominant ideals of legislative independence— including the influence of Burkean notions of rep- resentative democracy stood in tension with the concept of party government. " p 13
Comment: there is little in the article that relates to membership. The requirements for "democratic principles" are probably the only relevant sections and as shown in the article these seem to be mainly found in countries which have had relatively recent experience of fascist or non-democratic government. The older democracies, which have evolved, don't seem to have considered these issues much. Within these countries, as discussed in my own research in Australia, there is a conflict between democratic and egalitarian principles, and an inherited tradition of top-down, hierarchical, white male dominated forms of governance.
William P Cross 'Considering the Appropriateness of State Regulation of Intra-Party Democracy: A Comparative Politics Perspective' Election Law Journal 15(1) 2016
This article considers the pros and cons of state regulation to ensure internal democracy, however it is not concerned to define internal democracy broadly and is mainly concerned with processes for candidate selection and leadership rather than more general internal party organisation and conduct. However it cites relevant sources
"There has been a considerable amount written in recent years regarding state regulation of political parties. The most comprehensive study is that led by van Biezen at Leiden University. This project finds an increase in the regulation of political parties and notes that ‘‘many of these regulations were first introduced or were substantially extended in the wake of the introduction of public funding for par- ties’’ (van Biezen and Romee Piccio 2013: 27). Some of these regulations are purely administrative in the sense that if parties are to receive taxpayers’ dollars there must be some minimal regulatory scheme in place to oversee things such as qualifica- tion as a party, public registration, eligibility for financing and perhaps expenditure disclosure require- ments. As van Biezen and Romee Piccio (2013: 27) note, while regulation of party affairs was initially ‘‘limited to the organization of the electoral pro- cess . In recent years, however, the state has in- creased its propensity to intervene in both the external and internal manifestations of party politics" p 22
...
" The internal regulation of parties concerns state rules dictating both how parties organize themselves and how they make their internal decisions. Because parties are key players in public life, and in general elections, the distinction between their internal and external activities is not always clear. Van Biezen and Romee Piccio (2013: 35) describe the internal regulation of parties as state prescription of the in- ternal channels of accountability, the composition of internal organs, the frequency of party meetings, voting and election procedures, rights and duties of party members, eligibility for party membership, and the type and form of organizational structure. In their comprehensive survey of European democ- racies, they find that while ‘‘a considerable number of party laws make explicit reference to the various aspects of intra-party democracy,’’ they generally leave it to the parties themselves ‘‘to elaborate spe- cific rules in their internal party structures’’ (38). In this way, the state signals that it sees internal party democracy as a virtue deserving to be ‘‘elaborated in greater detail in party statutes, while at the same time keeping away from infringing upon their autonomy and freedom of association by not legally prescribing specific directives.’’ Thus, they find that ‘‘party laws tend to assign the prerogative to outline the precise details of intra-party processes to the party statutes, rather than regulating them di- rectly’’ (48). "
The question for my discussion however is not centrally about whether and how far the state should be regulating parties, however, but what are the norms and principles of internal democracy and are they being implemented in practice?
I was aware of the possibility that Alex might be taking legal action against the Greens and have therefore for some time been trying not to comment on Alex's situation, although it was that situation that sparked my plan to do a submission in a sense. I had pretty much given up worrying about my own poor treatment by the Greens, and had continued to support the party for policy reasons, until I saw what was happening to Alex last year and thought I could not stand by and let this go.
Alex's resignation means I need to rethink my position. Should I continue with this submission, or should I be calling for a new party, because the Greens are - currently - a lost cause? I've talked about this with various family and friends, and I don't have a clear view.
In the meantime, I will just paste here the most recent readings and notes from preparing my submission, without trying to write them up properly. I think they are still relevant, and hopefully I will have time and inclination to extract the key points in another post soon.
Notes for (possible) submission:
Anika Gauja 'The Legal Regulation of Political Parties: Promoting Integrity?' Election Law Journal 15(1) 2016
- introduction to issue of journal on this topic
- "Together, the articles in this symposium strive to draw deeper connections (through both theoretical and empirical approaches) between the intentions, the substance, and the effect of party laws, build- ing on the concept of ‘‘electoral integrity’’ as an overarching heuristic device (Norris 2014; 2013). Grounded in international commitments and global norms, electoral integrity can be defined as the ‘‘universal standards that apply to all countries worldwide throughout the electoral cycle, including during the pre-electoral period, the campaign, on polling day, and in its aftermath’’ (Norris 2014: 9). A prominent example is the requirement set out in Article 21(3) of the Universal Declaration of Human Rights (1948), which provides that: ‘‘the will of the people shall be the basis of the authority of government; this will shall be expressed in peri- odic and genuine elections which shall be by univer- sal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures’’ (see also Davis-Roberts and Carroll 2014: 21–24). While the concept lends itself to the evaluation of a multi-stage electoral process (see Norris 2014: 34), the authors in this symposium have been asked to focus specifically on how these norms of regulation affect the operation of political parties in a diverse range of democratic settings (for exam- ple, as voluntary associations, as electoral competi- tors, and as legislative groupings) and across their various functions" p 1
-
- Discusses article by Cross which looks at internal party regulation and idea that representation should be encouraged or regulated (sees regulation as too limiting?)
Anika Gauja 'The Legal Regulation of Political Parties: Is There a Global Normative Standard?' Election Law Journal 15(1) 2016
"Given the diversity of regulation across the globe, the primary objective of the analysis is to determine whether there is a consistent set of universally ac- cepted principles that govern the regulation of polit- ical parties (particularly as electoral actors), and where there is not, to determine the opposing prin- ciples and competing rights that are at play" p 5
- Elections a partic concern inc "free" vs "fair" elections, finance in elections
- "core values such as equality, liberty, participation/deliberation, and integrity are still actively contested" p 6
- Concept of free elections reasonably well understood and regulated, fair elections (including conduct/regulation of parties) not so much
- "the role and place of political parties in demo- cratic societies have always been contested" p 7
- "For example, should party government be privi- leged at the expense of assemblies of independent legislators? Are political parties voluntary associa- tions—free to determine their structure, or should a particular organizational form be imposed upon them?" P 7
- Looking at international law, there appear to be clear regulations on conduct of elections but not so much on conduct of political parties
- Only two binding international treaties specifically mention political parties
- "one report from the UN Human Rights Committee mentions political parties— acknowledging their existence insofar as they facil- itate the individual freedoms of political association and expression provided for in Article 25 of the ICCPR.6" p 8, and there are several other reports from international orgs (found about 6 in total)
- Generally parties seen as important in ensuring participation and representation
- "most pro- lific source of international principles on the legal regulation of political parties is found within elec- tion handbooks." P 8 , tend to be from NGOs, found 25 sources
- "Are there consistent international standards for the regulation of political parties?
The international documents that contain men- tion of political parties do so in the context of five main aspects of the electoral contest that cut across stages in the electoral process: freedom of politi- cal association, freedom of political expression, electoral competition, public funding and state sub- sidies, and political finance. The role and accep- tance of parties within each of these five elements varies between sources, as do the regulatory pre- scriptions that follow" p 9
"The role of political parties as facilitators in en- abling individuals to exercise their freedom of polit- ical association and expression is the most accepted global norm" p 9
Also appears to be some norm around the need for electoral competition, therefore multiple parties, hence an "open and inclusive" process of party regulation p 9
- there are issues around conflicting needs for open and inclusive processes and the need to ban or restrict unacceptable or "frivolous" parties p 10
Issues around public funding - lack of clear norms in this area
However general norms around party accountability and transparency of funding, and at least the possibility of limiting or capping finance (eg donations)
"The internal organization of political parties is a dimension of party politics that is left virtually un- touched by international norms and standards. None of the public international law documents in the Carter Database prescribes a particular organi- zational form or any standards of international best practice for matters relating to membership, in- ternal party decision making such as candidate
or leadership selection, as well as policymaking— activities that could all be regarded as core functions of political parties in representative democracies. The closest international law comes to setting stan- dards for the internal organization of parties is the requirement that political parties embrace equal op- portunity and endeavor to balance the number of male and female candidates. States must take appro- priate measures to ensure that political parties do not discriminate against women.24 Hence [author suggests there is a norm that]:
9. Political parties should be supported through appropriate regulatory measures to facilitate gender parity in candidate selection and equal access to public office.
[although there seems to be no positive regulation around this nor enforcement]
There is no general requirement that candidate or leadership selection should be inclusive, nor for that matter any suggestions that party organizations be internally democratic." P 11
Overall:
"The source and scope of international public law standards
A number of interesting findings arise from an analysis of international public law contained in the Carter Database concerning the legal regulation of political parties. The first is that binding interna- tional standards found in treaties and interpretive sources are extremely rare and have only been utilized by states with very limited or no experience of stable party systems, for example the CIS and the AU. The bulk of international norms come from state-level documents and reports authored by re- gional bodies such as the EU and a variety of NGOs. The second finding is that within this body of law there is general agreement upon the regula- tion of parties in a number of areas. Political parties should be recognized in facilitating the individual freedoms of political expression and association, that regulation should seek to establish minimum levels of party competition, that state support consistent with the principles of equality may be provided to parties, that party finance should be transparent and may be legitimately restricted, and finally that political parties should encourage the equal representation of women. All of these princi- ples are expressed in broad terms, however, and very few detailed prescriptions are made with re- spect to the specific type of regulatory measures (for example, provisions for registration and levels of expenditure caps). These are matters for individual states to determine. In addition, international law con- tains practically no standards that relate to the internal organization and form of political parties." P 11-12
The Carter database does not include constitutions and state docs so have looked more generally at these as illustrative of differences and tensions. Eg many constitutions don't mention parties, but German constitution specifies that they should be "freely established" and that their organisation should "conform to democratic principles" (response to Nazism) cited p 12
"This type of con- stitutional provision is common to other states with previous experiences of authoritarian and fascist re- gimes." P 13
Similar provisions may be found in "developing and transitional" democracies p 13
"In this context, parliamentary common law states, such as the U.S. and the U.K., as well as Canada, Australia, and New Zealand, now appear as curious outliers (Gauja 2010: 24–5). In one sense, this omis- sion could be seen as a response to practical consid- erations: political parties were not significant organizational entities at the time when many of the first influential constitutional documents were drafted. It might also be viewed as a product of ‘‘min- imalist’’ constitutional designs as mechanisms for preserving flexibility in the design and regulation of future forms of representative democracy (Gauja 2010: 28). However, debates surrounding the inclu- sion/omission of political parties from constitutional documents also reveal the dominant social attitudes towards parties at the time: parties were viewed negatively and not seen as appropriate or desirable constitutional actors worthy of codification. The
dominant ideals of legislative independence— including the influence of Burkean notions of rep- resentative democracy stood in tension with the concept of party government. " p 13
Comment: there is little in the article that relates to membership. The requirements for "democratic principles" are probably the only relevant sections and as shown in the article these seem to be mainly found in countries which have had relatively recent experience of fascist or non-democratic government. The older democracies, which have evolved, don't seem to have considered these issues much. Within these countries, as discussed in my own research in Australia, there is a conflict between democratic and egalitarian principles, and an inherited tradition of top-down, hierarchical, white male dominated forms of governance.
William P Cross 'Considering the Appropriateness of State Regulation of Intra-Party Democracy: A Comparative Politics Perspective' Election Law Journal 15(1) 2016
This article considers the pros and cons of state regulation to ensure internal democracy, however it is not concerned to define internal democracy broadly and is mainly concerned with processes for candidate selection and leadership rather than more general internal party organisation and conduct. However it cites relevant sources
"There has been a considerable amount written in recent years regarding state regulation of political parties. The most comprehensive study is that led by van Biezen at Leiden University. This project finds an increase in the regulation of political parties and notes that ‘‘many of these regulations were first introduced or were substantially extended in the wake of the introduction of public funding for par- ties’’ (van Biezen and Romee Piccio 2013: 27). Some of these regulations are purely administrative in the sense that if parties are to receive taxpayers’ dollars there must be some minimal regulatory scheme in place to oversee things such as qualifica- tion as a party, public registration, eligibility for financing and perhaps expenditure disclosure require- ments. As van Biezen and Romee Piccio (2013: 27) note, while regulation of party affairs was initially ‘‘limited to the organization of the electoral pro- cess . In recent years, however, the state has in- creased its propensity to intervene in both the external and internal manifestations of party politics" p 22
...
" The internal regulation of parties concerns state rules dictating both how parties organize themselves and how they make their internal decisions. Because parties are key players in public life, and in general elections, the distinction between their internal and external activities is not always clear. Van Biezen and Romee Piccio (2013: 35) describe the internal regulation of parties as state prescription of the in- ternal channels of accountability, the composition of internal organs, the frequency of party meetings, voting and election procedures, rights and duties of party members, eligibility for party membership, and the type and form of organizational structure. In their comprehensive survey of European democ- racies, they find that while ‘‘a considerable number of party laws make explicit reference to the various aspects of intra-party democracy,’’ they generally leave it to the parties themselves ‘‘to elaborate spe- cific rules in their internal party structures’’ (38). In this way, the state signals that it sees internal party democracy as a virtue deserving to be ‘‘elaborated in greater detail in party statutes, while at the same time keeping away from infringing upon their autonomy and freedom of association by not legally prescribing specific directives.’’ Thus, they find that ‘‘party laws tend to assign the prerogative to outline the precise details of intra-party processes to the party statutes, rather than regulating them di- rectly’’ (48). "
The question for my discussion however is not centrally about whether and how far the state should be regulating parties, however, but what are the norms and principles of internal democracy and are they being implemented in practice?
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