Political party signs
Political party signs for candidates displayed outside a voting centre at the 2022 federal election Image by James Ross/AAP IMAGES

Party on! Constitution claim judged to be utter nonsense

Nik Dirga June 21, 2022
WHAT WAS CLAIMED

Political parties are illegal under the Australian Constitution.

OUR VERDICT

False. There is nothing outlawing political parties in the constitution.

Australia’s federal election in May saw the reins of government switch to a different political party, but a serial misinformation spreader claims political parties are actually illegal under the constitution.

However, constitutional law and history experts told AAP FactCheck the claim is false and “obvious nonsense”.

Riccardo Bosi in a video shared on YouTube and Facebook says “parties are actually illegal under the constitution. Just because we have it doesn’t mean it’s legal… The constitution actually says you must direct the elector – that’s you, don’t call yourself a voter, call yourself an elector – the elector must directly elect their representative. Now, when you put a party in there, it has interposed itself between the elector and the representative, which is unconstitutional” (video mark 4min 12sec).

Mr Bosi is leader of the unregistered AustraliaOne Party and unsuccessfully stood in the western Sydney seat of Greenway at the federal election. He has been debunked by AAP FactCheck on subjects such as the legality of the Australian election; COVID-19 vaccines; former prime minister Scott Morrison and the war in Ukraine and investigated for misinformation here, here and here.

Professor Graeme Orr of the University of Queensland, an expert in electoral law, told AAP FactCheck in an email that Mr Bosi’s claims were “obvious nonsense at many levels”.

Dr Ben Saunders, an associate professor at Deakin Law School with a research interest in constitutional law, agreed, telling AAP FactCheck via email: “The claim that political parties are illegal under the Australian Constitution is false:  the constitution does not attempt to prohibit the existence of political parties in any way.”

“It is very clear that political parties are not illegal under the constitution,” Anne Twomey, a professor of constitutional law at the University of Sydney, said in an email.

Mr Bosi’s claim that “the elector must directly elect their representative” has no bearing on the existence of political parties, Prof Orr explained.

“‘Directly’ chosen simply means there must be an election with the names of possible MPs on the ballot.”

The Australia Constitution, which came into effect in 1901, lays out the legal framework for how the country is run.

Candidates affiliated with political parties stood in Australia’s first election in which “party structures were embryonic and ‘selection processes varied’,” according to a Parliamentary Library article. Edmund Barton of the Protectionist Party became the nation’s first prime minister in 1901.

“Parties were a key assumption of British constitutional thought, which the framers of our constitution drew on when drafting the constitution,” Dr Saunders said. “Parties were considered essential to provide stable working majorities under the Westminster system.”

Section 15 of the constitution is the only part that explicitly mentions political parties in the context of filling Senate vacancies. The section was added in 1977, Dr Saunders said, and it notes that if a senator leaves a vacancy and “he was publicly recognised by a particular political party as being an endorsed candidate of that party,” the person filling the vacancy “shall … be a member of that party”.

Citing that section “it is therefore implausible to argue that political parties are illegal under the constitution,” Prof Twomey said.

Dr Saunders added: “Far from being illegal, the existence of parties was in fact a key assumption upon which our constitution was built.”

The Verdict

The claim political parties are illegal under the Australian Constitution is false. Any interpretation to that effect is mistaken, constitutional law and history experts confirmed to AAP FactCheck.

False – The claim is inaccurate.

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