The Published Procedures and this Guidance should be the starting-point for members involved in FAP proceedings, or considering whether to apply or appeal to us.
Parties will be expected to have read this Guidance, and generally follow it unless they have good reason. It hopefully will resolve the most frequently-asked questions and save everyone time. It is a general guide, which will be updated from time to time. It is not intended to be comprehensive or cover all eventualities, and it is not intended to be a binding straitjacket constraining the FAP. In the case of any inconsistency with the Published Procedures, the latter prevail.
[last update: April 2021].
- Is the FAP the right body to approach?
- What cases will the FAP refuse to entertain?
- On what grounds will the FAP interfere with a Complaints Panel or State Appeals Panel decision?
- What is the remedy in an appeal case?
- On what grounds will the FAP interfere with other acts or omissions by Party organs or officers? What is the remedy in those cases?
- What are the time limits for taking a case to the FAP?
- What should an Appellant or Applicant do when initiating proceedings at the FAP?
- What should a Respondent do when responding to a case at the FAP?
- What is a procedural direction?
- What are Standard Directions?
- Can the FAP re-open its previous decisions?
- What is a procedural application and what rights do I have to make one?
- How should I make a procedural application and what must it contain?
- How should responses to applications be made?
- What are the FAP’s expectations of parties?
- What can the parties expect of the FAP?
- How are records and communications handled?
- What do I do if I need assistance to access the FAP or participate in proceedings?
Is the FAP the right body to approach?
The FAP in most cases exercises an appellate or supervisory jurisdiction under Article 22 of the Federal Party Constitution. This means it is not normally the first port of call for Party members aggrieved by an act or omission of other members.
If you are aggrieved by misconduct by a member, the first port of call is the Article 23 Complaints Procedure. If you are aggrieved by a decision on admission to membership, refusal of membership, revocation or cessation of membership by an enrolling body, the first port of call is either the State Party or the Article 23 Complaints Procedure, as set out in Article 3 of the Constitution. Appeals against removal from approved lists of Parliamentary candidates must also be dealt with under Article 23 (see Article 19.3).
We do not have jurisdiction in relation to rights conferred by or under State Party constitutions where there is no alleged conflict with the Federal Party Constitution, unless we have been invited to rule on a point by a State Party appeals panel. This means that we are not normally able to rule on matters such as the internal governance of State, regional or local parties; nor are we able to interfere with candidate selections for local or regional public office; nor with the conduct of internal elections for State, regional or local party posts.
The following is a summary of our jurisdiction:
- We have an original jurisdiction (are first port of call) for disputes between a State Party and the Federal Party;
- We hear appeals from State Party Appeals Panels relating to issues under the Federal Party Constitution, and references from them for a ruling on a particular matter;
- We hear appeals from the Federal Complaints Panels under Article 23 of the Federal Party Constitution;
- We hear appeals against the decisions of the Returning Officer under the Committee Election Regulations Presidential Elections Regulations and Leadership Election Regulations
- We hear disputes where it is claimed that members’ rights under the Federal Party Constitution have been infringed, or the dispute turns on interpretation of the Federal Party Constitution, if there are no applicable alternative remedies (i.e. Local, Regional or State Party level dispute resolution processes) or they have been exhausted. For instance, revocation of participation in the Registered Supporter Scheme (see article 3.8 of the Constitution).
What Cases will the FAP refuse to entertain?
The FAP operates an initial procedure to determine whether we have jurisdiction and whether cases are granted permission to proceed to a hearing. We shall not entertain cases that are vexatious, frivolous or insubstantial, untimely, academic, unarguable or totally without merit. We shall not hear a case that should have been heard by another body first, until that process has been exhausted. We shall not allow the FAP’s time to be wasted by pointless or hopeless applications or appeals with no real prospect of success.
On what grounds will the FAP interfere with a Complaints Panel or State Appeals Panel decision?
The FAP will interfere with a ruling under appeal where:
- there was a serious failure of process or reasoning that was likely to render the determination of the complaint unsafe or unsatisfactory in all the circumstances; or
- relevant evidence which was not available at the time of the determination of the complaint, has since come to light which is likely to render the determination of the complaint unsafe or unsatisfactory in all the circumstances; or
- the sanction determined was manifestly excessive or manifestly lenient in all the circumstances.
An appeal is not an opportunity for an unsuccessful party, who has had a fair opportunity to make their case to someone else, to have another go at making their case.
The FAP will not interfere with a decision just because it disagrees with it, unless the case solely turns on the proper interpretation or effect of the Federal Party Constitution or rules made under it. It has not been entrusted with hearing the evidence and finding the facts. It will only interfere if the decision is one that no reasonable decision-making body would have reached on the available evidence, or vitiated by some serious failing (e.g. an unfair procedure), or is subsequently called into question by evidence that could not have reasonably been adduced at the time of the hearing. If it finds deficiencies in the procedure or reasoning, it will not interfere with a decision where it is highly likely that the outcome for the appellant would have been the same.
What is the remedy in an appeal case?
The FAP will not normally be the person or body entrusted with investigating, hearing evidence, finding facts or making first-instance rulings in cases of dispute. Where it hears an appeal from a fact-finding body, it will not re-hear the evidence afresh or substitute its own decision.
The FAP will not make its own factual findings unless there was only one possible finding to make on the evidence, or the facts were agreed. The remedy on appeal will be to set aside the original hearing and remit the case back to a fresh Complaints Panel or State Appeals Panel to re-hear the matter, along with any appropriate or necessary declarations, rulings or directions.
For example, it might declare that an Appellant was unfairly treated because they were not given an opportunity to ask questions of a witness, or to respond to a critical allegation against them.
On what grounds will the FAP interfere with other acts or omissions by Party organs or officers? What is the remedy in those cases?
The FAP not a policy-making body. It is not a democratically elected rule-making body. It is not an elected executive body of the Party. It is a creature of the Federal Party Constitution. The FAP’s function is supervisory: to interpret and enforce the Constitution, and protect members’ rights under the Constitution. The FAP may imply terms into the Constitution or subordinate rules, regulations or procedures where this is necessary or must have been intended. Only Conference may rewrite the Constitution.
The FAP shall not normally interfere with acts, omissions, decisions, rules, practices or procedures save where these are unauthorised by or in conflict with the Constitution.
This may arise in the following circumstances (which are not intended to be an exhaustive or prescriptive list):
(a) conflict with the Constitution or subordinate rules, regulations or procedures;
(b) procedural or substantive unfairness or impropriety;
(c) apparent bias or closed mind;
(d) unjustified or arbitrary breach of a legitimate expectation;
(e) proceeding upon a misunderstanding of the law; of the Constitution, rules, regulations or procedures; of a person or body’s role within the Party; or of uncontroverted facts;
(f) acting for an improper purpose;
(g) having regard to irrelevant matters or failing to have regard to relevant matters;
(h) unreasonableness or irrationality in all the circumstances;
(i) failure to give any or any adequate reasons where those are required.
The FAP will not interfere with a decision on the grounds that excessive or insufficient weight was placed on a particular factor in the decision-making, where an evaluative judgment was required and the factor was a legitimate one to consider, unless weight is dictated by the Constitution or subordinate rules and regulations, or the judgment was wholly unreasonable.
The FAP may not interfere with a decision even if it finds an irregularity, if it considers that this would have been highly unlikely to affect the outcome for the Applicant or Appellant.
The Case Panel may in its final decisions make declarations (including declarations that a rule, regulation, procedure, practice, act, omission or decision is invalid or unauthorised by or under the Federal Constitution and must be set aside), and give directions to do or refrain from doing something.
The FAP does not make monetary awards, whether of costs, damages or compensation.
What are the time limits for taking a case to the FAP?
The key time limits /deadlines are:
- within 14 days of the date of the decision for appeals against Returning Officer decisions under the Leadership Election Regulations, Presidential Elections Regulations and Committee Election Regulations (non-extendible);
- within 14 days of receiving a copy of a decision, for appeals against a Complaints Panel decision (non-extendible under Section 6 of the Complaints Procedure);
- 6 weeks (subject to extension) in cases where there is no other time limit.
The FAP cannot extend time limits contained in the Federal Party Constitution, or in constitutional subordinate rules, regulations or procedures.
It may be open to a party to argue that time limits in subordinate rules, regulations or procedures are unconstitutional if they are so short as to be intrinsically unfair or impossible to comply with.
What should an Appellant or Applicant do when initiating proceedings at the FAP?
Appellants or applicants should fill out the relevant form to start proceedings at the FAP. This will be Form 1A for appeals from Complaints Panels and Form 1B for other requests for rulings.
They must supply details of the names of the persons especially or directly affected by a decision, who will be the Respondents in the case.
They must set out their grounds for contesting a decision, act or omission clearly and succinctly, with sufficient explanation of their case, ensuring that they have covered all the points they wish to raise. They should explain the necessary background to their dispute, bearing in mind that the FAP will know nothing about it. They are responsible for explaining their own case; if they fail to do so, or cannot express themselves clearly, the FAP may miss a meritorious point.
The grounds that are pleaded must relate to grounds on which the FAP will interfere with decisions, and must not raise irrelevant points, or ask for remedies that the FAP cannot give.
If a disciplinary appeal is made on the basis of fresh evidence that it is alleged could not reasonably have been adduced at the time of the original hearing, all such supporting evidence must normally be submitted at the same time as Form 1A. In all cases, a summary of the key contents of the new evidence must be provided when setting out the grounds for challenging the decision in Form 1A, along with an explanation as to why it could not reasonably have been relied upon at the hearing, and how or why it renders the decision unsafe or unsatisfactory. If supporting evidence is not all being included with the appeal form, the appellant must explain why it cannot be provided in full at the same time as the appeal form and when it will be available.
Applicants or appellants must serve copies of their application or appeal form and the supporting evidence on the Respondents, or, if they do not have the Respondents’ contact details, should arrange for the Standards Office to do so.
What should a Respondent do when responding to a case at the FAP?
A Respondent will initially be served with a copy of the form requesting a ruling.
The FAP will first determine whether the applicant/appellant has an arguable case. A Respondent is not expected to make any submissions at this stage, although if they make any before the FAP gets around to deciding whether to permit the case to proceed, the FAP may consider them.
If the case gets permission to proceed, the Respondents will be given a deadline within which to make a Statement of Response. This should be on Form 2. The Respondents should indicate, in respect of each Ground of Appeal pleaded by the Applicant or Appellant, whether it is contested or conceded, and the reasons for contesting or conceding it. The Respondents should set out their case and arguments as succinctly and clearly as possible, but at sufficient length to ensure they have made all their points. Respondents should be aware that the FAP will only have the case file and the submissions of the parties at this stage; they will not have prior involvement in the case.
What is a procedural direction?
A procedural direction is a procedural ruling by the FAP. For instance, we may direct a party to provide evidence by a particular deadline, to send information to another party, or to attend a hearing at a particular date and time. Directions must be obeyed, but where they are purely procedural, parties can apply to the FAP to vary or rescind them if they have good reason to do so (for instance if they believe a time limit is unreasonably short, or they were prevented from complying with a direction by circumstances beyond their control). An application to vary a direction in some way may be made before or after it has been made, at any point before a final ruling has been made.
What are Standard Directions?
The FAP may direct parties to follow ‘Standard Directions’ after granting permission to proceed with a case, if these are considered appropriate. These will be as follows:
- All correspondence with the FAP must be through the Registrar at [email protected]. Parties are reminded that they are expected to disclose any relevant material in their possession which is adverse to their own case or supports their opponents’ case as soon as possible once they receive the other party’s case.
- The Applicant/Appellant(s) shall have 14 days to file a detailed Statement of Grounds and any further written evidence on which they rely (limited to that relating to the procedure adopted at first instance, and evidence that could not reasonably have been adduced at first instance), or to indicate that the Statement of Grounds in their appeal form shall stand as their detailed grounds, by 4pm on [date].
- By the same deadline, the Applicant/Appellant(s) must:
(a) indicate whether they intend to call any witnesses to give live evidence (limited to evidence as to the procedure at first instance and evidence that could not reasonably have been adduced at first instance), their names and addresses, and provide a written summary of what they will say signed by the witness concerned.
(b) indicate the name of any representative they will bring to the hearing;
(c) indicate any dates they, their witnesses or their representative are unavailable for a hearing;
(d) apply on Form 3 for any further procedural directions.
- The Applicant/Appellant(s) shall not be permitted to call any witness who has not been named and provided a written summary in accordance with paragraph 3(a) above.
- The Respondent(s) shall thereafter have 21 days [i.e. until 4pm on [date]] to:
(a) file a Statement of Response and any documentary evidence in support on Form 2 in accordance with the Guidance on the Party website,
(b) indicate whether they intend to call any witnesses to give live evidence (limited to evidence as to the procedure at first instance and evidence that could not reasonably have been adduced at first instance), their names and addresses, and a written summary of what they will say signed by the witness concerned.
(c) indicate the name of any representative they will bring to the hearing;
(d) indicate any dates they, their witnesses or their representative are unavailable for a hearing; and
(e) indicate whether they accept the evidence of each witness of the Applicant/Appellant or require them to attend a hearing for cross-examination;
(f) apply on Form 3 for any further procedural directions.
- The Respondent shall not be permitted to take part in the hearing if they have not filed a Statement of Response in accordance with paragraph 5(a) above, nor to call any witness who has not been named and provided a written summary in accordance with paragraph 5(b) above.
- The Applicant/Appellant(s) shall have 14 days [by 4pm on [date] to:
(a) file any written representations or evidence in reply, strictly limited to addressing matters raised for the first time in the Statement(s) of Response;
(b) indicate whether they accept the evidence of each witness of the Respondent or require them to attend a hearing for cross-examination;
(c) respond to any applications for procedural directions; and
(d) apply on Form 3 for any further procedural directions.
- The Respondent(s) shall have 7 days to respond to any reply or procedural application by the Applicant/Appellant, that is by 4pm on [date].
- The parties must indicate their dates to avoid between the target hearing dates (see paragraph 108 below) by 4pm on [date].
- The Case Manager will thereafter review the case and any procedural directions required. The hearing will be by video-conference on a date to be fixed by the Case Manager, with a target window between [date] and [date].
Can the FAP re-open its previous decisions?
Article 22.7 of the Federal Party Constitution provides that any decision of the FAP is final and binding on all those concerned.
A purely procedural direction or case-management decision may be re-opened and reversed upon an application by a party at any point before the case is finally determined. For example, they may apply to admit evidence that was previously ruled inadmissible, apply to move the hearing to a different date or venue, or to excuse non-compliance with a time limit.
However, a ruling refusing a party permission to proceed relates to the substance of the case, determines the outcome, and is final. A substantive determination following a hearing is also final.
Since decisions on the substance of a case are final, if a party objects to the procedures adopted in determining a case they must raise this objection as soon as possible.
Federal Party Conference may overrule any determination of the FAP on a point of interpretation by amending the Constitution or subordinate rule, regulation or procedure concerned, and members of the Party are free to campaign for this provided that they abide by the determination.
The FAP shall not be bound by points of interpretation determined in its previous rulings, and a party in a subsequent case may argue that a previous case was wrongly decided; however the FAP will follow its own previous rulings of which it is aware, unless it is satisfied that they were wrong.
Any party to proceedings before the FAP may rely on previous rulings of the FAP, but they must provide the FAP and all other parties with copies of all relevant rulings relied upon in good time, as well as all those determinations at least arguably adverse to their own case.
What is a procedural application and what rights do I have to make one?
A party may apply for particular procedures to apply in their case. For instance, they may ask to be allowed to call a witness in person, for a hearing to be held online, or to be allowed to submit representations in writing in relation to a particular issue. A party may also object to the standard Published Procedures or to procedures that have been the subject of a previous direction, such as applying for more time to take a step in the proceedings. They may ask for one or more of the FAP members involved in their case to recuse themselves if they have a conflict of interest. A party may make a procedural application at any time, if they have good reason.
How should I make a procedural application and what must it contain?
A procedural application should normally be made in writing on Form 3, accompanied by all the evidence relied upon in support of the application. It must say what ruling is requested and why. The applicant must justify their application and persuade the FAP that there is a good reason to make the procedural ruling that is sought. A copy of the form and the evidence must be sent to all the other parties and to the FAP at least 3 clear days in advance of its being determined. For instance, if they would like a decision on a Friday, they must send everyone a copy the preceding Monday. If an application needs to be made during the course of a hearing (and could not have been made with notice in writing), then it may be made and responded to orally.
If the object of an application is to ask for anonymity or for the redaction or withholding of sensitive, personal or confidential information, then it may defeat the point of the application to supply all the details to another party. A party making such an application must make clear on the form and in a covering e-mail to the Registrar that it must not be shared with the relevant party or parties. They must provide evidence justifying the failure to inform the other party to the FAP. The FAP will never allow any material to be withheld from another party if that renders the proceedings unfair. It will also apply a presumption in favour of transparency in respect of publishing parties’ names or the reasoning for decisions. An application for anonymity must persuade the FAP that the interests in favour of confidentiality outweigh the interests in favour of transparency.
Applications must not be made in a repetitive, abusive or vexatious way to waste other parties’ time.
How should responses to applications be made?
Responses to procedural applications should be made on Form 4. The response should indicate whether the application is agreed, and
if not, why not and what alternative procedure is requested instead. Where relevant, the respondent to a procedural application should provide evidence in response along with Form 4.
What are the FAP’s expectations of parties?
Parties will be expected to have read the Published Procedures, Guidance and directions given in their case.
The parties to FAP proceedings are expected to co-operate, both with each other and with the FAP, to assist the FAP to determine cases justly, fairly and expeditiously. They will be expected to act reasonably and not to waste the time or resources of other parties, Standards Office staff, or the volunteers on the FAP. They should exchange contact details and serve copies of their representations and evidence on each other.
At all stages the parties’ responsibility to co-operate will be expected to extend to making a reasonable search or check for, preserving and supplying relevant evidence to the other parties and to the FAP where this tends to undermine their own case or assist the case of another party, bearing in mind the grounds that the FAP will consider.
If a party does not co-operate with the timetable or other directions given, or does not participate in the proceedings, the FAP may proceed in their absence or in the absence of evidence or representations that were to have been filed by a missed deadline.
Parties are expected to abide by rulings of the FAP, to keep confidential any material received in the course of the proceedings including draft or unpublished rulings, and not to use information received in the proceedings for any extraneous purpose. Knowing or reckless failure to do so may be grounds for complaint and a sanction or revocation of membership.
What can the parties expect of the FAP?
The FAP will attempt to resolve cases expeditiously and generally within 3 months.
The FAP will ensure that the procedures adopted to hear a case are fair, and in particular:
- members should not be appointed to hear a case if they have a significant personal connection to the parties or involvement in the subject-matter; if they become aware of such connection they shall declare it, allow the parties to ask questions and object, and recuse themselves unless all parties waive any objections; in case of such recusal they will be substituted by another member of the FAP;
- it shall ensure that the time allowed to make representations or submit material is fair and reasonable;
- it shall ensure that parties are treated fairly as between each other;
- it shall ensure that all parties have an opportunity to respond to relevant points made by opposing parties; and
- if it is minded to find against a party by reference to a factual matter not already squarely in issue in the case, or by reference to an argument not previously canvassed, it shall provide the party with a fair opportunity to address it on that point.
The parties may apply to object to the fairness of the FAP’s procedures at any time.
Where there is any significant dispute of fact or the FAP’s determination would be assisted by oral submissions, the Case Manager would normally direct that a hearing be held.
How are records and communications handled?
Communications between parties and the FAP must be conducted through the Registrar, who shall keep a record of the communications.
The FAP shall not entertain any representations about the substance of a case before it that are not conducted in writing through the Registrar or at a hearing.
All parties to a dispute shall normally be entitled as of right to copies of representations made by other parties and rulings made by the FAP, if they request these from the Registrar, unless the FAP otherwise directs in the interests of justice.
The FAP may publish on the Party website a list of the cases pending before it, the names of the parties, and a short summary of the issues raised in the pending application or appeal.
The FAP may redact or restrict the circulation of sensitive or personal information where this is compatible with fairness and the interests of transparency are outweighed by other considerations.
The parties to any case before the FAP must keep all information and documents received in connection with the proceedings strictly confidential and use them for the sole purpose of the proceedings.
Communications must be conducted directly between the parties and the FAP, and cannot be conducted with third party agents or solicitors.
FAP determinations shall published, at least in summary form, on the Party website and in a report to Conference. The form of publication shall be determined by the FAP. Sensitive or personal information may be redacted where the interest in confidentiality outweighs the presumption in favour of transparency. The parties may make representations as to the form of publication after a ruling has been delivered.
What do I do if I need assistance to access the FAP or participate in proceedings?
We aim to be as accessible as possible. If you have a disability and need assistance to read the procedures (or to receive them in a different format), or require adjustments to our process, please write to let us know how we can assist you at [email protected] .