Re Conciliation and Arbitration Act, 1904 v Re An Application By Geoffrey Gleghorn of An Inquiry Into An Election of An Office In the Australian Journalists Association [1980] FCA 13 (29 February 1980)

FEDERAL COURT OF AUSTRALIA

Re: IN THE MATTER OF THE CONCILIATION AND ARBITRATION ACT, 1904
And: IN THE MATTER OF AN APPLICATION BY GEOFFREY GLEGHORN FOR AN INQUIRY INTO
AN ELECTION FOR AN OFFICE IN THE AUSTRALIAN JOURNALISTS ASSOCIATION
No. 44 of 1979
Election Inquiry

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
INDUSTRIAL DIVISION
Sweeney J.

CATCHWORDS

Election Inquiry - Election conducted pursuant to S.170, Conciliation & Arbitration Act, 1904 - Rules provide for system of optional preferential voting - Two candidates for position - Directions to voter on ballot paper to use numerals "1" and "2" and handle and return ballot paper in certain manner - Whether such directions are "Action taken or directions given" pursuant to S.170A - Whether such directions mandatory or directory only - Whether tick or cross indicates intention to vote for particular candidate - More than 1 ballot paper returned in envelope - Ballot papers discovered in envelopes received before closure of ballot. Re Behan, 17 A.I.L.R. 1 and Allen v. Vehicle Builders' Federation of Australia, 16 A.L.R. 69 considered. Conciliation and Arbitration Act S.159, S.165, S.168(2), S.170, S.170A.

HEARING

SYDNEY
29:2:1980

DECISION

In the months of November and December, 1979 an election was conducted for the office of Assistant Federal Secretary of the Australian Journalists Association ("the organization"). The election was conducted by an officer of the Australian Electoral Office in New South Wales pursuant to a request under Section 170 of the Conciliation and Arbitration Act, 1904 ("the Act"). Candidates for the position were two; Mr. Geoffrey Gleghorn and Mr. Barry Porter.

After the election had been declared, an application was made pursuant to Section 159 of the Act. The Industrial Registrar, after considering the matter, granted the application and referred the matter to the Court. The election was conducted at the same time as an election for a position within the New South Wales Branch of the organization.

In the election now before the Court, all financial members throughout the Commonwealth were given an opportunity of voting. The procedure adopted was that ballot papers for this election were printed on white paper and for the New South Wales election, on blue paper. The Returning Officer then forwarded to members in New South Wales an envelope containing a ballot paper for the New South Wales ballot printed on blue paper, a ballot paper for the ballot for Assistant Federal Secretary printed on white paper, a copy of Section 170 of the Act and a copy of some of the regulations relating to ballots made under the Act. He also forwarded copies of statements prepared by each of the candidates in this election and in the election in the New South Wales Branch. There was also forwarded a special "Business Reply Post" envelope containing a statement that the postage and fee would be paid on delivery to an Australian Electoral Officer at a G.P.O. box number. The ballot paper was in the following form:

THE AUSTRALIAN JOURNALISTS ASSOCIATION

1979 Election pursuant to the Conciliation and Arbitration Act
1904
<

BALLOT-PAPER

BALLOT-PAPER

GENERAL DIRECTIONS-

1. The ballot-paper must be completed by you, the voter, personally.

2. Do not put on the ballot-paper any mark or writing by which you can be identified.

For the Election of

ONE FEDERAL ASSISTANT SECRETARY

Directions. - Mark your vote on this ballot-paper by placing the number 1 or

the numbers 1 and 2 in the square(s) respectively opposite the name(s) of the candidate(s) so as to indicate the order of your preference for them.

() PORTER, Barry (News Ltd)

() GLEGHORN, Geoffrey (ACTU)

FURTHER DIRECTIONS -

After marking your vote, fold the ballot-paper in a manner that conceals the way in which it is marked and place the ballot-paper in the enclosed Business Reply Post envelope. Seal the envelope and forthwith place it in the post. The envelope must reach the addressee at the address shown on the envelope, not later than 10.00 a.m. on MONDAY, 10 December, 1979.

NOTE. - Attention is drawn to the enclosed printed Extracts from the Conciliation and Arbitration Act and Regulations.

R. V. KENTWELL

Officer of the Australian Electoral Office, Sydney, conducting election pursuant to the Conciliation and Arbitration Act 1904.

D. West, Government Printer, New South Wales - 1979

Members in branches other than New South Wales were not concerned in the election in that branch and the Returning Officer forwarded to each of them the ballot paper printed on white paper, a copy of Section 170 and a copy of some of the regulations together with the copies of the statements prepared by each of the candidates for the post of Assistant Federal Secretary and the same type of special "Business Reply Post" envelope.

After the closure of the ballot, the envelopes were collected from the post office box and then, at a place designated by the Electoral Officer, opened. His staff were instructed to remove from the envelope, in the case of members in New South Wales, the white ballot paper, for the election of Assistant Federal Secretary and also the blue ballot paper if it was also returned and to place the ballot papers in two separate heaps. In the case of members who did not receive a ballot paper for the New South Wales ballot, the instructions were to remove the one ballot paper. The envelope having been opened, and the votes collected, a count was then made. After the first count, the result was announced as Gleghorn 1716, Porter 1711 and informal 75.

After the ballot had been counted, it was rechecked before the figures were released. On 11th December, 1979 the Returning Officer again examined, in the presence of a scrutineer representing each of the candidates, the 75 votes he had previously treated as informal. On his reconsideration, the Returning Officer, among other things, considered the decision of this Court in Allen v. Vehicle Builders Federation of Australia, 16 ALR 69 and the decision of Smithers J. in Re Behan, 1977 AILR 1.

It was apparently the view of the Returning Officer that the decision in these cases was that in any election a cross was to be regarded as a valid exercise of a vote. The judgments show, however, that the decision was more limited, in each of them a case was being considered where the election was conducted under the optional preferential system, there was one position to be filled and only two candidates. The rules did not make the use of numerals mandatory and there was no action or instruction to that affect in mandatory terms given under Section 170. The cases are in my view limited to this position which is, however, identical with the position here.

As a result of the recount, 66 of the 75 votes previously treated as informal were treated as formal and the result obtained was Gleghorn 1746, Porter 1747 and informal 9. A check count was performed on the following day and the figures remained the same and the result was then declared accordingly.

A further step in the history must be related. In view of the very close result and in view of the fact that the inquiry was in February before the Court, the Returning Officer on 8th February, 1980 directed his staff to recount the envelopes. These envelopes had remained sealed in the custody of the electoral officer during this period. On 8th February, while counting the envelopes, a clerical assistant noticed that one envelope seemed thicker than the others and on opening it, she found a ballot paper still in it. She immediately reported this to the Returning Officer and he took possession of the ballot paper and envelope. After the count of them was done on the Friday, they remained in the custody of the Electoral Office until a further count on 11th February was completed.

Seven persons, all clerical assistants in the employ of the Electoral Office, took part in the count on 11th February and during the course of that count, two other assistants each discovered, at separate times, an envelope containing a ballot paper. Each of these papers and envelopes were handed to the Returning Officer and retained by him. No further count or declaration was made. The ballot papers and envelopes were produced and became exhibits. An examination of them showed that one vote was cast for Mr. Gleghorn and two for Mr. Porter.

It is clear then, that the issue is whether irregularities occurred by reason of the admission as formal of certain votes and the rejection of certain other papers as informal and by the failure to include in the count the three last discovered ballot papers. The margin between the candidates was extremely close and having regard to it, the result could well be affected by the admission or rejection of five votes. I propose therefore, to consider all of the informal votes where questions have been raised, as well as the three votes discovered after the ballot was completed.

It was common ground between the parties that the rules of the Association provide for a secret postal ballot and that consequently the regulations in Part VAA of the Conciliation and Arbitration Regulations did not apply. The rules are not easy to construe and it is not particularly easy to see the complete provision for a secret postal ballot, but having regard to the conduct of the case and the submissions made by the parties, I think I should take the same view.

It will be seen that the ballot paper contained directions that the voter should mark his vote by placing the number "1" or the numbers "1" and "2" in the squares respectively opposite the name of the candidate so as to indicate the order of preference. That was placed in large type in a position where it must have been seen by any person filling in a ballot paper. It contained the further direction that the ballot paper was to be folded in a manner that conceals the way in which it was marked and placed in the enclosed business reply envelope which was then to be posted to the Returning Officer. Questions arose whether this amounted to action taken or directions given under the powers conferred on a person conducting the election in Section 170A of the Act and the further question whether these were mandatory or not. Counsel for the applicant, Mr. Kennan, submitted that they were mandatory, while Mr. Madgwick, counsel for the respondent, Porter, submitted that even though given under Section 170A, they were not mandatory. The same view was expressed by counsel for the Returning Officer.

The difficulty I feel is that they were after all, either the action or directions of the Returning Officer and if his view of them was that they were not mandatory, but directory only, it is difficult for me to treat him as not knowing the effect of what he was doing. I have therefore decided to treat them as not mandatory but requiring substantial compliance only.

The first group of ballot papers to be considered is a group which became Exhibit 1. It consists of 30 ballot papers, 20 with a cross in the square opposite Mr. Gleghorn's name and 10 with a tick in the square opposite his name.

The counterpart of Exhibit 1 is Exhibit 2 which contains 36 ballot papers, 25 with a cross in the square opposite Porter's name and 11 with a tick in that square. It is clear then that for some reason, which I confess escapes me, although the method of voting was stated with unmistakable clarity, a considerable number of the members did not use the method indicated on the ballot paper.

The rules at least make clear that the system to be used is what is called an optional preferential system, where a voter may indicate a preference beyond his first vote or decide not to do so. No question arises as to the allocation of preference. The question is whether the use of a tick or a cross sufficiently indicates an intention to vote for that candidate. It may be said at once, that a cross is a not unusual way of indicating preference in a ballot. While a tick has, in this community, become a way of indicating approval in filling in forms, such as forms ordering goods or services, insurance proposal forms, passport applications and the like, I do not think any distinction could properly be drawn between ticks and crosses since they are both methods used to show approval or to indicate a view or preference. I am therefore of the view that the whole of the votes in Exhibits 1 and 2 were properly admitted to the ballot.

It remains to consider the other votes rejected, as well as the three votes discovered after the declaration of the ballot.

Exhibit 3 contains two ballot papers which were admitted as formal but are challenged. The first of these ballot papers contains a clear "2" opposite the name of Mr. Gleghorn and a figure opposite the name of Mr. Porter. This latter figure could, at a glance, be read as a "2", but when it is contrasted with the figure "2" appearing opposite Mr. Gleghorn's name, it seems to me that it clearly is not. The second figure is well rounded and the first figure, when closely examined is, I think, properly seen as a misformed "1". The down stroke and the horizontal stroke at the foot are both markedly different from those in the other figure and in my view the Returning Officer acted correctly in treating the ballot paper as a valid vote for Mr. Porter.

The second ballot paper has the figure "2" clearly against the name of Mr. Gleghorn, while it has what appears to be the number "1" enclosed in a circle and a tick against the name of Porter. The Returning Officer admitted this vote as a formal vote for Porter and I think, in the light of what I have seen, he was correct in so doing.

Exhibit 4 was a group of seven ballot papers. Five of them are clearly informal; in two cases both names were crossed out and comment added, in the one case that this position should never have been created and in the other a query "What about the country workers?". The next one contains "No" against the name of each candidate and contains other material attacking Court ballots, sell-out merchants, tamecat bureaucrats, arbitration and the bosses' courts. The next one is particularly mutilated and bears a cross against each candidate's name and a sign apparently of white paint over the paper. The next bears a large cross across the whole of the paper with the letters "PTO" and on the back of the paper is written "Mr. P. Terry has retired". There is next a paper which was rejected by the Returning Officer. It contains a line running diagonally across the square opposite the name, Mr. Gleghorn. It is one about which I have had considerable doubts but I think ultimately I should treat the line as being a tick. Some of the other ticks vary very much in the manner of their formation, as indeed do the crosses and in the circumstances, I think it proper to give the paper, what has been called, the benefit of the franchise and to regard it as a formal vote. The remaining ballot paper has the figure "10" opposite the name of Porter and the figure "12" opposite the name of Gleghorn. I find it impossible to determine what the voter's intention was. He might have thought Porter the 10th best candidate and Gleghorn the 12th best, or he may, as some at least of his fellows did, have wished to cast an informal vote. The Returning Officer treated the ballot paper as informal and I agree with him.

Exhibit 5 consists of two ballot papers, each clearly marked with a "1" for Porter and a "2" for Gleghorn. They were rejected because the two arrived at the electoral office in one of the enclosed business reply envelopes. Return of ballot papers in a business reply envelope, one to each envelope only would, I think, afford a valuable check in the office on the validity of votes and this indeed appears in this case where there was shown to be a discrepancy of two between the number of envelopes and the number of votes. I may add that this discrepancy was explained to my satisfaction as probably arising due to damage done to the envelope by the machine used to open them. The discrepancy was not put as being an irregularity in itself. Turning back to these two papers, I think that if I am unable to treat the direction to use a number or numbers on the ballot paper as mandatory, I cannot treat the manner in which the voter is instructed to return the paper as mandatory. I think then it is appropriate to treat these votes as two votes for Porter. I think I must regard the two papers as formal as having been forwarded in a manner substantially required by the direction.

Exhibit 6 then comprises three ballot papers which were rejected because the three were forwarded in one business reply envelope. One of these papers is marked with a cross in the square opposite Porter and one with a tick in the like square, while the third is marked with a cross in the square opposite Mr. Gleghorn's name. I see no material difference between two papers being enclosed in a business reply envelope and three papers being so enclosed. If, say, 100 papers were enclosed in a package that would not I think be even a substantial compliance with the direction, but I see no reason to distinguish in my decision between these papers and the two I have already dealt with. They are therefore to be treated as two votes for Porter and one for Gleghorn.

I come next to a consideration of the three votes which were discovered after the declaration of the result. I am quite satisfied that the ballot papers were discovered as left in the envelopes as deposed to by the three witnesses who were called. They were then in the hands of the Returning Officer, returned in the appropriate business reply envelope and received by him before the closure of the ballot. Not to count them would, in my view, in itself be an irregularity. (See Halsbury Fourth Edition, Volume 15, Paragraph 614 and the cases there cited.) But they may, I think, now be counted and if necessary a new declaration made of the result of the ballot.

The result of this investigation is as follows:

Porter Gleghorn

Votes in 1st declaration 1711 1716

Votes from Exhibits 1 & 2 36 30

---- ----
1747 1746

Votes admitted Exhibit 3 2 Nil

Votes admitted Exhibit 4 Nil 1

Votes discovered after
completion 2 1

Votes not admitted because
two papers in one
envelope 2

Votes not admitted because
three papers in one
envelope 2 1

---- ----
1755 1749
---- ----

Although the vote was extremely close, in my view, for the reasons I have

already set out, the original declaration was affected by irregularities and the subsequent declaration set out the true result of the poll, but not the real numbers of votes for each candidate. I propose therefore, since in my view Mr. Porter was clearly the successful candidate, not to make any orders under Section 165 except an order terminating the inquiry.

I think however, Mr. Gleghorn clearly acted reasonably in applying that I should make a finding to that effect pursuant to Section 168(2). In that regard I would point out that an experienced Returning Officer, Mr. Kentwell, found it necessary to reconsider certain of the votes and that Mr. Gleghorn could have had no knowledge of the three votes most recently discovered in the final check of envelopes. There was a small margin and a very arguable case. I will hear the parties as to the appropriate orders, but as I have indicated, it seems to me that it is only the certification under Section 168(2) which calls for action.

Since at the hearing there appeared to be a number of possible findings with possibly different arithmetical results, I indicated that I was prepared to consider the appropriate orders after these reasons had been published. If either party wishes an opportunity to be heard on the appropriate orders in the light of my findings, he has liberty to apply for this purpose within twenty-four hours by giving notice to the Registrar and to the other parties.