Re Applications By John Brown; Geoff Vaughan and John Thomas Roberts of Inquiries Into Elections In the Building Workers' Industrial Union of Australia [1988] FCA 319 (16 September 1988)

FEDERAL COURT OF AUSTRALIA

IN THE MATTER of applications by JOHN BROWN; GEOFF VAUGHAN and JOHN THOMAS
ROBERTS for inquiries into elections in the Building Workers' Industrial Union
of Australia
Nos. I 13-15 of 1988
Industrial Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
INDUSTRIAL DIVISION
Gray J.(1)

CATCHWORDS

Industrial Law - registered organization - election - inquiry into alleged irregularities - time for making application - "date of completion of the election" - whether date of declaration of result or later advertisement of results.

Conciliation and Arbitration Act 1904, s.159

HEARING

MELBOURNE
16:9:1988

Counsel for the Applicants: Mr. Haylen

Solicitors for the Applicants: Geoffrey Edwards & Co.

Counsel for the successful candidates: Mr S. Rothman

Solicitors for the successful candidates: Steve Massellos & Co.

Counsel for the respondent: Mr. Shaw Q.C., Mr Nolan

Solicitors for the respondent: Taylor & Scott

Counsel for the Australian Electoral Commission: Ms. C. Simpson

Solicitors for the Australian Electoral Commission: Australian Government Solicitor

ORDER

THE COURT ORDERS THAT the application for an inquiry is dismissed.

(NOTE: Settlement and entry of orders is dealt with in O.36 of the Federal Court Rules.)

DECISION

In 1987, elections were held within the New South Wales branch of the Building Workers' Industrial Union of Australia ("the Union"), to fill a number of positions. The Union is an organization of employees, registered pursuant to the Conciliation and Arbitration Act 1904 ("the Act"). As a result of a request made pursuant to s.170 of the Act, the elections were conducted by the Australian Electoral Commission. Neil Patrick Kean, an officer of the Australian Electoral Commission, was appointed as returning officer.

2. Nominations were opened on 31st August 1987 and closed on 25th September. In respect of a number of offices for which elections were held, the number of persons nominated did not exceed the number of vacancies. Accordingly, by letter dated 16th October 1987, the returning officer informed the secretary of the New South Wales branch of the Union of his declaration that a number of persons were elected to offices unopposed. The offices concerned were Branch President, Branch Secretary, Assistant Branch Secretary, Branch Delegates to National Conference, State Executive members representing bridge and wharf carpenters, tile layers and slaters and tilers, Newcastle District Secretary/Organizer, trade councillors representing the water-front, bridge and wharf carpenters, tile layers and slaters and tilers, and zone councillors representing Newcastle zone carpenters and joiners and bricklayers, Woollongong zone carpenters and joiners and bricklayers, Sydney zone bricklayers and country zone carpenters and joiners and bricklayers.

3. The remaining offices were contested. These were twenty positions of branch organizers, two State Executive members representing bricklayers, five State Executive members representing carpenters and joiners, four State Executive members representing builders labourers, Newcastle zone councillor representing builders labourers, Woollongong zone councillor representing builders labourers, country zone councillor representing builders labourers, Sydney zone councillors representing carpenters and joiners, and Sydney zone councillors representing builders labourers. The returning officer conducted ballots for these offices. On 1st December 1987, he declared the results of those ballots. On that day, he signed a letter addressed to the branch secretary, advising him of the declaration of the results of the contested positions. On that day also, the returning officer instructed an employee of the Australian Electoral Commission to deliver the letter by hand to the branch secretary. The evidence does not go so far as to indicate whether this instruction was carried out on 1st December or later, although in the normal course the letter would be expected to have been delivered to the office of the New South Wales branch of the Union on that day.

4. On 4th December 1987, there was published in the Sydney Morning Herald and the Daily Telegraph, both being daily newspapers circulating in New South Wales, an advertisement. The returning officer caused this advertisement to be published. It contained the results of all the elections in the branch, including the elections for those positions which were uncontested.

5. The procedure for the election of branch delegates to the National Conference of the Union is dealt with in rule 18 of the Union's rules. Sub-rule 23 of that rule provides as follows:

"The Returning Officer shall declare the
successful candidates elected and notify
the Executive of the result of the ballot
and the Executive shall issue
instructions for the publication of same
in their minutes and in the Building
Worker. He shall also notify each
successful candidate by post and publish
their names in at least one daily
newspaper circulating in the Branch
area."

By sub-rule 7, elections for branch delegates to National Conference are required to be held every four years. By sub-rule 24, a person elected remains elected until his successor takes up office.

6. The provisions governing the elections for the remaining offices within the New South Wales branch are found in rule 17 of the New South Wales branch rules. Sub-rule (v) of that rule provides:

"The Returning Officer shall declare the
successful candidates elected and notify
the Executive of the result of the ballot
and the Executive shall issue
instructions for the publication of same
in their minutes. He shall also notify
each successful candidate by post and
publish their names in at least one daily
newspaper circulating in the Branch area.
The Returning Officer's report to the
State Executive shall contain all
relevant information including the number
of ballot papers printed, the number
posted, the number returned, the number
unused, the number of votes received by
each candidate, the names of those
nominated for each office and their
proposers."

By sub-rule (b) the term of office for each of the positions is four years, and commences on 2nd January, following the election. Sub-rule (w) requires the successful candidates to take up their duties not later than 14th January following the conclusion of the ballot, and provides that they shall remain elected until their successors take up office.

7. On 3rd June 1988, each of the applicants lodged with the Industrial Registrar a separate application, claiming that there had been irregularities in or in connection with each of the elections, including the uncontested elections, and seeking an inquiry by the Court into those irregularities. The applications are all in similar terms. The Industrial Registrar referred them to the Court on 10th June 1988. Appearances have been filed on behalf of the Union, all of the successful candidates and the returning officer. Service has been effected on the unsuccessful candidates, but none have appeared except the applicants. On 15th July 1988, the Union filed a notice of motion in each application, seeking an order that each proceeding be dismissed. Each notice of motion is based on the proposition that the application to which it relates was filed with the Industrial Registrar outside the time limited by s.159(5)(b) of the Act with respect to such an application. The motions were heard on 8th September 1988. Mr. Rothman of counsel appeared for the Union, to move the Court. Mr. J.W. Shaw Q.C. and Mr. Nolan of counsel for the successful candidates, and Miss Simpson of counsel for the returning officer, supported the motions. Mr. Haylen of counsel for the applicants opposed the motions.

8. It is convenient to set out the whole of s.159(5) of the Act:

"An application in accordance with
sub-section (4) may be made -
(a) before the completion of the
election;
(b) within the period of 6 months
commencing on the date of completion
of the election; or
(c) after the expiration of that period
of 6 months but before the
expiration of the period of office
to which the election related,
but the Court shall not proceed with the
hearing of an inquiry upon an application
made in accordance with paragraph (c)
unless the Court is satisfied that the
person making the application did not
have, within the period of 6 months
referred to in paragraph (b), and could
not, by reasonable diligence have
acquired within that period, knowledge
of, and the means of establishing, the
matters that are alleged to constitute an
irregularity."

9. The fundamental question to be decided is what was "the date of completion of the election" in relation to each of the elections the subject of the applications? The parties seeking the dismissal of the applications contended that the elections were completed by the declarations of the returning officer, as to the uncontested positions on 16th October, and as to the contested positions on 1st December. Each of these dates was more than six months prior to the making of the applications. The applicants argued that the elections were not complete until the publication of the advertisements in the newspapers on 4th December, a date within six months prior to the lodging of each application.

10. In Re Application by Adamson for an Inquiry into an Election in the Amalgamated Metals Foundry and Shipwrights Union, reported under the odd name of Re Adamson; Ex parte Amalgamated Metals Foundry and Shipwrights Union [1984] FCA 303; (1984) 3 FCR 159, it was held that the date of completion of the election the subject of that proceeding, for the purposes of s.159(5)(b) of the Act, was the date on which the result was declared. In that case, the contest was between the date of declaration of the result and earlier events. The Court examined authorities which suggested that, in law, a person with a majority of votes was elected once all the votes were in the ballot box. As the Court said, at p 164, "the choice appears to lie between the close of the ballot and the declaration of its result, assuming that there is no later event that could be said to be part of the election." In the present case, both sides relied upon Adamson. Those supporting the motions claimed it as authority for the proposition that the date of completion of an election is the date of declaration of the result. The applicants cited the reference to the possibility of later events which might be said to be part of the elections.

11. The rules of the Union, particularly the rules of the New South Wales branch, prescribe a number of events which will or may occur after the declaration of the results of an election. Those events are prescribed within the rules laying down the procedure for the conduct of elections. They include notification by the returning officer to the Executive of the result of a ballot, the issuing of instructions by the Executive for the publication of the results in their minutes, (possibly) the actual publication of the results in the Executive minutes, the notification by the returning officer of each successful candidate by post, and the publication of the results by the returning officer in a daily newspaper. It may be seen that each of these events is directed towards the communication of the results of elections to those interested in them, and to members and the public generally. No time limits are fixed by the rules for the performance of any of these acts. Further events, also specified in the rules covering electoral procedure, include the commencement of the term of office of each person elected (on 2nd January following the elections), and the commencement by each such person of the performance of duties (14th January). These events do have the advantage of certainty, although they are specified only in respect of the positions governed by the branch rules.

12. In my view, the crucial question is whether any of these events can be regarded as part of the election itself, so that the last of them in time would be regarded as the date of completion of the election. By s.133(1)(d)(vi) of the Act, the rules of an organization are required to provide for the declaration of the result of a ballot, in respect of any election for an office. The Act does not require the rules of an organization to make express provision for the communication of the results to any person, after declaration. The provisions of the rules of the Union for such communication are, therefore, not necessary in terms of the Act, although they are undoubtedly valid provisions.

13. The specification of the date of completion of an election in s.159(5)(b) of the Act as the date of commencement of a period within which an application for an inquiry may be made is an indication that the date of completion of an election ought to be something ascertainable with reasonable certainty. It is important that the Industrial Registrar should be able to determine without too much difficulty whether an application is made within time, and therefore whether it should be referred to the Court. To allow the date of completion of an election to be determined according to the particular provisions of the rules of each organization would tend against such certainty. Further, where no times are fixed within which the events specified in the rules must be performed, such uncertainty will be magnified. Failure to perform an act required by the rules, even where it arises from inadvertence, would have the effect of extending, perhaps by a considerable amount, the time within which an application might be made for an inquiry. This in turn would reduce the certainty of the operation of organizations. It should be noted, in the present case, even though the results of the uncontested positions were declared on 16th October 1987, they were not the subject of any advertisement in a newspaper until 4th December.

14. Against this, Mr. Haylen argued that knowledge of the completion of an election is an important element in the making of an application for an inquiry. Section 159(1) of the Act gives to any member of an organization, or a person who, within the preceding period of twelve months, has been a member of that organization, a right to make application for an inquiry into an election within that organization. Unless a member, or former member, is able to know when the election was completed, he or she will be in difficulty as to the time limit for commencement. Mr. Haylen argued that a returning officer might make a declaration of the results without any person, interested or otherwise, being aware that he was doing so or had done so.

15. This is undoubtedly an argument of considerable strength. In my view, however, it does not outweigh the need for certainty. So far as it is based on an assumption that a declaration of the results might be made in secret, it is false. The very notion of a declaration of results carries with it the conclusion that the results are declared to somebody. I doubt that a returning officer could announce the results in a closed room with no other person present, and claim to have declared them. In the present case, the incorporation of the results in a letter to the branch secretary, coupled with the returning officer's instruction that the letter be hand delivered to the branch office, constituted a declaration of the results.

16. It must also be remembered that the time limit laid down by s.159(5)(b) is six months. Someone interested in applying for an inquiry into elections will have no difficulty in finding out when the results were declared, even if no provision is made by the rules of an organization for the broadcasting of such results. Mr. Haylen made reference to provisions of the Commonwealth Electoral Act 1918, especially sections 284 and 355(e), and to the provisions of the electoral laws of the United Kingdom, summarised in Halsbury's Laws of England, 4th ed. vol. 15, in para. 642 and the following paragraphs. Under the Commonwealth Electoral Act 1918, a petition disputing an election must be filed within forty days after the return of the writ. This time limit is much shorter than that provided for in s.159(5)(b). It also depends for its commencement upon an event which is not public, namely the return of the writ. The position appears to be similar in English parliamentary elections, where the period is twenty-one days after the return of the writ. See Halsbury, 4th ed., vol. 15, para. 844. It cannot be assumed, therefore, that the time limit within which an application for an inquiry under the Act must be lodged must commence with an event of a public nature.

17. Some attempt was made by Mr. Haylen to argue that the provisions of s.159(5)(b) are not mandatory, and that "substantial compliance" was all that was required. It has been held consistently that the provisions of s.159(2) of the Act, which include a time limit for applications for inquiries into elections not conducted under s.170 of the Act, are mandatory. See Re Application by O'Dowd for an Inquiry into an Election in the Commonwealth Bank Officers' Association, reported under the odd name of Re Applications by O'Dowd; Ex parte Commonwealth Bank Officers' Association (1984) 3 FCR 150, at pp 155-156 and the cases there referred to. There is an even stronger reason for regarding the time limit imposed by s.159(5)(b) as essential. Section 159(5)(c) of the Act makes provision for applications outside the period of six months, but the sub-section then goes on to provide that "the Court shall not proceed with the hearing of an inquiry" if the application is made outside the period of six months, unless certain conditions are satisfied. It is clear that, unless those conditions are satisfied, the Court is required not to proceed in respect of an application made after the expiration of the six month period. The conditions were not satisfied in the present case. There was some evidence that the applicants' solicitor was unaware of the date when the results of the election had been declared, and mistakenly believed that it was 4th December 1987. Section 159(5) does not permit an application to be lodged after the expiration of the six month period through ignorance of or mistake as to the date of commencement of that period. It requires absence of knowledge of the matters that are alleged to constitute an irregularity. No attempt was made to establish absence of such knowledge on the part of any of the applicants.

18. It follows that each of the applications was lodged outside the period of six months commencing on the date of completion of the elections. There is, therefore, no valid application before the Court for an inquiry, and the Court cannot proceed to conduct an inquiry. Each of the applications must be dismissed.