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Federal Court of Australia |
COURT
IN THE FEDERAL COURT OF AUSTRALIACATCHWORDS
Industrial Law - Elections inquiry - Simultaneous elections for positions in New South Wales Branch of federal organisation and in State registered union - Limitations on Court's power to resolve all complaints of irregularity - Meaning of "irregularity" in Industrial Relations Act - Non-compliance with certain procedural rules of organisation - Obligation of returning officer to initial ballot papers dispatched to voters - Discrepancies in numbers of unissued ballot papers - Effect of omission from voting roll of 1201 members - Whether rules of organisation providing for closure of voting roll six weeks before opening of ballot is "oppressive, unreasonable or unjust" - Entitlement of retired members to vote - Effect of determined irregularities on result of elections for various offices - Discretion.Industrial Relations Act 1988, ss.3, 4, 196, 197, 198, 208, 218, 219, 223.
HEARING
SYDNEYCounsel for the Applicant: Mr S C Rothman
Solicitors for the Applicant: R L Whyburn & Associates
Counsel for the Respondents: Mr F L Wright
Solicitors for the Respondents: McClellands
Counsel for the returning
officer, Mr Fitzgerald: Mr J P Phillips
Solicitors for the returningWorkers' Union of Australia:
officer, Mr Fitzgerald: Allen Allen & HemsleyCounsel for the Transport
Workers' Union of Australia: Mr W R HaylenSolicitors for the Transport Ryan, Carlisle, Needham & Thomas
ORDER
The further hearing of the matter be adjourned until 9.30 am on Friday 2 March 1990 upon which day counsel are directed to bring in short minutes of the orders necessary to give effect to the reasons publishedNote: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
DECISION
The proceeding before the Court seeks an inquiry under s.218 of the Industrial Relations Act 1988 into elections held in early 1989 for offices within the New South Wales Branch of the Transport Workers' Union of Australia. The filed Application refers both to positions within the Branch itself and to positions within its constituent Sub-Branches.2. The proceeding is brought by Mr E L Edwards, an unsuccessful candidate for
the position of Secretary/Treasurer of the Branch.
Notice of the application
was given to all candidates for the positions determined at those elections.
Three candidates appeared
by counsel to resist the application. Those
candidates were Mr J B McLean, the successful candidate for Branch
Secretary/Treasurer,
Mr S P Hutchings, who was elected as Sydney Sub-Branch
Secretary and as a New South Wales Branch representative on Federal Council,
and Mr R G Wearing, who was also elected as a New South Wales Branch
representative. For convenience, I will refer to those three
persons as "the
respondents". Notice of the application was also given to the returning
officer, Mr J W Fitzgerald. Mr Fitzgerald
also appeared by counsel, to put
material before the Court.
Background
3. The Transport Workers' Union of Australia (the "TWU") is an organisation registered under federal law; previously under the Conciliation and Arbitration Act 1904, now under the Industrial Relations Act. For many years it was thought that the New South Wales Branch of the federal organisation had subsumed a State union, which was known as "Transport Workers' Union, New South Wales Branch" and registered under the Trade Union Act (NSW) 1881 and the Industrial Arbitration Act (NSW) 1940. But, in Moore v Doyle (1969) 15 FLR 59 the Commonwealth Industrial Court held that this was not so, that both bodies continued to exist in law. The Court pointed out the inconvenience of this result, describing the situation, at p 123, as "technical, productive of artificialities and in urgent need of the attention of the law reformer". Their Honours announced, at p 124, their decision to refer their judgment to the Commonwealth Attorney-General "in the hope that it may be possible, after consultation between the Commonwealth and State Attorneys-General, the trade unions, both federal and State, and other interested government authorities to arrange for the examination of the important organisational matters to which we have referred". The situation referred to by their Honours arises whenever there exists, within a particular State, both a local branch of a federal organisation and a State registered union with corporate status. This situation is common in those States whose legislation requires that State registered unions have corporate form. Usually, both entities share a common name, common offices and finances and common officers; thus heightening confusion on those occasions when it is necessary to draw a distinction between them.
4. Following the decision in Moore v Doyle a working party was established. In 1974, J B Sweeney J., who had appeared as counsel in the case, was asked to report on the problem. His report, entitled "Report of the Committee of Inquiry on Co-ordinated Industrial Organisations" ("the Sweeney Report") suggested that the problem could be resolved by legislation permitting branches of a federal organisation, without being separately incorporated, to participate in State industrial arbitration systems. This would obviate the need to keep on foot a separate State organisation. There would be only one legal entity, the federal organisation. His Honour recommended the making of amendments to the Conciliation and Arbitration Act to enable branches of a federal organisation to obtain non-corporate registration under State Acts, and for changes to the relevant State laws to make this permissible. The recommended amendments were promptly made to the Conciliation and Arbitration Act, by Act No.89 of 1974. See s.139(5) and (6) of the principal Act providing for rule amendments to expand eligibility; Part VIIIB permitting amalgamations between federal organisations; ss.133A and 140(1)(d) relating to autonomy of State branches and s.136A permitting a branch of an organisation to become registered under a State law, so long as that does not involve its incorporation under that law. All of these provisions have been reproduced in the Industrial Relations Act: see Schedules 3 and 4. In addition, s.202 of the Industrial Relations Act provides for the making of agreements between federal organisations and State unions, removing eligibility differences.
5. However, not all of the States have responded with complementary legislation. In New South Wales, for numerous organisations, the unsatisfactory aspects of Moore v Doyle continue. Separate State unions remain. Usually, they have the same membership as the New South Wales branch of the federal organisation and are managed by the same officials, but under different sets of rules. In my opinion, such a situation is unacceptable. It must be difficult enough for union officials, few of whom are legally trained, to understand and apply one set of union rules. It is unreasonable to expect them to know and apply two separate, often conflicting, sets of rules. The problems facing ordinary members, keen to take an interest in union affairs but lacking any relevant training, are presumably even greater.
6. In the case of a disputed election the problems to which I refer are magnified by the fragmentation of jurisdiction within the court system. This Court inquires into complaints of irregularities in the election of officials of federal organisations. State courts deal with disputes about State positions. For reasons of economy and convenience, elections for both sets of offices are commonly held at the same time. An irregularity in the conduct of the ballot may infect both sets of elections. Yet no one court has the power to deal with the whole problem.
7. I am informed by counsel that, in the present case, an attempt was made to overcome this last-mentioned problem by resort to the cross-vesting legislation. Under section 8 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) the Supreme Court of New South Wales may remove to itself a proceeding pending in a New South Wales court, other than the Supreme Court, or in a tribunal established under New South Wales legislation, with a view to the Supreme Court transferring that proceeding under s.5 of that Act to this Court, the Family Court or the Supreme Court of another State or Territory. At the time of the elections the subject of the present application, elections were also held to fill certain State offices. All of these elections were conducted by the same returning officer and in the same way. The complaints of irregularities made in this Court apply equally to the State elections. Consequently, Mr Edwards made an application to the Industrial Commission of New South Wales for an inquiry into those elections. In order to obviate the expense of two separate proceedings, dealing with the same set of allegations, he sought an order under s.8 of the Jurisdiction of Courts (Cross-Vesting) Act, with a view to having the State proceeding removed to this Court for hearing at the same time as the existing proceeding. But, I am informed, the respondents indicated that they wished to challenge the constitutional validity of some aspect of the cross-vesting legislation; so, the Supreme Court has not yet dealt with the application for removal. This means that, if this Court finds the applicant's complaints are justified, it will be able to make orders only in respect of the federal offices, leaving the applicant -- if he wishes -- to prosecute in the Industrial Commission of New South Wales his application concerning the State offices. The inconvenience of this position is obvious. I offer no comment on the constitutional validity of the cross-vesting legislation, but I cannot refrain from commenting that this case admirably demonstrates its utility.
8. One other effect of Moore v Doyle, is specific to the TWU. As the Sweeney
Report shows, the decision in Moore v Doyle did not
resolve the disputes which
were occurring in that organisation, especially in New South Wales. Those
disputes continued for some
years, being finally settled by an agreement, the
terms of which included the insertion into the federal rules of a special rule
(r.63) making special provisions relating to the New South Wales Branch. The
relationship between this special rule and the general
rules of the
organisation is relevant to one of the complaints of irregularity made by the
present applicant.
The elections
9. Rule 33 of the rules of the federal organisation ("the federal rules") requires that elections be held every three years for positions in each Branch. The three-yearly timetable required elections for the New South Wales Branch early in 1989. Shortly before the date when nominations were due to be called for, the Branch returning officer fell ill and was admitted to hospital. Mr B W French, chief legal adviser to the Branch, consulted an officer of the Industrial Commission of New South Wales and, upon his recommendation, approached Mr Fitzgerald, a retired Assistant Under Secretary of the New South Wales Department of Industrial Relations. He asked Mr Fitzgerald whether he would be willing to act as returning officer at the forthcoming elections. Prior to that time there had been discussions within the Branch which gave rise to an expectation that few, if any, of the positions would be contested. I gather that Mr Fitzgerald was aware of this expectation when he indicated his willingness to assist.
10. Mr French apparently reported Mr Fitzgerald's response to the Branch President, Mr L Johnson, who urgently convened a special meeting of the Branch Committee of Management. This was a telephonic meeting, held on 7 November 1988. The participants included Mr Edwards and Mr B Joy, subsequently an unsuccessful candidate for a position as a New South Wales Branch Representative on Federal Council, running on the "Edwards ticket". During the meeting, no point was taken about its validity. On the motion of Mr Joy, the Branch Committee of Management appointed Mr Fitzgerald to act as the returning officer for the forthcoming elections.
11. Upon the following day, Mr Fitzgerald called for nominations, both for positions in the New South Wales Branch of the federal organisation and for positions in the State union. Apparently, a difficulty arose in connection with nominations for the State positions. Following an application to Fisher J., President of the Industrial Commission of New South Wales, the time for State nominations was extended. But federal nominations closed on 29 November 1988. By that time it was clear that there would be an active contest for many positions, including Branch Secretary/Treasurer. As candidates for that position, Mr McLean and Mr Edwards each led "tickets" embracing a number of positions, both federal and State. A third person, Mr G F Glossop, also nominated for Branch Secretary/Treasurer.
12. Upon the instructions of the then-Branch Secretary/Treasurer, Mr H F Quinn, in early January 1989 an administrative officer of the union printed out, from the union's computer records, what she believed to be a complete list of the names and addresses of the financial members of the Branch (and of the State union) as at 31 December 1988. Mr Quinn gave the list to Mr Fitzgerald. He supplied copies of the list to each of Messrs McLean, Edwards and Joy. It is common ground between the present parties that the list was inaccurate; but there are issues between them as to the extent of the inaccuracies and their significance. I will return to those matters. It is enough to say at this stage that, at the time, nobody realised that there were inaccuracies. Mr Fitzgerald accepted the list as being accurate and he used it for the purpose of distributing the ballot papers to members.
13. On 19 January 1989 Mr Edwards wrote a letter to Mr Fitzgerald, addressed
to him at his home at Sans Souci, which read as follows:
"I advise that Chris Yule of 27 NationalMr Fitzgerald replied five days later, saying:
Avenue, Loftus is my nominated scrutineer for
transaction in relation to these elections.
To ensure it is a fair election I request the
following:
1. All ballot Paper be water marked.
2. My Scrutineer be present at the times the
ballots are being produced.
3. The printer supply a certificate for the
number of ballot papers and spoils
printed.
4. The scrutineer be present when the plates
are to be destroyed.
5. The scrutineer be present when mailing
and collection of mail takes place.
6. All returned mail be held by the
Industrial Registrar.
I wish the above be carried out in accordance
with a fair and honourable election."
"Thank you for your letter of 19 January, 1989,14. The evidence establishes that, when Mr Edwards wrote his letter, the federal papers had already been printed. Consequently, it was already too late for Mr Fitzgerald to comply with Mr Edwards' first two requests, at least insofar as the federal elections were concerned. I do not know why Mr Fitzgerald did not point this out in his reply, but I do not think that anything turns on this omission. There is no suggestion that Mr Fitzgerald intended to deceive Mr Edwards.
advising that Chris Yule of 27 National Avenue
Loftus is your nominated scrutineer for the
forthcoming elections.
Turning now to your requests concerning the
ways in which I carry out my duties as
Returning Officer, I can only state quite
unequivocally that I will conduct these
elections fairly and impartially and in strict
accordance with the Rules of the Union, as I
am required so to do.
Similarly, I can assure you that every
courtesy and facility will be accorded to your
nominated scrutineer to allow him to perform
his duties as laid down in the Rules of the
Union."
15. Shortly after this exchange of correspondence, Mr Fitzgerald commenced the task of distributing ballot papers to each of the persons listed upon the roll supplied to him. Mr Fitzgerald set out to supply each of those persons with a blue federal ballot paper relating to the positions of Branch Secretary/Treasurer and Branch Representative on Federal Council. Except for those members who were members of the South Coast Sub-Branch, where candidates were elected unopposed, it also was intended that each member receive a pink ballot paper listing candidates for federal Sub-Branch positions and a white ballot paper for positions in the State union. Mercifully, the same people were candidates for each of the positions in the federal and State Sub-Branch elections. Over 33,000 persons were included on the list of members supplied to Mr Fitzgerald, so he had to distribute some 100,000 ballot papers.
16. Mr Fitzgerald thought that he should initial each ballot paper sent to a member but that the number of papers was too great for him to do this personally. So he obtained some rubber stamps containing a facsimile of his initials. He employed some assistants on a casual basis. They helped him to stamp all of the ballot papers -- even those which were not in fact distributed -- and to insert the appropriate ballot papers in envelopes on which address labels (supplied by the TWU office) had previously been affixed. This task was carried out at Mr Fitzgerald's home. Apparently, it extended over a number of days. No notice of the arrangements was given to Mr Edwards, or to anybody on his behalf, and he had no representative present while this work was done. There is no evidence as to the identity of the casual employees or the extent of their supervision by Mr Fitzgerald.
17. Despite the terms of Mr Edwards' letter of 19 January, Mr Fitzgerald did not notify either Mr Edwards or Mr Yule of his arrangements for dispatching the ballot papers. But he gave evidence that he spoke to Mr French about the matter. He told Mr French that some of the ballot papers would be taken to the post office on the afternoon of Thursday 9 February and some on the following morning, but that he could not give a time because that depended upon when the post office van called to pick up the bags of envelopes. Mr Fitzgerald said that he asked Mr French to convey this information "to the two teams" and that Mr French said that he would do this.
18. It is not clear what, if anything, Mr French passed on to Mr Edwards or his supporters. There is no suggestion that Mr Yule was informed. In evidence, Mr French was able to give only general information in relation to passing on information to Mr Edwards. He said that, during the election period, Mr Edwards spent little time in the TWU office and that he often passed to Mr Paul Fisher or Mr Brendan Langan information which Mr Fitzgerald intended for Mr Edwards. Mr Fisher and Mr Langan were TWU employees whom Mr French associated with the Edwards "team", although neither was a candidate in the election. Neither of these men has given evidence and it is unclear to what extent either of them received messages or passed them on. Mr Edwards said that he did not receive any information as to the posting of the ballot papers or, at a later stage, of the uplifting from the post office of envelopes containing completed ballot papers.
19. The arrangements for the dispatch of the ballot papers in fact differed from what Mr Fitzgerald had told Mr French. I gather that the postal van arrived earlier than expected. The evidence includes a bulk postage receipt showing the lodgment of 33,510 articles at Kogarah post office at 11.32 am on Thursday 9 February. Apparently, Mr Fitzgerald believed that the ballot papers would be dispatched from the post office on the following day, the Friday. The ballot was to open on the following Monday, 13 February, and Mr Fitzgerald aimed to have the ballot papers in the hands of members on, or shortly after, that day. However, some of the ballot papers were delivered to voters on Friday 10 February. Mr Fitzgerald said that, on that day, he learned that the ballot papers had been distributed, obviously earlier than he had anticipated.
20. The ballot was due to close on Friday 3 March 1989. On Tuesday 28 February it was discovered that 1201 names had been inadvertently left off the roll used for the distribution of ballot papers. The people concerned were financial members of the TWU at 31 December 1988. It is common ground that they were entitled to vote. The omission occurred because the TWU computer had been programmed to code with an "0" all members in respect of whom, at any stage, any mail had been returned unclaimed. In order to avoid wasted postage, the names of "0" coded members were excluded from lists of members intended to receive routine mailings. When the election roll had been printed, nobody realised that this list also omitted the "0" coded members.
21. When the omission was discovered, Mr French discussed the situation with Mr Fitzgerald, who asked him to ascertain the attitude to the problem of each of the factions contesting the election. According to Mr French, he spoke to Mr Fisher and asked him to find out whether Mr Edwards wanted an extension of time, so as to allow ballot papers to be sent to these members. Mr Fisher said that he would find out. Later, according to Mr French, Mr Fisher said that Mr Edwards wished the election to go ahead as planned, that he did not want either a deferral or a fresh election. Mr French said that, after speaking to Mr McLean, he informed Mr Fitzgerald, on 2 March, that neither team favoured delay. Mr Fitzgerald said that he offered to provide ballot papers to any member who called at his home and produced evidence of his union membership and a statutory declaration that he had not already received ballot papers. Apparently some persons took advantage of this offer.
22. In evidence, Mr Edwards denied that Mr Fisher spoke to him about an extension of the ballot period. However, he did agree that Mr Fisher informed him of the omission of the 1201 names. He said that he wanted all members to be given an opportunity to vote, but he seems to have been content with the offer made by Mr Fitzgerald to supply members who called at his home, at least in the sense that he did not urge any additional step.
23. Mr Fitzgerald had hired, for the election, a post box at Sans Souci post office. Completed ballot papers arrived at that post office over the full period of the ballot. From time to time Mr Fitzgerald picked up bags of envelopes from the post office and took them to the premises of the Industrial Commission of New South Wales. He had previously made arrangements to store and count the ballot papers in an office at the Commission. The envelopes were placed in steel ballot-boxes which Mr Fitzgerald locked. Ballot papers were uplifted from the post office on some eight occasions. Mr Edwards was not represented on any of these occasions. I accept Mr Fitzgerald's evidence that, each time, he asked Mr French to give notice to the teams of candidates of his intention to clear the box. But it is unclear to what extent the messages were passed on. Mr Edwards never remonstrated about lack of notice. This fact, combined with his lack of representation at the clearance immediately after the closing of the ballot at midday on Friday 3 March, an event of which he had notice, leads me to believe that Mr Edwards was not, at the time, concerned about being represented at the clearing of the post box.
24. The counting of the ballots commenced on Monday 6 March and occupied nine days. The counting took place at the offices of the Industrial Commission and in the presence of scrutineers representing each of the teams of candidates. Although some matters relating to security were mentioned in the evidence, it was not suggested, in the end, that the ballot papers were improperly or insecurely stored, handled or counted. Only two matters require comment. First, Mr Yule noticed that many of the envelopes lacked a post mark. He drew Mr Fitzgerald's attention to the matter and asked that these envelopes be put to one side. Mr Fitzgerald agreed to do this, although he commented to Mr Yule that all the envelopes had been received through the post. Towards the end of the count these votes were separately counted, so that the number of such votes for each candidate for each office would be known. But Mr Fitzgerald took the view that the votes ought to be included in the ballot and they were. It is not now suggested that this decision was incorrect. There is evidence from the postal manager at Sans Souci post office that it is a common occurrence for business reply mail not to be cancelled by post marking at the receiving post office. There is no reason to doubt Mr Fitzgerald's evidence that all of the ballots admitted to the count were received through the post.
25. The second matter noticed during the count was that there was a misprint on some of the return-addressed envelopes. In the top right-hand corner, where a stamp would normally be placed, Mr Fitzgerald had intended that there should appear the words: "No postage stamp required if posted in Australia". Some of the envelopes lacked the opening "No". This applied to only a small proportion of the envelopes. The 35,000 envelopes which were printed had apparently required more than one run. Possibly in a reaction to the absence of "No", some voters affixed postage stamps to the envelopes addressed to the returning officer. Others did not. They may have noticed the words in a box in the middle of the envelope "BUSINESS REPLY POST ... Postage and fee will be paid on delivery to ...", followed by the returning officer's post box address. Whether or not stamps were affixed, envelopes from which the word "No" was omitted were delivered to Mr Fitzgerald. The papers they contained were included in the count.
26. On 17 March 1989 Mr Fitzgerald declared the results of the elections. In
the election for Branch Secretary/Treasurer, Mr McLean
defeated Mr Edwards by
7060 votes to 5155. The third candidate, Mr Glossop, secured 611 votes. Mr
McLean's team was also successful
in connection with the other positions. All
of the persons named on his "ticket" were elected; although in some cases the
margin
was small.
Procedural irregularities
27. Section 218 of the Industrial Relations Act provides:
"Where a person who is, or within the28. Section 219 provides that, where such an application is lodged and the Court is satisfied that there is reasonable ground for the application, the Court shall fix a time and place for conducting the inquiry and may give directions regarding the hearing. Section 223 deals with the Court's powers at the inquiry:
preceding period of 12 months has been, a member of
an organisation claims that there has been an
irregularity in relation to an election for an
office in the organisation or a branch of the
organisation, the person may make an application
for an inquiry by the Court into the matter."
"223 (1) At an inquiry, the Court shall29. It will be noted that the first issue is "whether an irregularity has happened in relation to the election". "Irregularity" is defined by s.4 of the Act, when used in relation to an election or ballot, as including:
inquire into and determine the question whether an
irregularity has happened in relation to the
election, and such further questions concerning the
conduct and results of the election as the Court
considers necessary.
(2) In the course of conducting an inquiry,
the Court may make such orders (including an order
for the recounting of votes) as the Court considers
necessary.
(3) If the Court finds that an irregularity
has happened, the Court may, subject to subsection
(4), make one or more of the following orders:
(a) an order declaring the election, or any
step in relation to the election, to be void;
(b) an order declaring a person purporting to
have been elected not to have been
elected, and declaring another person to
have been elected;
(c) an order directing the Industrial
Registrar to make arrangements:
(i) in the case of an uncompleted
election -- for a step in relation
to the election (including the
calling for nominations) to be taken
again and for the uncompleted steps
in the election to be taken; or
(ii) in the case of a completed election
-- for a step in relation to the
election (including the calling for
nominations) to be taken again or a
new election to be held;
(d) an order (including an order modifying
the operation of the rules of the
organisation to the extent necessary to
enable a new election to be held, a step
in relation to an election to be taken
again or an uncompleted step in an
election to be taken) incidental or
supplementary to, or consequential on,
any other order under this section.
(4) The Court shall not declare an election,
or any step taken in relation to an election, to be
void, or declare that a person was not elected,
unless the Court is of the opinion that, having
regard to the irregularity found, and any
circumstances giving rise to a likelihood that
similar irregularities may have happened or may
happen, the result of the election may have been
affected, or may be affected, by irregularities.
(5) Without limiting the power of the Court to
terminate a proceeding before it, the Court may, at
any time after it begins an inquiry into an
election, terminate the inquiry or the inquiry to
the extent that it relates to specified matters."
"(a) a breach of the rules of an organisation30. Paragraphs (a) and (b) of this definition are alternatives. A rule breach which relates to an election or ballot constitutes an "irregularity", whether or not it is shown to have prevented or hindered a fair election. Conversely, an act or omission which relates to an election or ballot and which prevents or hinders the full and free recording of votes or the correct ascertainment or declaration of the results of the voting is an "irregularity" even though it may not be a breach of the rules. The situation under the Industrial Relations Act is similar to that which applied under the Conciliation and Arbitration Act: see Re Collins; ex parte Hockings (1989) 63 ALJR 606 at p 608.
or branch of an organisation; and
(b) an act or omission by means of which:
(i) the full and free recording of votes
by all persons entitled to record
votes and by no other persons; or
(ii) a correct ascertainment or declaration
of the results of the voting;
is, or is attempted to be, prevented or hindered;"
31. Counsel for the applicant submits that there were numerous irregularities in connection with these elections. He concedes that some of the irregularities were not such as to require the invalidation of the elections, but he says that some of them were. I will deal with each of the alleged irregularities first, leaving until later my consideration of the appropriate order.
32. Counsel first raises five procedural matters, stated as follows:
(a) There was no valid appointment of the33. Counsel concedes that items (a), (b) and (e) could not affect the result, with or without other matters. I agree with this, but I also think that item (a) is misconceived.
returning officer before the elections
were commenced. There is no power to
hold meetings of the Branch Committee of
Management by telephone.
(b) The returning officer obtained a post
office box at a place other than the
General Post Office.
(c) The returning officer posted otherwise
than in the presence of scrutineers who
wished to be present.
(d) The returning officer did not himself
initial or stamp his initials on the
ballot paper.
(e) Asterisks were placed on the ballot paper.
34. The submission concerning the telephone meeting arises out the special
rule, r.63, relating to the New South Wales Branch. Rule
63 is introduced by
the following words:
"The following provisions shall apply in35. The rule goes on to make provision in respect of a number of matters, including applications for membership, financial matters, the New South Wales Committee of Management, Sub-Branches, elections, the Finance Committee, meetings and other matters. Sub-rule (20) deals with meetings of the Branch Committee of Management, in these terms:
respect of the New South Wales Branch of the
Union (in this Rule called 'the New South
Wales Branch'). Nothing contained in this
Rule shall affect the application of any other
Rule to the New South Wales Branch and to the
holders of offices within and to the members
of that Branch except insofar as this Rule may
be inconsistent with another Rule in which
event the provisions of this Rule shall
prevail to the extent of such inconsistency."
"(20)(a) Ordinary meetings of the New South Wales36. It will be noted that no mention is made of telephone meetings. However r.43(g) of the federal rules, which applies to all Branches, does so provide. Relevantly it reads:
Committee of Management shall be held not
less frequently than once each six months
at such place and time as may be decided
by the Branch President and Secretary-Treasurer;
Provided that within 28 days of the
declaration of the poll in each general
election the Branch Committee of
Management shall meet for the purpose of
electing the Branch President, Branch
Vice-President, Branch Assistant
Secretary and 3 Branch Trustees as
provided in Sub-Rule 63(11) hereof.
(b) Special Meetings of the Branch Committee
of Management shall also be called by the
Branch Secretary in accordance with
Sub-Rule 43 (g) on the request of a
majority of the Sub-Branches. Such
requests shall be in writing setting out
clearly the business required to be dealt
with at such Special Meetings."
"(g) Special meetings of a Branch Committee ofThe sub-rule was amended, to take this form, in July 1988.
Management shall be held from time to
time to determine any matter which
requires urgent attention. The special
meetings shall be convened by the Branch
Secretary by written notice to each
member of the Branch Committee of
Management. Such notice shall clearly
show the time and place of the meeting
and the nature of the business to be
determined and it shall be conveyed by
hand or telegram or postal mail provided
the method of conveyance used shall have
regard to the time and place of the meeting.
Provided also that where a matter
requires urgent attention special
meetings may be conducted by telephone,
radio or any other method by which
members of the Branch Committee of
Management are able to communicate orally
with each other without being physically present.
...
Notwithstanding any of the foregoing
provisions of this clause, the Branch
Secretary and/or Branch President and/or
a Branch Committee of Management at its
ordinary meeting, shall have the power to
call a special meeting of the Branch
Committee of Management to deal with
urgent and/or outstanding matters."
37. There is no doubt that, if r.43(g) applies to the New South Wales Branch, the meeting of 7 November 1988 was valid and Mr Fitzpatrick was validly appointed before he called for nominations. But the applicant argues that r.43(g) does not apply, because it is inconsistent with r.63. I do not think that it is. There is no literal inconsistency between the two rules. Rule 63(20) requires Branch Committee of Management meetings to be held upon certain occasions. Paragraph (a) envisages a meeting at a particular place, so the requirements of that paragraph could not be satisfied by a telephonic meeting. But that comment does not apply to special meetings called under para.(b). That paragraph does not require, either expressly or impliedly, that the meeting be held in a particular place. If a meeting constituted under r.63(20)(b) is urgent, there is no reason why r.43(g) should not apply to it. Rule 63(20) is concerned to ensure that particular meetings are held. It does not preclude the calling of other special meetings in accordance with a general rule such as r.43(g). And, however a special meeting is called, r.63(20) is not concerned with procedural matters. These are left to r.43(g).
38. Rule 33(i) of the federal rules requires the Branch returning officer to "obtain the keys of a box at the GPO in the capital city of the State in which the election is being held". Paragraph (l) requires the use of "pre-paid envelopes addressed to the box number at the GPO". In taking and using a post office box at Sans Souci, Mr Fitzgerald failed to comply with these requirements. Sans Souci post office is not the Sydney GPO. Mr Fitzgerald took this course as a matter of convenience. His choice was understandable. Sans Souci post office was both closer to his home and more accessible by motor vehicle, an important consideration as he had to transport a large quantity of mail. Under present-day conditions, the requirement to use a GPO box may be unduly restrictive. It is important that the selected post office be conveniently accessible to scrutineers. But this result could be achieved by requiring that the chosen post office be within a specified radius of the relevant General Post Office. However this may be, it is clear that the course adopted by Mr Fitzpatrick involved an irregularity.
39. Rule 33(m) of the federal rules requires the returning officer to "post by pre-paid post the ballot papers and pre-paid envelopes in the presence of such scrutineers as wish to be present as soon as practicable after the opening of the ballot ... to each voter entitled to vote within the Branch in accordance with the voters' list". By implication, the returning officer is required to notify the scrutineers of his intention to post the ballot papers. It is clear that Mr Fitzgerald failed to notify Mr Yule of his intention to post the ballot papers. The duty to notify Mr Yule would not have been satisfied by a message, via Mr French, to the "Edwards team". Mr Fitzgerald knew that Mr Yule had been appointed as a scrutineer, a position recognised by the rules. Mr Fitzgerald ought to have directly notified Mr Yule. It follows that there was a breach of r.33(m), and thus a further irregularity.
40. The complaints about Mr Fitzgerald's failure personally to initial the ballot papers, and about the insertion of asterisks, both arise out of r.33(l). That paragraph requires the returning officer to "cause to be prepared sufficient ballot papers which shall not be numbered or otherwise marked except with the Branch Returning Officer's initials". Mr Fitzgerald saw this as a requirement that he mark the ballot papers with his initials, but he did not understand the paragraph to require him personally to initial the papers.
41. The paragraph does not expressly require that the returning officer personally initial the ballot papers. But I think that this is implied. The initialling of ballot papers before they are issued to voters is a well-established practice. The purpose of the practice is to reduce the chance of unauthentic ballot papers being introduced into the count. Although authentication by others, in the name of the returning officer, may go some way towards inhibiting the intrusion of unauthentic ballot papers, there is always a danger that those people will be corrupt or inefficient. The desired purpose is most likely to be achieved if the returning officer personally initials the ballot papers. In the present case, this did not occur, so that r.33(l) was breached.
42. Even if I am wrong in thinking that the failure of Mr Fitzgerald to affix his initials personally was a breach of r.33(l), there was nonetheless an irregularity. It will be recalled that the definition of "irregularity" in s.4 of the Act includes an omission, in relation to an election or ballot, "by means of which the full and free recording of votes by all persons entitled to record votes and by no other persons ... is ... hindered". It seems to me that the failure to initial personally hinders the recording of votes "by no other persons".
43. Counsel for the applicant submits that there would have been an
irregularity, even if Mr Fitzgerald had personally affixed a
rubber stamp of
his initials to each ballot paper. In Re Transport Workers' Union of
Australia, New South Wales Branch (1968) AR 141, Richards J., of the New South
Wales Industrial Commission, considered r.53(b)(iv) of the State rules which
required that the returning
officer "initial and post to each member entitled
thereto, a ballot paper". The evidence was that the returning officer
personally
stamped each ballot paper with a rubber stamp containing his
initials. In that case the initials were reproduced in Roman capital
letters,
not as a facsimile of his written initials, as in the present case. Richards
J. was referred to English authority dealing
with the application in different
contexts of the word "signed". He expressed his conclusion at p 153:
"On the authority of Goodman v Eban (1954) 1 QB44. I agree with the purpose stated by Richards J. in this passage. It seems to me that the use of any rubber stamp, facsimile or not, militates against the achievement of this purpose. With modern reproduction techniques it probably would not be difficult for a person to make up a facsimile stamp from initials imprinted on a ballot paper. Moreover, the use of a stamp introduces a risk of unauthorised stamping. I do not think that decisions taken from different contexts, as to what constitutes a "signing", are helpful in interpreting the requirement to initial ballot papers.
550, it would seem that, if the returning
officer had used a rubber stamp which was a
facsimile of his initials written in his own
handwriting, this would have been a sufficient
compliance with r.53(b)(iv). However, in my
opinion, the rubber stamp which was used by
the returning officer in this case was not a
sufficient compliance with that part of
r.53(b)(iv) which requires him to initial each
ballot paper.
The main purpose of initialling the ballot
papers, as provided for in r.53(b)(iv), is to
ensure that only those ballot papers, which
had been issued to the voters by the returning
officer, are returned to him for inclusion in
the ballot. Marking the ballot papers with
the rubber stamp described, which was not a
facsimile of the initials of the returning
officer in his own handwriting, in my opinion,
would not achieve the purpose mentioned above
as the rubber stamp used by the returning
officer could, without a great deal of trouble
have been copied by any person wishing to do so."
45. Before leaving the matter of initialling the ballot papers, I make two comments. First, the evidence in this case is that all the ballot papers received from the printer were stamped with the facsimile of Mr Fitzgerald's initials. The unissued ballot papers, which are in evidence, are so stamped. It seems to me that such a procedure defeats one of the purposes of initialling: the exclusion from the count of any ballot papers which may be stolen from the returning officer. Although it is impossible totally to eliminate the chance of fraud, that chance is reduced if the returning officer does not initial the ballot paper until immediately before it is placed in an envelope addressed to a voter.
46. My second comment is that, in the case of a large union, the requirement that every ballot paper be personally initialled by one person may be unduly onerous. If so, it seems to me that, rather than permit others to affix the returning officer's stamp, it is preferable to authorise others to write their own initials. Such a course would sheet home responsibility to particular people and eliminate the risks associated with the misuse, or fraudulent reproduction, of the stamp. This, of course, is the procedure adopted at Parliamentary elections, where each ballot paper is personally initialled by the officer who issues it to the elector. That procedure could be adapted to a union election by making provision in the rules for assistant returning officers, and by permitting either the returning officer or an assistant returning officer to initial a ballot paper before placing it in the envelope addressed to the voter.
47. Finally, in this bracket of submissions, counsel for the applicant submits that it was a breach of r.33(k) for the ballot papers to show asterisks against the names of incumbent candidates; that is, candidates who at that time occupied the positions for which they were standing. The basis of the submission is that r.33(k), which specifies the information to be included on the ballot papers, does not include information as to whether a candidate is an incumbent officer, and that para.(l) prohibits any other numbering or marking.
48. I think that this submission is correct and that the placing of asterisks on the federal ballot papers constituted an irregularity. It is understandable how the irregularity occurred. Rule 54 of the State rules, which deals with elections for positions in the State registered union, requires that "(a)ny Member who is a candidate and is occupying a position for which he has renominated, shall be indicated by an asterisk alongside his or her name on the Ballot Paper". The State ballot papers, for the subject elections, complied with this instruction. It would appear that, in preparing the federal ballot papers, Mr Fitzgerald inadvertently followed the same course.
49. There is no reason to think that the use of asterisks affected the result of the subject elections. I do not know whether or not it would have been an advantage, in February 1989, to be an incumbent officer. But, whether the effect was an advantage or disadvantage, it was spread between the two teams of candidates. There were as many incumbent officers in the Edwards team as in the McLean team. Although Mr Edwards saw draft ballot papers before they were printed, he made no complaint to Mr Fitzgerald about the presence of the asterisks.
50. Counsel for the applicant puts a general submission that it was an irregularity for Mr Fitzgerald to fail to comply with the requests contained in his client's letter of 19 January. The basis of the submission is that r.33(n) permits a candidate to "authorise a scrutineer to watch his interests at any stage of the conduct of a ballot". It is said that all of the steps mentioned in the letter were stages in the conduct of the ballot. Alternatively and additionally, counsel relies on para.(b) of the definition of "irregularity".
51. I think that this submission is put too broadly. I agree that items 2, 4 and 5 of the letter relate to stages in the conduct of the ballot. As to item 2, it appears that the federal ballot papers had already been printed when the letter was received. There is no separate rule requirement for a scrutineer to be present at the printing of the ballot papers. Item 4 relates to destruction of the plates. But the evidence is that the plates were returned to Mr Fitzgerald. They have not yet been destroyed. I have already referred to the mailing of ballot papers, mentioned as item 5. In respect of collection, it is clear that Mr Fitzgerald failed to notify Mr Yule when this would take place. I accept that he asked Mr French to pass on messages on each occasion, but on no occasion did he ensure that Mr Yule was aware of the opening of the post office box.
52. The matters mentioned in items 1, 3 and 6 have nothing to do with scrutineers. They are actions not required by the rules. They are actions conducive to a fair election, but I think that it goes too far to say that their omission would hinder a full and free recording of votes or a correct ascertainment or declaration of the results of the voting.
53. The remaining matters raised by counsel for the applicant relate to the correctness of the voters' roll and the eligibility for nomination of two particular candidates. Before going to those matters it is appropriate to put into context the procedural irregularities to which I have referred by noting the result of an analysis of the numbers of ballot papers which was undertaken by Mr Edwards. Upon one view that analysis provides evidence of additional irregularities: a failure to send ballot papers to all of the persons entitled to them, in the case of the Sub-Branch elections; and an unexplained loss of ballot papers, in the case of the Branch elections.
54. Mr Edwards first went to the printer's certificate to ascertain how many of the different categories of ballot papers were printed. In the case of each category, he deducted from that figure the number of unissued ballot papers, by counting the unissued ballot papers still retained by Mr Fitzgerald. He also calculated the number of ballot papers issued as replacements for spoiled ballot papers by counting the spoiled ballot papers themselves. The unissued and spoiled ballot papers were retained by Mr Fitzgerald and were tendered in evidence. The number of ballot papers remaining, in each category, is the number of ballot papers which ought to have been issued to the voters. Mr Edwards compared each of these figures with the number of voters on the roll. He found a discrepancy in every case.
55. Mr Edwards was cross-examined about the counts he had made. During the
course of that cross-examination it became apparent that,
although the
respondents challenged his figures, they had not checked Mr Edwards' count. I
indicated that I found this position
unsatisfactory and that I expected
agreement to be reached on the figures; otherwise, I would be left to check
them myself. Subsequently,
representatives of the respondents checked Mr
Edwards' figures. They found some errors, most of them minor. The solicitors
for
Mr Edwards then indicated that their client accepted the respondents'
figures. With the benefit of that agreement, I have prepared
a table, which I
set out as attachment "A" to these reasons. This table deducts, in each
category, the total of voters on the roll,
unissued ballot papers and spoils,
from the number of ballot papers printed. In the case of the ballot for
Branch offices (blue
ballot papers) there is an unexplained deficiency of 162
ballot papers. In each of the Sub-Branch ballots, for federal positions
(pink
ballot papers), there is an unexplained surfeit of ballot papers. The excess
varies between the different Sub-Branches as
follows: Southern Districts
Sub-Branch, 74; North Coast Sub-Branch, 57; Western Districts Sub-Branch, 59;
Newcastle Sub-Branch,
533; and Sydney Sub-Branch, 252. I have not made any
close analysis of the position relating to the white ballot papers, as these
relate to State positions. However, upon a cursory examination, the numbers
of these ballot papers seem to show similar discrepancies.
The voters' roll
56. Three separate matters arise in connection with the voters' roll. First, it is common ground that the 1201 "0" coded members ought to have been included in the ballot. It is possible that some of these people did vote, by making a personal application to Mr Fitzgerald at his home. The evidence does not disclose how many people applied to Mr Fitzgerald or what proportion of those applicants were "0" coded members. There is no reason to believe that a significant number of "0" coded members voted in this way. The overwhelming majority of these members must have been excluded from the ballot. This was an irregularity.
57. Secondly, complaint is made about the exclusion from the ballot of members who had joined the organisation, or become financial, since the end of December 1988. Certainly, this exclusion was sanctioned by the federal rules. Rule 33(j) requires the compilation and use of a list of members of the Branch "who were financial at the closing time for nominations". Rule 33(e) requires nominations to close at noon on the last Tuesday in November 1985 and each third year thereafter. Consequently, in any Branch other than New South Wales, the effect of these rules would have been to require use of a list of the financial members as at Tuesday 29 November 1988. However, r.63 makes an inconsistent provision regarding the New South Wales Branch. Rule 63(16) provides that "members who are financial at 31 December 1979 and in each third year thereafter shall be entitled to vote".
58. The evidence is that since 1981 the roll of members has been kept on a computer. The roll is updated each day, recording new members and unfinancial members who have become financial. A copy of the roll can be printed out overnight. Under these circumstances, says counsel for the applicant, it is unreasonable to retain a roll cut-off date six weeks earlier than the opening of the ballot -- which, by r.33(g), is always to be on 11 February -- and nine weeks before the close of the ballot -- which, by the same sub-rule, is always 3 March or the next working day. Counsel points out that s.197(1) of the Industrial Relations Act requires that the rules of an organisation shall provide for the election of the holder of each office in the organisation by either a direct voting system or a collegiate electoral system. Section 198 requires that, where the rules provide for election for an office to be by a direct voting system, the rules must also provide that, where a ballot is required for such an election, it be by a secret postal ballot. (The Conciliation and Arbitration Act, which was in force when the subject elections commenced, contained similar provisions: see ss.133 and 133AA and the definition of "direct voting system" in s.4.)
59. The TWU federal rules do not, in terms, require elections to be by a
direct voting system. But r.33(h) requires that elections
to offices be "by
means of a secret postal ballot". Counsel argue that the use of the phrase
"secret postal ballot" is a clear indication
of an intention to adopt a direct
voting system, especially as the rules do not provide for collegiate
elections. Accordingly, the
argument runs, it is material to apply the
definition of "direct voting system" contained in s.4 of the Act. That
definition reads:
"'direct voting system', in relation to an60. Counsel says that a provision excluding from the ballot all persons who have joined the organisation, or become financial, in the period of six weeks prior to the opening of the ballot goes beyond what is a reasonable provision in relation to enrolment. Accordingly, the rules do not really implement a direct voting system and, to the extent that they unduly exclude members from the ballot, they are unreasonable. Counsel points out that the organisation would have no difficulty, from a technical point of view, in providing to the returning officer a print-out list of persons who have become financial members between 31 December and, say, the day upon which the ballot opened. This supplementary voting roll could be used by the returning officer in sending ballot papers to these people.
election for an office in an organisation,
means a method of election at which:
(a) all financial members; or
(b) all financial members included in the
branch, section, class or other division
of the members of the organisation that
is appropriate having regard to the
nature of the office;
are, subject to reasonable provisions in
relation to enrolment, eligible to vote;"
61. The evidence in the present case does not show the number of persons who became financial members of the New South Wales Branch in the period from 1 January 1989 to 10 February 1989. However, there is evidence that, for the complete months of January and February 1989, there were 1156 persons in this category: 812 in the Sydney Sub-Branch, 120 in Newcastle, 127 in South Coast, 44 in Southern Districts, 12 in Western Districts, 21 in North Coast and 20 interstate members.
62. Section 196 of the Industrial Relations Act provides:
"196 The rules of an organisation:63. Section 208(2) empowers the Court, on the application of a member of the organisation, to declare "that the whole or a part of a rule of an organisation contravenes section 196 or that the rules of an organisation contravene section 196 in a particular respect". It follows that, if the Court is persuaded that a rule relating to the closing of the voting roll is contrary to law or that it imposes on members of the organisation conditions or restrictions that, having regard to the objects of the Act and the purpose of the registration of organisations under the Act, are oppressive, unreasonable or unjust, it may so declare. The Court encounters no procedural difficulty in making such a declaration in the course of an election inquiry. It was held, in relation to inquiries under the Conciliation and Arbitration Act, that, once an inquiry was properly instituted, the Court might examine any irregularity which came to light, whether or not it was an irregularity identified in the original application for an inquiry: see Re Election for Offices in the Federated Liquor and Allied Industries Employees' Union of Australia (1970) 16 FLR 107 at p 110 ("the FLAIEU case") and Re Australian Postal and Telecommunications Union; ex parte Wilson [1979] FCA 107; (1979) 28 ALR 330 at p 333. It seems to me that the reasoning of these cases equally applies to an inquiry under the Industrial Relations Act. The wording of s.218 of the Industrial Relations Act is relevantly indistinguishable from that of s.159(1) of the Conciliation and Arbitration Act. It is possible to adapt the words of Kerr J. in the FLAIEU case, by saying that the "matter" referred to in s.218 is whether there has been "an irregularity in the election" (original emphasis). Section 223(1) confirms this interpretation by requiring the Court to "inquire into and determine the question whether an irregularity has happened in relation to the election" (my emphasis).
(a) shall not be contrary to, or fail to make
a provision required by, this Act or an
award, or otherwise be contrary to law;
(b) shall not be such as to prevent or hinder
members of the organisation from:
(i) observing the law or the provisions
of an award or an order of the
Commission; or
(ii) entering into written agreements
under an award or an order of the
Commission; and
(c) shall not impose on applicants for
membership, or members, of the
organisation, conditions, obligations or
restrictions that, having regard to the
objects of this Act and the purpose of
the registration of organisations under
this Act, are oppressive, unreasonable or
unjust."
64. The first question, then, is whether the restriction contained in r.63(16) is contrary to law or imposes upon members a condition or restriction which is oppressive, unreasonable or unjust. If that question is answered affirmatively, the limitation contained in r.63(16) is invalid. The restriction in r.33(g) would have to be regarded as even more unreasonable. So there would be no relevant rule and, according to counsel for the applicant, all members who were enrolled before the close of the ballot should have been allowed to vote. The correctness of that last submission is the second question on this aspect of the case. However, in view of my answer to the first question, it does not arise.
65. In considering the first question, regard must be had to the objects of
the Industrial Relations Act. Those objects, which are set out in s.3 of the
Act, include:
"(g) to encourage the democratic control of66. Counsel for the respondents argues that r.63(16) does not fall foul of s.196. He puts a number of arguments. First, he points out that r.63(16) is consistent with the equivalent State rule, which also closes the roll as at 31 December. Secondly, counsel draws attention to r.11 of the federal rules, dealing with admission to membership of the organisation. That rule relevantly provides:
organisations, and the participation by
their members in the affairs of
organisations."
"Every person shall become a member of the67. The argument is that, in an organisation which provides, in effect, for provisional membership it is not unreasonable to provide some delay between enrolment as a member and entitlement to vote. Were it otherwise, says counsel, a person might enroll immediately before the opening of the ballot and receive a ballot paper, notwithstanding that an objection was successfully taken to that person's application for membership. Finally, counsel refers to the principle that, subject only to the terms of the Act, it is for the organisation itself to determine the content of its rules. As Deane J. pointed out in Municipal Officers' Association v Lancaster [1981] FCA 151; (1981) 54 FLR 129 at p 165, the function of the Court is to determine whether some particular provision or provisions of the rules "can properly be described not merely as undesirable but as oppressive, unjust or unreasonable".
Union immediately upon signing the application
form whether an entrance fee has been paid or
not, unless at the next General or Committee
of Management Meeting of the Branch of
Sub-Branch to which the application is
submitted objection is taken to the admission
of such person. In the event of objection
being taken to the admission of the applicant,
such applicant shall be admitted upon a
majority of the members assembled at such
meeting voting in favor of the admission of
the applicant, but not otherwise."
68. The distinction drawn by Deane J. in the Municipal Officers' Case applies to the present case. Even bearing in mind the effect of r.11, it seems to me that a gap of six weeks between the closure of the roll and the opening of the ballot is undesirably long. With modern methods of communication and in the computer age, it ought to be possible to resolve any objections to membership and to print out a supplementary list of members in less than six weeks. As the figures set out above demonstrate, there is considerable mobility of membership in the TWU. The number of new members in January and February (1156) amounts to 3.3% of the membership of the Branch. It seems to me that, in the interests of maximising the democratic control of the organisation, it would be desirable to select a later roll-closure date; say, the end of January.
69. However, it is one thing to express a view about desirability. It is another thing to brand a rule providing for the closure of the roll at 31 December as oppressive, unreasonable or unjust. It is not contended that r.11 is oppressive, unreasonable or unjust. Having regard to that rule, it is not unreasonable to require an interval between the closure of the roll and the opening of the ballot. The appropriate extent of that interval is a matter for judgment, primarily the judgment of the members of the organisation itself. It is a matter upon which minds may reasonably differ. It is possible to stigmatise a particular choice of interval as "oppressive, unreasonable or unjust" only where it plainly exceeds what is necessary for the compilation of a proper roll; so that the chosen interval can be seen only as an unnecessary and unreasonable restriction on the democratic control of the organisation. Notwithstanding my opinion that a later roll-closure date would be preferable, I am unable to condemn as oppressive, unreasonable or unjust the choice of 31 December. Rule 63(16) is not invalid. Its application to these elections does not give rise to any irregularity.
70. The third matter concerning the voting roll is that it included the names of 1841 retired members. In the version of the State rules tendered in evidence, r.10A(c) permits members with a continuous financial membership of not less than 20 years who retire from the transport industry to "continue their membership in the Union and participate in the Mortality Benefits" on payment to the General Fund of a fee of $5 per year. Rule 10 provides for a Contingent and Mortality Fund, the benefits of which are prescribed by r.10A(a) and (b). No doubt because of this connection, such members are often referred to as "contingent members".
71. Rule 18 of the federal rules deals with the calculation of members' annual contributions. At the present time, the annual contribution, calculated in accordance with that rule, is $127. Rule 18 makes no concession for "contingent" or retired members; indeed, the federal rules contain no reference to such a category of members. Rule 63(3)(a) provides that each member of the New South Wales Branch who is also a member of the State union shall pay, as a member of that union, a contribution to the federal organisation of $2.50 per year. That figure is subject to increase by Federal Council. Rule 63(5) states that, after 1 January 1980, each member of the organisation who is also a member of the State union "who fails to pay contributions or levies as prescribed herein shall be deemed to be unfinancial until all such contributions or levies have been paid".
72. The evidence reveals that, in practice, the State union pays to the federal organisation a sustentation payment equal to 6.27% of all membership subscriptions which it receives. This means that, of the ordinary membership contribution of $127 per year, the federal organisation receives $7.96. "Contingent" or retired members now pay $15 per year, the terms of r.10A(c) having presumably been amended. So the sustentation payment to the federal organisation in respect of such a person is 94 cents.
73. Rule 21 of the federal rules provides:
"Any members who fails to pay entrance fee,74. If the matter stopped there, it would be clear that "contingent" members -- although financial under the State rules -- would not be financial members for the purposes of the federal rules. They are not persons who have paid the contribution required by r.18. As only 94 cents per year is paid on their behalf by the State union to the federal organisation, they are not persons who have paid the contribution required by r.63(3)(a), of $2.50 per year or more. However, the matter does not stop there. Rule 63(3)(b) provides:
contributions, fines or levies, as prescribed
by these Rules, shall be deemed to be
unfinancial until all such entrance fee,
contributions, fines or levies have been paid
and ten days thereafter.
Unfinancial members shall be debarred from all
benefits, privileges or rights whatsoever
connected with the Union."
"(b) The State Trade Union has agreed to pay75. The submission made on behalf of the respondents is that this paragraph qualifies the other relevant rules by deeming a payment by a member of his contribution under the State rules to be a payment to the federal organisation of the contribution required of that member by para.(a) of r.63(3). I think that this submission is correct. So far as the member is concerned, it does not matter that the State union has not paid to the federal organisation the full amount required by para.(a). The effect of r.63(3)(b) is that, when the member pays the amount required by the State rules, he or she is deemed to have paid the contribution required by para.(a). As payment is deemed to have been made, there is no failure to pay, within the meaning of r.63(5). It follows that it was not irregular to include the "contingent" members' names on the voting roll.
to the Federal Council of the Union the
said contribution from the contribution
received by it from each such member
pursuant to its Rules for and on behalf
of each such member and payment by each
such member of his contribution to the
State Trade Union pursuant to its Rules
shall accordingly be deemed to be payment
to the Union of his contribution pursuant
to this Rule for so long as the said
agreement remains in force."
76. Finally, a complaint is made of irregularity in the admission to the election of two candidates who reside at Emu Plains, west of Sydney. These candidates were nominated for positions in the Sydney Sub-Branch. One was elected unopposed, the other at the ballot. The scheme of the rules is that members are assigned to the Sub-Branch covering the area in which they reside and only members of the particular Sub-Branch are eligible to stand for election to positions in that Sub-Branch.
77. The complaint in relation to these two candidates is that Emu Plains is not within the area of Sydney Sub-Branch. The matter was not raised when nominations were received and counsel for the respondents submits that, under those circumstances, it ought to be rejected on discretionary grounds. I need not consider that submission because I am of the opinion that it is unfounded in point of fact.
78. The documents by which the organisation has defined the boundaries of the
New South Wales Sub-Branches are confused. In a resolution
dated 26 November
1968 the Branch Committee of Management adopted a list of descriptions of the
various New South Wales Sub-Branches.
The area of the Sydney Sub-Branch was
described as follows:
"That part of the State of New SouthAt the conclusion of the list an addendum was made:
Wales within the following boundaries:-
Commencing on the shores of the South
Pacific Ocean at Bungaree Norah Point and
bounded thence by that Ocean to Bald Hill east
of the Town of Helensburg, by the road from
Bald Hill to Henensburg, (sic) thence by a
line to Campbelltown, by another line to
Camden, thence by the Nepean River to the
Great Western Highway, thence by a line to the
Bell's Line of Road at Kurrajong, thence by
the road from Kurrajong to the Windsor-Putty
Road, by that Road to its intersection with a
line from Wyong to Gilgandra, by that line
south easterly to Wyong, thence by a line due
east to the point of commencement; this area
includes Penrith, Kurrajong and Putty."
"N.B. Where any place is mentioned as being79. Emu Plains is west of the Nepean River. Accordingly, it lies outside the area described in the quoted description; except, possibly, for that part of Emu Plains which lies north of the Great Western Highway and east of a line bearing from the Nepean River bridge to Kurrajong. By the year 1968 Emu Plains was within the City of Penrith. So counsel for the respondents argues that, in the light of the concluding words of the description, the addendum applies. Perhaps it does; although the question is not free from difficulty. The references to Penrith, Kurrajong and Putty were not all intended as references to local government areas. At that time there was no local government area by the name of Kurrajong or Putty. Perhaps one can read the three names at the end of the description distributively, treating "Penrith" as a reference to a local government area, and "Kurrajong" and "Putty" as references to proclaimed towns, if that is what they were. But, if the matter rested there, it would be difficult to hold that Emu Plains was within the area of the Sydney Sub-Branch.
included in any of the foregoing
Sub-Branch Areas it is to be understood
that the inclusion refers to the whole of
any city or municipality under the
provisions of the Local Government Act or
to the whole of any town or village under
the provisions of the Crown Lands
Consolidation Act or to the whole of any
town or village privately established,
bearing the name mentioned."
80. However, by the same document, the Branch Committee of Management determined that each of certain listed centres was "deemed" to be in the Sub-Branch area with which it was associated in an accompanying list. "Emu Plains" appears in that list under the heading "Sydney". Whatever the effect of what had gone before, I think that this determination was a decision assigning the whole of Emu Plains to the Sydney Sub-Branch.
81. It is unfortunate that doubt should arise as to the Sub-Branch to which a
member is entitled to belong. This case points up
the desirability of
revising the method of defining the boundaries. Given the size of the
Sub-Branch areas and the consequent vagueness
of so many elements in the
description, the present method creates confusion. The better course might be
to define the areas in
terms of local government or postcode areas.
Whether the results of the elections may have been affected
82. In the result, there is direct evidence showing that the following
irregularities occurred:
(a) The returning officer used a post box notIn addition, it is arguable that the deficiencies and surpluses found by Mr Edwards provide circumstantial evidence of other irregularities. I will return to this matter.
located at the General Post Office, Sydney.
(b) The ballots were mailed out to voters
without notice being given to the
applicant's scrutineer.
(c) The returning officer did not personally
initial the ballot papers.
(d) The ballot papers contained asterisks
against the names of incumbent candidates.
(e) The returning officer did not notify the
applicant's scrutineer of the occasions
on which he proposed to clear the post
office box of returned ballot papers.
(f) 1201 "0" coded members were omitted from
the list of voters to whom ballot papers
were sent.
83. As is conceded, irregularities (a) and (d) could not have affected the results of any of these elections. As to irregularities (b) and (e), there is no reason to doubt that these steps were undertaken in a proper way. Mr Fitzgerald gave evidence that he personally attended both to the dispatch and the collection of the mail and that, immediately after collection, he placed the returned ballot papers in padlocked steel ballot boxes in the office of the Industrial Commission of New South Wales. That evidence was not challenged and I see no reason to doubt it. Although it is unfortunate that the applicant's scrutineer was denied the opportunity of being present when these steps were taken, there is no reason to believe that anything untoward in fact occurred or that Mr Fitzgerald's failure to notify Mr Yule affected the result of any of the elections.
84. In relation to irregularity (f), a question arises as to the assumption that ought to be made about the course which the 1201 "0" coded members would have taken if they had received ballot papers. As is demonstrated in an affidavit of Mr N H Theordore, an accountant and computer consultant, the proportion of members receiving ballot papers who actually voted in the elections ranged from 47.2% in the Newcastle Sub-Branch to 30.8% in the Western Districts Sub-Branch. The proportion of Branch members who voted in the election of Branch Secretary/Treasurer was 39.5%. Counsel submits that the Court should bear in mind those participation rates in considering the effect of the failure to post the 1201 ballots. He submits that it is most unlikely that a greater proportion of "0" coded members would have participated in the elections. These were members who, at some stage, had lost contact with the organisation. Counsel concedes that a proportion of the ballots would have reached the intended voters. But he asserts that many would not. Moreover, counsel says, it is reasonable to assume that the level of interest in the affairs of the organisation was not higher amongst the members who had, at some stage, got out of touch, than amongst those who had not. The "0" coded members constituted a "random" sample of the members. They did not share any particular electoral allegiance or come from any particular geographical area.
85. Counsel for the applicant objects that this submission runs counter to the decision in Re Vehicle Builders Employees' Federation of Australia (SA Branch) (1987) 13 FCR 350. That case concerned an election in which the margin of the successful candidate was only 27 votes. It was conceded that 59 persons, who were unfinancial, were wrongly given ballot papers and that eight members were wrongly excluded from the ballot. The evidence showed a general participation rate of about 30% and it was submitted to Keely J. that he should apply this percentage and hold that the irregularities could not have affected the result of the election. His Honour rejected that submission, and understandably so. The winning margin was very small. Only a tiny deviance by the 67 affected persons from the general participation rate would have meant that the number of votes affected by the irregularities exceeded the winning margin. It is one thing to reject reliance upon evidence of the general participation rate in that situation. But it is another thing to say that, when much greater numbers are involved, the Court should shut its eyes to evidence of the participation rate and assume, against all the probabilities, that a substantial number of members wrongly denied ballot papers would have voted in substantially greater numbers than the members as a whole. Keely J. did not propound any such view. On the contrary he quoted what was said by Toohey J in Re Australasian Meat Industry Employees' Union; Western Australia Branch; ex parte Ferguson (not reported, 5 November 1986): "the Court is looking at real not merely theoretical possibilities".
86. Apart from the matter of the disenfranchised "0" coded members, it is necessary to consider the impact of the discrepancies revealed by the count of the unissued and spoiled ballot papers. There is no direct evidence to link these discrepancies with Mr Fitzgerald's failure properly to initial the ballot papers. But something went amiss. It is possible that the certificate of the printer as to the number of ballot papers was incorrect. Although the certificate was put into evidence, this possibility was not explored at the hearing. For this to be the explanation of all the discrepancies, the certificate would have had to be wrong in relation to each category. I do not think that this is very likely. In the absence of evidence to the contrary, I assume that both the printer and Mr Fitzgerald checked the number of ballot papers supplied. The following items in the analysis are all agreed by the parties: the number of voters on the roll, the number of unissued ballot papers and the number of ballot papers issued as replacements for spoils. The figures for surplus papers in the Sub-Branch elections and the deficiency in the Branch election follow as matters of arithmetic.
87. If the printer's certificate and the counts of voters on the roll and unissued and spoiled ballot papers are all correct, 162 Branch ballot papers went astray. It is impossible to say what happened to them or whether they were introduced into the ballot and counted. If they were, their introduction may have been facilitated by Mr Fitzgerald's practice of stamping his initials on all the ballot papers, not just on those which were about to be put into envelopes. In any event, an unexplained deficiency of this magnitude is itself an "irregularity", within para.(b) of the definition.
88. In the case of the Sub-Branch elections, the converse position applies. If the figures contained in the analysis are correct, some persons who were on the roll must have failed to receive ballot papers to which they were entitled. Such an omission would not be related to the matter of initialling the ballot papers. But it would be an "irregularity". Any omission to send ballot papers to all entitled voters obviously hinders the full and free recording of votes by all entitled persons.
89. In assessing the significance of the disenfranchisement and the discrepancies, reference must be made to the margins of the various successful candidates. In the ballot for Branch Secretary/Treasurer, Mr McLean's winning margin was 1905 votes. There is an unexplained deficiency of 162 ballot papers. If 162 votes are deducted from Mr McLean's majority, it still remains 1743. Even if all the 1201 "0" coded members had voted, and voted for Mr Edwards, Mr McLean would still have been successful. The election for Branch Secretary/Treasurer was not affected by the irregularities I have found.
90. In the case of New South Wales Branch representatives, the margin between the lowest-polling elected candidate and the highest-polling unelected candidate was 1095 votes. If the missing ballots are all attributed to the losing candidate, the margin would become 933 votes. As a matter of theoretical possibility, this election could have been affected by the denial of votes to the 1201 "0" coded members. But the possibility is unreal. The most successful losing candidate would have had to obtain a margin, in this batch of votes, of 78%; that is, he would have had to receive 78% of the vote against the opponent's 0%, or 85% against the opponent's 7%, and so on. Especially having regard to the general participation rate of 39.5% for the Branch elections, I am of the opinion that the result of the elections for Branch representatives could not have been affected by the irregularities I have found.
91. In turning to the Sub-Branch positions, reference must be made to the computer print-out of the names and addresses of the "0" coded members. That print-out breaks up the 1201 members into their respective Sub-Branches. Taking Sydney Sub-Branch first, the winning margin for the Sydney Sub-Branch Chairman was 969 votes and for the Secretary 918 votes. The difference between the vote received by the lowest-polling candidate elected to the Executive Committee and that received by the highest-polling unelected candidate was 983 votes. The equivalent margin in the election for representatives on the Branch Committee of Management was 643. If one deducts from the winning candidate in each case the unaccounted-for surplus of 252 papers, the respective margins become 717, 666, 731 and 391 votes. The computer list shows that 820 out of the 1201 "0" code members were members of the Sydney Sub-Branch. It follows that any of those elections could, as a matter of theoretical possibility, have been affected by the irregularities. But, once again, in each case the possibility is unreal. To take the narrowest margin, the election for representatives on the Branch Committee of Management, the margin in this batch of votes would have had to be at least 48%. Bearing in mind that only 37.5% of Sydney Sub-Branch members voted, there is no real possibility that the results of the Sydney Sub-Branch elections were affected by the irregularities.
92. In the case of the Newcastle Sub-Branch a different picture emerges. The election for Newcastle Sub-Branch Chairman was very close, the winning margin being only 35 votes. There were 533 surplus ballot papers, easily enough to affect the result, even without taking into account the 117 "0" coded Newcastle members. The same comment may be made about the ballot for Sub-Branch Secretary, where the margin was 11 votes and for representatives on the Branch Committee of Management, where it was nine votes. It is not possible to find that the Newcastle Sub-Branch results could not have been affected by the irregularities.
93. In the only ballot in the Southern District Sub-Branch, for a representative on the Branch Committee of Management, the winning margin was 84 votes. There were 74 surplus votes and 37 "0" coded members. It is not possible to say that this result was unaffected by the irregularities.
94. A similar position applies in the North Coast and Western District
Sub-Branches. In each case the only ballot was for a position
on the Branch
Committee of Management. The winning margins for these positions were
respectively 34 and 22. The number of surplus
votes in these Sub-Branches was
respectively 57 and 59 and there were 38 and 37 "0" coded members.
Discretion
95. It is contended on behalf of the respondents that, even if the Court finds that there were irregularities which might have affected the ballot, the Court ought to refuse relief on discretionary grounds. The basis of this submission is the failure of Mr Edwards to raise any issue about the regularity of the elections until after the results had been declared and it was known that he and his team had been unsuccessful.
96. It is true that no complaint was made by Mr Edwards until after the results of the election were known. But having regard to the particular irregularities which I have found, I do not think that this is a reason for denying relief. The main problem regarding the elections, and the basis for my finding that the irregularities may have affected the results, was the discrepancies in the number of ballot papers. These discrepancies only became known during the course of this inquiry.
97. It is also true that Mr Edwards learned of the problem of the "0" coded members before the ballots closed and that he did not request an extension of the election so as to allow time for these members to receive and return ballot papers. I do not think that his failure to make that request constitutes a sufficient reason for refusing relief. Mr Edwards was placed in a difficult position only three days before the ballot was due to close. Moreover, it is necessary to bear in mind the interests of the members as a whole, and of the organisation itself, in having as officials persons who truly reflect the will of a majority of the members.
98. I propose, in due course, to make orders declaring that the persons purporting to have been elected to positions in the Newcastle, Southern District, North Coast and Western District Sub-Branches not to have been elected, and ordering the Industrial Registrar to make arrangements for fresh elections to be held in relation to those positions.
99. In view of the request of counsel that they be heard as to the form of any orders which are to be made, I will not make orders today. I will adjourn the further hearing of the matter for one week and direct that counsel bring in short minutes of the orders necessary to give effect to these reasons on the next occasion the matter is before the Court. Necessarily, the orders I make must be confined to the federal positions. It will be for the parties to decide what to do about the State positions. Perhaps the contest over State positions will be settled in the Industrial Commission of New South Wales. Another possibility would be for the persons whose federal positions are declared vacant also to resign their State positions, thus allowing new elections for all positions and, hopefully, compatibility in the election results. If, in the end, corresponding State and federal positions are occupied by different persons, extreme difficulties will arise.
100. I think that it would be desirable for the short minutes to provide for new elections to be conducted by an officer of the Australian Electoral Commission. In saying that, I do not wish to be thought overly critical of Mr Fitzgerald's work as returning officer. Although a number of irregularities arose out of Mr Fitzgerald's acts and omissions, it is only fair for me to emphasise that throughout the election Mr Fitzgerald acted conscientiously and honourably. He took on a burden which turned out to be much greater than he expected. The conduct of a contested election for numerous positions in a Branch having over 33,000 members is a considerable task, especially for a retired person without clerical support or office facilities. Some of the problems experienced in relation to the elections, including some of the irregularities, stemmed directly from this lack of resources. In retrospect, Mr Fitzgerald might agree with my view that it would have been better for the conduct of the election to be committed to a person with greater resources, such as an officer of the Australian Electoral Commission. But to say that is not to denigrate him, as he did his best to conduct the election fairly and efficiently.
101. Although it may be unnecessary to do so, I add that there is no evidence to connect Mr McLean or any member of his team with the irregularities which occurred in these elections or to suggest that any member of the McLean team acted in an unfair or improper manner.
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