Re Section 218 of the Industrial Relations Act 1988 v Andrew Gerrard Power [1992] FCA 109; (1992) 40 IR 256 (1992) 35 FCR 133 (17 March 1992)

FEDERAL COURT OF AUSTRALIA

Re: SECTION 218 OF THE INDUSTRIAL RELATIONS ACT 1988
And: ANDREW GERRARD POWER
No. WA I3 of 1991
FED No. 119
Industrial Law
[1992] FCA 109; (1992) 40 IR 256
(1992) 35 FCR 133

COURT

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Lee J.(1)

CATCHWORDS

Industrial Law - application for inquiry into election - whether statutory declaration accompanying application satisfied requirement of Industrial Relations Regulations - whether Court may remedy irregularity or formal defect in application for inquiry - whether reasonable ground for application.

Acts Interpretation Act 1901 ss.27, 36; sub-ss.27(b) and (c); paras.22(1)(g)

Conciliation and Arbitration Act 1904 ss.159, 160, 161, 162, 162A, 165A, 170, 221; sub-ss.159(2), (4) and (5); paras.159(2)(b) and (d), 159(4)(a)

Evidence Act 1906 (WA) s.106

Federal Court of Australia Act 1976 s.51

Industrial Relations Act 1988 ss.50, 218, 219, 220, 359; sub-s.220(1)

Oaths Act 1867 (Qld)

Statutory Declarations Act 1959 ss.7, 8, 11; sub-s.8(f)

Conciliation and Arbitration Regulations reg.138

Federal Court Rules O.48 r.2 sub-r.2(3)(b)

Industrial Relations Regulations reg.62

Re Election in Administrative and Clerical Officers' Association (1980) IAS 363

Re Election in the South Australian Branch of the Australian Workers' Union; Ex parte Healey, Unreported (Federal Court of Australia, O'Loughlin J., 15 January 1992)

George v. Rockett [1990] HCA 26; (1990) 170 CLR 104

O'Dowd; Ex parte Commonwealth Bank Officers' Association (1984) 3 FCR 150

Re Application by Post; Re Election in the Western Australian Branch of the Transport Workers Union, Unreported (Federal Court of Australia, French J., 31 January 1992)

Reg. v. Gray; Ex Parte Marsh [1985] HCA 67; (1985) 157 CLR 351 Lee J.(1)

HEARING

PERTH
17:3:1992

The applicant appeared in person.

Counsel for the Respondent: Mr A.L. Drake-Brockman

Solicitors for the Respondent: Dwyer Durack

ORDER

The application be dismissed.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

The applicant ("Power"), a member of the Plumbers and Gasfitters Employees' Union of Australia (Western Australia Branch) ("the Union"), claims that there has been an irregularity in relation to an election for offices in the Union and applies to the Court pursuant to s.218 of the Industrial Relations Act 1988 ("the Act") for an inquiry into the matter of the alleged irregularity.

2. The jurisdiction of the Court to deal with such an application is provided by s.50 of the Act which states that the Court has jurisdiction with respect to matters arising under the Act in relation to which, inter alia, applications may be made to it under the Act.

3. Sections 218 and 219 of the Act provide as follows:

"218. Where a person who is, or within the 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.
219. Where:
(a) an application for an inquiry has been lodged
with the Court under section 218; and
(b) 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 such directions as it considers
necessary to ensure that all persons who are or may be
justly entitled to appear at the inquiry are notified of
the time and place fixed and, where the Court fixes a
time and place, the inquiry shall be taken to have been
instituted."

4. The Act repealed and replaced the Conciliation and Arbitration Act 1904 ("the repealed Act").Section 159 of the repealed Act provided for the Court to receive applications for inquiries into elections in terms similar in some respects to those contained in ss.218 and 219 of the Act but significantly different in others. Section 159 of the repealed Act read as follows:

"159.(1) Where a member of an organization, or a
person who, within the preceding period of 12
months, has been a member of an organization,
claims that there has been an irregularity in or in
connection with an election for an office in the
organization, or in a branch of the organization,
he may lodge an application for an inquiry by the
Court into the matter.
(2) An application under this section shall -
(a) be in writing in accordance with the
prescribed form;
(b) be lodged with the Industrial Registrar
before the completion of the election or
within such time after the completion of
the election as is fixed by or under the
regulations;
(c) specify the election in respect of which
the application is made and the
irregularity which is claimed to have
occurred, and state the facts relied on in
support of the application; and
(d) be accompanied by a statutory declaration
by the applicant declaring that the facts
stated in the application are, to the best
of the applicant's knowledge and belief, true.
(3) Except as provided by sub-section (4), this
section does not apply to or in relation to an
election conducted under section 165A, an election in
or in connection with which a step is taken under that
section or an election conducted under section 170.
(4) An application may be made under this
section in respect of an election referred to in
sub-section (3) if the application is made within
the time that is applicable under sub-section (5)
and, where such an application is made -
(a) the Industrial Registrar shall,
notwithstanding section 160, forthwith
refer the application to the Court and
thereupon an inquiry shall be deemed to
have been instituted;
(b) the Court is not required to proceed with
an inquiry unless it is satisfied that
there is reasonable ground for the
application; and
(c) in relation to an inquiry into an election
conducted under section 170 -
(i) the reference in section 162A
to the Industrial Registrar
shall be read as a reference
to such person as the Court
designates; and
(ii) paragraph 165(3)(c) does not
apply but the Court may make
an order directing any action
referred to in that paragraph
to be taken by such person as
the Court specifies, being the
Industrial Registrar or some
other person who may be
authorized under sub-section
170(5) to conduct an election.
(5) 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.
(6) A reference in this Part to an election
conducted under section 165A shall be read as
including a reference to an election conducted in
pursuance of an order under sub-section (4) of this
section, and sub-section 170A (4) applies where an
order is made under sub-section (4) of this
section."

5. Section 159 provided the manner and form and the time within which an application was to be lodged. Regulation 138 of the Conciliation and Arbitration Regulations fixed the time for lodgment of an application for the purpose of para.159(2)(b) of the repealed Act as six months after the completion of an election. The initial step under s.159 was not an application to the Court but the lodgment of an application with the Industrial Registrar. If the application involved an election other than one conducted under s.165A or s.170 of the repealed Act, s.160 of the repealed Act empowered the Industrial Registrar to grant the application and refer the matter to the Court or to refuse the application. If the matter were referred to the Court s.161 of the repealed Act thereupon deemed an inquiry to have been instituted. If the application was made under sub-s.159(4) and concerned an election conducted pursuant to arrangements made by the Industrial Registrar (ss.165A and 170), the Registrar was required to forthwith refer the application to the Court whereupon an inquiry was deemed to have been instituted, although the Court was not required to proceed with the inquiry unless it was satisfied there was reasonable ground for the application. The limitation period provided by para.159(2)(b) did not apply to an application lodged under sub-s. 159(4) for which sub-s.159(5) fixed a period of six months or such extended period as the Court may allow having regard to prescribed circumstances set out in the sub-section.

6. Sections 160, 161 and 162 of the repealed Act read as follows:

"160.(1) Where an application under section 159 is
lodged with the Industrial Registrar, he shall -
(a) if he is satisfied -
(i) that there are reasonable
grounds for an inquiry into
the question whether there has
been an irregularity in or in
connection with the election,
which may have affected or may
affect the result of the
election; and
(ii) that the circumstances of the
matter justify an inquiry by
the Court under this Part,
grant the application and refer the matter
to the Court; or
(b) if he is not so satisfied, refuse the
application and inform the applicant
accordingly.
(2) The Industrial Registrar may exercise his
powers under sub-section (1) upon the basis of the
matters stated in the application, but he may
nevertheless take into account any relevant
information coming to his knowledge.
(3A) At any time after the lodging with the
Industrial Registrar of an application for an
inquiry in connection with an election and before
the Industrial Registrar has referred the matter to
the Court, the Industrial Registrar, by himself or
by a person acting on his behalf, may -
(a) inspect any ballot papers, envelopes,
lists or other documents that have been
used in connection with, or are relevant
to, the election;
(b) for the purposes of any such inspection,
enter, with such assistance as he
considers necessary, any premises used or
occupied by the organization or a branch
of the organization in which he believes
any such ballot papers, envelopes, lists
or documents to be;
(c) require a person to deliver to him, in
accordance with the requirement, any such
ballot papers, envelopes, lists or other
documents in the possession or under the
control of that person;
(d) take possession of any such ballot papers,
envelopes, lists or other documents; and
(e) retain any ballot papers, envelopes, lists
or other documents delivered to him, or of
which he has taken possession, for such
period as is necessary for the purposes of
the application and, if proceedings under
this Part have arisen out of the
application, until the completion of the
proceedings or until such earlier time as
the Court orders.
(4) Before taking any action under sub-section
(3A), the Industrial Registrar shall, if he is of
opinion that, having regard to all the
circumstances, any person should be given an
opportunity of objecting to the proposed action,
give such an opportunity to that person.
(5) A person shall not -
(a) refuse or fail to comply with a
requirement under this section; or
(b) obstruct or hinder the Industrial
Registrar or any other person in the
exercise of his powers under this section.
Penalty: $500 or imprisonment for 6
months, or both.
(6) An act or decision of the Industrial
Registrar under this section shall not be subject
to appeal to the Commission.
161.(1) Upon the reference of a matter to the
Court under section 160, the inquiry shall be
deemed to have been instituted in the Court.
162. Where an inquiry has been instituted, a
Judge shall fix a time and place for conducting the
inquiry, and may give such directions as he thinks
necessary to ensure that all persons who are or may
be justly entitled to appear or be represented at
the inquiry are notified of the time and place so
fixed."

7. Unlike the provisions of s.159 of the repealed Act, ss.218 and 219 of the Act do not stipulate the manner in which, and the time within which, applications may be made to the Court. However, relying upon the power contained in s.359 of the Act to make regulations prescribing, inter alia, all matters necessary or convenient to be prescribed for carrying out or giving effect to the Act including the manner in which, and the time within which, applications under the Act may be made and dealt with, reg.62 of the Industrial Relations Regulations ("the Regulations") provides as follows:

"62(1) An application under section 218 of the Act
for an inquiry into an election may be made:
(a) at any time before; or
(b) not later than 6 months after;
the day on which the result of the election is
declared.
(2) An application referred to in subregulation
(1) shall be in accordance with Form 4 and shall be
accompanied by a statutory declaration made by the
applicant verifying the facts set out in the
application."

There is no provision for the Court to extend or enlarge the prescribed period within which an application may be made.

8. Under para.159(2)(d) of the repealed Act an application was to be accompanied by a statutory declaration declaring that the facts stated in the application were, to the best of the applicant's knowledge and belief, true. Having regard to the requirement in s.219 of the Act that the Court be satisfied that there is reasonable ground for the application, there may be good reason to construe the requirement in reg.62 that the statutory declaration accompanying the application "verify" the facts set out in the application as a requirement that the statutory declaration prove or demonstrate by good evidence, or otherwise substantiate, the matters set out in the application and not merely assert the truth thereof. (See "verify" - Shorter Oxford English Dictionary (3rd Edition).) However, if the word verify as used in reg.62 has no greater meaning than a formal affirmation, it may be accepted that a declaration of conscientious belief in the truth of an asserted fact would meet the requirement of the regulation. In the absence of clear words showing the legislature's intended meaning for the word, it should be concluded that the latter meaning is not excluded.

9. The application lodged by Power sought an inquiry into an election conducted by the Australian Electoral Commission ("the Commission") for the election of office bearers of the Union. An employee of the Commission had been appointed as the Returning Officer under the Rules of the Union. The application failed to comply with reg.62 in that it failed to stipulate the date on which the result of the election had been declared but it was common cause between the parties that the election had been declared on 10 June 1991. Power lodged his application on 10 December 1991. The time allowed by reg.62 for the lodgment of the application expired on 10 December 1991. (See Acts Interpretation Act 1901 para.22(1)(g) and s.36.) Details of the alleged irregularity and the facts relied upon set out in the application read as follows:

"PARTICULARS OF ALLEGED IRREGULARITY
1. The applicant alleges that the Australian
Electoral Commission was not provided with
a full accurate and complete list of
members elegible (sic) to vote in
election.
FACTS RELIED ON
1. Pursuant to Rule 15 of the Plumbers and
Gasfitters Employees (sic) Union of
Australia members unfinancial for a period
of less than one quarter were eligible to
vote but were denied a vote."

10. The statutory declaration accompanying the application was made on a printed form headed:

"WESTERN AUSTRALIA
THE EVIDENCE ACT, 1906
STATUTORY DECLARATION"

and read as follows:

"I, ANDREW GERRARD POWER of 143 EGLINTON CRESCENT
HAMERSLEY do solemnly and sincerely declare as
follows:-
That at 10.00 a.m. on June
10th, 1991, the P.G.E.U. ELECTIONS were
closed.
That on several occasions after that date I spoke
to the Electoral Commission who advised me that the
Commission conducted the Election according to Rule
48 (Branch Elections) of the Plumbers and Gasfitters
Employees' Union of Australia Rules.
That nothing was indicated to the Electoral
Commission that Rule 15 was applied.
That a number of members were eligible under Rule
15 but did not get a Ballot"

The printed form of declaration contained the following words:

"And I make this solemn declaration conscientiously
believing the same to be true and by virtue of
Section 106 of the 'The Evidence Act 1906'.
..."

11. On 11 December 1991 Power filed a further statutory declaration intending that it be received as an accompanying declaration for the purposes of reg.62. However, if the jurisdiction of the Court had not been invoked by the process filed within the permitted time no use could be made by the applicant of the subsequent declaration. (See Re Election in Administrative and Clerical Officers' Association (1980) IAS 363 per Sheppard J. at p 364.)

12. Pursuant to O.48 r.2 sub-r.2(3)(b) of the Federal Court Rules a time and place was set for a directions hearing and directions given that the application be served upon the Union, the President and Secretary of the Union and all candidates in the election.

13. At the subsequent directions hearing counsel for the Union submitted that a statutory declaration made pursuant to the Evidence Act 1906 (WA) was not a statutory declaration for the purpose of reg.62 of the Regulations. It was further submitted that, in any event, the declaration failed to verify the facts set out in the application and that the application was incompetent. Alternatively, counsel argued that if the application were competent there was no reasonable ground for the application for an inquiry disclosed in the application and the Court should decline to order the conduct of an inquiry and dismiss the application.

14. In respect of the first submission counsel relied upon the decision of this Court in O'Dowd; Ex parte Commonwealth Bank Officers' Association (1984) 3 FCR 150 which held that the requirement of para.159(2)(d) of the repealed Act that an application for an inquiry into an election be accompanied by a statutory declaration was not satisfied by an application accompanied by a declaration made under the Oaths Act 1867 (Qld.) and that such a procedural defect was not amenable to rectification under s.51 of the Federal Court of Australia Act 1976 ("Federal Court Act"). However, the procedures established by the Act are substantially different from those considered in O'Dowd in respect of which it was concluded that s.51 of the Federal Court Act had no application. In O'Dowd that issue was resolved as follows at p 156:

"It was put by Mr Murdoch that s.51 of the Federal
Court of Australia Act 1976 prevented the
applications from being invalidated by any defect
in the statutory declarations. That section
provides as follows:
'51.(1) No proceedings in the Court are
invalidated by a formal defect or an
irregularity, unless the Court is of
opinion that substantial injustice has
been caused by the defect or
irregularity and that the injustice
cannot be remedied by an order of the
Court.
(2) The Court or a Judge may, on
such conditions (if any) as the Court
or Judge thinks fit, make an order
declaring that the proceeding is not
invalid by reason of a defect that it
or he considers to be formal, or by
reason of an irregularity.'
It may be seen that the section only applied to
proceedings in the court. In the present case, the
defects were in applications to the registrar. On
the authorities to which I have referred, those
defects deprived the industrial registrar of any
power to deal with the applications, and in
particular any power to refer them to the court.
Accordingly, there was no proceeding in the court.
Section 51 could not operate. An argument similar
to Mr Murdoch's was rejected by the High Court of
Australia in the Clerks' Union case. In that case,
it was argued that what was then s.40(m) of the
Conciliation and Arbitration Act 1904, under which
the Court of Conciliation and Arbitration had power
to correct, amend or waive any error, defect or
irregularity, whether in substance or in form, was
applicable, so that the court could have permitted
the amendment of the purported application. The
High Court held that that power was applicable only
to matters which were before the court; as there
was no matter before the court, the provision did
not apply."

15. The provisions of ss.218 and 219 of the Act differ significantly from the repealed provision. The role of the Industrial Registrar has been removed and proceedings are commenced directly in this Court by way of application. Notwithstanding that the Court may not be satisfied that there is reasonable ground for the application that has been lodged and may decline to order that an inquiry be conducted under s.219, a proceeding in the Court will have been commenced under s.218 of the Act by the lodgment of an application which complies with the requirements of reg.62 of the Regulations. It will follow, therefore, that the provisions of s.51 of the Federal Court Act will apply to that proceeding. That was the view of O'Loughlin J. in An Application for an inquiry into an election in the South Australian Branch of the Australian Workers' Union; Ex parte Healey, Unreported (Federal Court of Australia, 15 January 1992) and I respectfully agree with his Honour's reasoning.

16. Although in O'Dowd (pp 152-155) it was held that a declaration stated to have been declared with reference to the Oaths Act 1867 (Qld) was not a statutory declaration within the meaning of those words as used in para.159(2)(d) of the repealed Act, the argument remains that a statutory declaration made as permitted by s.106 of the Evidence Act 1906 (WA) could be a sufficient declaration for the purpose of s.218 of the Act and reg.62, being either a declaration within the meaning applied to that term in reg.62 or, alternatively, a declaration made by virtue of the Statutory Declarations Act 1959.

17. As at 10 December 1991 ss.6, 7 and 8 of the Statutory Declarations Act 1959 read as follows:

"6.(1) A person may, if he so desires, make a
statutory declaration in relation to any matter.
(2) Subject to the next succeeding subsection, a
statutory declaration may be used:
(a) for the purposes of a law of
the Commonwealth or of a
Territory, unless the contrary
intention appears in that law;(b)
in connexion with any matter arising under a law of
the Commonwealth or of a Territory, unless the
contrary intention appears in that law; or
(c) in connexion with the
administration of any
Department of State of the
Commonwealth.
(3) The last preceding subsection does not
authorize a statutory declaration to be used as
evidence in a judicial proceeding but nothing in
this section prevents a statutory declaration from
being so used.
7. Where, in a law of the Commonwealth or of a
Territory (whether passed or made before or after
the commencement of this Act), a reference is made
to a statutory declaration, the reference includes
a reference to a statutory declaration made by
virtue of this Act, unless the contrary intention
appears in that law. (emphasis added)
8. A statutory declaration may be in accordance
with the form in the Schedule of this Act and may
be made before:
(a) a Magistrate;
(b) a Justice of the Peace;
(c) a Commissioner for Affidavits;
(d) a Commissioner for
Declarations;
(e) a Notary Public;
(f) a person before whom a
statutory declaration may
be made under the law of
the State in which the
declaration is made; or
(g) an Australian Consular Officer
or an Australian Diplomatic
Officer as defined by section
two of the Consular Fees Act
1955."

18. The effect of s.6 of the Statutory Declarations Act 1959 is to permit a declaration authorized or made lawful by statute to be used for the purposes described in sub-s.6(2). Section 7 of the Statutory Declarations Act 1959 makes it clear that the words "statutory declaration", as used in s.6, extends to declarations made under other laws in addition to declarations made by virtue of a Statutory Declarations Act, being a declaration made in the manner provided for by s.8 of that Act. Furthermore, the use of the term "statutory declaration" in s.8(f) of the Statutory Declarations Act 1959 tends to show that that term as used in s.6 of that Act is intended to retain a consistent meaning extending to any declaration permitted by statutory law. Section 8 was an enabling provision in that it extended the class of persons before whom a declaration may be made to be a lawful declaration permitted by statute.

19. Neither reg.62 nor s.6 of the Statutory Declarations Act 1959 provides a meaning for statutory declaration that is restricted to a declaration made by virtue of the Statutory Declarations Act 1959.

20. The Statutory Declarations Act 1959 is to be read with s.27(c) of the Acts Interpretation Act 1901. Section 27 reads as follows:

"27. In any Act unless the contrary intention
appears:
(b) The words 'oath' and 'affidavit' shall, in
the case of persons allowed by law to
affirm declare or promise instead of
swearing, include affirmation,
declaration, and promise, and the word
'swear' shall in the like case include
affirm, declare, and promise;
(c) The words 'statutory declaration' shall
mean a declaration made by virtue of any
Act authorizing a declaration to be made
otherwise than in the course of a judicial
proceeding."

21. Section 27(b) provides part of the context in which s.27(c) is construed and tends to support a meaning for the term "statutory declaration" that would give it an inclusive meaning encompassing the operation of relevant State laws rather than an exclusive meaning restricted to a declaration made by virtue of an enactment of the Commonwealth Parliament. The reference to "Act" in sub-s.38(1) of the Acts Interpretation Act 1901 is facultative in form and would not compel a conclusion that the words "any Act" used in s.27(c) of that Act either refers only to a Commonwealth enactment or provides support for a conclusion that the meaning of statutory declaration recited in s.27(c) is intended to be an exclusive meaning limited to a declaration made lawful by a Commonwealth enactment.

22. As at 10 December 1991, s.8 of the Statutory Declarations Act 1959 did not preclude a declaration made in a form other than recited in the schedule to that Act, being a declaration made by virtue of the Statutory Declarations Act 1959.

23. The form of statutory declaration set out in the schedule to the Statutory Declarations Act 1959 was a solemn and sincere declaration stated to be made by virtue of the Statutory Declarations Act 1959 by a declarant conscientiously believing the statements in the declaration to be true in every particular. The form of declaration made lawful by s.106 of the Evidence Act 1906 (WA) was a solemn and sincere declaration stated to be made by virtue of s.106 of the Evidence Act 1906 (WA). However, the form of declaration made by Power went further than that provided by s.106 of the Evidence Act 1906 (WA) and included a statement that the solemn declaration was made with a conscientious belief in the truth thereof.

24. The absence of the express words that the declaration was made "by virtue of the Statutory Declarations Act 1959" would not, of itself, prevent the declaration being a declaration made by virtue of the Act if it were otherwise a sufficient declaration for the purposes of s.8 of the Statutory Declarations Act 1959 and made or used for the purposes of sub-s.6(2) of the Statutory Declarations Act 1959.

25. When Power made the declaration he did so to use it in connection with a matter arising under a law of the Commonwealth, namely, the Act and Regulations, a purpose provided for in sub-s.6(2) of the Statutory Declarations Act 1959. Furthermore, the person before whom Power made the declaration was a Commissioner for Declarations appointed under the Evidence Act 1906 (WA) and pursuant to s.8(f) of the Statutory Declarations Act 1959 was a person before whom a declaration could be made by virtue of that Act. The declaration was sufficient in form to meet the requirements of s.8 of the Statutory Declarations Act 1959, as it then stood, and it may be said it was a declaration made by virtue of that Act. In any event it was a statutory declaration within the meaning of that term as used in s.6 of the Statutory Declarations Act 1959 and in reg.62. In either case the provisions set out in s.11 of the Statutory Declarations Act 1959 relating to prosecution for a wilfully false statement in a statutory declaration would apply. Section 11, in its terms, is not limited to a declaration made under or by virtue of the Statutory Declarations Act 1959. The object of s.11 is to extend to any statutory declaration made and used for the purposes recited in sub-s.6(2) of the Statutory Declarations Act 1959.

26. On 12 December 1991 the Statutory Declarations Act 1959 was amended. The inclusive meaning to be applied to a statutory declaration was retained in s.7 but the words "made by virtue of this Act" in that section were amended to read "made under this Act". In addition, s.8 was deleted and the following substituted:

"8. A statutory declaration made under this Act
must:
(a) be in the form in the Schedule; and
(b) be made before a prescribed person."

27. Whether the amendments clarified or changed the construction of the Act applying prior to amendment was not addressed in submissions to the Court. In any event, as stated earlier in these reasons I accept that s.51 of the Federal Court Act should be applied to remedy any formal defect that may have been present in the proceeding commenced by Power and that the statutory declaration which accompanied the application should be accepted as sufficient in form for the purpose of reg.62.

28. I now turn to the question whether the application and declaration were sufficient under s.219 of the Act to attract the Court's jurisdiction to order the conduct of an inquiry.

29. Under s.219 of the Act the Court exercises jurisdiction to conduct an inquiry into an election by determining whether it is satisfied that there is reasonable ground for an application claiming that there has been an irregularity in relation to an election. In contrast to the terms of the repealed Act, s.219 of the Act states that until the Court is so satisfied and fixes the time and place for the conduct of an inquiry, no inquiry is instituted.

30. Under sub-s.159(2) and s.160 of the repealed Act before the Industrial Registrar referred the matter to the Court, the Registrar was required to be satisfied that there was reasonable ground for an inquiry and that the circumstances of the matter justified an inquiry by the Court. Pursuant to s.161 of the repealed Act upon such a reference to the Court an inquiry was deemed to have been instituted. If, under sub-s.159(4) of the repealed Act an application for an inquiry was referred to the Court forthwith by the Industrial Registrar pursuant to para.159(4)(a) without the Industrial Registrar being required to be satisfied that there was either reasonable ground for an inquiry or that the circumstances of the matter justified an inquiry by the Court, an inquiry was deemed to have been commenced upon that referral but the Court was not required to proceed with the inquiry unless it was satisfied that there was reasonable ground for the application.

31. One of the matters to which the Court will have regard in determining whether it is satisfied that there is reasonable ground for the application is whether the claimed irregularity is capable of being an irregularity within the meaning of the Act. (See Reg. v. Gray; Ex parte Marsh [1985] HCA 67; (1985) 157 CLR 351.) The Court will also consider whether the application and accompanying statutory declaration contain a sufficient statement of facts which, if proved, would lead logically to the possibility of the occurrence of the alleged irregularity. The requirement that the Court be satisfied that there is "reasonable ground" for the application means more than the Court be satisfied that the irregularity claimed in the application would be, if made out, an irregularity in the conduct of an election within the meaning of the Act. There must be some material in the application and the accompanying statutory declaration which shows that it is reasonable to conclude that an irregularity may have occurred. That conclusion would follow from the application of reasoning to a chain of asserted facts. (See George v. Rockett [1990] HCA 26; (1990) 170 CLR 104 at pp 111-113.) As stated by French J. In the matter of the Industrial Relations Act 1988 and in the matter of an application by Steven Patrick Post for an inquiry into the election for offices in the Transport Workers Union of Australia (Western Australian Branch), Unreported (Federal Court of Australia, 31 January 1992 at pp 11-12):

"The Court will not entertain an application of a
speculative nature based on the applicant's opinion
that there has been an irregularity unless that
opinion rests upon some substantial factual
foundation."

32. In the application before the Court Power claims that an irregularity occurred in the conduct of the election in that "a full accurate and complete list of members elegible (sic) to vote in election" was not provided to the Commission. It may be conceded that if an incomplete roll of members eligible to vote in the election is provided to the Returning Officer an irregularity in the conduct of the election may have occurred. But do the facts relied upon in the application and the accompanying statutory declaration provide a foundation for the stated opinion and demonstrate that the claim is more than a mere assertion or speculative statement?

33. Form 4 of the schedule to the Regulations required the facts relied upon in support of the application to be set out in the application in numbered paragraphs.

34. The only material in the application relied upon by the applicant to support the claim that the Commission was not given a complete roll of members eligible to vote in the election was an assertion that some members eligible to vote were "denied a vote".

35. That statement of fact relied upon by Power to support the claim of irregularity provided no material able to demonstrate that the Commission was not provided with a complete roll of members able to vote in the election. Furthermore, the accompanying declaration did not set out any additional facts able to support a logical conclusion that there were members who were eligible to vote under the rules of the Union whose names were not included on the roll of members entitled to vote provided to the Commission. The content of the conversation between Power and an officer of the Commission was irrelevant to the proof of that issue.

36. The declaration filed 11 December 1991 set out several further facts sought to be relied upon by Power. In that declaration Power identified five members of the Union who did not receive a ballot-paper in the election and described the conduct of a general meeting of members held two days after the completion of the election at which it was alleged that perhaps one-third of the members present had indicated that they had not received a ballot-paper. Significantly, the declaration failed to state that the identified members or any other members were financial members of the Union whose names were omitted from the roll of members supplied to the Commission. Although an allegation that a substantial number of members present at a general meeting of members indicating that ballot-papers had not been received may cause speculation as to the likelihood of such a number of members being unfinancial under the Rules of the Union, it would not, in the absence of any other material, be sufficient to support an assertion that the Commission was not provided with a complete roll of members able to vote in the election.

37. Power also stated in his further declaration that a request to peruse the register of members to ascertain the financial status of members had been denied. However, a period of six months after the declaration of the election provided ample time for Power to take steps to identify any members who claimed to be financial members at the relevant time and to ascertain whether the names of those members were included on the roll of voters supplied to the Returning Officer, a roll, incidentally, to which Power had access as a candidate in the election.

38. It was not submitted that s.220 of the Act enabled the Court to take some steps in the matter before it determined whether it was satisfied that there is reasonable ground for the application for an inquiry. Sub-s.220(1) of the Act enables the Court to authorize the Industrial Registrar to take certain investigatory action "for the purposes of the inquiry" (emphasis added). It would appear that the operation of sub-s.220(1) is intended to be similar to that of s.162A of the repealed Act and is dependent upon the Court being satisfied pursuant to s.219 that there is reasonable ground for the application and taking the steps which institute the inquiry. Although the succeeding section, s.221, commences with the express words "Where an inquiry into an election has been instituted" the use of those words may only amount to the reflection of the same intention with greater clarity.

39. Having read the application and declarations I am not satisfied there is reasonable ground for the application for an inquiry and I will decline to direct that an inquiry be conducted. The application for an inquiry will be dismissed.