Thomas v Hanson [2001] FCA 539 (9 May 2001)

Last Updated: 10 May 2001

FEDERAL COURT OF AUSTRALIA

Thomas v Hanson and Anor [2001] FCA 539

INDUSTRIAL - application under s 209 of the Workplace Relations Act 1996 (Cth) seeking compliance with union Rules - applicant seeking to inspect membership records of Branch of union for purposes of or in connection with distribution of election material - Rule provides for right of members to inspect any parts of records of Branch - whether there is an implication in the union Rules that the Branch Secretary should be satisfied that the purpose for the inspection is bona fide and in the interests of the members - whether there is an implication that the purpose for the inspection is not inconsistent with objects of the Branch.

INDUSTRIAL - whether the expression "the records" in the Rules of union includes information relating to members going beyond that which is contained in the roll of voters prepared by returning officer.

INDUSTRIAL - whether "electioneering" is a legitimate purpose for financial member of union to seek access to membership records of Branch - confidential nature of membership records.

INDUSTRIAL - right to inspect records of union - right to make copies of records or to remove original records without Secretary's written consent - whether person inspecting records may make notes of contents of records.

Workplace Relations Act 1996 (Cth)

Industrial Relations Act 1979 (WA)

Workplace Relations Regulations

Re Election for Office in Transport Workers Union of Australia, Western Australian Branch (1992) 40 IR 245 considered

R v Holmes; Ex parte Public Service Association of NSW [1977] HCA 70; (1977) 140 CLR 63 referred to

Re an Election in the Australian Collieries' Staff Association (NSW Branch) (1990) 26 FCR 499 referred to

McGee v Sanders (1991) 30 FCR 565 applied

Allen v Townsend (1977) 31 FLR 431 applied

Jess v Scott (1986) 14 IR 341 applied

Valentine v Butcher (1981) 51 FLR 127 applied

Kanan v Hawkins (1979) 8 IR 371 referred to

Scott v Jess (1984) 3 FCR 263 applied

Re Collins; Ex parte Hockings (1989) 87 ALR 656 referred to

Tanner v Maynes (1985) 7 FCR 432 applied

Darroch v Tanner (1987) 16 FCR 368 referred to

McGee v Sanders (No 2) (1991) 39 IR 400 considered

Kierath v Western Australian Builders' Labourers', Painters' and Plasterers' Union (1997) 75 IR 124 considered

JOHN THOMAS v WAYNE HANSON AND THE AUSTRALIAN WORKERS'

UNION

S44 OF 2001

MANSFIELD J

ADELAIDE

9 MAY 2001

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 44 OF 2001

BETWEEN:	JOHN THOMAS APPLICANT
AND:	WAYNE HANSON AND THE AUSTRALIAN WORKERS' UNION RESPONDENT
JUDGE:	MANSFIELD J
DATE OF ORDER:	9 MAY 2001
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

Wayne Hanson and the Australian Workers' Union do comply with Rule 59(3) of the Rules of the Australian Workers' Union by allowing John Thomas as a financial member of the Australian Workers' Union to inspect the membership records of the Greater South Australian Branch of the Australian Workers' Union upon giving reasonable notice of his request to do so.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 44 OF 2001

BETWEEN:	JOHN THOMAS APPLICANT
AND:	WAYNE HANSON AND THE AUSTRALIAN WORKERS' UNION RESPONDENT

JUDGE:	MANSFIELD J
DATE:	... MAY 2001
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1 This is an application for an order under s 209 of the Workplace Relations Act 1996 (Cth) ("the Act") for an order that the respondents comply with certain Rules of the Australian Workers' Union ("the AWU") by allowing the applicant John Thomas ("Mr Thomas") as a financial member of the AWU, the Branch President of the Greater South Australian Branch of the AWU ("the Branch"), and member of the Branch Executive of the Branch access to the full membership records of the Branch, or alternatively restricting the respondent Wayne Hanson ("Mr Hanson") from allowing access to or use of membership records of the SA Branch (other than names and addresses of members) for the purposes of or in connection with the distribution of election material.

2 The AWU is a registered organisation under the Act. By Rule 33(7) it is divided into a number of branches and divisions, including a branch known as the Greater South Australian Branch. The Branch has a Branch Executive comprising a Branch President, two Branch Vice-Presidents, and eleven Branch Executive Committee Members, and full-time officers being the Branch Secretary, the Branch Assistant Secretary, and six Organiser-Branch Executive Committee Members. Mr Thomas is the Branch President and Mr Hanson is the Branch Secretary.

3 In accordance with the Rules of the AWU, there is presently being conducted an election for all offices of the Branch. Nominations closed on 9 April 2001. The ballot will be conducted between 28 May and 21 June 2001. Mr Thomas has nominated for the office of Assistant Secretary, as part of a ticket including a candidate who has nominated for the office of Branch Secretary. Mr Hanson has nominated for the office of Branch Secretary, again as part of a ticket.

4 The conduct of the election for the officers of the Branch is being conducted by the Australian Electoral Commission under s 214 of the Act. The election timetable has been nominated by the returning officer under s 215. The returning officer directed Mr Hanson, as the Branch Secretary, to provide a list of members of the Branch by 30 April 2001 for the purposes of completing a roll of voters. That roll of voters, when available, will be available to all candidates in the election, including Mr Thomas and Mr Hanson. The roll of voters will contain the names and addresses of the members of the Branch eligible to vote in the election.

5 In the meantime, Mr Thomas has unsuccessfully sought from Mr Hanson, in various terms, access to the "full membership records" of the Branch. The initial request was made on 19 February 2001 by letter from Mr Thomas' solicitors. It indicated that Mr Thomas was intending to be a candidate in the election. The request was in the following terms :

"We now demand that our client be given access within seven days to the following documents :-

Ø The eligible membership roll;

Ø The `reps' (Shop Stewards) roll.

Would you please ensure that our client is given access within seven days. If you do not give him access, he will be placed at an unfair disadvantage to you and your team in the conduct of the election."

6 Mr Hanson did not immediately respond to that letter, but made inquiries concerning it. He was unable to identify a current and accurate "reps roll". There is now no order sought in respect of any "reps roll". Mr Hanson was also concerned that the membership records maintained by the Branch may not accurately reflect the members eligible to vote in the election. The determination of eligible members for the purpose of the election, that is those who may be entitled to vote, was a matter for the returning officer. He is concerned not to provide inaccurate information to Mr Thomas. Mr Hanson was also concerned that he should not take any steps which might contravene reg 118 of the Workplace Relations Regulations ("the Regulations") under the Act. It provides :

"118 Where:

(a) an election for an office in an organisation or branch of an organisation is conducted by the Australian Electoral Commission under the Act; or

(b) a secret postal ballot of the members of an origination is conducted by the Australian Electoral Commission under the Act;

a person other than the person conducting that election or ballot, as the case may be, shall not, except with the authority or at the direction of the person so conducting the election or ballot, do or purport to do any act in the conduct of the election or ballot, as the case may be."

7 The roll of voters for an election must be prepared at the direction of the returning officer from the Australian Electoral Commission: reg 60A(2)(a) of the Regulations. It must set out the name and postal address of each person entitled to vote in the election: reg 60A(2)(b). It must be available for inspection and copying by any member of the organisation: reg 60A(3) and (4).

8 In my judgment, Mr Thomas' response to the initial request for "the eligible membership roll" was appropriate. The request was made in the context of the proposed election. Responsibility for procuring the roll of voters lies with the returning officer. The request for the eligible membership roll, at the time, was properly understood as a request for the roll of voters. The roll of voters did not then exist. It was not until 27 March 2001 that Mr Hanson was notified of the returning officer of the steps he should take to provide information to the returning officer for the purposes of the returning officer preparing the roll of voters. The roll of voters prepared by the returning officer would then be available to candidates in the election. Moreover, as he pointed out, Mr Hanson was precluded by reg 118 preparing or presenting to Mr Thomas the roll of voters. He did not then have the authority or direction of the returning officer to do so.

9 It is necessary to determine whether the request for access to information relating to members of the Branch remained in the terms of a request to inspect the roll of voters.

10 On 12 March 2001, the solicitors for Mr Thomas renewed the request for immediate access to "the eligible membership roll". On 13 March 2001, solicitors on behalf of Mr Hanson wrote in response, inviting Mr Thomas to contact him "for the purpose of arranging a suitable time to gain immediate access to documents". That letter is not itself in evidence. An arrangement was made for Mr Hanson and Mr Thomas to meet after working hours on 21 March 2001. In the meantime, Mr Thomas had approached the membership manager of the Branch direct for access to the membership records of the Branch. That request was not in terms applicable to the roll of voters. In the circumstances, she refused that request pending the outcome of the meeting on 21 March 2001.

11 The meeting of 21 March 2001 did not result in a satisfactory outcome to Mr Thomas. He was told, as was technically the case, that there was no eligible membership roll (that is, a roll of voters) yet established and that that was a task to be undertaken on behalf of and approved by the returning officer. He was not given access to any membership records held by the Branch.

12 Although the initial requests of Mr Thomas were couched in terms applicable to the roll of voters to be prepared by the returning officer, in my judgment Mr Thomas in his approach to the membership manager of the Branch and then at the meeting with Mr Hanson on 21 March 2001 did then request access to the "full membership records" of the Branch. That request was reiterated in the letter from the solicitors for Mr Thomas to the National Secretary of the AWU dated 12 April 2001, and acknowledged in the National Secretary's response of the same date. The National Secretary asserted that the Rules of the AWU did not oblige the Branch Secretary of a Branch to provide membership information to candidates in an election.

13 Accordingly, I am satisfied that Mr Thomas, at least by 21 March 2001, had requested Mr Hanson and the Branch to make available to him for his inspection the records of the Branch concerning its members. The information held by the Branch, under the control of Mr Hanson, extends beyond the names and postal addresses of members. It generally includes information about the workplace of each member, telephone contact numbers, and gender. That may not be the case for all members, but on this application it was not disputed that generally speaking those types of information were recorded about individual members. There are obviously sensible reasons why the Branch would want to have access to those types of information. The information retained about each member no doubt also includes information about the category of membership, and the financial status of the member in the AWU.

14 I am also satisfied that Mr Thomas has not been given access to the documents held by the Branch under the control of Mr Hanson containing information about members. At this point in my reasons, I am deliberately not using the description of those documents as "records" of the Branch, as the status of those documents as records was the subject of a submission on the part of counsel for Mr Hanson. I shall deal with that submission below. For the purposes of s 209(3) of the Act, I am also satisfied that Mr Thomas has taken all reasonable steps to try to have his request for access to that information resolved within the AWU. As noted, he has raised his request with the Branch through Mr Hanson and with the National Secretary. They have each taken a view that the Rules of the AWU do not entitle him to have access to that information, at least in the present circumstances.

15 It is also convenient at this point to record my finding that Mr Thomas wanted and wants access to that information for the purpose of campaigning in the election. There is, he perceives, a benefit in being able to identify those members at particular workplaces and to communicate with that group of members concerning particular issues. He may wish to make contact with individual members, and ready access to telephone numbers would facilitate that. He may wish to communicate with female members of the Branch about issues particular to their interests. He acknowledges in his affidavit that his purpose for securing access to the information is (to use a word used in submissions) electioneering. He also made that purpose plain to Mr Hanson and to the National Secretary. He further claims that his inability to have access to that information is delaying his preparation and distribution of election material in addition to preventing him from using specific details such as workplace or gender identification to facilitate the preparation of election material

16 The position adopted by Mr Hanson has been that Mr Thomas, and other candidates, should await the receipt of the roll of voters approved by the returning officer on behalf of the Australian Electoral Commission before pursuing those activities. The National Secretary of the AWU asserted in response to the letter from Mr Thomas' solicitors that there is no Rule of the AWU which provides or instructs that the Secretary of a Branch of the AWU has to provide membership information to other candidates, and that the Australian Electoral Commission will provide a list of eligible member voters. Although the AWU was given the opportunity of being heard on this application, it has chosen not to participate. I take its attitude to be that expressed by its National Secretary in that correspondence.

17 Mr Thomas puts his claim for an order under s 209 of the Act on two grounds. The first is the Rules of the AWU entitle him to access to the membership information to which I have referred for the purpose of electioneering in anticipation of the close of nominations (they close on 9 April 2001), in addition to the roll of voters to be provided by the returning officer, because of his occupation of the office of Branch President and as a member of the Branch Executive. The second contention is that he is entitled to access to that information for that purpose under the Rules because he is a financial member of the AWU and has requested to have access to it.

18 The first of those grounds is based upon Rules 35, 38 and 39 of the Rules of the AWU. Rules 33(i) and (j) establish the Branch and the composition of its Branch Executive, including the Branch President and the Branch Secretary. Rule 35(1) deals with the general powers of the Branch Executive. It provides :

"(1) Subject to the Rules and to the decisions of National Conference and National Executive, the Branch Executive has general control and conduct of the business of the Branch, and acts on its behalf in all matters."

The duties of members of the Branch Executive are set out in a little detail in Rules 35(5) and (6), which provide :

"(5) Every member of Branch Executive must observe and endorse, where it is in his power to do so, any lawful decision of National Conference or National Executive.

(6) Every Officer or member of the Executive of a Branch of Sub-Branch must disclose respectively to the National Executive or the National Secretary when required any information requested by either of them concerning the Branch or Sub-Branch (as the case may be) or the Union."

Rule 38 deals with the office of Branch President. It provides :

"(1) The Branch President is to be the recognised head of the Branch, and must:

(a) Preside at all Branch and Delegate meetings, and see that the business is conducted in a proper manner.

(b) Sign all documents requiring the President's signature as head of the Branch.

(c) Be empowered to call meetings of the Executive and to act generally in the furtherance of the objects of the Union.

(d) Have a deliberative vote only.

(2) The Branch President must carry out such other functions as are determined from time to time by the Branch Executive or Branch Secretary.

Rule 39 deals with the duties of the Branch Secretary. It relevantly provides :

"(1) The Branch Secretary has the powers, duties and functions to :

(a) Act generally according to the instructions of the Branch Executive and be responsible for the administration of the Branch.

(b) Appoint, control and dismiss the clerical, research, accountancy and other staff of the Branch or Sub-Branch.

(c) Cause to be kept a correct account of all moneys received and expended, but must not under any consideration pay, lend or otherwise appropriate any of the funds of the Union for any particular purpose whatsoever, except in accordance with the Rules, resolutions and Minutes of the Branch Executive and Delegate or General Meetings.

(d) Attend all General and Branch Executive Meetings and Delegate Meetings of the Branch, and take Minutes of same or have them taken.

(e) Zealously attend to all correspondence and answer such questions as may be asked in accordance with the Rules of the Union.

.....

(h) As far as practicable and subject to Rule 17(11) having been complied with, keep a correct Register of the names, postal addresses and occupations of all Officers and of the name, postal address and number of ticket of each member in the Branch and the date on which each person became a member of the Union, and must supply a copy of the Branch Register of members to the National Secretary when required.

.....

(k) Make such returns and perform such duties as are expressed or implied in the Rules of the Union.

....."

19 There is no explicit provision in any of those Rules entitling the Branch President either by reason of occupying that office or as a member of the Branch Executive, to access to the membership information of the Branch. That information will include, but not necessarily be limited to, the information required to be kept by Rule 59(1) and (2). Counsel for Mr Thomas acknowledged that. He contended, however, that there should be implied into those Rules an entitlement on the part of the Branch President by reason of occupation of that office, or alternatively by reason of being a member of the Branch Executive, to have access to that information. It is said that that entitlement should be implied from the nature of those offices and their responsibilities.

20 French J in Re Election for Office in Transport Workers Union of Australia, Western Australian Branch (1992) 40 IR 245 at 253 noted the preferred approach to the construction of union Rules which requires them to be construed not technically or narrowly, but broadly and liberally: see also R v Holmes; Ex parte Public Service Association of NSW [1977] HCA 70; (1977) 140 CLR 63; Re an Election in the Australian Collieries' Staff Association (NSW Branch) (1990) 26 FCR 499.

21 As the Branch Executive has general control and conduct of the business of the Branch, I consider that there is a clear implication by reason of Rule 35 that it should have access to information held by the Branch for the purpose of performing its functions. Where information relating to members is or may be relevant to the performance of its functions, it is clear that the Branch Executive should have the entitlement to have access to that information: see McGee v Sanders (1991) 30 FCR 565 at 571 - 574. However, it is also clear that the exercise of its power to have access to such information must be bona fide for the performance of its functions: Allen v Townsend (1977) 31 FLR 431 at 483 - 489; Jess v Scott (1986) 14 IR 341 at 344. It has not been argued that it is part of the functions of the Branch Executive to secure for a candidate in an election information relating to membership held by the Branch. Nor is there any evidence to suggest that the Branch Executive has sought to secure that information for Mr Thomas, or other candidates in the election, in the fulfilment of its functions. It is not necessary, in those circumstances, to determine whether the Branch Executive might, in the fulfilment of its functions, seek that information for the purposes of making it available to candidates in the election.

22 The status of Mr Thomas as Branch President, or as an individual member of the Branch Executive, does not in the present circumstances, enhance his claim that those Rules entitle him to have access to the information. Even if it be assumed in his favour that Rules 35 or 38 carry with them, in certain circumstances, the right for him individually to have access to that information held by the Branch (see, for example, the circumstances which obtained in McGee v Sanders). I do not consider that those circumstances include those where the information is sought for the purpose of the Branch President or an individual member of the Branch Executive campaigning on that person's own behalf in an election. That is a purpose which is remote from any purpose which could bona fide be pursued by Mr Thomas as President or as an individual member of the Branch Executive in the interests of the Branch. It is a purpose which is personal. The fact that the outcome, if he is correct, would be to entitle him (or other members of the Branch Executive in their individual capacities) to information of benefit to his candidature in the election which would not be available to other candidates indicates firmly against the proposition for which he contends. As long ago as Valentine v Butcher (1981) 51 FLR 127, similar sentiments were expressed. In that case, Keely J said (at 138 - 139) :

"In my view the principle prohibiting the use of the resources of a registered organisation in support of one candidate is a principle that the use of such resources is not to be granted to one candidate and denied to another. It seems to me that an important part of the principle enunciated by the Commonwealth Court of Conciliation and Arbitration in Short v Wellings (1951) 72 C.A.R. 84, as applied by this Court (J. B. Sweeney J.) in Kanan's case Unreported (Federal Court of Australia, J.B. Sweeney J., 14th September, 1979), is that those resources must not be used to defeat a candidate. In my view the implied prohibition upon the use of the organization's resources does not apply where those resources are in fact equally available to all candidates."

See also Kanan v Hawkins (1979) 8 IR 371; Scott v Jess (1984) 3 FCR 263; Re Collins; Ex parte Hockings (1989) 87 ALR 656; Tanner v Maynes (1985) 7 FCR 432; Darroch v Tanner (1987) 16 FCR 368.

23 For those reasons, I do not consider that the claim based upon Rules 35, 38 and 39 should succeed.

24 The alternative contention is based upon Rule 59 of the Rules of the AWU. It provides :

"(1) All records showing the financial transactions of the Union are to be kept at the Registered Office of the Union and are to include a register of the names and addresses of all the members.

(2) A register of the members and all records concerning the financial transactions of the Branch are to be kept by the Branch Secretary showing the name, address and financial standing of each member and such other matters as may be directed.

(3) A financial member making a specific request to inspect a part or parts of the records of the Union or of the Branch, Division or District of which he is part must be permitted to do so provided that :

(a) the request provides sufficient particulars of the information sought;

(b) reasonable notice is given;

(c) no copies may be made or documents removed without the written authority of the relevant Secretary."

25 In particular, Mr Thomas through his counsel contends that he is a financial member who has made a specific request to inspect a part or parts of the records of the Branch of which he is part, and that he has not been permitted to do so. He contends that his request contains sufficient particulars of the information sought, and that reasonable notice has been given. He also claims in argument to be entitled to a copy of the membership roll on disk, and that the Secretary, Mr Hanson, has acted improperly in contravention of the Rules in not authorising that to be made.

26 In the course of contentions, a number of issues concerning Rule 59 were identified. They are :

(1) whether the expression "records" or "the records" in Rule 59(3) includes information relating to members going beyond their names and addresses and financial standing. Counsel ventilated on behalf of Mr Hanson the proposition that the expression "the records" in Rule 59(3) refers only to the records required to be kept pursuant to Rule 59(1) and (2), that is information limited to name, address and financial standing of each member. One response to that contention was to raise the question whether, upon the evidence, the additional information concerning members retained by the Branch of the union relating to gender, telephone numbers, and workplace, falls within the description of "such other matters as may be directed" in Rule 59(2).

(2) whether the request to have access to the membership records as such is a request in terms of Rule 59(3) being "a specific request to inspect a part or parts of the records" because of its comprehensive nature. No submission was made that the request did not provide sufficient particulars of the information sought, or that reasonable notice was not given. The practical considerations relevant to the exercise of a right to inspect documents, adverted to by Gray J in McGee v Sanders (No 2) (1991) 39 IR 400 at 406, have been specifically addressed in Rule 59(3)(a) and (b).

(3) whether, because the purpose of Mr Thomas in seeking the information was to assist him in campaigning for the election, he was disqualified from any entitlement to have access to those records. Counsel for Mr Hanson contended that "electioneering" is not a legitimate purpose for any financial member seeking access to any records of the AWU.

(4) Whether reg 118 of the Regulations has the effect that Mr Thomas is not entitled to have access to that information.

(5) whether the request in reality involved the making of copies of the records without the Secretary's written authority.

27 In my judgment, the full information concerning members held by the Branch is part of "the records" of the Branch to which Rule 59(3) refers. The normal meaning of "record" includes information or knowledge preserved in writing or the like: The Macquarie Concise Dictionary (1988), p 825. There is nothing in the Rules which suggests any more refined or special meaning. Whilst Rule 59(1) and (2) and Rule 39(1)(c) and (h) indicate records which must be kept by the Branch, clearly in its day to day operations other information will be received or generated within the Branch and would form part of its records. Obvious examples are the minutes of meetings of the Branch Executive, and communications between the National Secretary and the Branch Secretary. It would create an artificial and complex regime of documentation recording if the Branch had two sets of documents, one of which comprised "the records" for the purpose of Rule 59(3) and the other of which did not. Moreover, there is no indication in Rule 59(3) itself that the access to records for which it provides is restricted in some way. It is not confined to records relating to membership. The right on the part of a member which it establishes would not be served by adopting a confined range of documents of which inspection may be sought.

28 In addition, I infer that the information held by the Branch concerning members, including that concerning workplace, telephone contact numbers and gender, is information which has been directed to have been procured and retained. There is no direct evidence about the circumstances in which that information came to be recorded. But it is information recorded on a membership card retained at the Branch. It is clearly information sought by the Branch from members and prospective members. It is information which may be of assistance to the Branch in its day to day operations. The means by which the information is procured from members or prospective members is not described, but it is likely to be sought at least by information to be provided on a membership application form. The use of such forms are themselves likely to have been approved by the Branch Executive, or the National Executive. The alternative that the information was sought at the whimsy of an officer of the Branch at some time in the past, and that practice has simply been followed mindlessly thereafter, is itself unlikely.

29 I have already concluded that Mr Thomas, by 21 March 2001, had made a request for access to the membership records of the Branch, rather than for the roll of voters to be prepared and provided by the returning officer. In my view, in terms of Rule 59(3), that was a request to inspect "a part or parts of the records" of the AWU. I do not consider that that expression is aimed at responding to a request to inspect records only if that request were very circumscribed in expression. Rule 59(3)(a) is directed to ensuring that the request be clear enough to identify the records which are sought to be inspected. Often, a member bona fide wishing to inspect a record or records will be unable to specify precisely and accurately the documents sought to be inspected, perhaps because their description in the management of the Branch is different from that given by the member making the request. The right given to members under Rule 59(3) is not intended to be frustrated by narrow or pedantic approaches to a proper request made. I think that, in this respect, the terms of Rule 59(3) meet the observations of Gray J in McGee v Sanders (No 2) at 406 in a practical and sensible way.

30 The question whether Rule 59(3) should entitle Mr Thomas to the right to inspect the membership records, given the clear purpose of his request is to assist him and his ticket in campaigning in the election, is a more difficult one. On one view, Rule 59(3) is quite straightforward and it applies in the present circumstances. As counsel for Mr Thomas submitted, the words of Rule 59(3) are plain. The Rule, by the use of the word "must", obliges the Secretary to make the records available for inspection. It is not a qualified right. The express restrictions on the exercise of that right are contained in the three provisos. There are, however, considerations which militate against giving Rule 59(3) such a full operation. Mr Hanson through his counsel says that such information as workplace, gender and telephone numbers is confidential. It is information which would have its own market and which, in the hands of a disgruntled member after the election, may make its way to a competitor union, with the potential to do serious damage to the industrial interests of the AWU. The release of that information may intrude upon the privacy of members. Some members have silent telephone numbers, and may not wish to have that information made available to other members. The records are not available to members of the public. There are good reasons why they should remain confidential, both in the interests of the AWU or the Branch and in some cases (eg silent telephone numbers) of the members as individuals. Some information will have been provided to the AWU in confidence. It is easy to conceive of circumstances where the Branch Secretary has good reason to be concerned about the use to which information sought to be inspected may be put. An extreme example would be where a member seems to ascertain the private details of another member to pursue a personal vendetta.

31 The fact that such information as the workplace, telephone numbers and gender of members of the AWU is private is indisputable. So too is the fact of their membership, and their addresses. That much was recognised, for example, in Kierath v Western Australian Builders' Labourers', Painters' and Plasterers' Union (1997) 75 IR 124 at 131 per Malcolm CJ, Murray and Owen JJ. That case concerned the exercise of the discretion of the Registrar of the Western Australian Industrial Relations Commission to provide information about the members of a union to a member of the public. It turned upon the construction of a particular provision in the Industrial Relations Act 1979 (WA) and is not of direct relevance to the present issues.

32 In this instance, however, the fact of that information being private must lie with the right of inspection given to members in the Rules, and the fact that the names and addresses of members eligible to vote in the election will be contained in the roll of voters made available through the returning officer. In many cases, the gender of the member will appear from the given name or names. In most cases, the telephone number will be accessible through the telephone directory.

33 To resolve these conflicting considerations, it is necessary first to determine whether there is implied into Rule 59(3) some restriction upon its express words by reference to the purpose for which the member seeks to inspect certain records. If there is some such implication, the question will then arise whether the acknowledged purpose of Mr Thomas, namely to use the information in campaigning in the election, is one which Rule 59(3) does not accommodate.

34 Gray J in Scott v Jess (1984) 3 FCR 263 at 282 - 284 discussed considerations relevant to implying terms into the rules of an organisation registered under the Act. His Honour said at 284 :

"The difficulty of implying terms into the rules of an organisation does not, however, mean that such rules are to be construed as if no implication whatever arises from them. In many respects, there are to be derived from the express terms of the rules, the terms of the Act and the Regulations, and the nature, function and purpose of the organisation concerned, implications which limit what might otherwise be the extent of the express terms of the rules. ..."

35 His Honour at 286 - 288 referred to four useful principles in determining whether and to what extent the express powers contained in the Rules of a registered organisation are limited by implication. As his Honour acknowledged, those principles may not be equally applicable in all circumstances and indeed they may conflict in their application in certain circumstances. That statement of principles was approved by the majority of the Full Court (Evatt and Northrop JJ) in Tanner v Maynes (1985) 7 FCR 432 at 441. The third of those principles is, to my mind, helpful in addressing the present issue. Gray J said at 287 :

"3. A power given to a person or persons by the rules of an organisation must be exercised in good faith and for the purpose for which it is given, not for some ulterior or extraneous purpose. In support of this proposition, it is unnecessary to do more than to refer to the joint judgment of Evatt and Northrop JJ in Allen v Townsend (1977) 31 F.L.R. 431 at 483-489, and to the cases cited in that passage, although the proposition at 483 that the fiduciary duty therein referred to is owed to the members of the organisation, as distinct from the organisation itself, may be questionable. In this respect, it is important to note that the onus of proving lack of good faith or ulterior purpose rests upon those who seek to overturn the exercise of a power, and not upon those who seek to uphold it. See Ascot Investments Pty Ltd v Harper [1981] HCA 1; (1981) 148 CLR 337, at 348-349 per Gibbs J (as he then was), with whom Stephen, Aickin and Wilson JJ concurred."

36 I consider that it is appropriate to imply into the right given to members under Rule 59(3) some such restriction as there referred to. There are, of course, differences in the responsibility of, and the relationship with, an organisation on the part of those charged with its management from those who are simply its members. The special position of those charged with responsibility for the management of the affairs of an organisation is explained by Heerey J in McGee v Sanders (1991) 30 FCR 565 at 571 - 573. However, in my view, the nature, function and purpose of an organisation such as the AWU warrants the implication of a similar restriction upon the right of a member to inspect records of the AWU to that which applies to the members of the Branch Executive (or other officers) to exercise that right in good faith and for the purpose for which the right has been given and not for some ulterior or extraneous purpose. Rule 4 sets out the objects of the AWU. It is clear that its principal objects include fostering and promoting the interests of its members eg Rule 4(1), (3), (4), (11), (12), (15), (18), (21) and (23) - (30). Rule 17 obliges a member to abide by the Rules. If a member were to seek to exercise the right to inspect a record of the AWU for an entirely extraneous purpose, such as identifying the personal details of a member to pursue a personal vendetta or for the purpose of assisting another organisation to recruit its members, I do not think that it is intended that the Rules are intended to facilitate that process. Consequently, I consider that it is implied into Rule 59(3) that inspection is not permitted if it is proved that a member seeks to inspect part or parts of the records of the AWU for a purpose which is inconsistent with the interests of the members of the AWU. The onus of proving that wrongful purpose will lie upon the Branch Secretary or other officer responsible for providing inspection of records in response to a request: see McGee v Sanders (No 1) at 574; Gray J in Scott v Jess at 289.

37 In this matter, the purpose of Mr Thomas, in seeking to inspect the membership, records is clear. It is to assist in his campaign in the election. In a practical sense, no issue of onus of proof needs to be addressed. But I do not consider that it should be implied into Rule 59(3) that the Branch Secretary or other officer responsible for the provision of a part or parts of the records of the AWU should first be satisfied that the request for inspection of a part or parts of the records is consistent with the interests of the AWU. That would involve the implication of a term into Rule 59(3) of a right on the part of that officer to seek information from a member about the purpose of the request, perhaps progressively and over a period of time, and to form views about the integrity of the member's expressed reasons for seeking the information. There is nothing in Rule 59(3) or in the Rules which warrants the implication that that process should be undertaken. I think that it will only be where the responsible officer, or the AWU, by information available to that officer or to the AWU, has a foundation for determining that the request for inspection, if met, would be inconsistent with the interests of the AWU that the request may be denied. The sort of response which Gray J had to address in McGee v Sanders (No 2) (1991) 39 IR 400 is not one which, in my judgment, Rule 59(3) contemplates as being a process implied into it.

38 In this instance, as noted, the purpose of Mr Thomas is known. It is to assist him and his ticket in campaigning in the election. I do not consider that that purpose is inconsistent with the interests of the AWU. Section 187A of the Act includes the objects of Part IX dealing with Registered organisations as encouraging the democratic control of organisations and encouraging members to participate in the affairs of organisations. The Rules of an organisation must provide for election of offices, including by secret ballot: s 197 and s 198(1). Rule 4(23) prescribes an object of the AWU as including the AWU informing members on matters of interest and concern. It is not inconsistent with those provisions that a member-candidate should have access to the membership records of the Branch for the purpose of campaigning in an election. That opportunity would be available to all candidates in an election; that is there can be "fair play" in the election: see Scott v Jess per Evatt and Northrop JJ at 272; Jess v Scott (1986) 14 IR 341 at 344 per Wilcox J. In this matter, having ascertained the nature of the right which Rule 59(3) establishes, and having determined in the light of the Act and in particular Part IX and of the Rules of the AWU some limits within which it may be exercised, I do not consider that the substantial purpose for which Mr Thomas seeks to exercise that right is an improper one.

39 There are two remaining issues with which it is necessary to deal. The first can be briefly disposed of. The scope of reg 118 is clear. The steps taken in the conduct of the election or the ballot must be taken by, or at the authority or direction of the returning officer. Those matters to which Rule 62, for example, refers are matters which would fall within that description. The compliance with a request for inspection of membership records under Rule 59(3), even if for the purpose of campaigning in an election, is not such a step. The compliance with such a request would not amount to the determination of the roll of voters, or constitute a step in the provision of the roll of voters. That is a separate and discrete step. I do not consider that reg 118 therefore presents any reason why the request of Mr Thomas for inspection of the membership records should be refused.

40 The other issue concerns the proper interpretation of Rule 59(3)(c). Counsel for Mr Hanson argued that the restriction on copying indicates the sensitivity and significance of the membership records of the Branch and of the AWU, and so itself provides a reason why access to the membership records should not be permitted despite the apparently clear words of the opening part of Rule 59(3). It was also contended that the fact that no copies of the records to be inspected may be made without the written approval of the Branch Secretary means that no notes of the information to be inspected may be taken. Although that issue does not directly arise on this application, it is a matter I should address. It will obviate any difficulty in inspecting the membership records.

41 In my judgment, the expression "copies" in Rule 59(3)(c) means replicas such as by photocopying, rather than simply taking notes of the information being inspected. The word "copies" should be read in conjunction with the succeeding words "... may be made", which are words which in my view indicate the process of replication rather than noting. That also is consistent with the idea encompassed by the succeeding phrase "or documents removed", as referring to the process of obtaining the full version of the relevant documents or parts of them. It is also consistent with the use of the word "copy" in Rule 16 entitling a member to a copy of the Rules and to inspect a copy of National Conference and National Executive Minutes. Further, it would be rather pointless to permit inspection of parts of the records, if a member were then obliged to remember the contents rather than note them; no sensible reason suggests itself to me as to why the vagaries of memory or the quality of memory of individual members should be imposed to reduce the effectiveness of the right granted by Rule 59(3). May a member inspect a record, but not make a note of the record until learning the place where the record is inspected? May a member inspect part of a record in such short segments, ie inspect many short parts, so that that member may recall (and later note elsewhere) the part inspected? The bona fide purposes of inspecting records may vary. McGee v Sanders (No 2) illustrates one such purpose. The complexity of the material to be inspected in some cases would render nugatory the right of inspection if no note of what is inspected may be made. Whilst Rule 59(3) clearly endeavours to place some control upon the taking of copies of records inspected (cp the discussion by Gray J in McGee v Sanders (No 2) at 407), in my view it does not preclude taking notes of information contained in records which a member is entitled to inspect.

42 As the order to show cause does not seek any order that Mr Hanson authorise the taking of copies of the membership records (although in certain correspondence Mr Thomas has sought a disk containing the membership records), it is not necessary to determine what response should be made to any such request.

43 For these reasons, I consider that Mr Thomas is entitled to inspect the membership records of the Branch. I do not consider that there are any discretionary reasons why an order should not be made directing Mr Hanson and the AWU to comply with Rule 59(3) by permitting him to do so. The only specific discretionary factor mentioned in argument was that the making of the order may itself have significance in the election. However, both Mr Hanson and the AWU have taken the view that Mr Thomas is not in the circumstances entitled to inspect those records. I have reached the conclusion that they are incorrect in that conclusion. No offer was made to the Court that, absent an order, that inspection would be permitted. The ballot will not open until 28 May 2001. It is still some time off, so any impact of the order on the voting process is not likely to be of much, if any, significance. Those circumstances do not, therefore, lead me to the conclusion that the order sought ought not be granted.

44 If I am wrong in making the order, that is if Mr Thomas is not entitled by Rule 59(3) to inspect the membership records of the Branch for the purpose of campaigning the election, I would not make the alternative order sought in paragraph 2 of the order to show cause. Although Mr Thomas, by his affidavit, indicated that he was concerned that Mr Hanson and his team would have access to the membership records of the Branch of the AWU, Mr Hanson has specifically denied that he has done so or that he intends to do so for the purposes of electioneering. He says that he intends only to use the roll of voters provided by the returning officer in due course. He was not challenged on that evidence. In those circumstances, it would not be appropriate to make an order that Mr Hanson comply with the Rules by not doing something which, in any event, he has said he will not do and in respect of which there is no evidence that he is acting or will act contrary to his assertions. Of course, in the light of these reasons and the order I make, Mr Hanson will be free to change his mind and to inspect the membership records of the Branch to assist him in his campaigning in the election.

45 I order that Mr Hanson and the AWU do comply with Rule 59(3) of the Rules of the AWU by allowing Mr Thomas as a financial member of the AWU to inspect the membership records of the Branch upon giving reasonable notice of his request to do so.

I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated: 9 May 2001

Counsel for the Applicant:	Mr T Bourne
Solicitor for the Applicant:	Bourne Lawyers
Counsel for the Respondent:	Mr S Howells
Solicitor for the Respondent:	Lieschke & Weatherill
Date of Hearing:	30 April 2001
Date of Judgment:	9 May 2001