Inquiry relating to elections for offices in the United Firefighters' Union of Australia, Victorian Branch; Re Churchill [2001] FCA 469 (26 April 2001)

Last Updated: 26 April 2001

FEDERAL COURT OF AUSTRALIA

Inquiry relating to elections for offices in the United Firefighters' Union of Australia, Victorian Branch; Re Churchill

[2001] FCA 469

INDUSTRIAL LAW - registered organisations - election inquiry - procedural defect in union rules - jurisdiction of electoral official to find procedural defect - error of law - jurisdictional error -collateral challenge to decision of electoral official - power of electoral official to impose voting system - irregularity in relation to election - whether union rules fail to provide for election by direct voting system - whether union rules are oppressive, unreasonable or unjust

WORDS AND PHRASES - "irregularity", "procedural defects", "eligible to vote"

Workplace Relations Act 1996 (Cth) ss 196, 197, 215, 223

Allen v Townsend (1997) 16 ALR 301 referred to

Amalgamated Metals Foundry & Shipwrights Union, Re; Ex parte Adamson (1984) 4 FCR 319 cited

Australian Journalists' Association, Re; Ex parte Nicholson (1990) 27 FCR 75 cited

Boddington v British Transport Police [1998] UKHL 13; [1999] 2 AC 143 followed

Bragg, Re; Ex parte Australasian Society of Engineers, South Australian Branch (1985) 6 FCR 304 cited

Brophy and Federated Clerks' Union of Australia, Re (1987) 78 ALR 561 cited

Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110 cited

Bugg v Director of Public Prosecutions [1993] QB 473 not followed

Cameron v Australian Workers' Union (1961) 2 FLR 45 considered

Carter, Re; Federated Clerks Union of Australia, Victoria Branch, Re (No. 1) (1989) 32 IR 1 discussed

Coal Miners' Industrial Union of Workers of Western Australia v Amalgamated Collieries of Western Australia Ltd [1960] HCA 68; (1960) 104 CLR 437 followed

Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389 followed

Communications Workers' Union of Australia Postal and Telecommunications Branch, New South Wales, Re (1996) 67 IR 246 discussed

Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 cited

Doyle v The Australian Workers' Union (1986) 12 FCR 197 considered

Edwards v Giudice [1999] FCA 1836; (1999) 94 FCR 561 referred to

Elections for Offices in Australasian Meat Industries Union, Re (1963) 5 FLR 260 cited

Federated Ironworkers' Association of Australia v Commonwealth [1951] HCA 71; (1951) 84 CLR 265 applied

Federated Liquor and Allied Industries Employees' Union of Australia, Re; Ex parte Huxtable (1979) 40 FLR 418 referred to

Finance Facilities Pty Ltd v Federal Commissioner of Taxation [1971] HCA 12; (1971) 127 CLR 106 cited

Flynn v Director of Public Prosecutions [1998] 1 VR 322 not followed

Johns v Australian Securities Commission [1993] HCA 56; (1993) 178 CLR 408 referred to

Jutte v Amalgamated Engineering Union, Australian Section (1967) 10 FLR 195 cited

Keely, Re; Ex parte Kingham (1995) 129 ALR 255 followed

Kelly v Amalgamated Metal Workers' and Shipwrights' Union (1981) 56 FLR 124 cited

Lovell, O'Grady & James v Federated Liquor and Allied Industries Employees' Union of Australia (1978) 22 ALR 704 referred to

Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 cited

Mitchell v R [1995] HCA 59; (1996) 184 CLR 333 cited

Municipal Officers' Association of Australia v Lancaster (1981) 54 FLR 129 applied

Ousley v R [1997] HCA 49; (1997) 192 CLR 69 followed

Quietlynn Ltd v Plymouth City Council [1988] QB 114 not followed

R v Commonwealth Industrial Court; Ex parte Amalgamated Engineering Union, Australian Section (Shearer's case) [1960] HCA 46; (1960) 103 CLR 368 applied

R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407 applied

R v Dunphy; Ex parte Maynes [1978] HCA 19; (1978) 139 CLR 482 cited

R v Gray; Ex parte Marsh [1985] HCA 67; (1985) 157 CLR 351 cited

Rennie v Australian Workers Union (1990) 34 IR 133 cited

Roughan v Australasian Meat Industry Employees' Union (1992) 36 FCR 536 considered

Rule v Australian Workers' Union (1985) 9 FCR 280 considered

Vehicle Builders Employees' Federation of Australia (SA Branch), Re (1987) 13 FCR 350 cited

Ward v Williams [1955] HCA 4; (1955) 92 CLR 496 cited

A Rubenstein, Jurisdiction and Illegality (1965)

C Emery, "Collateral Attack - Attacking Ultra Vires Action Indirectly in Courts and Tribunals" (1993) 56 Modern L R 643

E Campbell, "Collateral Challenge to the Validity of Government Action" (1998) 24 Monash L R 272

A J Harding, Public Duties and Public Law (1989)

IN THE MATTER OF AN INQUIRY RELATING TO ELECTIONS FOR OFFICES IN THE UNITED FIREFIGHERS' UNION OF AUSTRALIA, VICTORIAN BRANCH

V 687 of 2000

FINKELSTEIN J

MELBOURNE

26 APRIL 2001

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 687 of 2000

IN THE MATTER OF AN INQUIRY RELATING TO ELECTIONS FOR OFFICES IN THE UNITED FIREFIGHERS' UNION OF AUSTRALIA, VICTORIAN BRANCH

JUDGE:	FINKELSTEIN J
DATE OF ORDER:	26 APRIL 2001
WHERE MADE:	MELBOURNE

REASONS FOR JUDGMENT

1 Mr Churchill was an unsuccessful candidate for the office of firefighter representative in an election for offices in the Victorian branch of the United Firefighters' Union of Australia, an organisation registered under the Workplace Relations Act 1996 (Cth). After the election Mr Churchill claimed that there had been irregularities in, or in connection with, the election. He applied for an inquiry under s 218 of the Workplace Relations Act. One of the claimed irregularities was that, in contravention of s 215(1)(a), the electoral official conducting the election did not count the votes as required by the rules of the union. Section 215(1)(a) provides that where an electoral official is conducting an election, the electoral official "shall comply with the rules of the [subject] organisation...". If there is a breach of those rules there may be an irregularity for the purposes of s 218: see the definition of "irregularity" in s 4.

2 All elections for offices in the union are required to be held in accordance with rule 27. This rule provides for voting in accordance with a preferential system. Each member is given an instruction to the following effect (rule 27(4)(c)(1)):

"To vote for a candidate for an office you should place the figure 1 opposite the name of the candidate for whom you vote as your first preference and give preference votes for all the remaining candidates by placing figures 2, 3, 4, (and so on as the case requires) opposite their names so as to indicate the order of your preference for them."

The votes are counted in accordance with rule 27(13). This sub-rule relevantly provides:

"The ballot papers in an election shall be counted in accordance with the following provisions:

(a) The Returning Officer shall count the ballot papers in the presence and subject to the inspection of such scrutineers as choose to be present (if any) and of no other person;

(b) The Returning Officer shall arrange the ballot papers by placing in a separate parcel all those on which a first preference is indicated for the same candidate omitting informal ballot papers;

(bb) In the event of the nomination of a candidate for an office lapsing in accordance with these Rules by reason of that person's election to a higher office the votes cast in favour of that person shall as a first step be allocated according to preferences.

(c) The Returning Officer shall count the first preference votes given for each candidate respectively;

(d) The candidate who has received the greatest number of first preference votes if that number constitutes an absolute majority of first preference votes shall be declared elected;

(e) If no candidate has an absolute majority of first preference votes the Returning Officer shall -

(1) treat the candidate who has obtained the fewest first preference

votes as a defeated candidate and such of the ballot papers counted to such defeated candidate as indicate the voter's next preference shall be distributed amongst the non-defeated candidates next in order of the voter's preference. After such distribution the number of votes given to each non-defeated candidate shall again be counted;

(2) If no candidate then has an absolute majority of votes the

process of treating the candidate who has the fewest votes as defeated and distributing such of that candidate's ballot papers as indicate the voter's next preference amongst the non-defeated candidates next in order of the voter's preference shall be repeated and the votes recounted after every such redistribution until one candidate shall be declared elected.

(ee) If on the final count two candidates have received an equal number of votes the Branch Returning Officer shall cast lots.

(f) Where more than one person is to be elected to an office counting shall cease when the number of non-defeated candidates is equal to the number of persons to be elected. Seniority in the office shall be determine by the number of votes distributed to the non-defeated candidates when counting ceases. In the case of an equality of votes the Branch Returning Officer shall decide seniority by casting lots."

3 The claimed irregularity in relation to the counting of votes concerns only those offices for which more than one candidate was to be elected. The relevant offices are trustee (four office-holders), officer representative (two office-holders) and firefighter representative (two office-holders). It has been common to refer to these offices as "multiple positions".

4 Mr Churchill contends that on the proper construction of rule 27(13) the votes for an office, where more than one person was to be elected, were to be counted in the following manner. Voters were required to indicate a preference for each candidate on the ballot paper. The candidate who first achieved a majority was to be declared elected. All ballot papers containing a first preference vote for that candidate were then to be disregarded. The candidate with the lowest count of first preference votes was then to be declared defeated, and the second preferences on his ballot papers were to be distributed to the remaining candidates. This process was to continue until a candidate achieved a majority, and that candidate was then to be declared elected to the second position. If there were more than two office-holders to be elected the process was to be repeated.

5 It is accepted that the electoral official did not count the votes in this fashion. This is how he counted the votes. When a candidate was elected to fill the first position, all ballot papers were sorted back to first preference votes. Then all ballot papers containing a first preference vote for the first elected candidate were distributed to the remaining candidates according to the second preference vote on each ballot. The candidate receiving the majority of votes remaining was elected as the second successful candidate and so forth, until all multiple positions were filled.

6 No one has suggested that this method of counting was prescribed by the rules. To the contrary, the electoral official and those members of the recently elected committee who were granted leave to appear (see my ruling [2000] FCA 1493) concede that the rules do not permit the votes to be counted according to the system adopted by the electoral official. Yet they say that there was no irregularity in relation to the election or, even if there was an irregularity, the election should not be declared void. Before I explain the basis for those submissions, there are some introductory comments that should be made.

7 The jurisdiction to institute an inquiry depends upon whether the applicant claims the occurrence of what amounts to an irregularity: s 218 and the definition of "irregularity"; R v Gray; Ex parte Marsh [1985] HCA 67; (1985) 157 CLR 351 at 364, 481-382. The claim must appear on the face of the application, where the particulars of the alleged irregularity must be found: Workplace Relations Regulations 1996 (Cth), reg 62(2) and Form 4 in Sched 1. Once the court has jurisdiction to conduct an inquiry, it is not limited to inquiring into the claimed irregularity which is the source of its jurisdiction. Surprisingly, when an inquiry has begun the court may inquire into any irregularity disclosed by the evidence, although the irregularity is not mentioned in the application: Re Elections for Offices in Australasian Meat Industries Union (1963) 5 FLR 260; Jutte v Amalgamated Engineering Union, Australian Section (1967) 10 FLR 195; Re Amalgamated Metals Foundry & Shipwrights Union; Ex parte Adamson (1984) 4 FCR 319; Re Bragg; Ex parte Australasian Society of Engineers, South Australian Branch (1985) 6 FCR 304.

8 The second matter concerns the power of the court consequent upon a finding that an irregularity has happened. Section 223(3) provides that the court "may" make certain specified orders, including an order declaring the election void. Section 223(4) provides that the court shall not declare an election 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." On one view, the word "may" merely confers authority to make one of the specified orders, and if there is an irregularity and a positive finding under s 223(4), that authority must be exercised. The cases that support this construction include Ward v Williams [1955] HCA 4; (1955) 92 CLR 496, 504-506; Finance Facilities Pty Ltd v Federal Commissioner of Taxation [1971] HCA 12; (1971) 127 CLR 106, 134-135; and Mitchell v R [1995] HCA 59; (1996) 184 CLR 333, 345-346. On the other hand, there are a number of authorities which have held that the effect of the word "may" is to confer on the court a discretion to grant relief, notwithstanding the existence of an irregularity and a positive finding under s 223(4). The authorities include Kelly v Amalgamated Metal Workers' and Shipwrights' Union (1981) 56 FLR 124, 149-150; Re Vehicle Builders Employees' Federation of Australia (SA Branch) (1987) 13 FCR 350, 351; Rennie v Australian Workers Union (1990) 34 IR 133, 137; Re Australian Journalists' Association; Ex parte Nicholson (1990) 27 FCR 75, 82-83. In Kelly, Shepherd J referred to Ward v Williams and said that he found the resolution of the question far from easy; see also Re Brophy and Federated Clerks' Union of Australia (1987) 78 ALR 561, 565. Perhaps this issue should be considered by a Full Court in an appropriate case.

9 Returning to the facts, it is convenient first to explain why the electoral official adopted a new voting system. For this purpose it is necessary to consider the powers of an electoral official. I have already mentioned that when conducting an election, the electoral official is required to comply with the rules of the organisation. However that obligation is qualified. There are two circumstances in which the electoral official may (ie has the power to) depart from the rules. Section 215(1)(b) provides that the electoral official:

"may, in spite of anything in the rules of the organisation or branch, take such action, and give such directions, as the electoral official considers necessary:

(i) to ensure that no irregularities occur in or in relation to the election;

or

(ii) to remedy any procedural defects that appear to the electoral official

to exist in the rules."

10 The electoral official formed the opinion that on the proper construction of rule 27, no provision had been made for counting votes where more than one person was to be elected to an office. The electoral official also formed the opinion that this perceived gap in the rules was a "procedural defect" within the meaning of s 215(1)(b)(ii). He decided to take "action" (implement a new voting system) that he "consider[ed] necessary" to remedy the "defect" (gap in the rules), in the belief that such action was authorised by s 215(1)(b).

11 If this action was authorised by s 215(1)(b), but resulted in a failure to comply with the rules of the union, there would be no irregularity in relation to the election. Section 215(2) provides that an election conducted by an electoral official is not invalid merely because of a breach of the rules of the organisation because of "action" taken under subsection (1) (s 215(2)(a)), or an act done in compliance with a "direction" under subsection (1) (s 215(2)(b)). It is to be assumed, that the "action" referred to in s 215(2)(a) and the "direction" referred to in s 215(2)(b) is to "action" lawfully taken and to a "direction" lawfully given. By "lawful" I mean conduct (including the decision to take action or to give a direction) which is permitted by s 215(1) and which cannot be set aside in a proceeding for judicial review in a court of competent jurisdiction or could not be ignored by a court as being void or of no legal effect.

12 The authority of an electoral official to take action or give a direction under s 215(1)(b) is conditioned upon the need to avoid an irregularity (s 215(1)(b)(i)) or to remedy a procedural defect that appears to the electoral official to exist (s 215(1)(b)(ii)). Mr Churchill says that neither condition was satisfied and therefore the electoral official did not have jurisdiction to take any action. Thus Mr Churchill also says that s 215(2) cannot be relied upon to avoid the conclusion that there has been an irregularity in relation to the election.

13 The question whether an electoral official has jurisdiction to take action (for example to implement a voting system) or give a direction under s 215(1)(b) is different from the question whether the electoral official has properly exercised that jurisdiction. Moreover, the circumstances in which a court may examine whether there is jurisdiction to take action or to give a direction will be different from the grounds upon which the exercise of that jurisdiction can be challenged.

14 In this case, we are concerned with the existence or otherwise of the second condition (the need to avoid a procedural defect that appeared to the electoral official to exist). The first thing to be said is that to satisfy this condition, usually it will be necessary for the electoral official to determine matters of law, rather than to resolve questions of fact. The reason is obvious. The electoral official must decide whether there is a defect in the rules of an organisation. This will often involve a process of construction, which is a legal matter: Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389. Then the electoral official must decide whether any deficiency that is found to exist is a "procedural defect". This also will raise questions of law.

15 It is unlikely that Parliament intended to confer upon the electoral official the ability to form an unchallengeable view, as to the proper construction of the rules of the organisation in question (whether they are defective), or as to the meaning of the expression "procedural defect", or as to the application of that meaning to the rules under consideration: cf Coal Miners' Industrial Union of Workers of Western Australia v Amalgamated Collieries of Western Australia Ltd [1960] HCA 68; (1960) 104 CLR 437, 453. The opinion of the electoral official may be challenged in the circumstances explained by Latham CJ in R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407 at 430:

"[W]here the existence of a particular opinion is made a condition of the exercise of power, legislation conferring the power is treated as referring to an opinion which is such that it can be formed by a reasonable man who correctly understands the meaning of the law under which he acts. If it is shown that the opinion actually formed is not an opinion of this character, then the necessary opinion does not exist."

And later (at 432):

"It should be emphasised that the application of the principle now under discussion does not mean that the court substitutes its opinion for the opinion of the person or authority in question. What the court does do is to inquire whether the opinion required by the relevant legislative provision has really been formed. If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational or not bona fide."

See also Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110, 118-119; Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611, 654.

16 There has been discussion in some cases concerning the circumstances in which a court conducting an election inquiry can inquire into the validity of action taken by the electoral official for the purpose of determining whether that action was lawful or resulted in an irregularity. In Re Carter; Re Federated Clerks Union of Australia, Victoria Branch (No. 1) (1989) 32 IR 1 at 4, Gray J said:

"In determining whether a direction of a returning officer, purportedly given under s 170A(1) of the former Act [substantially s 215 of the Workplace Relations Act], has given rise to an irregularity, the Court must act with care. It has no jurisdiction to sit on appeal from the returning officer, for the purpose of determining whether his or her decision was correct. If faced with the task of deciding what was an appropriate direction, the Court may have taken a different view from that taken by the returning officer. The Court is not charged with that function. Unless the direction of the returning officer is wrong in law, or such that no reasonable returning officer could have given it, or the exercise of the power to give a direction is not a bona fide exercise of that power, for the purpose for which the power is given, the Court should not interfere."

In Re Communications Workers' Union of Australia Postal and Telecommunications Branch, New South Wales (1996) 67 IR 246, Moore J referred to this passage and said (at 257):

"For my part I would not limit the circumstances in which the conduct of a returning officer might result in an irregularity to those identified by Gray J ... They involve principles of administrative law that have no necessary relevance to the matters with which Divs 4 and 5 are concerned."

17 A number of observations may be made about these decisions, some of which will be relevant to the present inquiry. I preface those remarks by noting that the judgments are not concerned with the existence of jurisdiction, but with the manner in which the electoral official has exercised his jurisdiction. The first comment is that both Gray J and Moore J have implicitly assumed that a court conducting an election inquiry can rule upon a collateral challenge to the validity of action taken by an electoral official. By collateral challenge I mean an attack on the validity of conduct in a proceeding not specifically designed to resolve such an issue: see A Rubenstein, Jurisdiction and Illegality (1965) at pp 37-38; C Emery, "Collateral Attack - Attacking Ultra Vires Action Indirectly in Courts and Tribunals" (1993) 56 Modern L R 643, 647; and E Campbell, "Collateral Challenge to the Validity of Government Action" (1998) 24 Monash L R 272. However, when Re Carter and Re Communications Workers Union of Australia were decided, it was generally accepted that it was not possible to call into question the validity of an act of an administrative character otherwise than in proceedings for judicial review. This was the position in England as shown by cases such as Quietlynn Ltd v Plymouth City Council [1988] QB 114 and Bugg v Director of Public Prosecutions [1993] QB 473. It was also the law in Victoria: see Flynn v Director of Public Prosecutions [1998] 1 VR 322. Now the position is different. In Boddington v British Transport Police [1998] UKHL 13; [1999] 2 AC 143 the House of Lords decided that a challenge to the lawfulness of an administrative decision or act may properly be made in proceedings other than for judicial review. To determine the private rights of a citizen will often require an examination of the validity of an administrative act or decision. The House of Lords held that there is no reason why any court which is considering those rights should not also examine the validity of the administrative act or decision. Accordingly, they overruled Bugg and Quietlynn Ltd. In Australia, the High Court has sanctioned collateral challenges: see Ousley v R [1997] HCA 49; (1997) 192 CLR 69.

18 Second, it is by no means clear what Gray J had in mind when he said, in effect, that a court might ignore a "direction of a returning officer [that] is wrong in law." The difficulty is identifying what type of direction will be "wrong in law". I suppose if a direction is given to engage in action which is itself unlawful it will be of that character. But I am sure this is not what Gray J had in mind. It is likely that he was contemplating review of the electoral official's decision to take action or to give a direction. I do not doubt that a court conducting an election inquiry may inquire whether, in the process of deciding to take action or give a direction, an electoral official committed a "jurisdictional error" of the kind discussed in Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163, 177-178. For the reasons that I gave in my dissenting judgment in Edwards v Giudice [1999] FCA 1836; (1999) 94 FCR 561, I would hold it permissible to review such a decision for a wider category of error of law.

19 Finally, there is the tentative suggestion by Moore J that it might be wrong to apply principles of administrative law when examining the lawfulness of the conduct of an electoral official. I hold a different view. The legal rules that apply to the acts and decisions of an electoral official under s 215 are rules of public law. The principles of private law (eg contract, tort or crime) will have no application to those acts and decisions, except in the unimaginable case of an electoral official engaging in tortious or criminal conduct. Perhaps the problem is only one of terminology. Not every jurisdiction adopts the distinction between public law and private law, and the appropriate label to be attached to the rules that govern the conduct of an administrative decision-maker will often be of no practical consequence: A J Harding, Public Duties and Public Law (1989), esp Ch 5.

20 In my opinion, the electoral official misdirected himself in two relevant respects in arriving at the conclusion that there was a procedural defect in the union's rules which required remedy. In each case the error was an error of law.

21 The first error was in forming the view that the rules of the union did not provide for a method of counting votes where more than one person was to hold an office. The error results from an incorrect construction of the rules. The correct construction is that submitted by the committee members. Rule 27(13)(f) is expressed to apply where "more than one person is to be elected to an office ...", that is, to multiple positions. The sub-rule identifies when "counting [of votes] shall cease". The method of counting votes when there are multiple positions is as specified in sub-rule 27(13)(d) (candidate receives an absolute majority of votes) and sub-rule 27(13)(e) (no candidate with an absolute majority of voters). The combined operation of these sub-rules is that voters' subsequent preferences are counted and allocated only in circumstances where there is no absolute majority of votes and then only the candidate that obtained the fewest votes is the candidate whose preferences are redistributed. It is true that, if read in isolation, rule 27(13)(e) comes into operation only when no candidate has an absolute majority of first preference votes. Accordingly, it might be argued that when one candidate has obtained an absolute majority, rule 27(13)(e) has no work to do. On this view it would be possible to conclude that there is no method for counting votes for the next position. But this construction is not open in view of rule 27(13)(f). To give effect to this sub-rule it is necessary to repeat the process of eliminating candidates as required by rule 27(13)(e).

22 The second error assumes the correctness of the conclusion that the rules do not provide a mechanism for counting votes for multiple positions. The error is in treating this gap as a "procedural defect". By introducing the notion of a procedural defect, Parliament had in mind a distinction between a defect that is procedural in character and one that is substantive. The rules of the union are required to provide for the election of the holder of each office by a direct voting system (as defined) or a collegiate electoral system (as defined): s 197(1). This is a substantive obligation. If the rules fail to make provision for the election of a person to an office, the deficiency is one of substance. If there is provision for an electoral system but the rules are silent as to how that system is to be implemented, the deficiency may be procedural. Put another way, a "procedural defect" is an adjectival defect, and the perceived gap is not of that character.

23 The result is that, as a matter of law, it could not have appeared to the electoral official that there was a procedural defect in the rules of the union. It follows that he did not have power to take action under s 215(1)(b)(ii).

24 In any event, even if the condition for taking action had been satisfied, the electoral official was not entitled to establish a regime for counting votes. In Federated Ironworkers' Association of Australia v Commonwealth [1951] HCA 71; (1951) 84 CLR 265, the High Court considered the effect of s 96M(6) of the Conciliation and Arbitration Act 1904 (Cth). That provision was the predecessor of s 215(1). In their joint judgment, Dixon, McTiernan, Williams, Webb, Fullagar and Kitto JJ said (at 283):

"The point was taken that under subsection (6) it is possible for the officer conducting the election to ignore, at all events to some extent, the provisions of the rules of the organization or branch. Subsection (6) does not authorize him to ignore the substantive rules which govern the constitution of the offices and the requirement that the occupants should be elected. It is carefully guarded and doubtless only authorizes departures from particular rules for the avoidance of irregularities in the defined sense and for remedying what it describes as procedural defects. That is to say, the subsection is directed to overcoming subsidiary impediments to the proper execution of the main provisions of the rules ..."

The last sentence of this passage identifies the limitation on the power of the electoral official. In a proper case he may prescribe the steps to be taken to give effect to the substantive rules of an organisation. But he cannot prescribe a substantive process, such as an election system, for by doing that he would be impermissibly usurping the role of the members.

25 The conclusion that I have reached thus far does not dispose of this inquiry in favour of Mr Churchill. The committee members have another argument. They say that rule 27(13) is invalid to the extent that it provides for a method of voting for multiple positions. Their argument is that the rule contravenes s 196. Section 196 sets out the general requirements for the rules of an organisation. One requirement is that the rules shall not fail to make a provision required by the Workplace Relations Act: s 196(a). The particular respect in which it is said that rule 27(13) contravenes s 196(a) is that it fails to satisfy the requirements of s 197(1). That subsection relevantly provides that the rules of an organisation shall provide for the election of the holder of each office by a direct voting system. Direct voting system is defined in s 4 to mean relevantly a method of election at which all financial members are "eligible to vote". Another requirement is that the rules shall not impose on members of an organisation restrictions that are "oppressive, unreasonable or unjust": s 196(c). The rules are said to contravene s 196(c) because they do not provide for a democratic system of voting for multiple positions.

26 Not only have the committee members raised the invalidity of rule 27(13) in the election inquiry, they have also commenced a proceeding in which they seek orders or declarations to that effect. The proceeding has been brought under s 208. Relevantly s 208 provides:

"(1) A member of an organisation may apply to the Court for an order under this section in relation to the organisation.

(2) An order under this section may 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.

...

(5) Where an order under this section declares that the whole or a part of a rule contravenes section 196, the rule or that part of the rule, as the case may be, shall be taken to be void from the date of the order.

...."

For convenience this proceeding is being heard together with the inquiry, because there is an overlap of many issues.

27 On one view, the language of s 208 suggests that if a rule of an organisation contravenes s 196, it is not ipso facto invalid but is valid until the date upon which it is declared void. This was the view that commended itself to two members of the High Court when considering the antecedent of s 208: see R v Commonwealth Industrial Court; Ex parte Amalgamated Engineering Union, Australian Section (Shearer's case) [1960] HCA 46; (1960) 103 CLR 368 at 380 per Kitto J, with whom Dixon CJ agreed. See also the judgment of Mason J in R v Dunphy; Ex parte Maynes [1978] HCA 19; (1978) 139 CLR 482. On the other hand, three members of the court in Shearer's case, Fullagar, Taylor and Menzies JJ, were of opinion that, notwithstanding s 140(5) of the Conciliation and Arbitration Act (the equivalent to s 208(5)), s 140(1) of the Conciliation and Arbitration Act (the equivalent of s 196(a)), invalidated any rule that was in contravention of its requirements. Their view was that if a rule contravenes s 140(1) it will be void whether or not a declaration to that effect has been made. Although Fullagar, Taylor and Menzies JJ did not constitute a majority, their opinion has prevailed. Thus, in a series of cases, including the decision of the Full Court in Re Keely; Ex parte Kingham (1995) 129 ALR 255, it has been held that a court conducting an election inquiry may consider the validity of the rule of a union as at the date of an election. I am obliged to follow those cases.

28 The committee members raise the invalidity of rule 27(13) for two reasons. Each is based on the assumption that to conduct an election in conformity with the rule, if invalid, would be an irregularity. That assumption has not been contested and, in my view, is correct. If rule 27(13) is invalid to the extent alleged, to count votes in accordance with its requirements would be an irregularity in relation to the election: Re Federated Liquor and Allied Industries Employees' Union of Australia; Ex parte Huxtable (1979) 40 FLR 418, 426- 427; Allen v Townsend (1997) 16 ALR 301, 346-347; Lovell, O'Grady & James v Federated Liquor and Allied Industries Employees' Union of Australia (1978) 22 ALR 704, 740. This leads to the first argument. It will be remembered that the electoral official is entitled to take action to ensure that no irregularity occurs in relation to an election: s 215(1)(b)(i). So it is said that the electoral official was entitled to take action (implement a new voting system) to avoid the irregularity that would occur if votes were counted in accordance with the invalid rule 27(13). The argument is that the adoption of a new voting system was appropriate action under s 215(1)(b) and its implementation could not result in an irregularity because of s 215(2).

29 The fact that the electoral official did not purport to exercise power on the basis of s 215(1)(b)(i) is of no consequence. In Johns v Australian Securities Commission [1993] HCA 56; (1993) 178 CLR 408 at 426, Brennan J explained that: "When a power is exercised, a mistake in the source of the power works no invalidity. Validity depends simply on whether a relevant power exists." The electoral official faced an insurmountable difficulty. He certainly could have taken steps to avoid the problem created by an invalid rule. For example, he could have directed that there be no election until the rules have been appropriately amended, either by the union under s 205 or by the Industrial Registrar under s 203. But for reasons I have already explained, s 215(1)(b) does not authorise the electoral official to impose his own voting system.

30 The second reason for raising the invalidity of the rule is this. If there has been an irregularity in relation to the election of multiple positions, there may be an order declaring the elections to be void and an order that there to be new elections. The committee members say that, in that event, the new elections should not be conducted in accordance with the invalid rule. Here the committee members are on strong ground. If the rule they attack is invalid to the extent alleged, no election could be held until valid rules for the counting of votes are in place. Thus, the only question for me to consider is whether the rule is invalid as alleged. It is to that issue that I now turn.

31 The first question is whether the rules provide for a direct voting system. The issue is whether all financial members are "eligible to vote". It is said they are not eligible because the manner in which rule 27(13) operates produces the consequence that members who vote for the candidate who is first elected to a multiple position are deprived of the right to vote for other candidates to that office. Likewise, members whose votes are taken into account for the election of the second candidate are not taken into account for the election of subsequent candidates. And so on.

32 The term "eligible" as applied to members in relation to voting, means competency or capacity to vote. That is to say, a member will not be "eligible to vote" if he is incapable of, or not legally entitled to, vote. The word does not convey the notion that a member who is entitled to vote, must have every one of his votes counted. The rule does not infringe s 196(a).

33 The second question is whether, to the extent that it relates to the counting of ballots for multiple positions, rule 27(13) offends s 196(c). To understand how the rule may be "oppressive, unreasonable or unjust" I should explain its practical operation. First, members who give their first preference to the candidate that is elected to take the first office are precluded from participating in the election for the second office, as their ballot papers are disregarded. Members who give their preference to the candidate that is elected to the second office are precluded from participating in the elections for the third office, as their preferences for that office are disregarded. The same position pertains until all multiple positions are filled. Mr Marshall, one of the committee members, gave this practical example. Assume that 1000 members must select two office-holders from a list of five candidates: A, B, C, D and E. Assume that 950 members vote by allocating their first preference votes to A and their second preference to B, while the remaining 50 members allocate their first preference to D and second preference to E. The results would be that A, having an absolute majority, would be declared elected, and the ballot papers that recorded a first preference to A would be disregarded in the election of the second office-holder. Thus, 950 ballot papers are removed from the count. Next, B, C and E would be eliminated as having received no primary votes, while D would be declared elected to the second position. While 950 voters indicated a preference for B and only 50 voters indicated a preference for D, D will defeat B.

34 Second, the "absolute majority" that a successful candidate must achieve to be elected is reduced each time there has been an election of one candidate. That is, after a candidate has been elected to fill the first position, the ballot papers which recorded a first preference vote for that candidate are removed and the next candidate is required to achieve an absolute majority of the remaining votes. If a small proportion of ballot papers remain, there is the prospect that a candidate who is very popular overall as a second preference candidate will be defeated by a candidate who is less popular overall as a second preference candidate but is more popular within the remaining ballot papers as a first preference candidate. Indeed, the second office-holder could well be elected with only a handful of votes, as shown by the following illustration. Assume an election with 2000 voters for two office-holders to be chosen from three candidates. The candidate who succeeds in being elected to the first position must meet a threshold of 1001 first preference votes, which will give him an absolute majority. Assume that A achieves 1500 first preference votes, B achieves 1500 second preference votes but only 200 first preference votes and C achieves 300 first preference votes. A is elected to the first office. In order to be elected for the second position, B or C requires an absolute majority of the remaining 500 ballot papers. C would defeat B in the election for the second office-holder position, having an absolute majority of first preference votes. In order to win, while A was required to attain a majority among 2000 voters, C was required to attain a majority among only 500 voters. C was elected without having popularity among a majority of voters.

35 Next, it is convenient to make some general observations about the operation and effect of s 196(c). These observations are intended to summarise only some of the relevant principles and are derived from the applicable statutory provisions (including s 3 and s 187A) and certain cases that have considered the effect of s 196(c) and its predecessors, including Shearer's case (1960) 103 CLR at 383; Cameron v Australian Workers' Union (1961) 2 FLR 45, 68; Rule v Australian Workers' Union (1985) 9 FCR 280, 292; Doyle v The Australian Workers' Union (1986) 12 FCR 197, 205-206; Roughan v Australasian Meat Industry Employees' Union (1992) 36 FCR 536, 540:

(1) One of the objects of the Workplace Relations Act is to encourage the democratic control of organisations.

(2) In the case of elections for officeholders, this obligation is satisfied when all financial members of an organisation have the right to vote at an election.

(3) It is for the members to decide what system of voting is the preferable one, including whether it should be a direct voting system or a collegiate electoral system.

(4) There is a limit to the freedom of choice that is given to members. Thus a rule governing the election of officeholders will not be valid if it discourages or hinders the democratic control of an organisation or the full participation of members in its affairs.

(5) A rule will not be "oppressive, unreasonable or unjust" merely because it imposes limitations which a court would regard as undesirable or unwise. In this first instance, it is for the organisation to choose rules that it considers to be in the best interests of its members.

(6) Notwithstanding the freedom of choice, to paraphrase the words of Deane J in Municipal Officers' Association of Australia v Lancaster (1981) 54 FLR 129, 165-166, a rule will be oppressive if it is burdensome, harsh or wrongful; it will be unreasonable if it would be immoderate and inappropriate; it would be unjust if it is contrary to right and justice and to ordinary standards of fair play.

36 Rule 27(13), to the extent that it is concerned with the election of multiple positions, is oppressive, unreasonable and unjust, in my opinion. It is of this character for two reasons. First, for the manner in which it disenfranchises those who vote for a successful candidate. Second, because it could permit the election of unpopular candidates. For these reasons the rule is undemocratic and is inconsistent with the general objects of the Workplace Relations Act.

37 What conclusions follow? The first is that there have been irregular elections. The second is that the irregularity affected the result of the elections. So much could hardly be in dispute. The only question that remains is whether an order should be made declaring the elections void and a further order that there should be new elections.

38 There is only one reason that would compel me to leave things as they are. The reason is that the voting system chosen by the electoral official is democratic, fair and reasonable. On the other hand, the voting system chosen by the electoral official is only one of a number that could have been chosen, and if a different system were selected the result could have been different. Some of the alternative systems I have in mind are as follows. One is the block vote system. Here voters may cast as many votes as there are offices to be filled. Those with the highest number of votes are elected. Another system is the single non-transferable vote. Voters can cast only a single vote among candidates. The candidates with the highest number of votes are elected. A well-known system is preferential voting, under which voters indicate an order of preference among candidates. Voters may be required to indicate a preference for each candidate (standard preferential system) or a preference for all or some of the candidates (optional standard preferential system). The candidate who obtains enough first preference votes to meet the appropriate quota (typically an absolute majority) is elected. The last-placed candidate is then removed and the associated second preference votes are redistributed, that is, added to the totals of the remaining candidates. The process is repeated until sufficient candidates reach the quota and are elected. A more complex version of the preferential system is the multiple preferential system, where votes are classified into primary votes (preferences marked on a ballot paper up to the number of candidates to be elected) and secondary votes (preference votes beyond the required number of candidates). Primary votes have equal value and are credited to the candidate for whom they are cast; the primary votes of the candidate with the lowest number of primary votes are redistributed, according to the first of the secondary votes expressed on that candidate's ballot papers. The candidate who obtains enough first preference votes to meet the appropriate quota is elected. The process is repeated until all offices are filled. There is also a points system, under which points are awarded to candidates in direct relation to a voter's expressed preference for them, eg a first preference is counted as one point but is ten times more valuable than a tenth preference with ten points. The candidate with the lowest number of points is elected. There is also the party list system. Here voters choose among party lists, and offices are awarded in proportion to the vote received by each party.

39 Each voting system has its advantages as well as its drawbacks. For example, the block system is simple but allows a voter to express a preference for only one candidate; the preferential system is a better measure of popularity but carries the risk of voters inadvertently casting an informal vote by omitting or duplicating a number; the points system has the disadvantage that it is possible for a candidate to be unsuccessful despite receiving an absolute majority of first preference votes. The advantage of one over another is often a subjective matter. Examples of each system can be found in use around the world in parliamentary, municipal, corporate, club or industrial organisation elections.

40 In the circumstances, I think it would be wrong for me to proceed on the untested assumption that the system chosen by the electoral official would have commended itself to the members had they been aware of that system and the possible alternatives. If I allow the elections to stand, I may leave in place office-holders who may not have been elected if the members had chosen some other electoral system.

41 The rules of the union are invalid because they do not establish a system for the democratic election of the committee. It would be equally undemocratic to impose upon the members a voting system that is not of their choice. If democracy is at the heart of union control, then it is for members to democratically choose the voting system they prefer. They should not have imposed upon them a voting system that either electoral official or the court thinks is the preferable one.

42 It will be necessary for the various elections, the validity of which has successfully been called into question, to be declared void and fresh elections held. I will hear the parties on the appropriate orders to be made.

I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Finkelstein.

Associate:

Dated: 26 April 2001

Counsel for Mr Churchill:	Mr N Green QC Mr A Angelopoulos Mr C Fairfield
Solicitor for Mr Churchill	Mallesons Stephen Jaques
Counsel for Mr Kellett, Mr Fowler and Mr Gould:	Mr D Langmead
Solicitor for Mr Kellett, Mr Fowler and Mr Gould:	Slater & Gordon
Counsel for the electoral official:	Mr P Ginnane
Solicitor for the electoral official:	Australian Government Solicitor
Date of Hearing:	12 February 2001
Date of Judgment:	26 April 2001