Allen, Kevin James v Townsend, L.C

ALLEN v. VEHICLE BUILDERS EMPLOYEES' FEDERATION OF AUSTRALIA (1977) 30 FLR 263
Conciliation and Arbitration

COURT

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL DIVISION
J.B. Sweeney(1), Evatt(2), and Northrop(2) JJ.

CATCHWORDS

Conciliation and Arbitration - Registered organizations - Rules - Election for offices - Optional preferential system of voting - Officially conducted ballot - Inquiry - Votes marked by cross - Whether formal votes - Issue of duplicate ballot papers - Whether irregularity in the conduct of the election - Rules silent as to issue of duplicate ballot papers - Powers of returning officer on the official conduct of ballot - Conciliation and Arbitration Act 1904-1976, ss. 133AA, 159, 170, 170A - Conciliation and Arbitration Regulations, Pt VAA.

HEADNOTE

Section 159 of the Conciliation and Arbitration Act 1904-1976 enables a member of an organizaiton to apply for an inquiry by the court into an irregularity alleged by the member in or in connexion with an election for an office in the organization or branch.

The rules of a branch of an organization provided for the conduct of a postal ballot in an election for the offices of the branch and by r. 7 provided, amongst other things, that a ballot paper should be posted to each financial member of the branch at his last known address appearing in the membership books of the branch. Rule 7a provided that notwithstanding anything contained in the rules, an election for a number of nominated branch officers including that of branch secretary/treasurer should be by optional preferential voting and the remainder by a simple majority of votes. The rules of the organization provided by federal r. 4 that the secret postal ballot for the election of branch delegates to federal council should be conducted under the first-past-the-post system. The rules made no provision for the issue of duplicate ballot papers.

On the official conduct of an election for all branch officers and for branch delegates to federal council the ballot paper contained general directions to voters whereby the method of voting for most of the officers was by means of a cross, with voters being specifically directed not to use numbers. The ballot paper contained a further direction to voters in relation to the election for branch secretary/treasurer whereby the method of voting was by optional preferential voting, with voters being specifically directed not to use crosses. During the conduct of the ballot, the returning officer issued duplicate ballot papers to members applying for duplicate ballot papers on the ground of non-receipt of a ballot paper and not having voted at the ballot.

There were two candidates, A. and J., for the office of branch secretary/treasurer and the returning officer, on the initial count of votes, rejected as informal those ballot papers which were marked with a cross against the name of one of the candidates, resulting in A.'s receiving a majority of votes. Subsequently the returning officer decided that such votes were formal, resulting in a reversal of the previous result of the ballot.

An application was made by A. under s. 159 of the Act for an inquiry into the election, claiming that irregularities had occurred in its conduct by way of , first, counting as formal those ballot papers marked with a cross against the name of one of the candidates for the office of secretary/treasurer and, secondly, the issue of duplicate ballot papers.

Held : (1) No irregularity had occurred on account of the returning officer's acceptance as formal votes those ballot papers marked with a cross against the name of one of the candidates for the office of secretary/treasurer.

Per Evatt and Northrop JJ. - In such a case the voter had expressed his preference in such a way as to leave indisputable what his preference was. In the circumstances of the use of a single ballot paper for the election for a number of branch offices, in relation to most of which the method of voting was by marking a cross against the candidate preferred, it was proper to infer that the use of a cross against the name of one of the candidates for secretary/treasurer was an expression of intention that the candidate designated was the candidate chosen by the voter to be elected.

Re Behan and Application under s. 159 re Vehicle Builders Employees' Federation of Australia Unreported (Australian Industrial Court, Smithers J., 19th November, 1976), applied.

Per Sweeney J. - In such a case the voter had indicated his intention with certainty.

(2) The issue of duplicate ballot papers was not an irregularity in the conduct of the election.

Per Evatt and Northrop JJ. - The principle whereby a person entitled to vote in a franchise should not be deprived of it unless a prohibition against voting is provided for in clear and precise terms in the rules governing the franchise, should apply not only to the form but to the procedural steps in the conduct of a ballot.

Kean v. Kerby (1920), 27 CLR 449, per Isaacs J., at p 459, applied.

Accordingly, as it could not be shown that there was an implied prohibition in the rules against the issuing of duplicate ballot papers, the returning officer had acted within his powers under s. 170A in the issue of duplicate ballot papers.

The Queen v. Commonwealth Court of Conciliation and Arbitration ; Ex parte Amalgamated Engineering Union, Australian Section (1953), 89 CLR 636, applied.

HEARING

Melbourne, 1977, May 2-3 ; August 26. #DATE 26:8:1977

INQUIRY.

A member of the Victorian branch of the Vehicle Builders Employees' Federation of Australia, an organization registered under the Conciliation and Arbitration Act 1904-1976 applied for an inquiry by the court into the conduct by the Australian Electoral Officer of an election under s. 170 of the Act, for the office of branch secretary/treasurer.

B. J. Shaw Q.C. and A. G. Uren, for the applicant and certain condidates.

Gareth Evans, for the respondent.

M.J.L. Dowling, for the Australian Electoral Officer.

I. Campbell (Solicitor), for certain candidates.

Solicitor for the applicant: A. J. Macken.

Solicitors for the respondent: Holding, Redlich & Co.

Solicitor for the Australian Electoral Officer: A. R. Neaves (Commonwealth Crown Solicitor).

(Reported by Miss M. R. Hickey, Barrister-at-Law.)

JUDGE1

August 26.

The following judgments were delivered.

J. B. SWEENEY J. This is an inquiry pursuant to Pt IX of the Conciliation and Arbitration Act 1904-1976 into an election conducted in the Victorial branch of the Vehicle Builders Employees' Federation of Australia for the position of branch secretary/treasurer. The election was conducted pursuant to s. 170 of the Act by Mr. L. J. Abbott, the Australian Electoral Officer for Victoria. It is claimed that irregularities occurred by reason of which the person declared elected was not in fact the successful candidate. (at p265)

Two irregularities are complained of. (at p265)
The first that the returning officer wrongly counted as valid votes where a cross had been placed on the ballot paper against the name of a candidate instead of a number and the second that the returning officer wrongly issued ballot papers to persons who signed an application form claiming that ballot papers which were shown to have been sent to them by post had not been received by them. (at p265)
The relevant rules under which the ballot was conducted are:

Rule 6

"(b) all financial members of the branch shall be entitled to vote in the election of any officer . . .
(d) only members financial at the conclusion of the quarter preceding the date of the opening of nominations may take part in an election as voters."
Rule 7

"7. METHOD OF TAKING A BALLOT (at p265)

A ballot to be taken, or which may be taken by the provisions of these rules, shall be taken as follows:

(a) The branch . . . shall appoint a returning officer and two (2) scrutineers from among its financial members at the closing of nominations for the normal biennial elections and those appointed shall hold office until the next normal biennial elections . . .

(b) The ballot shall be a postal ballot . . .

(c) The returning officer shall, in the presence of the two (2) scrutineers post by pre-paid ordinary post to each financial member of the branch or sub-branch (as the case may be,) at his last known address appearing in the membership books of the branch or sub-branch (as the case may be) together with a reply-paid envelope a ballot paper, unnumbered and unmarked save with the returning officer's initials and the seal of the branch, together with a statement of the matter referred to ballot, and the post office box for the return of the ballot papers. (at p266)
Such documents shall be posted at least seven (7) days prior to the close of the ballot. The ballot paper shall contain in conspicuous letters the date of the closing of the ballot and ballot papers received after this date shall not be included in the ballot. The branch or sub-branch (as the case may be) shall fix the time for the closing of a ballot.

(d) . . .

(e) At the close of the ballot, the returning officer . . . shall count all ballot papers returned and declare the result of the ballot . . .

(f) Ballots for the election of the officials and federal council delegates shall be by preferential voting, and the candidates' names shall be placed on the ballot paper in alphabetical order. Failure to place a figure against each candidate's name shall not render a ballot paper informal, but the preferences, so far as they are shown, shall take effect.

(g) . . .

(h) Any member objecting to the validity of a ballot may do so by presenting a requisition to the president of the branch or sub-branch stating his reasons for objections. Such requisition shall also be signed by at least ten (10) financial members of the branch or sub-branch, and shall be presented within fourteen (14) days of the declaration of the ballot. The president shall then call a special meeting to be held within fourteen (14) days of the date of presentation of the requisition for the purpose of considering such objection. If it appears to such meeting that one or more financial member has, or have, not received a ballot paper (and proof of posting as aforesaid shall be deemed proof of receipt by the member) and/or that an unfinancial member or members have voted, then a new ballot shall be held in accordance with the rules. Provided that a new ballot shall not be held unless it be shown to the meeting that the number of votes that were thus omitted or wrongly cast might cause the result of the ballot to be different from that declared by the returning officer.
(i) . . .

(j) . . ."

Rule 7A

"7A. Notwithstanding anything contained in these rules -

(1) An election in each of the following cases shall be by optional preferential voting: (a) branch secretary/treasurer; (b) branch assistant secretary and organizer; (c) organizers; (d) sub-branch secretary/treasurer.

(2) Subject to the last preceding sub-paragraph all other elections with the exception of federal council delegates, shall be decided by a simple majority of votes.

(3) Federal council delegates shall be elected in accordance with federal r. 4." (at p267)
Pursuant to federal r. 4 each branch of the federation elects two delegates to the federal council and the rule specifies the method of conducting such election. Federal r. 4 contains the following provisions: "(c) If there are more than two nominations for election of delegates to the federal council of any branch, a ballot shall be conducted in the following manner: . . . (iv) the election shall be by means of a secret postal ballot; (v) as soon as practicable after the date fixed for the opening of the ballot, each member of the branch who was financial for the quarter ending on 30th September immediately preceding the election shall be issued with a ballot paper; (vi) the election shall be conducted under the first-past-the-post voting system. The returning officer shall determine the position of all candidates' names on the ballot paper by lot and the names of retiring delegates, if any, shall be indicated by asterisks." (at p267)
It will be noted that the rules provide that for the position of branch secretary/treasurer a system described as optional preferential voting is prescribed and further that the rules make no provision for the issue of duplicate ballot papers. The election was conducted in conjunction with the election to a number of other offices in the branch and the ballot paper issued was in the following form. (See p. 268 following.) (at p267)
The ballot paper in respect of seven positions provided that voting should be by the use of a cross for the candidate or candidates for whom the voter wished to vote. It then goes on to set out in a separate box the material relating to the position of branch secretary/treasurer and branch organizers and it provides in those cases that voting is to be by the use of a figure or figures. (at p267)
The paper was in these terms: "Direction - Place the number 1 in the square opposite the name of the candidate for whom you vote". (at p267)
It appears that 6,368 votes were cast. At the first count these were distributed as follows:

Allen 2,704 Jarrad 2,673 Informal 991 (at p267)

Subsequent to that first count, the returning officer's attention was drawn to a judgment of Smithers J. (Re Behan and Application under s. 159 re Vehicle Builders Employees' Federation of Australia) Unreported (Australian Industrial Court, Smithers J., 19th November, 1976.) dealing with these rules. The returning officer accepted the view expressed by his Honour that ballot papers where a vote had been cast by a cross only were valid and thereupon recounted the ballot, distributing such
(NOTE This Ballot Paper at (1977) 30 FLR,at p 268)

THE VEHICLE BUILDERS EMPLOYEES' FEDERATION OF AUSTRALIA VICTORIAN BRANCH 1976 ELECTIONS

BALLOT-PAPER

GENERAL DIRECTIONS -

1. The ballot-paper must be completed by you, the voter, personally.

2. Do not put any mark on the ballot-paper by which you may be identified.

3. The method of voting for all offices except those of Branch General Secretary-Treasurer and Organisers, is by means of a cross, that is, x DO NOT USE NUMBERS. Do

not

vote for more or less than the number of candidates to be elected for each office, otherwise your vote in respect of that office will be informal.

______________________________________________________________________________ _

! !

For the Election of - ! For the Election of - ! For the Election of -

BRANCH PRESIDENT ! FOUR EXECUTIVE COMMITTEE ! SEVEN DELEGATES TO ! MEMBERS ! AUSTRALIAN LABOR PARTY

Directions - Place a ! Directions - Place a ! Directions - Place a

cross, that is, x in the ! cross, that is, x ! cross, that is x

square opposite the name ! in the squares opposite ! in the squares opposite

of the Candidate for whom! the names of ! the names of

you vote. ! the FOUR Candidates for ! the SEVEN Candidates for

! whom you ! for whom you CANDIDATES ! vote. ! vote.

BARRY. Leonard Eugene ! CANDIDATES ! CANDIDATES

WILSON. Edward Clifford ! BURT. Hilton Arthur ! ALLAMBY. William James

! LOUCANARIS. Spiros ! ALLEN. Kevin James

_________________________! MUENCH. Herbert ! BARRY. Leonard Eugene

! ROCHE. Lawrence Francis! BLAIR. Wayne Douglas

For the Election of - ! SLEVIN.Patrick Daniel ! BUCK. James

TWO BRANCH VICE-PRESIDENTS STACHURSKI. Jan ! BURT. Hilton Arthur

Directions - Place a ! ! KYRIACOU. Andreas

cross,that is, x !__________________________! LONG. Noel George

in the squares opposite ! ! LYONS. Edward

the names of the TWO ! For the Election of - ! MACKAY. Leslie Alan

Candidates for whom you ! SIX DELEGATES TO ! McMANUS. Edward Michael

vote. ! VICTORIAN ! SHERIFF. Garry Ernest

! TRADES HALL COUNCIL ! SLEVIN. Patrick Daniel CANDIDATES ! Directions - Place a ! WILSON. Edward Clifford

HALSTEAD. Audrey ! cross, that is x !

MACKAY. Leslie Alaney ! in the squares !_________________________

McMANUS. Edward ! opposite the names of !

REED. Wynton Ernest ! the SIX Candidates !< For the Election

! for whom you vote !< of

_________________________! CANDIDATES ! TWO DELEGATES TO FEDERAL

! ALLAMBY, William James ! COUNCIL

For the Election of - ! ALLEN, Kevin James ! Directions - Place a

THREE BRANCH TRUSTEES ! BARRY, Leonard Eugene ! cross, that is x

Directions - Place a ! BLAIR, Wayne Douglas ! in the squares opposite

cross, that is x ! BUCK. James ! the names of the

in the squares opposite ! LYONS, Edward ! TWO Candidates for whom

the names of the ! MACKAY, Leslie Alan ! you vote.

THREE Candidates for ! ROCHE, Lawrence !

whom you ! Francis !

vote. ! SHERRIFF, Garry !

! Ernest ! ! SLEVIN, Patrick ! ! Daniel !

_________________________! WILSON. Edward Clifford !

! ZAGLAS, Con Charles ! ! !

CANDIDATES ! !

ASPLET, Malcolm George ! !

BENNION, Robert Dennis ! ! CANDIDATES

DALZELL, John Allan ! ! MACKAY, Leslie Alan

FORD, John Edward ! ! BUCK James

MORTIMER, Morris Leonard ! ! MCMANUS, Edward Michael

SHERRIFF, Garry Ernest ! ! ALLAMBY, William James

______________________________________________________________________________

FURTHER GENERAL DIRECTION -

The method of voting for the offices of Branch General Secretary/Treasurer and the two Organisers is by optional preferential. DO NOT USE CROSSES.

! For the Election of - ! For the Election of - BRANCH GENERAL SECRETARY- ! TWO BRANCH ORGANISERS TREASURER ! Directions - Place the number 1 ! Directions - Place the number 1 in the square ! in the square opposite the name of the candidate ! opposite the name of the candidate for whom you vote ! of your first ! choice. You may, if you so desire, ! place the number 2 CANDIDATES ! in the square opposite the name of ! the candidate of ALLEN, Kevin James ! your second choice, the number 3 ! in the square. JARRAD, Clifton Edward ! opposite the name of the candidate ! of your third ! choice and the number 4 in the ! square opposite the ! name of the candidate of your ! fourth choice. ! CANDIDATES ! ALLAMBY, William James ! LYONS, Edward ! MCMANUS, Edward Michael ! ROCHE, Lawrence Francis

______________________________________________________________________________ _

FURTHER DIRECTIONS -

After marking your votes:

1. Fold the ballot-paper in a manner that conceals the way in which it is marked.

2. Place the ballot-paper in the Business Reply Post Envelope forwarded herewith,

addressed to the Australian Electoral Officer for Victoria.

3. Seal the envelope and forthwith place the envelope in the post so that it will reach

the addressee at the adress appearing thereon not later than 9 a.m. on 9thDecember, 1976.

NOTE - Your attention is drawn to the printed extracts from the Conciliation and

Arbitration Act and Regulations forwarded with this ballot-paper.

L.J. ABBOTT.

Australian Electoral Officer for Victoria

conducting elections pursuant to section 170 of the Conciliation and Arbitration ACT 1904 informal votes which had previously been rejected. The second count resulted as follows:

Allen 3,062 Jarrad 3,083 Informal 223

thus reversing the previous result. (at p269)

The question which arises is whether a vote cast by placing a cross against the name of one of the two candidates was a valid vote. (at p269)
It was argued that such a vote was not valid unless "the intention (of the voter) is indicated so that it is not left to inference, still less conjecture, that it is expressed or indicated in a way which leaves it indisputable". Kane v. McClelland (1962) 111 CLR 518, at p 527 was cited in support of this argument. This view was expressed in considering a statute with somewhat different language from the rules here. The question of the degree of certainty or probability required is a difficult one but even accepting that the test propounded is the correct one, I am of the opinion that the votes in question do indicate with certainty the intention of the voter. (at p269)
Having regard to the fact that the ballot paper contained a number of positions for which a vote was cast in these ballot papers, the filling in of this portion was clearly not a mere idle doodle, nor can it be interpreted as an intention not to cast a vote. It seems to me then that it clearly shows an intention to cast a vote. Since it follows seven other ballots in which a cross was placed against the name of the candidate for whom it was intended to vote, I am of the opinion that the placing of a cross in a like position here clearly indicates an intention to vote for that candidate. I would add that it must be remembered that this ballot was held among a group of union members which included many whose knowledge of English and ability to read and understand English would be slight. (at p269)
I am of opinion then that no irregularity occurred by reason of the admission of these votes, some in favour of each candidate. This accords with the judgment of Smithers J. in Re Behan and Application under s. 159 re Vehicle Builders Employees' Federation of Australia Unreported (Australian Industrial Court, Smithers J., 19th November, 1976.) . (at p269)
The second irregularity relied on was the issue of duplicate ballot papers. (at p269)
The returning officer posted to addresses shown in the union records ballot papers to members who appeared entitled to vote. Some 285 of these members subsequently signed separate applications seeking the issue of duplicate ballot papers in the following terms: "Dear Sir, I hereby declare I have not received a ballot paper for the V.B.E.F. Victorian branch elections. I further declare that I have not voted in this ballot and that if the original ballot paper is received it will be returned to you unmarked". (at p270)
Some 285 duplicate ballot papers were issued. The evidence of the returning officer was that it had been the practice to issue duplicate ballot papers in such circumstances in all ballots conducted under the statute. Prior to this ballot it had been the practice to require a statutory declaration as to the facts from the applicant for a duplicate ballot paper. However new Regulations under the Act had been promulgated which provided that in certain ballots there dealt with, an appropriate application even though not verified by a statutory declaration would be sufficient and the returning officer adopted that practice in this ballot. His evidence was: (at p270)
"Q. In the case of union elections, did you have regard to the practice that had been adopted by you by virtue of the provisions of the legislative enactments in the Conciliation and Arbitration Act? A. As to the reason why I issued duplicate ballot papers?" (at p270)
"Q. Yes? A. I considered that s. 170A entitled me to accept an application for a duplicate ballot paper even though the rules of the union did not provide for it". (at p270)
Section 170A provides that a returning officer acting under that section may "notwithstanding anything contained in the rules of the organization or branch, take such action and give such directions as he considers necessary in order to ensure that no irregularities occur in or in connexion with the election or to remedy any procedural defects in those rules which appear to him to exist". (at p270)
Mr. Abbott's evidence on this point was not challenged in cross-examination and there was no evidence led to the contrary. (at p270)
The section was considered by the High Court in The Queen v. Commonwealth Court of Conciliation and Arbitration; Ex parte Amalgamated Engineering Union, Australian Section (1953) 89 CLR 636 . The court there said: "The true effect of the subsection is to authorize the person conducting the election to give all such directions as he considers necessary in order to ensure that no irregularities occur, and to do this notwithstanding anything contained in the rules of the organization. The words 'notwithstanding anything contained in the rules' have an extending, not a limiting, effect" (1953) 89 CLR, at pp 646-647 . (at p270)
I am of the view that the returning officer was clearly acting within his powers in issuing and subsequently counting the duplicate ballot papers and that no irregularity occurred. (at p270)
For these reasons the application fails and should be dismissed. (at p270)

JUDGE2

EVATT AND NORTHROP JJ. The 1976 elections for certain offices and positions in the Victorian branch of the Vehicle Builders Employees' Federation of Australia (the federation) were conducted in December 1976 pursuant to s. 170 of the Conciliation and Arbitration Act 1904-1976 (the Act) by Mr. L. J. Abbott, the Australian Electoral Officer for Victoria (the electoral officer). (at p271)

Such elections were completed on 16th December, 1976, and under cover of a letter dated 17th December the electoral officer forwarded to the industrial registrar a statement setting out the results of the elections. The statement was as follows:

"THE VEHICLE BUILDERS EMPLOYEES' FEDERATION OF AUSTRALIA 1976 VICTORIAN BRANCH ELECTIONS

Return showing results of 1976 elections for the undermentioned offices conducted by me pursuant to s. 170 of the Conciliation and Arbitration Act 1904

Number of ballot papers other than duplicate ballot papers issued: 17,299 Number of duplicate ballot papers issued: 285

Branch President Candidates No. of Votes Received

BARRY, Leonard Eugene 3,222 WILSON, Edward Clifford 2,998

Number of ballot papers admitted as formal: 6,220 Number of ballot papers rejected as informal: 148 I hereby declare L. E. Barry elected.

Two Branch Vice-Presidents Candidates No. of Votes Received

HALSTEAD, Audrey 3,134 MACKAY, Leslie Alan 3,018 McMANUS, Edward Micheal 2,910 REED, Wynton Ernest 3,190

Number of ballot papers admitted as formal: 6,126 Number of ballot papers rejected as informal: 242 I hereby declare A. Halstead and W. E. Reed elected.

Three Branch Trustees Candidates No. of Votes Received

ASPLET, Malcolm George 3,143 BENNION, Robert Dennis 2,881 DALZELL, John Allan 3,135 FORD, John Edward 3,004 MORTIMER, Morris Leonard 3,100 SHERRIFF, Garry Ernest 2,959

Number of ballot papers admitted as formal: 6,074 Number of ballot papers rejected as informal: 294 I hereby declare M.G. Asplet, J. A. Dalzell and M. L. Mortimer elected.

Four Executive Committee Members Candidates No. of Votes Received

BURT, Hilton Arthur 5,648 LOUCANARIS, Spiros 3,033 MUENCH, Herbert 3,201 ROCHE, Lawrence Francis 3,193 SLEVIN, Patrick Daniel 5,555 STACHURSKI, Jan 3,266

Number of ballot papers admitted as formal: 5,974 Number of ballot papers rejected as informal: 394 I hereby declare H. A. Burt, H. Muench, P. D. Slevin and J. Stachurski elected.

Six Delegates to Victorian Trades Hall Council Candidates No. of Votes Received

ALLAMBY, William James 3,068 ALLEN, Kevin James 2,975 BARRY, Leonard Eugene 3,047 BLAIR, Wayne Douglas 3,023 BUCK, James 3,026 LYONS, Edward 3,036 MACKAY, Leslie Alan 2,948 ROCHE, Lawrence Francis 2,910 SHERRIFF, Garry Ernest 2,926 SLEVIN, Patrick Daniel 2,859 WILSON, Edward Clifford 2,906 ZABLAS, Con Charles 2,898

Number of ballot papers admitted as formal: 5,937 Number of ballot papers rejected as informal: 431 I hereby declare W. J. Allamby, K. J. Allen, L. E. Barry, W. D. Blair, J. Buck and E. Lyons elected.

Seven Delegates to Australian Labor Party Candidates No. of Votes Received

ALLAMBY, William James 3,042 ALLEN, Kevin James 2,932 BARRY, Leonard Eugene 3,025 BLAIR, Wayne Douglas 3,019 BUCK, James 3,029 BURT, Hilton Arthur 2,902 KYRIACOU, Andreas 2,792 LONG, Noel George 2,950 LYONS, Edward 2,990 MACKAY, Leslie Alan 2,910 McMANUS, Edward Micheal 2,825 SHERRIFF, Garry Ernest 2,859 SLEVIN, Patrick Daniel 2,761 WILSON, Edward Clifford 2,900

Number of ballot papers admitted as formal: 5,848 Number of ballot papers rejected as informal: 520 I hereby declare W. J. Allamby, K. J. Allen, L. E. Barry, W. D. Blair, J. Buck, E. Long and E. Lyons elected.

Two Delegates to Federal Council Candidates No. of Votes Received

MACKAY, Leslie Alan 3,035 BUCK, James 3,175 MCMANUS, Edward Micheal 2,881 ALLAMBY, William James 3,105

Number of ballot papers admitted as formal: 6,098 Number of ballot papers rejected as informal: 270 I hereby declare J. Buck and W. J. Allamby elected.

Branch General Secretary/Treasurer Candidates No. of Votes Received

ALLEN, Kevin James 3,062 JARRAD, Clifton Edward 3,083

Number of ballot papers admitted as formal: 6,145 Number of ballot papers rejected as informal: 223 I hereby declare C. E. Jarrad elected.

Two Branch Organizers 1st Election Candidates Primary Votes Total Votes

ALLAMBY, William James 2,651 2,936 LYONS, Edward 345 Excluded MCMANUS, Edward Micheal 298 Excluded ROCHE, Lawrence Francis 2,478 2,750 Exhausted Votes 86 Number of ballot papers admitted as formal: 5,772 Number of ballot papers rejected as informal: 596

2nd Election Candidates Primary Votes Total Votes

ALLAMBY, William James 2,651 Elected LYONS, Edward 345 2,965 MCMANUS, Edward Micheal 298 Excluded ROCHE, Lawrence Francis 2,478 2,726 Exhausted votes 81 Number of ballot papers admitted as formal: 5,772 Number of ballot papers rejected as informal: 596 I hereby declare W. J. Allamby and E. Lyons elected.

(signed)

L. J. ABBOTT

Australian Electoral Officer for Victoria conducting elections pursuant to s. 170 of the Conciliation and Arbitration Act 1904 16th December, 1976. (at p273)

By application dated 21st March, 1977, Kevin James Allen (the applicant) being a member of the federation and one of the two candidates for the office of branch secretary/treasurer and a candidate for certain other positions claimed, pursuant to s. 159 of the Act, that there had been irregularities in or in connexion with the election and sought an inquiry by the court into the matter. On 22nd March, 1977, the industrial registrar, pursuant to s. 159 (4) of the Act referred the application to the court. (at p274)
The court having satisfied itself that there was reasonable ground for the application within the meaning of s. 159 (4) (b) was, pursuant to s. 165 (1), required to "inquire into and determine the question whether any irregularity has occurred in or in connexion with the election and such further questions concerning the conduct and results of the election as the Court thinks necessary". (at p274)
The particulars of election filed by the applicant pursuant to reg. 74 (form 18), make express reference to one office only, namely the office of branch general secretary/treasurer within the Victorian branch of the federation. The particulars of the alleged irregularity stated that the electoral officer had wrongly treated as formal votes in the ballot for this office certain ballot papers on which the voter had expressed his preference by the use of a cross and not by a number and that if all such ballot papers had been treated as informal, the applicant would have been declared duly elected to the office. The particulars of the alleged irregularity included the following: "The votes cast for all twenty-eight offices balloted for (save two offices to which one Slevin and one Burt were respectively elected) were incorrectly counted and having regard to the closeness of the vote for such offices, a correct count would give a different result to the result as declared". (at p274)
As required by reg. 74 (form 18) the application then set out facts relied upon. Such facts included a reference to the electoral officer having issued 285 duplicate ballot papers. At the hearing, Mr. Shaw Q.C., who with Mr. Uren of counsel, appeared for the applicant, made application to the court for leave to include as a question whether the issuing of the duplicate ballot papers was an irregularity that had occurred in or in connexion with the election. It is clear that the election of the six delegates to the Victorian Trades Hall Council and the election of the seven delegates to the Australian Labor Party are not matters coming within the provisions of the Act. The matter before the court therefore relates to the election for fifteen offices. With regard to two of these offices, namely two of the four executive committee members, Mr. Burt and Mr. Slevin received a majority of votes greatly in excess of the number of duplicate ballot papers issued. With respect to each of the remaining thirteen offices, the difference between the number of votes received by the person declared to have been elected and the candidate who received the next highest number of votes, was less than 285. In the exercise of its powers, the court granted the application by Mr. Shaw and allowed the inquiry into the question of whether the issuing of duplicate ballot papers was an irregularity in or in connexion with the election with respect to the thirteen offices, namely branch president, two branch vice-presidents, three branch trustees, two executive committee members, two delegates to federal council, branch general secretary/treasurer and two organizers. (at p275)
Victorian branch r. 7 (which consists of sub-rr. 7 (a) to 7 (j) inclusive) and a further rule numbered r. 7 (a) consisting of three sub-rules prescribed the method of conducting the ballot for election to offices within that branch and to the offices of branch delegates to federal council. It would appear that the latter r. 7 (a) should have been numbered r. 7A and to avoid confusion it is so called herein. Rule 6 provides for nominations and election of officers and delegates. The relevant provisions of r. 6 are: ". . . (b) all financial members of the branch shall be entitled to vote in the election of any officer . . . (d) only members financial at the conclusion of the quarter preceding the date of the opening of nominations may take part in an election as voters." (at p275)
The relevant provisions of r. 7 are:

"7. METHOD OF TAKING A BALLOT (at p275)

A ballot to be taken, or which may be taken by the provisions of these rules, shall be taken as follows:

(a) The branch . . . shall appoint a returning officer and two (2) scrutineers from among its financial members at the closing of nominations for the normal biennial elections and those appointed shall hold office until the next normal biennial elections . . .
(b) The ballot shall be a postal ballot . . .
(c) The returning officer shall, in the presence of the two (2) scrutineers post by pre-paid ordinary post to each financial member of the branch or sub-branch (as the case may be), at his last known address appearing in the membership books of the branch or sub-branch (as the case may be) together with a reply-paid envelope a ballot paper, unnumbered and unmarked save with the returning officer's initials and the seal of the branch, together with a statement of the matter referred to ballot, and the post office box for the return of the ballot papers. (at p275)
Such documents shall be posted at least seven (7) days prior to the close of the ballot. The ballot paper shall contain in conspicuous letters the date of the closing of the ballot and ballot papers received after this date shall not be included in the ballot. The branch or sub-branch (as the case may be) shall fix the time for the closing of a ballot.

(d) . . .
(e) At the close of the ballot the returning officer . . . shall count all ballot papers returned and declare the result of the ballot . . .
(f) Ballots for the election of the officials and federal council delegates shall be by preferential voting, and the candidates' names shall be placed on the ballot paper in alphabetical order. Failure to place a figure against each candidate's name shall not render a ballot paper informal, but the preferences, so far as they are shown, shall take effect.
(g) . . .
(h) Any member objecting to the validity of a ballot may do so by presenting a requisition to the president of the branch or sub-branch stating his reasons for objections. Such requisition shall also be signed by at least ten (10) financial members of the branch or sub-branch, and shall be presented within fourteen (14) days of the declaration of the ballot. The president shall then call a special meeting to be held within fourteen (14) days of the date of presentation of the requisition for the purpose of considering such objection. If it appears to such meeting that one or more financial member has, or have, not received a ballot paper (and proof of posting as aforesaid shall be deemed proof of receipt by the member) and/or that an unfinancial member or members have voted, then a new ballot shall be held in accordance with the rules. Provided that a new ballot shall not be held unless it be shown to the meeting that the number of votes that were thus omitted or wrongly cast might cause the result of the ballot to be different from that declared by the returning officer.
(i) . . .
(j) . . ." (at p276)

Rule 7A provides as follows:
"7A. Notwithstanding anything contained in these rules -
(1) An election in each of the following cases shall be by optional preferential voting: (a) branch secretary/treasurer; (b) branch assistant secretary and organizer; (c) organizers; (d) sub-branch secretary/treasurer.
(2) Subject to the last preceding sub-paragraph all other elections with the exception of federal council delegates, shall be decided by a simple majority of votes.
(3) Federal council delegates shall be elected in accordance with federal r. 4." (at p276)
Pursuant to federal r. 4 each branch of the federation elects two delegates to the federal council and the rule specifies the method of conducting such election. Federal r. 4 contains the following provisions: "(c) If there are more than two nominations for election of delegates to the federal council of any branch, a ballot shall be conducted in the following manner: (iv) the election shall be by means of a secret postal ballot; (v) as soon as practicable after the date fixed for the opening of the ballot, each member of the branch who was financial for the quarter ending on 30th September immediately preceding the election shall be issued with a ballot paper; (vi) the election shall be conducted under the first-past-the-post voting system. The returning officer shall determine the position of all candidates' names on the ballot paper by lot and the names of retiring delegates, if any, shall be indicated by asterisks." (at p277)
The electoral officer prepared the one ballot paper for the election of twenty-eight offices or positions referred to in his statement to the industrial registrar. A facsimile of such ballot paper which measured forty-five cm in length and twenty-six cm in width printed in black on pinkish-coloured paper is set out. (See p. 278 following.) (at p277)
With regard to the office of branch general secretary/treasurer a total of 6,368 ballot papers were returned. As disclosed in the electoral officer's statement to the industrial registrar he rejected 223 votes as being informal and declared Mr. C. E. Jarrad elected with a vote of 3,083 as against the applicant's vote of 3,062. (at p277)
Included in the 6,145 formal votes were 768 ballot papers where in the box adjacent to either the applicant's or Mr. Jarrad's name a "X" had been placed and the other box left unmarked. If these 768 votes were in fact informal then the count would have been: Allen 2,704, Jarrad 2,673, Informal 991, and the applicant would have been elected to the office of branch general secretary/treasurer. (at p277)
It is to be noted that in the general directions set out at the top of the ballot paper is a square containing a cross. This is, in effect, a visual direction to those who could not read English efficiently or even those who failed to read such directions in detail that the placing of a cross in the square adjacent to the candidate of their choice was the method of voting for all offices and positions. Such visual direction is repeated at the top of each of the seven blocks of lists of candidates for those respective offices or positions. These seven blocks occupy more than half of the ballot paper. Then follows a "Further General Direction" of a line and a half of type placed between those seven blocks of candidates and the blocks of candidates for branch general secretary/treasurer and branch organizers. It is to be noted that such further general direction includes "Do not use crosses" but does not set out a visual direction such as the figure "1" in a square. (at p277)
In our opinion, it is understandable that some voters having started to cast their votes at the top of the ballot paper by the use of a cross to indicate their preference might easily have continued using a cross as their method of voting for the offices set out in the final two blocks at the bottom of the ballot paper. Under such circumstances the placing of a cross against the name of a candidate for such office by a particular voter would convey the same meaning as a cross which that voter had used to indicate his preference for candidate(s) in the first seven blocks. (at p277)
In Re Behan and Application under s. 159 re Vehicle Builders (Ballot Paper (1977) 30 FLR, at p 278)

THE VEHICLE BUILDERS EMPLOYEES' FEDERATION OF AUSTRALIA VICTORIAN BRANCH 1976 ELECTIONS

BALLOT-PAPER

GENERAL DIRECTIONS - 1. The ballot-paper must be completed by you, the voter, personally. 2. Do not put any mark on the ballot-paper by which you may be identified. 3. The method of voting for all offices except those of Branch General Secretary-Treasurer and Organisers, is by means of a cross, that is, x DO NOT USE NUMBERS. Do

not

vote for more or less than the number of candidates to be elected for each office, otherwise your vote in respect of that office will be informal.

For the Election of - For the Election of - For the Election of - BRANCH PRESIDENT FOUR EXECUTIVE COMMITTEE SEVEN DELEGATES TO

MEMBERS AUSTRALIAN LABOR PARTY

Directions - Place a cross, that is, x in the square opposite Directions - Place a Directions - Place a the name of cross, that is, x cross, that is, x the Candidate for whom in the squares in the squares opposite the you vote. opposite the names of names of the Four Candidates the SEVEN Candidates for

for whom you whom you vote. vote. CANDIDATES CANDIDATES CANDIDATES BARRY, Leonard

Eugene

WILSON, Edward

Clifford

BURT, Hilton ALLAMBY, William James Arthur LOUCANARIS, Spiros ALLEN, Kevin James

MUENCH, Herbert BARRY, Leonard Eugene

For the Election of - ROCHE, Lawrence BLAIR, Wayne Douglas Francis

TWO BRANCH SLEVIN, Patrick BUCK, James VICE-PRESIDENTS Daniel Directions - Place a STACHURSKI, Jan BURT, Hilton Arthur cross, that is x in the squares opposite KYRIACOU, Andreas the names of the TWO Candidates for LONG, Noel George whom you vote. LYONS, Edward

CANDIDATES For the Election of - HALSTEAD, Audrey SIX DELEGATES TO MACKAY, Leslie Alan VICTORIAN MACKAY, Leslie Alan TRADES HALL MCMANUS, Edward Michael COUNCIL McMANUS, Edward Directions - Place a SHERRIFF, Garry Ernest Micheal cross, that is, x REED, Wynton Ernest in the squares SLEVIN, Patrick Daniel the SIX Candidates for whom you

vote. WILSON, Edward Clifford

CANDIDATES

For the Election of - ALLAMBY, William James

THREE BRANCH TRUSTEES ALLEN, Kevin James For the Election of - Directions - Place a BARRY, Leonard TWO DELEGATES TO FEDERAL cross, that is, x Eugene in the squares opposite BLAIR, Wayne COUNCIL the names of Douglas the THREE Candidates for BUCK, James Directions - Place a whom you cross, that is, x vote. CANDIDATES LYONS, Edward in the squares opposite the

names of ASPLET, Malcolm LYONS, Edward the TWO Candidates for whom George you BENNION, Robert MACKAY, Leslie Alan vote. George

DALZELL, John Allan ROCHE, Lawrence CANDIDATES Francis FORD, John Edward SHERRIFF, Garry MACKAY, Leslie Alan Ernest MORTIMER, Morris SLEVIN, Patrick BUCK, James Leonard Daniel SHERRIFF, Garry WILSON, Edward McMANUS, Edward Micheal Ernest Clifford ZAGLAS, Con Charles ALLAMBY, William James

FURTHER GENERAL DIRECTION -

The method of voting for the offices of Branch General Secretary-Treasurer and the two Organisers is by optional preferential. DO NOT USE CROSSES.

For the Election of - For the Election of - BRANCH GENERAL TWO BRANCH ORGANISERS SECRETARY-TREASURER

Directions - Place the number 1 Directions - Place the number 1 in the square in the square opposite the name of the candidate opposite the name of the candidate for whom you vote of your first CANDIDATES choice. You may, if you so desire, place the number 2 ALLEN, Kevin James in the square opposite the name of the candidate of JARRAD, Clifton Edward your second choice: the number 3 in the square opposite the name of the candidate of your third choice and the number 4 in the square opposite the name of the candidate of your fourth choice. CANDIDATES ALLAMBY, William James LYONS, Edward McMANUS, Edward Micheal ROCHE, Lawrence Francis

FURTHER DIRECTIONS - After marking your votes:

1. Fold the ballot-paper in a manner that conceals the way in which it is marked.

2. Place the ballot-paper in the Business Reply Post Envelope forwarded herewith,

addressed to the Australian Electoral Officer for Victoria.

3. Seal the envelope and forthwith place the envelope in the post so that it will reach

the addressee at the address appearing thereon not later than 9 a.m. on 9th

December, 1976.

NOTE - Your attention is drawn to the printed extracts from the Conciliation and

Arbitration Act and Regulations forwarded with this ballot-paper.

L. J. ABBOTT.

Australian Electoral Officer for Victoria

conducting elections pursuant to section 170 of the Conciliation and Arbitration Act 1904

Employees' Federation of Australia Unreported (Australian Industrial Court, Smithers J., 19th November, 1976.) Smithers J. considered this question. The election in that case was for the filling of the offices of assistant secretary/organizer and organizer of the Victorian branch of the federation. The "How to Vote" directions for each office set out on that ballot paper read:

" (One to be Elected) VOTING OPTIONAL PREFERENTIAL

(How to Vote)

Place the figure 1 in the square opposite the name of the candidate of your first choice. You may place the figure 2 in the square opposite the name of the candidate of your next choice. Failure to place figure 2 shall not disqualify this ballot paper." (at p279)

There were two candidates only for each office. (at p279)
Dealing with the question of the validity of a vote where a cross had been placed against the name of one of the candidates whilst the other square was left blank Smithers J. stated:

"It is my opinion that the ballot papers bearing a cross against the name of a candidate but not bearing any numeral against the name of any candidate were properly treated as formal votes . . .
"In forming the opinion that in using a cross a voter did clearly show his preference I have had regard to the following considerations.
"The significance of a cross or crosses against items in any list of items can only be understood by reference to the purpose in the mind of the person who so placed the crosses. If the purpose is not known the meaning of crosses is not known, but if the purpose is known the crosses speak without equivocation. In my opinion the purpose of the voters who used crosses is known. That purpose was to indicate a candidate chosen by the voter to fill the relevant office. It is a fair inference from the voter's participation in the election that he understood he was voting to select a person or persons to fill some office or offices. Casting a vote is in essence an act of a positive character rather than negative; one votes for a person to be elected. Exclusion of the other or others is merely consequential . . .
"Those who placed crosses no doubt included persons who could not or did not read the instructions carefully or at all.
"Those who could not read at all would be most likely to understand that the exercise was a positive one to elect a person to office rather than the reverse. Placing of a cross would be referable to that understanding and thus a clear expression of intention. The same may be said of those who could, but did not, read the ballot paper and of those who read the ballot paper and understood its contents only in part. Those who read the instructions and understood them fully but ignored the injunction to use a figure 1 and used a cross instead are not the less to be understood as designating the candidate to be elected.
"In my opinion, therefore, in all these cases it may be said, although there has been a failure to place a figure against each candidate's name or against any candidate's name, the preference of the voter has been clearly shown . . .
"I do not overlook that branch rr. 7 (a) and 7 (f) assume that voting will be by the use of figures but I do not regard them as mandatory in this respect. Their dominant purpose is to use an optional preferential system and to preserve from informality votes so far as preferences may be shown thereon. For this latter purpose where one candidate only is to be elected a cross is as useful as the figure 1.
"I do not think that the fact that in recent union elections crosses had been officially chosen as the method of casting a vote in favour of a candidate should be used to assist in the solution of the problem set by the use of crosses. Nor do I think that the use of crosses similarly for the purpose of Commonwealth elections in times past is relevant. I think the only sound approach is to take the simple view that it is proper to infer that a person who votes in an election to choose a person for an office and who does some act to designate a particular candidate is expressing an intention that the candidate designated is the candidate he chooses to be elected." (at p280)
Mr. Shaw submitted that the decision in Behan's case should be distinguished for the reason that the "how to vote" directions in that case did not include the words "Do not use crosses" as was the case in the further general directions appearing on the subject ballot paper. (at p280)
But the question for determination is whether the voter in placing a cross against the name of one of the two candidates for the office of branch general secretary/treasurer and leaving the square alongside the name of the other candidate blank has thereby indicated his preference for the candidate against whose name he placed the cross despite the direction not to use crosses. In other words has that voter expressed or indicated his preference in a way which leaves it indisputable as to what his preference was. (at p280)
We adopt the reasons of Smithers J. in Behan's case set out above. We are of the opinion that the ballot papers bearing a cross against the name of one of the two candidates for the office of branch secretary/treasurer and not bearing any mark against the name of the other candidate were properly treated as formal votes. (at p280)
We turn then to the question of the issuing by the electoral officer of a number of deplicate ballot papers. (at p280)
In addition to the facts contained in the application filed herein relating to this question further facts were agreed to at the hearing and the electoral officer's evidence included references thereto. These facts included the number of members who lodged applications for duplicate ballot papers, the variation (if any) of the address of such member in such application to that shown in the membership books of the branch, the number of original ballot papers returned unopened and the number of such unopened envelopes containing ballot papers which matched up with the names of members to whom duplicate ballot papers had been issued. Details of such evidence is not set out as it is clear that in fact 285 duplicate ballot papers were issued and such a number of votes, if the issuing of the duplicate ballot papers was an irregularity within the meaning of s. 165 of the Act, may have affected the result of the election for all offices or positions other than those to which Mr. Burt and Mr. Slevin were elected. The rules of the organization are silent as to the issue of duplicate ballot papers in any election. The applicant contends that the returning officer is compelled by the provisions of branch r. 7 (c) to forward to the last known address appearing in the membership books of the branch of the union the necessary envelopes and ballot papers for a postal ballot and that the rule prevented the issuing by the returning officer of any ballot papers to any other address. Consequently, the applicant submitted, the issuing of the duplicate ballot papers amounted to an irregularity within the meaning of s. 165 and that such irregularity clearly may have affected the result of the election to the offices and positions referred to. (at p281)
The difference between branch r. 7 (c) and federal r. 4 in this regard should be noted. Federal r. 4 is the rule setting out the method of taking a ballot in respect of the offices of branch delegates to federal council (branch r. 7A (3)). Federal r. 4 provides in sub-r. (c) (iv) that the election shall be by means of a secret postal ballot and then makes provision in sub-r. (c) (v) that "as soon as practicable after the date fixed for the opening of the ballot each member . . . shall be issued with a ballot paper". (at p281)
By s. 13 of the Conciliation and Arbitration Amendment Act 1976 a new s. 133AA was inserted into the Act. The new section dealt with secret postal ballots and s. 133AA (2) provides that "the regulations may make provisions for and in relation to the conduct of an election in accordance with the requirements of this section in the case of an election in respect of which the rules of the organization do not provide for a secret postal ballot". This new section came into force on 9th August, 1976. Statutory Rule 1976, No. 187 was notified in the Australian Government Gazette on 30th August, 1976. Such rule included a new Pt VAA to the Regulations made under the Act. The new Part contains Regulations numbered reg. 146AA to reg. 146AT dealing with secret postal ballots. Although it was not argued that the provisions of new Pt VAA applied to the subject elections, the electoral officer had regard to some of the provisions contained therein and, as a result, varied his normal practice with respect to issuing duplicate ballot papers. (at p281)

Regulation 146AK reads: "Duplicate ballot papers and return envelopes. (1) Where, on application before the time of the close of the ballot in an election, the Returning Officer is satisfied that a ballot paper or return envelope issued to a person whose name is on the roll of voters, has not been received or has been lost, destroyed or spoilt, he shall issue to that person a duplicate ballot paper, or return envelope, as the case may be. (2) An application under sub-regulation (1) by a person for a duplicate ballot paper or return envelope, for an election shall be in writing setting out the grounds on which the application is made and declaring that the person has not voted in the election and shall, if practicable, be accompanied by any evidence that is available of that non-receipt, loss, destruction or damage". (at p282)
The electoral officer, prior to the coming into force of reg. 146AK in August 1976, had adopted a practice requiring a statutory declaration from any applicant seeking a duplicate ballot paper in those elections conducted under the Act where he had acted as the returning officer. (at p282)
In the subject election the electoral officer altered such practice as reg. 146AK does not require the making of such a declaration by a person applying for a duplicate ballot paper in elections to which such regulations apply. Nevertheless he was satisfied, so he said, that each person to whom he issued a ballot paper had not received an earlier ballot paper. There is no evidence that any reasonable person acting as a returning officer under the circumstances in which the electoral officer in this particular case found himself could not have been so satisfied. The court therefore accepts his evidence that in all cases where in fact he issued a duplicate ballot paper he was satisfied that the applicant for such duplicate ballot paper had not received an earlier ballot paper. (at p282)
During his evidence-in-chief the electoral officer was asked the reason why he issued such duplicate ballot papers. His reply was: "I considered that s. 170A entitled me to accept an application for a duplicate ballot paper even though the rules of the union did not provide for it". (at p282)
Again in cross-examination when asked on what basis or why did he issue duplicate ballot papers he answered: "I believed myself that a member that receives - that is entitled to receive a ballot paper that has not received it and then reports it to the officer conducting the election that he has not received it, if sufficient evidence is given to the officer conducting the ballot from the person who says he has not received it, then I think the person is entitled to receive the ballot paper; and of course, it is not his fault he did not receive it through the post". (at p282)
The right of a person to cast a vote in any franchise in which he is entitled to vote should not be lost to him unless the prohibition against voting is provided for in clear and precise terms in the rules or regulations governing that franchise. As Issacs J. stated in Kean v. Kerby (1920) 27 CLR 449, at p 459 : "The fundamental common law principle is that 'elections ought to be free.' That basic principle was reaffirmed and enforced by the statue 3 Edw. 1, c. 5. It lies at the root of all election law. For centuries parliamentary elections were conducted by open voting. Freedom of election was sought to be protected against intimidation, riots, duress, bribery, and undue influence of every sort. Nevertheless it was found necessary to introduce the ballot system voting. The essential point to bear in mind in this connection is that the ballot itself is only a means to an end, and not the end itself. It is a method adopted in order to guard the franchise against external influences, and the end aimed at is the free election of a representative by a majority of those entitled to vote."Again, his Honour stated: "Acting on the same principles as with regard to the first, and in favour of conserving the franchise, so far as the law allows me, to every elector who intends to vote, I think I should, as before, resolve a doubt as to form in favour of the substantial right to vote" (1920) 27 CLR, at p 468 . (at p283)
This principle should in our opinion apply not only to form but also to procedural steps in the conducting of a ballot unless there is a clear prohibition against such procedural steps in the rules or regulations governing the particular election. (at p283)
Section 170A (1) of the Act reads: "A person conducting an election, or taking a step in or in connexion with an election, for an office in, or in a branch of, an organization . . . under the last preceding section may, notwithstanding anything contained in the rules of the organization or branch, take such action and give such directions as he considers necessary in order to ensure that no irregularities occur in or in connexion with the election or to remedy any procedural defects in those rules which appear to him to exist." (at p283)
Mr. Shaw Q.C. for the applicant relied upon the reasons of the court in Federated Ironworkers' Association of Australia v. Commonwealth (1951) 84 CLR 265, at p 283 as to the construction of s. 96M (6) of the Act in 1951. This section was the forerunner of the present s. 170A (1). Section 96M (6) then read: "(6) Notwithstanding anything contained in the rules of the organization or branch, the person conducting the election may take such action and give such directions as he considers necessary in order to ensure that no irregularities occur in or in connexion with the election or to remedy any procedural defects in those rules which appear to him to exist." (at p283)
In the Federated Ironworkers' case the court in the joint judgment of Dixon, McTiernan, Williams, Webb, Fullagar and Kitto JJ. said: "The point was taken that under sub-s. (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, sanctioned under ss. 70 and 71, which govern the election of office-bearers. Such a provision is fairly within the incidental power" (1951) 84 CLR, at p 283 . (at p284)
The applicant contended that the parts of branch r. 7 which are applicable to the ballot were main provisions and that it would be wrong to approach branch r. 7 (c) as if it were itself a subsidiary provision. It was further submitted that r. 7 (c) being a main provision the question for the court was whether there was a subsidiary impediment to the proper execution of that rule. Such question, it was submitted, should be answered in the negative as the sub-rule could plainly be complied with. Consequently the electoral officer in the present case was not authorized under s. 170A (1) to issue duplicate ballot papers. (at p284)
The decision in the Federated Ironworkers' case was given in 1951. In 1953 s. 96M (6) was again considered by the High Court in The Queen v. Commonwealth Court of Conciliation and Arbitration; Ex parte Amalgamated Engineering Union, Australian Section (1953) 89 CLR 636 . In the majority decision of Dixon C.J., Webb, Fullagar and Kitto JJ., it was said: "Counsel, however, obtained leave at the hearing to amend the grounds of his order nisi so as to enable him to contend that, as a matter of construction simply and apart altogether from any constitutional question, s. 96M (6) did not authorize the giving of the directions actually given. It was contended, in effect, that the subsection authorized the giving of directions only in order to overcome some defect in the rules of the organization or to prevent some irregularity which might be thought likely to arise from a strict observance of the rules. In support of this argument reference was made to what was said in the judgment of the court in the Ironworkers' case. The court there said: 'The point was taken that under sub-s. (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, sanctioned under ss. 70 and 71, which govern the election of office-bearers' (1951) 84 CLR, at p 283 . The argument, in our opinion, unduly limits the operation of sub-s. (6), and misunderstands the passage quoted. The true effect of the subsection is to authorize the person conducting the election to give all such directions as he considers necessary in order to ensure that no irregularities occur, and to do this notwithstanding anything contained in the rules of the organization. The words 'notwithstanding anything contained in the rules' have an extending, not a limiting, effect" (1953) 89 CLR, at p 646 . (at p285)
The fact that the words "notwithstanding anything contained in the rules of the organization or branch" appear in a different position in the then s. 96M (6) of the Act to that in the present s. 170A (1) does not, in our opinion, affect the construction placed upon those words by the High Court in the later case referred to. (at p285)
In order for the applicant to succeed on the issue that the issuing of the duplicate ballot papers amounted to an irregularity within the meaning of s. 165 of the Act in the circumstances of this case calling upon the court to declare the election for all offices and positions other than the positions to which Messrs. Burt and Slevin were elected to be void, he would have to satisfy the court that the provisions of r. 7 (c) were mandatory and/or that there was an implied prohibition in the rules of the organization against the issuing of duplicate ballot papers. To reach such a conclusion would be contrary to the general principles referred to. (at p285)
Consequently we are of the opinion that no irregularity which may have affected the result of the election has been shown. (at p285)

ORDER

Order accordingly.

[1977] FCA 53

26 AUGUST 1977