Application by Frank Maguire for an Inquiry into an Election in the Livestock & Gain Procedures (Industrial) Association of N.S.W.

[1981] FCA 83

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES REGISTRY No. 1 of 1981

1

DIVISION INDUSTRIAL 1

IN THE MATTER of the Concillation and

Arbitration Act 1904

AND IN THE MATTER of a Reference of

such Amllcation bv the Industrlal Regis&&- to the Federal Court of Australla

CORAM: SHEPPARD J 12 June, 1981

REASONS FOR JUDGMENT

This is an appllcatlon made pursuant o the provislons

of s.168(2) of the Concihatlon and Arbitratlon Act $904. The

sub-sectlon provides:

"Where upon an inquiry the court does not find

that any lrregularity has occurred but certifies

that the person who applled for the lnqulry acted

reasonably in so applying, the Attorney-General

may authorise payment by the Commonbealth to that

person of the whole oy any part of his costs and

expenses, includlng expenses of witnesses."

The inqulry referred to lncludes an Inquiry into the

holdmg of an electlon	In a registered organlsatlon pursuant
to s.159 of the Act.

The appllcant m thls matter applied for such an lnqulry

an application which was filed on 30 December, 1580. The

matter was mentloned on two or three occasions for dlrectlons

and on l June last It was withdrawn by consent.

The respondent to the applicatlon was the Llvestock and

Gram Producers' (Industrlal) Assoclatlon of New South Wales.

It 1s a reglstered organlsatlon of employers under the Act.

It 1s associated wlth another corporate body, namely, the

Llvestock and Gram Producers' Assoclation of New South Wales.

That body is a company lncorporated under the Companles guarantee.

It has been the practlce apparently f o r some time for

the company to hold an annual conference of Its members in

Sydney. At the time that thls conference is held, the usual

practlce 1s f o r there to be a meetlng also of the lndustrlal

organlsation. In 1980 there was prepared a set of agenda

papers entltled "Annual Conference Agenda". These contained , on the opening page an agenda whlch indlcated that, amongst

other thlngs, there would be held an annual general meeting

of the company and a general meetlng of the industrial

organlsatlon.	It was scheduled to take place at 4 p.m. on	1
10 July, 1980.

The agenda for the meetlng of the lndustrlal organlsatlon

showed that It was lntended to conduct elections for varlous

posltlons, lncludlng the electlon of seven members of the

executive committee. The rules of the lndustrial

organisatlon provlded m rule 36 for elections lncludlng

elections for these positlons. Sub-rule (xli) provlded,

inter alia, that every count should be "by a preferentlal

system". Although the rules have been amended In varlous

respects smce the meetlng was held, the provlslons	f
rule 36 in that regard remaln unaltered.

Included amongst the agenda papers to which I have

referred was a statement appearlng before any of the notlces

of meetmg which was headed "Procedure for counting of votes

under the system of preferentlal votmg (old Senate System)".

The note then described what the author belleved to be he

method of countlng votes for members of the Senate prlor to the

amendments to the Commonwealth Electoral Act 1918, whlch

were effected by Act No.17 of 1948. I am lnformed by

counsel for the appllcant, and the affldavlt evldence would

bear thls out, that the appllcant belleved that thesold

Senate system of preferentlal votlng would be followed ln

relation not only to elections held for varlous posltions

m the company but also for posltlons In the 1.ndustria1

organlsatlon as well.

I

The electlon for office bearers In the industrlal

organlsatlon was conducted pursuant to s.170 of the Act by

an offlcer of the Australlan Electoral Offlce. He is

Mr. C a n who has filed an affldavlt as to the procedure

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whlch he adopted. The procedure which he followed was

not in accordance wlth the old Senate system of preferen-

tlal countlng of votes, but In accordance wlth what Mr.

Cain described In hls affldavlt as the multlple preferential system.

One of the matters upon which the applicant relled in

the proceedings whicn he lnstituted was that he was mlsled

by the notice which appeared in the agenda as to the proposed

use of the old Senate preferentlal voting system. He

expected It to be followed. He sald that when It was not,

he was adversely affected. More importantly, he complamed

that, wlthin the rneanlng of s.159 of the Act, the fact that

the Senate system was not used revealed that there had been

an lrregularlty In or In connection with the electlon. He

also relied in hls polnts of clam and through his sollcltor

at the dlrections hearlngs on another matter. He proposed

to subrnlt eventually, If the matter had proceeded, that the

method of countlng votes adopted by Mr. C a m was not,

withln the meanmg of rule 36(x11)	of the rules, a count by
a preferentlal system.

The matter dld not procped to a hedrlng because of any

loss of faith on the part of the a2plicant In the polnts

upon whlch he relled. It dld not go on because hls sollcltor

conducted a count of the votes in accordance wlth the old

Senate system of preferential votmg and concluded that if,

4.

in accordance with the applicant's submisslons, It were

applied, the result of the electlon would nevertheless

have been the same, It was for that reason and for that

reason only that the appllcant wlthdrew hls applicatlon.

It 1s In those clrcurnstances that I am now asked to

certlfy pursuant to the provislons of s.168(2) of the Act.

An Initial questlon not discussed In argument arises as to

whether It is appropriate for an applicatlon to be made In

these clrcurnstances, the matter not havlng proceeded to a

hearing. A possible construction of the sub-section would

involve the concluslon that It was dlrected only to cases

where there had been a liearlng but the hearing had resulted

In the dlsmlssal of an appllcatlon. It would only be I n

those clrcurnstances that the court could come to a concluslon

upon the questlon of whether, notwithstanding the dismlssal,

the appllcation had nevertheless been brought by	an appllcant
who had acted reasonably in applylng. Although	the' matter

has not been argued and I am therefore wlthout assistance

on the polnt, I do not take that narrow view of the sub-

section. I thlnk It is deslgned to apply to cases of the

klnd I have mentloned but also to cases	whlch, for various
reasons, do not proceed to a hearmg.	I thlnk one should

glve the section a beneflclal constructlon.

I am In agreement wlth the vlew of the underlylng pollcy

and purpose of the legislatlon expressed m a brochure

5.

recently published by the Attorney-General. The

brochure, amongst other thlngs, says that In admlnis-

terlng these provlsions the Attorney-General has regard to the underlying legislative pollcy whlch 1 s that the instltution of such proceedlngs (I interpolate to say

proceedlngs include proceedlngs under s.159) fosters

the democratic control and management	of organisations
and organisatlon members generally.	I would add that

they are also very often m the publlc interest. State- ments by the Attorney-General cannot, of course, control the constructlon of the Act, but I thlnk that the statement

which the Attorney-General has made is an accurate state-

ment of the underlymg pollcy and purpose of provlsions

of thls kind. It 1s on the basls of that underlying

pollcy and purpose that I say that thls provlslon should be

glven a beneflcial construction.

Notwithstandlng those news, I do not conslder 'that

the applicant has made out a case for a certlflcate upon

the basls of his belng misled by the notlce as to the

adoptlon of the old Senate system of preferentlal voting

In the agenda papers. I ascept that he may have been

mlsled at the tune he read the agenda and for a tlme

thereafter, but I would have thought that the critlcal

questlon was what the rules of the organisatlon provlded and

that once these had been consldered, as they should have

6.

been before the instltutlon of the proceedmgs, lt would

have been clear that lt dld not necessarlly follow that

such a system was the one whlch the rules had selected.

However, I am satlsfied that I should accede to the

application because	of the other ground upon whrch the
applicant relled.	In my oplnlon the rules are regrettably

unclear about what the sltuatlon 1s to be. I have not

made an exhaustive study of preferential votlng systems

but there are clearly available at least two, one bemg

the old Senate system and the other being the system referred

to by Mr. C a m 3n hls affldavit. The old Senate system was

used, of course, before 1949 I n the electlon of senators for

the Federal Parllament and It is used by a number of other

organlsatlons including a number of the colleges of advanced

educatlon of this State. 1 instance clause 40(b) of the by-law of the Kurmg-gai College of Advanced Educatlon. On the other hand, lnquiries made by me of the State

Parllamentary Lxbrarian mdicate that other organlsatlons

use the method selected by Mr. Cam. I was referred by the

Llbrarlan to rule 2 of the Australlan	Labor Party Rules (1979)
for the New South Wales Bransh.

I thmk there is a real questlon, flrstly, as to

whether rule 36(x11) 1s capable of bemg glven a meanlng,

and secondly, If it ls, whether lt 1s open either to the

7 .

governing body o f t h e I n d u s t r i a l o r g a n l s a t l o n o r an

e l e c t o r a l o f f l c e r c h a r g e d w i t h t h e c o n d u c t o f a n e l e c t l o n t o

s e l e o t t h e m s e l v e s t h e p r e f e r e n t i a l v o t i n g method which he

will apply or, t h i rd ly , whe the r If one were t o h e a r e v i d e n c e

about the var ious methods tha t a re ava i l ab le o f coun t lng

vo te s , one would n o t come t o t h e c o n c l u s l o n t h a t t h e

draftsman of t h e r u l e h a d s e l e c t e d a particular method.

I n my oplnlon t h i s a p p l l c a t l o n h a s h a d some va lue in d rawing

t h e a t t e n t i o n of t he o rgan l sa t lon and I ts members t o t h e

problem and It i s on t h a t b a s i s t h a t I am p r e p a r e d t o grant

t h e c e r t i f i c a t e w h l c h i s here sought .

Before I conclude, I would say that I t h m k i t h igh ly

d e s l r a b l e t h a t t h e a s s o c l a t l o n look a t t h e p r o v l s i o n s o f t h e

r u l e I n q u e s t l o n w l t h a n e w t o p r o v l d l n g p r e c l s e l y t h e

method of count lng vo tes whihlch i t wlshes t o a d o p t . Most

organisa t lons , and I ins tance the Labor Par ty and t h e

colleges of advanced education t o which I have r e fe r r ed , who

wlsh to adop t a p r c f e r e n t l a l s y s t e m o f v o t i n g s p e l l o u t

p r e c l s e l y t h e method of counting which 1s t o be adopted. I

would t h l n k i t d e s l r a b l e t h a t t h l s a s s o c l a t l o n amend I ts

r u l e s t o do l i kewise . ’

I n t h e r e s u l t , a s I say , I p ropose to accede to the

a p p l l c a t l o n . The formal order I make is :

8 .

Pursuant to s.168(2) of the Act I c e r t l f y

t h a t Frank Maguzre, the appllcant f o r an

lnqul ry 1 n t o . a n e l e c t l o n f o r o f f i c e b e a r e r s

i n t h e Llvestock and Gram P r o d u c e r s ' ( I n d u s t r l a l )

Assoc ia t ion of N e w South Wales pursuant to s.159

o f t h e Act, a c t e d reasonably I n so applylng.

9.