Application by Sheryl Mary Fewster for an inquiry into an election for Offices of the Western Australian Branch of the Australian Journalist Association

[1980] FCA 142

Re: S. M. FEWSTER
And: P. F. SCORER and THE AUSTRALIAN JOURNALISTS ASSOCIATION (1980) 49 FLR
288
W.A. No. 6 of 1980
Industrial Law - Conciliation and Arbitration

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Keely J.(1)

CATCHWORDS

Industrial Law - election enquiry - rules permitting statement by candidate "containing Association and journalistic history and place of employment . . ." to accompany ballot paper - whether inclusion of additional material as to candidates' policies permitted by rule - whether inclusion constitutes "irregularity" - whether "the election may have been affected" - Conciliation and Arbitration Act 1904 s.164(4)

Conciliation and Arbitration - Registered organization - Election inquiry - Rejection of nomination - Nomination lodged out of time - Rules permitting statement by candidate "containing association and journalistic history and place of employment" to accompany ballot-paper - Whether inclusion of policy statement constituted irregularity - Whether irregularity may have affected election - Conciliation and Arbitration Act 1904 (Cth), s. 164 (4) - Conciliation and Arbitration Regulations 1956, reg. 146AA, AC (2), AD.

HEADNOTE

The applicant sought an inquiry under Pt IX of the Conciliation and Arbitration Act 1904 into an election for committee members of a registered organization on the basis of two alleged irregularities: (a) that her nomination should not have been rejected by the returning officer as being too late; and (b) that r. 33 (b) (2) of the rules of the organization had been breached. That rule provided that the nominations in the election "may be accompanied by a statement containing association and journalistic history and place of employment". That statement was to be issued with each ballot.

Held: (1) The rejection of the applicant's nomination did not constitute an irregularity within the meaning of the Act as it was not " . . . lodged at the place determined by the Returning Officer . . . within the period for lodging nominations" as required by reg. 146AE (3) of the Conciliation and Arbitration Regulations.

(2) Rule 33 (b) (2) did not permit the insertion of a statement by a candidate of material such as a statement of policy which was not referred to in the rule. As this occurred in the election an irregularity had been established.

(3) The election should be declared void as: (a) the voting figures of the successful and unsuccessful candidates had been very close; (b) events in the organization at the relevant time suggested that the statements were likely to affect the result of the ballot.

HEARING

Perth, 1980, October 14-15, 17. #DATE 17:10:1980

APPLICATION.

Application for an inquiry into an election, pursuant to Pt IX of the Conciliation and Arbitration Act 1904.

The applicant Sheryl Mary Fewster in person.

P. M. Nisbet, for the Australian Journalists' Association.

A. Bercove, for the returning officer.

Cur. adv. vult.

Solicitors for the Australian Journalists' Association: Ilbery Barblett & O'Dea.

Solicitors for the returning officer: B. J. O'Donovan, Commonwealth Crown Solicitor.

T. J. GINNANE

ORDER

Orders accordingly.

JUDGE1

This is an application by Sheryl Mary Fewster, a member of the Australian Journalists Association (the Association) for an enquiry by the Court into alleged irregularities in an election for committee members of the Western Australia Branch of the Association. Pursuant to a request made under s.170 of the Conciliation and Arbitration Act 1904 (the Act), the election was conducted by Mr P. F. Scorer (the returning officer), an officer employed in the Australian Electoral Office and classified as executive officer, industrial ballots. The application for an enquiry was referred to the Court by the Industrial Registrar pursuant to s.159(4)(a) of the Act.

At the hearing the applicant appeared in person, Mr Bercove appeared for the returning officer and Mr Nisbet appeared for the Association. Mr Nisbet informed the Court that he had carried out an undertaking that he had given earlier to Fisher J. to serve and notify of the hearing date all of the persons whose nominations for election for the position of committee member had been accepted by the returning officer. There was no appearance on behalf of any of those persons.

The question arose as to whether the regulations contained in Part VAA of the Conciliation and Arbitration Regulations (the Regulations) applied to the election under consideration in these proceedings (the election). Reg.146AA defines election as meaning "an election to which s.133AA of the Act applies, being an election for an office within an organization the rules of which do not provide for a secret postal ballot for that office". The rules of the Association (the rules) contain various provisions relating to the method of conducting an election for members of the branch committee but it was common ground that, although they include a provision for a postal ballot of all financial members, they nowhere expressly provide that the ballot shall be a secret ballot. I accept the submission of Mr Bercove that the election was one in respect of which the rules did not provide for a secret postal ballot and accordingly was an "election" within the meaning of Reg.146AA. No submission to the contrary was put by the applicant or by Mr Nisbet.

Regulation 146AC(2) provides that "The Returning Officer shall determine the place for lodging nominations of candidates for election". If the election was not an "election" within the meaning of Reg.146AA, then that aspect would have been governed by rule 33(b)(3) which required that the returning officer insert a notice in "The Journalist" specifying "the name and address of the Branch Returning Officer appointed to receive the nominations".

I accept the evidence of the returning officer that he determined that the place for lodging nominations for election was the Australian Electoral Office at 5th Floor, Wapet House, 12 St Georges Terrace. Regulation 146AD required the returning officer to publish "in a newspaper or newspapers a notice setting out - . . . (d) the place for lodging nominations . . .". The returning officer complied with that duty by having published in "The West Australian" newspaper on Monday, 9 June 1980, a notice containing the following words:

"Members are advised that nominations must reach me at my office, Australian Electoral Office, 5th Floor, Wapet House, 12 St George's Terrace, Perth 6000, not later than 9 a.m. Monday 14 July 1980".

I also accept the evidence of the returning officer that some person in the Sydney Electoral Office, without reference to Mr Scorer, added to the notice calling for nominations for the election, which was published in the June and July 1980 issues of "The Journalist", the words:

"(Postal Address: G.P.O. Box N1048, Perth, W.A. 6001)".

Those words did not appear in the notice inserted by the returning officer in "The West Australian". In my opinion the addition of the words containing the postal address in the notices published in the June and July issues of "The Journalist" did not operate to alter the determination by the returning officer of "the place for lodging nominations" (Reg.146AC(2)). In this connection it is to be noted that the returning officer was required - by reason of the combined effect of Reg.146AD(3) and rule 33(b)(3) of the rules - to "publish the notice", if practicable, in "The Journalist".

It may be that the unauthorised insertion of the words contained in the bracket setting out the postal address of the returning officer was an "irregularity" within the meaning of the Act but, even if it were, it would not be significant in the present proceedings because the applicant addressed the envelope containing her nomination to the address fixed by the returning officer as the place for lodging nominations. Further, nothing has been put before me in these proceedings to suggest that the result of the election may have been affected by any "irregularity" consisting of the insertion of the unauthorised words in the notices published in the June and July 1980 issues of "The Journalist".

In its original form the application alleged the action of the returning officer in rejecting the applicant's nomination for election as a committee member, on the ground that it "was received too late for nomination", constituted an irregularity.

I accept the evidence of the applicant that she "posted" her nomination paper on Tuesday, 8 July 1980. However, the way in which she "posted" the nomination was that she "took it out to the front desk of my office and . . put it into our internal mailing system", i.e. at Western Farmer & Grazier, 90 King Street, Perth, where she was employed. The applicant also said that the "mailing system is controlled by the parent company Western Farmers Co-operative". The envelope containing her nomination for re-election as a committee member was addressed to:

"Returning Officer, Mr J. P. Scorer, Australian Electoral Office, 5th Floor, Wapet House, 12 St Georges Tce, Perth 6000".

The envelope, which was tendered in evidence, did not show the date on which it was posted but had been stamped as having been received on 16 July 1980 at the Australian Electoral Office, Perth. The evidence given by officers of the Australian Electoral Office established that the envelope containing the applicant's nomination was not received at that office until Wednesday, 16 July 1980. However, the evidence as a whole does not enable me to reach any conclusion as to why the envelope containing the nomination was not received at an earlier time.

On the evidence I am unable to uphold the contention that the returning officer's action in rejecting the applicant's nomination was an "irregularity" within the meaning of the Act. The nomination was not received in time. Regulation 146AE(3) provides that a "person is not eligible for election unless the nomination . . . is lodged at the place determined by the Returning Officer . . . and within the period for lodging nominations . . .". If the returning officer had fixed the "place for lodging nominations" as including "any official mail receptacle" the present applicant would still have failed, as the evidence did not establish that her nomination was lodged in an "official mail receptacle" (cp. Inquiry into election for offices in Australian Federated Union of Locomotive Enginemen, Victorian Division; Ex parte Emmett (1978) 33 F.L.R. 269).

On 6 October 1980 the applicant gave notice of motion that at the hearing she would move for an order that the following be added to the particulars of alleged irregularities in her application:

"Contrary to Australian Journalists' Association Rule 33(b) (2) and 33 (b) (4) (e) nominated candidates Brian Wills Johnson and Michael John Van Rens did include information in their statements by candidates not permitted to be included under the above rule."

At the hearing the Court granted leave to the applicant to rely upon that further particular. I reject the attack made that the applicant had not acted in good faith in seeking to add that ground at a late stage.

In final address Mr Nisbet, on behalf of the Association, supported the applicant on this ground, saying that the Association considered:

"that there has been a breach of its rules and it is anxious that these breaches do not occur in the future and that the breach that has taken place on this occasion is remedied."

Rule 33(b)(2) provides that the nominations in the election "may be accompanied by a statement containing Association and journalistic history and place of employment to a maximum of 150 words". Rule 33(e) (referred to in the notice of motion as rule "33(b)(4)(e)") provides that the "Returning Officer shall issue a copy of each statement with each ballot paper". In my opinion the "statement" referred to in those two rules must be a statement confined to material which can fairly be regarded as being the "Association and journalistic history and place of employment" of the candidate. I am unable to accept that the rules intend that the returning officer "shall issue a copy of" a statement by a candidate which, in addition to setting out the matters to which I have just referred, also contains other material, for example, a statement of his policy. In my view the rules are intended to grant to each candidate a strictly limited right to have the returning officer forward to the electors a statement as to those matters - such statement to be sent "with each ballot paper". The purpose of the provision is presumably to enable each candidate to ensure that the members eligible to vote should have some material of a purely factual nature on the matters specified, but not other material, e.g. the policies of the candidate - or of his opponents - because those areas are potentially controversial. Neither of the two rules restricts in any way the right of a candidate to distribute to the electors material supporting his candidature or setting out his policies.

The statement by Michael J. van Rens included the following statements:

"I have accepted committee nomination because I believe A.J.A. members in television and radio are not being represented adequately in the Association.

Journalists in the electronic media are working under award conditions completely alienated from their industry, and, if elected to the A.J.A. committee, this would be the first area I would urge the Association to rectify."

The statement by B. Wills-Johnson included the following statements:

". . . I believe I have developed an appreciation of the needs and aspirations of mainstream journalists in Western Australia, and seek now to return through the WA Branch Committee the benefit of this experience.

As a member of a group of journalists who this year have been nominated for the first time, and who support the actions of several members of the committee now offering themselves for re-election, I urge support for a group that I believe will be more able to identify and respond to the challenges ahead, to the greater benefit of all Western Australian journalists."

In my opinion the additional material included in those two statements was not authorised by the rules and the inclusion of it in each statement was contrary to the intention of the rule, namely, an intention to grant to each candidate a strictly limited right to have the returning officer forward with each ballot paper a statement confined to the "Association and journalistic history and place of employment" of the candidate. The fact that such material was included in a statement sent with each ballot paper by the returning officer constituted an "irregularity" within the meaning of the Act.

Section 165(4) of the Act provides that the Court shall not declare an election to be void:

"unless the Court is of opinion that, having regard to the irregularity found, and any circumstances giving rise to a likelihood that similar irregularities may have occurred . . . , the result of the election may have been affected . . . by irregularities."

Mr Nisbet submitted that:

"these statements would not have been made had they not been calculated to or thought to have been of significance to those who were going to read them; that is, the members of the Australian Journalists Association."

In this connection I adopt as being applicable the statement by Lindley L.J. in a different context in Slazenger & Sons v. Feltham & Co. (1889) 6 R.P.C. 531 at p.538 that the Court should not:
"be astute to say that"(the candidate)"cannot succeed in doing that which he is straining every nerve to do."

In considering whether the result of the election may have been affected by the fact that the statements of M. J. van Rens and B. Wills-Johnson were forwarded by the returning officer to those members eligible to vote in the election, I have had regard to the closeness of the voting figures set out in the document containing the declaration of the poll. That document shows that T. R. Jenkins, a defeated candidate in the election, received the same number of "primary votes" as Mr S. Hadfield, who was declared elected as a member of the committee. Further, Mr R. H. McGillivray, who was also a defeated candidate, received only five primary votes less than Mr S. Hadfield. After the distribution of the preferences of the first candidate to be eliminated (Mr A. H. McL. Main) Mr McGillivray's progressive total was only two less than that of Mr Hadfield. After the distribution of the preferences of Mr Jenkins, Mr McGillivray's total number of votes was only four less than the total received by Mr Hadfield.

I have also had regard to the evidence of Mr J. S. Cannon and Mr M. Hollingsworth, who are the President and the Secretary respectively of the Western Australian Branch of the Association.

Shortly before the election, most members of the Branch had participated in a national strike - the first national strike of the Association. Mr Cannon gave evidence as to the existence of dissatisfaction among members with their wage rates and with the "Association's performance". He referred to the statement by Mr van Rens that "this would be the first area I would urge the Association to rectify" and expressed the opinion that that statement was "likely to affect the result of the ballot". Mr Hollingsworth also gave evidence as to the national strike and the fact that two meetings were held of members in the radio and television area. The second meeting, held at a stage when the national strike was about three weeks old, decided "fairly solidly against joining the strike". He said that the reason for that decision was that they "themselves had been on strike some nine months before for just one day and they felt very strongly they had not been supported by their newspaper colleagues, therefore they were not going to support us". He also gave evidence that approximately 60 persons attended the latter meeting out of a total of somewhere between 80-100 members.

Having regard to the evidence as to the closeness of the voting figures and the evidence of those events in the organisation which had occurred shortly before the forwarding of the two statements by the returning officer, I have come to the conclusion that the result of the election for the seven members of the committee may have been affected by the irregularity consisting of the forwarding of the two statements to the members eligible to vote.

I have decided to make the following orders:

1. An order declaring to be void the election of the seven members of the committee of the Western Australian Branch of the Association.

2. An order directing the Industrial Registrar to make arrangements for a new election, including the calling for nominations, to be held.

3. An order that the ballot be conducted in accordance with the provisions of s.170 of the Act.