Doyle v Australian Workers' Union

[1986] FCA 428

Re: JAMES DOYLE
And: THE AUSTRALIAN WORKERS' UNION
No. SA 13 of 1985
Industrial Law
15 IR 262

COURT

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Evatt J.
Sheppard J.
Gray J.

CATCHWORDS

Industrial Law - Rules of organisation providing age limit of 65 for nominees to official positions - Rule challenged as being (i) oppressive, unreasonable or unjust and (ii) contrary to a provision of the Conciliation and Arbitration Act 1904 (s. 133 (1) (a) or reg. 115(1) (d) (v) ) - Argument that the rights to membership prima facie includes the right to vote and the right to to stand for office considered - right of organisation to choose its own rules and internal structures within the framework provided by the Act and Regulations.

Conciliation and Arbitration Act 1904 ss. 4, 133, 140, 144, 197A

Municipal Officers Association of Australia v Lancaster (1981) 54 FLR 129; Boland v Munro (1980) 48 FLR 66; MacDonald v The Amalgamated Engineering Union (Australian Section) (1962) 3 FLR 446; Leveridge v Shop Distributive and Allied Employees' Association (1977) 31 FLR 385; Lovell v Federated Liquor and Allied Industries Employees Union (Wilcox J. 10 September 1985, unreported); R v Moore; Ex parte Federated Miscellaneous Workers Union of Australia (1978) 140 CLR 470

HEARING

MELBOURNE

#DATE 18:7:1986

ORDER

THE COURT ORDERS that the appeal is dismissed.

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

JUDGE1

This appeal is from a judgment of Keely J. On 11th December 1985, his Honour discharged the rule to show cause, originally granted to the appellant. His Honour's reasons for judgment were pronounced on 18th December 1985.

1. The issue is whether rule 51(c) of the rules of the Australian Workers' Union ("the union") contravenes s. 140 of the Conciliation and Arbitration Act 1904 ("the Act"). The union is an organization of employees, registered under the Act, and the appellant is a member of the union. Rule 51 of the union's rules provides, so far as is relevant:
   
   

"51 - QUALIFICATION FOR OFFICE"

No person shall be eligible for nomination for election as an Officer -

...

(c) If he has attained the age of 65 years prior to the calling of such nomination."

1. The union is divided into branches, there being one branch in each State of Australia (rule 37). Each branch has as its governing body a branch executive (rule 59), consisting of a President, two Vice-Presidents, a Secretary and other members (rules 78 and 83). Provision is also made for the election of organizers in branches (rule 64).

2. At the national level, there are two governing bodies. By rule 38, the highest deliberative body of the union is the Convention. This takes place annually, and consists of delegates elected by the branches (rule 35). The second governing body is the Executive Council, which consists of a President, a Vice-President and one other councillor from each branch, and a General Secretary.

3. Rule 4 contains definitions of terms found in the rules. The definition in rule 4(e) is as follows:
   
   

"Officer" shall include the President, Vice-Presidents, General Secretary, Branch President, Branch Vice-Presidents, Branch Secretary, District Secretaries, President and Secretary of the Mining Division of the West Australian Branch, Branch Executive Councillors, Branch Executive Committeemen, and elected Organisers, Delegates to Convention and Delegates to Delegate Meeting Queensland Branch."

1. As appears from this summary of the rules, the effect of rule 51(c) is to deprive any member who has attained the age of 65, prior to the calling of nominations, of the opportunity to be elected to any of the union's governing bodies at the branch or the national levels.

2. At the trial, some issues of fact emerged; although the facts found by the learned trial judge are of marginal importance to the central question of the validity of rule 51(c), it is useful to set out a summary of the facts. The appellant, is 67 years old, and has been a financial member of the union since about 1934. At the time of the trial, he was a Vice-President of the South Australian Branch of the union, and a Vice-President from that branch on the Executive Council of the Union. In October 1985, he lodged nominations for the positions of Vice-President on the Executive Council, delegate to Annual Convention, and Organizer, all from the South Australian Branch. Those nominations were rejected on the ground that the appellant had attained the age of 65 years prior to the calling of nominations.

3. The union has in excess of 100,000 members throughout Australia. They are employed in a variety of industries, in most of which they are required by awards or contracts of employment to retire at 60 or 65 years of age. Only in the pastoral industry is there no general retiring age. Of the members employed in that industry (numbered by the respective counsel during argument on the appeal as 9,250 or 6,000, according to which estimates in the evidence were examined), no doubt many choose to retire at or before 65. The learned trial judge accepted evidence from the union's General Secretary that at least 98% of the members of the union retire from employment at the age of 65 years or earlier.

4. Rule 51(c) was adopted in its present form by the union's Convention in 1978, after debate as to its merits.

5. The appellant relied upon both paragraphs (a) and (c) of sub-s. (1) of s. 140 of the Act. These provisions are set out:
   
   

"140(1) The rules of an organization-

(a) shall not be contrary to, or fail to make a provision required by, a provision of this Act, the regulations or an award or otherwise be contrary to a law;

...

(c) shall not impose upon applicants for membership, or members, of the organization, conditions, obligations or restrictions which, having regard to the objects of this Act and the purposes of the registration of organizations under this Act, are oppressive, unreasonable or unjust;"

1. The argument based on paragraph (a) can be dealt with relatively quickly. In the first place, the appellant relied upon certain provisions of s. 133 of the Act, contending that rule 51(c) is contrary to those provisions. The provisions were the requirement in s. 133(1)(a) that elections be by direct voting system or collegiate electoral system, the definitions of those terms in s. 4(1), and the requirements in s. 133(1)(d)(ii) that the rules of an organization provide for the manner in which persons may become candidates for elections. Reference to the detail of these provisions points up the difficulty of the argument. On the one hand, it was said that a requirement that the rules provide for the manner in which persons may become candidates was a provision as to form, and gave rise to an implication that all relevant persons had a substantive right to become candidates. On the other hand, it was said that the detailed provisions in the definition of "direct voting system" in s. 4(1), particularly the requirement that all financial members be eligible to vote, carried an implication that all financial members must be entitled to be candidates. It is difficult to see how, in the same section, the Parliament could have intended both an implied exclusion and an implied inclusion when mentioning specific matters. Even more importantly, however, the argument overlooks the fact that the provisions in s. 133 of the Act, and the relevant definitions, are simply not directed to the question of entitlement to become candidates at all. The Act itself does not make a provision to which rule 51(c) could be said to be contrary. It is worth noting that the Full Court in Municipal Officers' Association of Australia v. Lancaster (1981) 54 FLR 129 dealt with the effect of s. 140(1)(a) and s. 133(1)(a) of the Act upon a set of rules which did not give to all financial members of the organization there concerned the right to become candidates in elections for its governing bodies. The argument that, by restricting the persons empowered to nominate persons as candidates for offices, the rules did not provide for a direct voting system was rejected. So also was the argument that the rules failed to provide for the manner in which persons may become candidates, as required by s. 133(1)(d)(ii). See especially pages 145-149, per Evatt and Northrop JJ. and page 164 per Deane J. The appellant did not invite the court to refuse to follow Lancaster's case.

2. The second way in which it was alleged that s. 140(1)(a) was attracted was with respect to reg. 115(1)(d)(v) of the Conciliation and Arbitration Regulations. This provision, in conjunction with others, requires that the rules of an organization provide for "the control of committees...by the members...". It was contended that a rule which operates to prevent some members from standing for an office which entitles its holder to sit on a committee, and which thereby deprives the members generally of the opportunity to vote for the disqualified candidate, operates to prevent the members from having control of that committee. As was shown in Boland v. Munro (1980) 48 FLR 66, at pages 78-81 per Evatt and Northrop JJ., the question whether the rules of an organization provide for the control of committees is a complex one, to be determined only upon an examination of all of the provisions of those rules which deal with the election of committees, the making of their decisions, the existence of checks and restraints upon the actions of such committees, and rights to direct those actions. Again, it was not suggested that this Court could or should overrule Boland v. Munro. The aspect of control of committees will rarely, if ever, be one which arises in the examination of a particular provision within the rules of an organization. The question which is usually raised is whether the rules as a whole contain provisions which are adequate to satisfy the requirement of regulation 115(1)(d)(v). If such a question is answered in the negative, it is not because any particular provision is in contravention of the regulation, but rather because the rules fail to contain sufficient positive provisions to satisfy it. The appellant made no attempt to examine the whole range of provisions in the rules of the union which might be said to relate to the control of committees. It is not open to him to point simply to rule 51(c) and to allege that it operates to deprive members generally of the right to control the governing bodies of the union. Even if such an exercise were possible, it is unlikely that the Court would hold that the right to be elected to a committee is a necessary element in the concept of the control of that committee.

3. A further difficulty exists with respect to the appellant's attack on rule 51(c) by reference to s. 140(1)(a) of the Act. The rule to show cause, even in its amended form as set out in the Reasons for Judgment of Keely J., makes no reference to such an attack. At first instance, the proceeding seems to have been conducted upon the footing that rule 51(c) was being tested by reference only to s. 140(1)(c) of the Act. That was the case with which Keely J. dealt. It is too late, on appeal, to change the nature of the case, when the respondent union may have put its case differently at the trial had it been faced with a challenge to its rules based on s. 140(1)(a).

4. For these various reasons, the appellant must fail on this aspect of the case.

5. In any event, the primary attack was by reference to s. 140(1)(c). The appellant pointed to the exclusionary effect of rule 51(c), both with respect to the disqualification of members from standing for office, and to the prevention of other members from voting for such members. Reliance was placed on a passage from the judgment of Joske J. in MacDonald v. The Amalgamated Engineering Union (Australian Section) (1962) 3 FLR 446, at page 449:
   
   

"Section 144 gives a right to membership. The right to be a member must surely involve a right to take one's share in the management and control of the body of which one is a member and include as an attribute of membership the right to vote and the right to stand for and be elected to the representative offices of the body. These rights are inherent in the very notion of membership of a representative body, and if they are absent the body is not a truly representative body. This is not to say that there may not very well be some probationary, apprenticeship or qualifying period before full rights of membership may be exercised. It is consistent with s. 144 to provide that a person under twenty-one years of age, whether he be styled a junior member or not, shall not vote or be elected to office. It is equally consistent with the section to provide a qualifying period of membership before these rights become available to a member."

To the extent to which the reasoning found in this passage is based on s. 144 of the Act, such reasoning may now be unacceptable. At least since Re Keogh and Federated Clerks Union of Australia; Ex parte Linehan (1979) 40 FLR 445, especially at pages 447-451, it must be doubted whether the statutory right to membership which s. 144 gives is of relevance to members who do not avail themselves of it, but are admitted in the ordinary way under the rules of an organization. Reference should also be made to Troja v. Australasian Meat Industry Employees' Union (Victorian Branch) (1978) 46 FLR 340, at pages 349-351 per Keely J., and Cook v. Crawford (1981) 52 FLR 1, at pages 39-40. Moreover, Joske J. in MacDonald cannot be taken to have laid down absolute principles as to the rights which must attach to membership, statutory or otherwise. The rights which a member has are those found in the rules of an organization. To some extent, the rules are required by the Act to give certain rights, e.g. the rights of voting which an organization is required to provide by s. 133(1)(a) and the definitions of "direct voting system" and "collegiate electoral system" in s. 4(1), and by s. 133(1)(e) (although it is noted that these rights attach to financial members, and not to members generally). Outside these requirements, it is necesary to examine the provisions of the rules, with a view to ascertaining whether they impose conditions, obligations or restrictions of the kinds proscribed by s. 140(1)(c). The Act does not require the adoption of any particular assumptions about the rights attaching to membership.

1. The appellant was unable to argue that any rule which excludes some members of an organization from standing for office should be held to impose on members conditions or restrictions which, having regard to the objects of the Act and the purposes of the registration of organizations under the Act, are oppressive, unreasonable or unjust. The Full Court decisions in Leveridge v. Shop Distributive and Allied Employees' Association (1977) 31 FLR 385, Lovell v. Federated Liquor and Allied Industries Employees Union of Australia (1978) 35 FLR 72 and Municipal Officers' Association of Australia v. Lancaster (above) make it clear that s. 140(1)(c) does not operate to give all members, or even all financial members, an automatic right to stand for office. Joske J. in MacDonald, in the passage quoted above, was prepared to hold that the right to vote, as well as the right to be elected to office, could be the subject of a qualifying period of membership. There is no principle that the right to vote necessarily carries with it the right to be a candidate.

2. The appellant's argument was, nevertheless, that the right to membership prima facie includes the right to vote and the right to stand for and be elected to representative office. It was argued that the prima facie right was only capable of being removed in established categories of cases. The established categories were said to be cases in which new members of an organization were prevented from standing for certain offices until they had been members for some period of "apprenticeship" (the purpose of such rules being to attempt to ensure that members standing for the relevant offices had acquired some knowledge and experience of the affairs of the organization), or the prevention of a sudden and organized incursion of many new members, with the object of seizing power in an organization. These established categories were said to arise from Leveridge and Lovell. It was also conceded that another category would have to be recognized, based on Lancaster, in which the class of members excluded from standing was not specified, but a person could only become a candidate if nominated by two members of the relevant governing body within the organization. It was argued that these categories could not and should not be expanded by upholding the validity of a rule which excluded from the right to stand for office persons over a particular age.

3. The argument was based substantially upon the decision of Wilcox J. in Rule v. Australian Workers' Union (Federal Court of Australia, 10th September 1985, unreported). In that case, his Honour held that rule 51(b) of the rules of the union, which prohibited a person from being eligible for nomination for election as an officer unless that person had been a financial member for at least five years immediately preceding such nomination, contravened s. 140(1)(c). The same provision had previously been held valid in Cameron v. Australian Workers' Union (1959) 2 FLR 45. After referring in some detail to Leveridge, Allen v. Townsend (1977) 31 FLR 431, and Lovell, Wilcox J. said at pp 26-32:
   
   

"Whatever the attractiveness of the view taken by Northrop J. it is clear, in the light of the majority decision in Lovell and the dicta in Leveridge, that no general proposition may be enunciated to the effect that a rule prescribing a membership qualification for aspirants for office within an organization is necessarily unreasonable. Everything must depend upon the circumstances of the case, including the purpose and extent of the restriction, the identity and duties of the offices to which it applies, the extent and complexity of the affairs of the organization and the proportion of members barred from office by the rule. In considering those matters it is necessary to bear in mind the difference between unwise rules and unreasonable rules. A rule does not contravene s. 140(1)(c) merely because it imposes restrictions which the Court regard as undesirable or unwise. As was pointed out by Evatt and Northrop JJ. in Wiseman v Professional Radio and Electronics Institute of Australasia (1978) 20 A.L.R. 545 at p. 561:

"The court is not at liberty to substitute its modes of thought for those of an organization. Subject to the provisions of the Act, an organization is free to determine its own internal structures; it is free to determine its own policies; it is free to pursue objects which it considers to be desirable; and it is free to decide what it considers to be in the best interests of its members or potential members."

In Municipal Officers Association v Lancaster

(1981) 37 A.L.R. 559 at P.589 Deane J. described the function of the court as being "to determine, in accordance with ordinary judicial procedure, whether some provision or provisions of the rules adopted by, or on behalf of, the members can properly be described not merely as undesirable but as oppressive, unreasonable or unjust". See also Wright v McLeod (1983) 6 I.R. 203 at pp.206-207, 217 and 224.

There was in the present case no evidence as to the reasons underlying the rules under challenge, although some evidence was given by the various branch Secretaries as to the nature of the duties required to be performed by various officers. There was evidence of some inconsistency in approach, in relation to a membership qualification, as between the rules of the various branches of the Union registered under State law. The membership of those State registered bodies is either identical to or substantially co-terminous with the membership of the relevant branches of the federal organization and their affairs appear to be equally complex; but the same need for previous membership has not been felt. In New South Wales there is no previous membership requirement at all. In Queensland and Western Australia the old federal rule -- three years' continuous financial membership with five years' membership -- still prevails. In the circumstances, and without the benefit of direct evidence, it is necessary for the Court to consider what may be a defensible nexus between the restrictions imposed by the rules upon both the representative nature of the organization (s.2(e)) and the full participation by members of the organization in its affairs (s.2(f)).

The authorities identify two arguments in favour of the imposition of a membership qualification upon candidates for union office, that is two matters "going to the good government of the organization" by virtue of which the rule may be regarded as a not unreasonable restriction upon the rights of members: knowledge by candidates of the affairs of the organization and the protection of the union against organized incursion. No other justification was suggested in this case. The first of these arguments was accepted in Cameron; and in relation to all offices within the union. But it has since come under heavy criticism. As Northrop J. pointed out in Lovell, there is no necessary relationship between mere membership of a union and the acquisition of any significant knowledge as to its affairs or responsibilities. It is true that, for the requisite period, the candidate is likely to have worked in an industry covered by an award to which the union is a party but it does not follow that he or she will have been active in the union or will have acquired any substantial knowledge either of that industry or of that award. It may well be that a person who has been active in the affairs of another union, particularly in the same or a related industry, will have a greater background of information than such a candidate. The comment of Smithers and Evatt JJ. in Lovell, in relation to a better criterion of expertise than "mere length of membership", is particularly relevant now that there exist training courses for trade union officials, conducted under the auspices of the Australian Trade Union Training Authority.

In the result the rationale of Cameron has not been applied in decisions of the Full Court of this Court. The issue in Leveridge was confined to the validity of restrictions upon the candidature of delegates to the branch conference. The court rejected the "apprenticeship" argument in respect of that office; although Smithers J. indicated that he thought it had substance in respect of offices such as branch Secretary and assistant branch Secretary. In Allen v Townsend the contest related only to the offices of federal Secretary and assistant federal Secretary. The Court, by majority, rejected the "apprenticeship" argument. The majority did not concede it to have some merit, to be balanced against the extent of the exclusion of potential candidates. They rejected the argument outright, describing the rule as "an arbitrary provision serving no useful purpose". They held, in other words, that it was not a basis upon which the restriction was capable of being regarded as reasonable. Finally, in Lovell, the Court unanimously held invalid a rule requiring a two years' membership qualification for candidates to all offices. Although the majority commented at p.83 that "length of membership does ensure at least that the person has some acquaintance with conditions in the industry and the relationship of a member to the union which he cannot otherwise have", the Court in fact made no distinction in its conclusions between the positions of senior, full-time officers and ad hoc part-time positions such as delegates and committeemen. The rule was struck down in relation to all offices. Under such circumstances it must now be concluded that the accepted view in this Court is that there is no such link between the membership of an organization for a particular period and the gaining of relevant expertise as to make it reasonable to impose -- upon that ground -- a membership qualification.

The only recent case in which a membership qualification has been held to be not unreasonable is Lovell, in relation to the rule requiring a 12 month qualification for organizers. But this decision appears to have been influenced by the second matter to which I have referred: in the words of the majority, the desirability of preventing "sudden incursions into the union or a branch by persons introduced as members in a hurry for the purpose of supporting a particular faction". And, although this was not spelt out in their judgment, that reason seems to have been regarded as relevant only to the 12 month requirement for organizers. If protection against incursion had been thought capable of justifying a two year rule, it would no doubt have been discussed in the context of the validity of r.4.

In this state of authority the better view appears to be that a rule requiring a membership qualification is capable of being justified as reasonable only upon the basis of providing some protection against destabilizing incursions by new members; and then only if the requirement is for a strictly limited period such as 12 months. I mean by this a requirement, as in Lovell, of 12 months' continuous membership prior to nomination. I do not mean a requirement of one financial year's membership prior to the commencement of the financial year in which nominations are received; which, in the A.W.U., would usually involve a membership before nomination considerably exceeding 12 months. In considering whether such a rule is justifiable, upon the basis of providing against destabilizing incursions by new members, regard must be had to matters already mentioned: the extent of the restriction, the identity and duties of the offices to which it applies and the extent and complexity of the affairs of the organization."

This passage has been set out in full, because it was contended by counsel for the appellant in the present case that it both limited the categories of members which an organization could justifiably disqualify from standing for office, and narrowed the extent of those categories. The appellant contended that rule 51(c) must be held to contravene s. 140(1)(c), unless there could be found to be a "defensible nexus" between the restriction imposed by the rule and the good government of the organization. This argument came close to casting upon a respondent in proceedings under s. 140 of the Act the onus of justifying a challenged rule on some objective grounds concerned with the good government of the organization. That cannot be the test to be applied in cases under s. 140. It must be doubted whether Wilcox J. applied such a test; if he did, it seems, with great respect, that he adopted an approach which is incorrect.

1. The starting point of any s. 140 case is the right of an organization to choose its own rules and internal structures, within the framework provided by the Act. This right has been referred to so often in recent authorities that it is unnecessary to examine it in detail. The authorities include Wiseman v. Professional Radio and Electronics Institute of Australasia (1978) 35 FLR 24, at pages 41-42 per Evatt and Northrop JJ. (part of which passage was quoted by Wilcox J.), Lancaster (above) at pages 150-151 per Evatt and Northrop JJ., and 164-165 per Deane J., and Wright v. McLeod (1983) 74 FLR 146, at pages 151-152 per Bowen C.J., 164 per Smithers J. and 185-186 per Evatt and Northrop JJ.

2. The primary justification for the existence of a rule of an organization is simply that the organization has adopted that rule. It is then necessary to apply s. 140(1)(c) to the particular provision, measuring its effect. The Act assumes that the rules of an organization may impose conditions, obligations or restrictions which are not oppressive, unreasonable or unjust. The mere imposition by the rules of conditions, obligations or restrictions is not evidence that those conditions, obligations or restrictions, are oppressive, unreasonable or unjust. Their effect must be examined, in the particular circumstances of the organization, and by reference to both the objects of the Act, and the purposes of the registration of organizations under the Act. Again, the proper approach for the court to take in "having regard" to those objects and purposes has been the subject of comment by previous Full Courts. It is enough to refer to Lancaster (above) at pages 151-153 per Evatt and Northrop JJ. In undertaking this process, it may be that the Court will look for some rational explanation for the presence of a particular rule, or some such explanation may be advanced in justification of a rule. It may be that Wilcox J. in Rule was doing no more than considering the possible existence of such justifications. This is not to say that, in every case, the Court will require an organization to justify the contents of its challenged rules by reference to particular aspects of its government or other circumstances. It is not for the organization to establish a "defensible nexus" between its rule and its good government. Rather, it is for the member who challenges the validity of a rule to demonstrate its invalidity, taking into account the matters which the section requires the Court to have regard to.

3. At first instance, and to a lesser extent on appeal, the appellant put forward a number of circumstances said to show the unreasonableness of the restriction contained in rule 51(c). The mere fact of the exclusion from office of a very small percentage of the union's members, with the consequent inability of the other members to vote for the excluded persons, was one such circumstance. Others were the fact that the exclusion is a general one from all offices, the practice of the union not to keep records of the ages of its members, the existence of a small number of retired persons holding membership tickets without the payment of contributions under rule 8 of the union's rules, and the existence of a superannuation scheme available to members, the benefits of which were automatically paid out at age 70, if not claimed previously upon retirement at 60 or later. These other factors may well be proper matters for the union to take into account in deciding whether or not to adopt a rule such as rule 51(c). They can hardly be said to influence the Court to hold that rule 51(c) contravenes s. 140(1)(c). The union, in deciding whether to adopt or retain rule 51(c), is entitled to weigh these factors, and to regard them as outweighed by others. It is not for the Court to decide where the weight of evidence or argument lies. In adopting rule 51(c), the union adopted a maximum age for candidates for office which is not on its face unreasonable or oppressive. It is an age which is widely regarded as appropriate for the retirement of persons from active involvement in work, administration and decision making. The Act itself adopts 65 as the appropriate retiring age for members of the Australian Conciliation and Arbitration Commission; see ss. 7(3) and 13. On the evidence, the substantial majority of members of the union retire at or before the same age. Rule 51(c) is, in a sense, liberal to candidates, in that it allows a person who is almost 65 at the time when nominations close to hold a four year term of office, which may well expire after he or she has turned 69. In these circumstances, it is difficult to see how the rule could be said to impose a restriction which is oppressive, unreasonable or unjust.

4. Counsel for the appellant conceded that his task would have been easier if the Act had required positively that the rules provide for democratic control of organizations and the full participation by members in their affairs. In doing so, he recognized the difference between such a postulated provision and the actual provisions of the Act. One of the chief objects of the Act is to encourage the democratic control of organizations and the full participation by members in their affairs; s. 140(c) does not require a positive provision in the rules to this effect; it only requires that that, amongst other objects and purposes, be taken into account in determining whether a condition, obligation or restriction is oppressive, unreasonable or unjust. The freedom of choice which is reserved to an organization in adopting a rule is sufficient to allow the adoption of rule 51(c) by the union, in its present circumstances. The fact that the restriction prevents some members from standing for any office at the branch or national level of the union does not affect this conclusion.

5. A minor argument raised by the appellant relied upon Hagger v. Operative Plasterers' and Plaster Workers' Federation of Australia (1979) 39 FLR 245. In that case, the Court held that s. 140(1)(c) was contravened by an amendment to the rules of an organization, which operated to impose an "apprenticeship" period of membership as a precondition for candidature for an office already held by a person who was unable to satisfy the precondition. At page 247, St. John J. said:
   
   

"It will be seen therefore that if Mr. Hagger or any officer who has been tried and tested in office is excluded from nomination, two important matters arise. Firstly a member and a person who has acted in the office loses his right to nominate. More importantly the members of a branch of the organization lose the opportunity of voting for someone or not voting for someone who has been tested in the office. In so far as it constricts the right of members to so vote and the right of the person who has acted in the office to stand for election, I am of the opinion that the rule as presently framed is oppressive, unreasonable and unjust. Alterations to rules disentitling officers to nominate to seek re-election are oppressive: Riordan v. Federated Clerks Union of Australia ((1952) 74 C.A.R. 5)."

Some attempt was made to argue in the present case that no upper age limit provision could operate to exclude from office the person already holding the office concerned. In the first place, however, there cannot be a universal rule that a person who holds an office must be free of any restriction on his or her right to stand for re-election. A simple illustration suffices. The holder of an office could not refuse to pay contributions to the organization concerned, and then claim that a rule which prevented unfinancial members from nominating for office was inapplicable on the ground that he or she already held the office. In the second place, such a principle would mean that an organization could not adopt any retiring age at all; persons who continued to hold offices would be entitled to continue standing for those offices at each election until they died. The Act cannot have been intended to place such a severe restriction upon freedom of an organization to choose its own rules and internal structures.

1. In the result, no reason has been shown why the decision of Keely J. should be regarded as incorrect. The appeal must be dismissed.

2. Counsel for the respondent sought to argue that the appellant should pay the respondent's costs of the appeal. He conceded the applicability of s. 197A of the Act to the Full Court hearing an appeal, following the decision of the Full Court in Brophy v. Mapstone (1984) 3 FCR 227, but argued that the appeal had been instituted vexatiously or without reasonable cause. In R v. Moore; ex parte Federated Miscellaneous Workers' Union of Australia (1978) 140 CLR 470, at page 473, Gibbs J. (as he then was) said:
   
   

"In my opinion a party cannot be said to have commenced a proceeding "without reasonable cause", within the meaning of that section, simply because his argument proves unsuccessful. In the present case the argument presented on behalf of the prosecutor was not unworthy of consideration and it found some support in the two decisions of this Court to which I have referred. The fact that those decisions have been distinguished, and that the argument has failed, is no justification for ordering costs in the face of the prohibition contained in s. 197A."

In the present case, the argument of the appellant was not unworthy of consideration, and found some support on one view of the judgment of Wilcox J. in Rule. It cannot be said, therefore, that the appeal was brought vexatiously or without reasonable cause, and the Court accordingly has no power to award costs in favour of the respondent.