Hansch v Transport Workers' Union
[2001] FCA 302
•28 MARCH 2001
FEDERAL COURT OF AUSTRALIA
Hansch v Transport Workers’ Union [2001] FCA 302
INDUSTRIAL LAW – Internal governance of registered employees’ organisation – Validity of decision of Federal Council disbanding Tasmanian branch – Whether the Federal Council denied natural justice to Tasmanian members or branch office-bearers – Whether resolution vitiated by “invincible bias” of two Council members – Whether there was a proper factual basis for Council resolution.
BARRY HANSCH v TRANSPORT WORKERS' UNION OF AUSTRALIA, WILLIAM GEORGE NOONAN, HUGHIE JOHN WILLIAMS, ROBERT JOHN ALLAN, RICHARD DONALD MARLES, BRIAN JOHN McINTOSH, REGINALD WEARING, WAYNE MADER, TREVOR PAUL SANTI, ANTHONY SHELDON, ALISTAIR LYALL, DON CLODE, GEORGE CLARKE, JOHN MORRISON, MARK ANDREW WALKER, RONALD JAMES PORTER, ALEXANDER McEACHIAN GALLACHER, DOUG FROHER, RUSSELL PAUL WORTLEY, HOWARD SMITH, MICHAEL NEALER, JAMES McGIVERON, JOHN RAMSELL and GLENN STERLE
T21 of 2000
WILCOX, MOORE and GOLDBERG JJ
28 MARCH 2001
SYDNEY (HEARD IN HOBART)
IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY
T21 of 2000
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
BARRY HANSCH
APPELLANTAND:
TRANSPORT WORKERS' UNION OF AUSTRALIA, WILLIAM GEORGE NOONAN, HUGHIE JOHN WILLIAMS, ROBERT JOHN ALLAN, RICHARD DONALD MARLES, BRIAN JOHN McINTOSH, REGINALD WEARING, WAYNE MADER, TREVOR PAUL SANTI, ANTHONY SHELDON, ALISTAIR LYALL, DON CLODE, GEORGE CLARKE, JOHN MORRISON, MARK ANDREW WALKER, RONALD JAMES PORTER, ALEXANDER McEACHIAN GALLACHER, DOUG FROHER, RUSSELL PAUL WORTLEY, HOWARD SMITH, MICHAEL NEALER, JAMES McGIVERON, JOHN RAMSELL and GLENN STERLE
RESPONDENTSJUDGES:
WILCOX, MOORE and GOLDBERG JJ
DATE OF ORDER:
28 MARCH 2001
WHERE MADE:
SYDNEY (HEARD IN HOBART)
THE COURT ORDERS THAT:
1. The appeal be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY
T21 of 2000
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
BARRY HANSCH
APPELLANTAND:
TRANSPORT WORKERS' UNION OF AUSTRALIA, WILLIAM GEORGE NOONAN, HUGHIE JOHN WILLIAMS, ROBERT JOHN ALLAN, RICHARD DONALD MARLES, BRIAN JOHN McINTOSH, REGINALD WEARING, WAYNE MADER, TREVOR PAUL SANTI, ANTHONY SHELDON, ALISTAIR LYALL, DON CLODE, GEORGE CLARKE, JOHN MORRISON, MARK ANDREW WALKER, RONALD JAMES PORTER, ALEXANDER McEACHIAN GALLACHER, DOUG FROHER, RUSSELL PAUL WORTLEY, HOWARD SMITH, MICHAEL NEALER, JAMES McGIVERON, JOHN RAMSELL and GLENN STERLE
RESPONDENTS
JUDGES:
WILCOX, MOORE and GOLDBERG JJ
DATE:
28 MARCH 2001
PLACE:
SYDNEY (HEARD IN HOBART)
REASONS FOR JUDGMENT
THE COURT:
This appeal calls into question a decision of a Judge of the Court (Marshall J) in relation to a decision made by the Federal Council of the Transport Workers’ Union of Australia (“the union”) in connection with its Tasmanian branch and Tasmanian members.
The appellant is Barry Hansch, a member of the union and a former elected organiser serving the Tasmanian branch. Mr Hansch was the first-named applicant in the first instance proceeding. There were then two other applicants, Sean Scott Lawrence and Garry John Fisher, but neither of them is an appellant. The respondents, both at first instance and on appeal, are the union and the 23 members of the Federal Council.
The case put to the learned primary Judge was that a resolution passed by the Federal Council at a teleconference meeting held on 31 March 2000 was invalid. Numerous grounds were argued. They all failed. Three grounds were advanced to us in support of the appeal. We will deal with each of them separately, but it is first necessary to note some background facts. In doing so, we draw upon the recital of facts contained in the reasons for judgment of Marshall J. That recital was not criticised on the hearing of the appeal.
Background Facts
On 8 March 1995 Mr Hansch was elected to the office of Branch Organiser in the Tasmanian Branch of the union. He was based in Hobart. However, conflict arose between him and other officials of the union, as a result of which he worked discontinuously while litigation ensued between him and the union. Mr Hansch was successful in that litigation and finally returned to work on 23 June 1998.
On 4 July 1998 the Branch Committee of Management of the Tasmanian Branch resolved as follows:
“The Tasmanian Branch Committee of Management having heard reports from K. Bacon, Branch Secretary and W. Noonan, Federal Vice President on Branch finances, recognises that maintaining existing Branch structure is impossible. The B.C.O.M. resolves to:-
1.Direct the Branch Secretary to reduce staffing by four with the retrenchment of J. Austin, J. Gill, T. Bacon and V. Bushing, effective 31st July 1998, with redundancy payments to total $26,908.00 in addition to annual leave and other entitlements.
2.Acknowledge that the current cash flow situation does not allow the Branch to meet ongoing liabilities and continue to provide services to the membership; accordingly the Branch has effectively ceased to function.
3.Recommends that the Federal Council immediately review the Branch’s continued operations in accordance with Rule 23(1)(e).
4.Calls upon the Federal Secretary to develop a business plan and budget that will provide an adequate level of service to the membership in Tasmania.”
Marshall J made the following findings in relation to the meeting of 4 July 1998:
“At the request of the then Tasmanian Branch Secretary, Mr K Bacon, Mr Allan [one of the present respondents] was present at the meeting on 4 July 1998 in his capacity as Federal Secretary. Mr Allan gave evidence that his purpose in coming to Tasmania at that time ‘was to have a meeting with the then Branch Committee of Management and be advised on the current situation of the Branch’. Mr Noonan was then the Federal Vice President of the Union and attended the meeting due to the unavailability of the then Federal President.
Prior to 4 July 1998, Mr Bacon had made Mr Allan aware ‘that the branch was in a difficult financial situation and something had to be done’. Mr Allan further stated that he was aware before 4 July 1998 ‘that the financial situation in Tasmania was in a state that effectively was bankrupt and action had to be taken but the Branch Committee of Management had to make their own decision’. Mr Allan was also of the view that the Tasmanian operations of the Union were unable to be carried out by the Tasmanian Branch without assistance from the Federal Office of the Union. He believed that the Branch Committee of Management had no alternative but to request that the Tasmanian Branch be disbanded.
On 4 July 1998, Mr Allan advised the Branch Committee of Management that it was unable to move for the Tasmanian Branch’s disbandment but that that was a matter for Federal Council.
Mr Noonan gave evidence that he came to Tasmania on 4 July 1998 because of concerns about the financial state of the Tasmanian Branch of the Union. He said that he was invited by the Branch Committee of Management to attend the meeting in his capacity as Federal Vice-President of the Union. Mr Noonan also said that he believed that the Tasmanian Branch was ‘in serious financial difficulty’ and that the Tasmanian Branch was ‘in some real difficulty in continuing’. Mr Noonan denied the suggestion put to him in cross-examination that he had decided before the 4 July 1998 meeting that the Tasmanian Branch ought be disbanded.”
Two days after the meeting of the Branch Committee of Management, on 6 July 1998, the Federal Council of the union met to review the continued operation of the Tasmanian Branch, as requested in para 3 of the Branch Committee of Management resolution. Federal Council received a report that projected a Tasmanian Branch deficit of $374,641 for the year ending 31 December 1998. Federal Council resolved to disband the Branch, on the basis that it had effectively ceased to function. Federal Council further resolved that affected members of the Branch be represented directly by Federal Council.
Four members of the Branch, including Mr Hansch, challenged the validity of the rule (rule 23(3)) pursuant to which Federal Council had provided for direct representation of the affected members: see Bramich v Transport Workers’ Union of Australia (1999) IR 30. They failed at first instance but succeeded on appeal to a Full Court: see Bramich v Transport Workers’ Union of Australia (2000) 97 FCR 204. The Full Court also held the disbandment resolution was so integrally bound up with the resolution under rule 23(3) that it was not severable; the entire Federal Council resolution of 6 July 1998 must be treated as null and void.
Marshall J set out findings about the situation that existed between the date of the Federal Council’s resolution and that of the Full Court decision, 21 February 2000:
“From 6 July 1998 until 21 February 2000, the affairs of the Union were conducted on the basis that the Tasmanian Branch no longer existed. A business plan was developed to attempt to make the Tasmanian operations of the Union financially viable. From 6 July 1998 until 30 June 1999, employees of the Union working in Tasmania reported directly to Mr Allan who was responsible for overseeing and implementing industrial strategies for the representation of members in Tasmania.
In the period from 6 July 1998 to 30 June 1999, the Tasmanian operations of the Union continued to run at a loss. The extent of that loss was debated by counsel for the applicants, Mr J Green, with Mr Allan and Mr Noonan in the cross-examination of each of them. However, even if all Mr Green’s suggested reductions to the deficit referred to in evidence were made, the operations of the Union in Tasmania did not break even in the period 6 July 1998 to 30 June 1999.
On 20 May 1999, the Federal Council resolved to attach the Tasmanian members of the Union to the Victorian Branch, and to re-name that Branch the Victorian/Tasmanian Branch, pursuant to Rule 23(4) of the rules of the Union which permits the Federal Council to attach the affected members of a disbanded branch to another branch.
In accordance with the Federal Council resolution of 20 May 1999, responsibility for the representation of the interests of Tasmanian members of the Union was transferred to the Victorian/Tasmanian Branch on 1 July 1999.
In the period between 6 July 1998 and 30 June 1999, the Tasmanian operations placed great demands upon the finances of the Federal Office of the Union. In September 1998, the Federal Committee of Management of the Union authorised the securing of a loan from the Victorian Branch to assist to make the Tasmanian operations viable. Further, on 2 March 1999, the Federal Council imposed a levy of $25 on members in Tasmania for the 1999 calendar year. The purpose of the levy was to assist in improving the financial standing of the Union in Tasmania.”
Marshall J also recounted what happened immediately after the Full Court decision:
“On 6 March 2000, after the receipt of legal advice concerning the consequences of the Full Court judgment of 21 February 2000, the Federal Council resolved to hold a further special meeting of Federal Council on 27 March 2000 ‘to consider whether or not to resolve that the Tasmanian Branch has effectively ceased to function and ought therefore be disbanded pursuant to Rule 23(1)(e) of the Rules …’. The Federal Council also directed Mr Allan ‘to write to all members of the Tasmanian Branch inviting those who are interested to provide a written submission for consideration by the special meeting of Federal Council scheduled for 27 March 2000 on the questions to be determined by that special meeting of Federal Council, with submissions to be provided to the Federal Secretary by 12.00 pm on 22 March 2000’.
Mr Allan, Mr Noonan and any other branch secretary who desired to do so was invited by Federal Council to provide ‘a report in relation to those questions to be determined by the special meeting of Federal Council scheduled for 27 March 2000’. The last paragraph of the Federal Council resolution of 6 March 2000 directed Mr Allan ‘to invite a person who was last entitled to attend a meeting of Federal Council as Federal Councilor (sic) for the Tasmanian Branch, to attend the special meeting of Federal Council scheduled for 27 March 2000 and to invite him to provide a report on the questions to be determined by that special meeting of Federal Council’.”
Mr Noonan, the Victorian/Tasmanian Branch Secretary, sent a letter to all Tasmanian members of the union on 6 March 2000. Mr Noonan commenced by summarising earlier events and referring to the Full Court decision. He then said:
“In order to meet its legal obligations, the Union is now required to re-determine a number of matters, including whether the Tasmanian Branch should be disbanded and if so, whether the Tasmanian Branch members should be assigned to the Victorian Branch. The purpose of this letter is to inform you of this important development and to tell you that shortly you shall be receiving a letter from the Federal Secretary of the Union setting out these developments in detail and inviting any member of the Tasmanian Branch to provide a written submission to the Union’s Federal Council expressing their view on these issues.
I also want to take this opportunity to make it clear to you what mine and the Victorian Branch’s view is about the situation and what we propose to do. The Victorian Branch is strongly committed to representing your interests and wants to ensure that we are able to continue the good work we have been doing for Tasmanian members of the Union since 1 July 1999. Since that time, the Victorian Branch has been very active in attempting to understand the concerns of Tasmanian members and has been committed to ensuring that all Tasmanian members get access to the same high quality services and representation that members of the Union in all other branches enjoy. We have visited many workplaces across the State, arranged delegates meetings, met with State government representatives to look at ways of creating more jobs for our members and have made available to you a whole range of new services such as, complete industrial relations representation, full range of legal advice, Schoolbook Scholarship and the development of OH&S services.
My main concern is to ensure that transport workers in Tasmania continue to have the opportunity to be represented by a strong trade union which understands their needs. I am committed to this goal and will therefore be informing the Federal Council of the Union that the situation which has been in place since 1 July 1999 until the Federal Court decision should continue. Whether you agree or disagree with this, I encourage you to have your say when you receive a letter from the Federal Secretary of the Union.”
As forecast by Mr Noonan, the Federal Secretary, Mr Allan, also wrote to all Tasmanian members of the union. His letter was dated 7 March 2000, but it was agreed before us that it was not sent until 8 or 9 March.
Mr Allan also commenced by referring to earlier events. He went on:
“The Federal Council is considering the implications of the Federal Court decision of 21 February 2000. Federal Council will hold a further meeting on 27 March, to consider whether or not to resolve that the Tasmanian Branch has effectively ceased to function and ought therefore be disbanded (rule 23(1)(e)). If this question is determined in the affirmative, Federal Council will also consider:
a)whether affected Tasmanian members should be attached to the Victorian Branch (rule 23(4));
b)whether the Victorian Branch should be renamed the Victorian/Tasmanian Branch (rule 23(5)(d));
c)the number by which the Branch Committee of Management of the Victorian Branch should be increased (rule 23(5)(c)(i);
d)whether a temporary additional Branch Committee of Management appointment should be made (rule 23(5)(c)(ii), and if so who should fill that position.
Any Tasmanian member interested in this matter is invited to make a written submission to Federal Council on the issues above to be determined by Federal council on 27 March 2000. Any submissions should be received at this office by post, fax or email no later than 12:00pm on 22 March 2000. All submissions will be distributed to Federal Councillors for consideration.” (original emphasis)
In accordance with the invitation of Federal Council, Mr Noonan prepared a report, dated 17 March 2000, in which he made recommendations, including the following:
“(a)The Tasmanian Branch should be disbanded. That Branch does not now function in any practical manner whatsoever and there is no basis to believe that it will be able to function into the future.
(b)Tasmanian members of the Union should be attached to the Victorian Branch and that Branch should be renamed the Victorian/Tasmanian Branch. This has been the reality since July 1999 and will ensure that Tasmanian members of the Union receive effective industrial representation, as well as best advancing the overall interests of the Union.”
In evidence before the primary Judge, Mr Noonan said that, at the time he prepared this report, he believed that, having regard to financial considerations, the Tasmanian Branch should be disbanded. He also said that, in coming to that opinion, he considered views to the contrary.
Mr Allan also prepared a report for Federal Council. It was dated 21 March 2000. The report set out the issues confronting Federal Council in relation to Tasmania. The report did not make specific recommendations, but concluded with a plea to Federal Council “to give primary concern to means by which Tasmanian transport workers can continue to receive effective representation by a union which is dedicated to their interests, the TWU”.
Mr Allan said in evidence that, as at 21 March 2000, it was his opinion that the Tasmanian operations of the union “could not survive by themselves”; Tasmania “had to have assistance. It could not stand alone”. Mr Allan denied closing his mind to arguments to the contrary.
It seems there were only three responses to Mr Allan’s invitation to Tasmanian members to express their views. Mr Hansch provided a submission dated 14 March 2000 in which he asserted that the Tasmanian Branch had not ceased to function “and therefore should not and cannot be disbanded”. He threatened legal action in response to any “further attempts by Federal Council to disband the Branch”. Another member, Allan Taylor, wrote a letter in which he expressed “the firm opinion that we need to be Attached [sic] to the Victorian branch simply because we are not strong enough at the moment to go it alone”.
The third communication was from Mr Lawrence, the second applicant at first instance. Mr Lawrence sent an email to Mr Allan on 15 March 2000 in which he offered to present a written submission on behalf of himself and three other members, including Mr Hansch and Mr Fisher, “on the provision that we can speak to the submission to Federal Council”. Mr Allan responded to that proposal with an email in which he said:
“As was set out in my letter to you and to all other Tasmanian members of the Union dated 7 March, 2000, Federal Council has established a process by which the views of all interested Tasmanian members of the Union in relation to the future of the Tasmanian Branch of the Union will be taken into consideration in Federal Council’s deliberations about this issue. This process provides for the opportunity for all members to provide written submissions in relation to the issues identified in my letter of 7 March 2000. These submissions should be received by the Federal Office of the Union by no later than 12.00 pm on 22 March and all submissions received will be distributed to members of Federal Council prior to the meeting on 27 March, 2000.
The process established by Federal Council does not make provision for individual members to be able to speak to submissions they may provide to the Union. Such an approach is impractical and would make unwieldy the deliberations and conduct of the special meeting of Federal Council. Additionally, I do not understand what matters you might wish to raise in speaking to your submissions, which could not be properly set out and explained in writing. If in effect what you seek is an opportunity to participate in Federal Council’s deliberations, such participation is not provided for in the rules of the Union or otherwise by law. The deliberations and ultimate decision on the issues to be considered is a matter for individual Federal Councilors (sic).
For the above reasons, in line with the process established by Federal Council and consistent with the procedure adopted in respect of all Tasmanian members of the Union, no provision will be made for you to be able to speak to any written submissions you may wish to provide to the Union. However, I take the opportunity to urge you to fully set out and explain in your written submissions, your views and their bases in relation to the issues to be considered by Federal Council. Your submissions in this regard will be fully taken into consideration by Federal Council in its deliberations.
In addition to expressing your opinions in the above way, I can also indicate that at the special meeting of Federal Council held on 6 March 2000, it was resolved that Mr Ken Bacon be invited to attend the special meeting of Federal Council on 27 March 2000 as he was the last Federal Councilor (sic) elected by Tasmanian members. You are of course free to make contact with Mr Bacon to inform him of your views on the issues to be considered by Federal Council and to ask that those views be expressed at the special Federal Council meeting.
I look forward to receiving any submissions you may wish to provide to the Union by 12.00 pm on 22 March 2000.”
Mr Lawrence did not provide a written submission.
On 22 March 2000 Mr Allen sent a memorandum to all other Federal Councillors advising details of the proposed Federal Council telephone conference on 27 March. The memorandum set out the following agenda:
“The meeting will consider whether or not to resolve that the Tasmanian Branch has effectively ceased to function and ought to therefore be disbanded pursuant to rule 23 (1E) Rules and if so:-
(a)whether or not the Affected Members of the Tasmanian Branch should be attached to the Victorian Branch pursuant to Rule 23(4) of the Rules; and
(b)whether or not the Victorian Branch of the Union should be re-named the “Victorian/Tasmanian” Branch pursuant to Rule 23(5)(d) of the Rules; and
(c)the number by which the Branch Committee of Management of the Victorian Branch should be increased pursuant to Rule 23(5)(c)(i) of the Rules; and
(d)whether or not, pursuant to Rule 23(5)(c)(ii) of the Rules, to appoint a person(s) to be the temporary additional member(s) of the Branch Committee of Management created by the above increase in the number of members of the Victorian Branch Committee of Management and if so, which such a person or persons.” (original emphasis)
Mr Allan enclosed, with the memorandum, copies of the reports prepared by Mr Noonan and himself, the submissions of Mr Hansch and Mr Taylor and his exchange of correspondence with Mr Lawrence.
The meeting did not proceed on 27 March. On 23 March 2000, and in the context of an application purportedly made under ss 218, 258 and 259 of the Workplace Relations Act 1996, Heerey J made an interim order preventing the disbandment of the Tasmanian Branch of the union until 30 March 2000 or earlier order. As a consequence of this order, Mr Allan postponed the meeting.
On 30 March 2000 Marshall J set aside the interim order. Later that day, Mr Allan reconvened the meeting, for 4pm EST on the following day.
The meeting was held on 31 March. The written submission of Mr Hansch was read out in full. Mr Taylor’s submission was summarised. Mr Allan and Mr Noonan each responded to a request by the Federal Vice-President “to speak to his report”:
Marshall J described what then happened:
“The Federal Council proceeded to make a number of resolutions including the following:
‘Having regard to the above submissions and reports distributed by the Federal Secretary, Federal Council concludes that the Tasmanian Branch has effectively ceased to function on the basis that, as a matter of practical reality, it has ceased to perform the functions provided for it under the Rules, being the business of the Union within the State of Tasmania. Federal Council accordingly resolves to disband the Tasmanian Branch pursuant to Rule 23(1)(e).’
‘Having regard to the submissions and reports distributed by the Federal Secretary, Federal Council concludes that an appropriate means by which Tasmanian members of the Union may participate in the affairs of the Union and which will promote the efficient management of the Union is for those members to be attached to the Victorian Branch. Federal Council accordingly resolves pursuant to Rule 23(4):
(a)Not to reconstitute the Tasmanian Branch; and
(b)to attach the Tasmanian members of the Union to the Victorian Branch.’
The Federal Council also resolved to re-name the Victorian Branch as the Victorian/Tasmanian Branch and to increase the number of members of the Committee of Management of that Branch by one. A Tasmanian member, Mr Mason, was appointed to that office pending the holding of an election for that position.”
By agreement, counsel informed us that the decision of the Federal Council was unanimous.
Natural justice
The first contention of Mr John Green, counsel for Mr Hansch, is that the resolution of Federal Council of 31 March 2000 was null and void for want of natural justice. He says natural justice was denied three times over:
(i)because Tasmanian members of the union were not advised of the fact that the meeting of Federal Executive would be held on 31 March rather than 27 March;
(ii)because persons who were officers of the Branch prior to the invalid resolution of 7 July 1998 were not advised that the effect of the Full Court decision was to restore them to their offices; and
(iii)because there was no Tasmanian Branch Secretary at Federal Council to represent Tasmanian members.
It seems to us there is nothing in any of these points.
As is better indicated by its more usual contemporary name, procedural fairness, natural justice is a concept that pertains to procedural, rather than substantive, obligations. It is concerned with the giving of notice, but not with the giving of legal advice. So it is apparent that item (ii) is misconceived. Some, at least, of the former Tasmanian Branch office bearers would have known of the Full Court decision before they received Mr Noonan’s letter of 6 March 2000. Mr Noonan’s letter conveyed the news to any who were previously unaware. It may have been obvious to the former office-bearers that the effect of the decision was to restore the position that existed before the invalid decision. Even if it were not, the Federal Council was not required, as a matter of natural justice, to spell out the legal consequences of the Full Court decision. Even assuming (without deciding) that the Federal Council was under natural justice obligations to affected members – that is, all the Tasmanian members – in connection with the proposal to disband the Branch it would have been necessary, at the most, for it to notify them of the proposal and to give them an opportunity to make representations about it. That is all.
The third item also seeks to burden Federal Council with a substantive obligation. Federal Council did, in fact, attempt to procure the attendance of someone who might speak directly for Tasmanian members. The former Tasmanian Branch Secretary, Mr Bacon, was invited to attend the meeting. The rationale for this invitation was that he was the person who had most recently directly represented Tasmania on Federal Council. Mr Bacon did not attend the meeting but that was not the fault of any of the respondents. Even if no invitation had been given to Mr Bacon, this would not be a denial of natural justice.
In relation to the first item, Mr Green concedes that all the Tasmanian members were notified of the proposed 27 March meeting of Federal Council, and were given an opportunity to provide written submissions (by 22 March) for consideration at that meeting. Mr Green makes no complaint about the substance or form of the notification or the sufficiency of the time allowed for submissions. Neither does he contend Federal Council was obliged to allow members to put oral submissions to the meeting.
When the postponement decision was taken, the time for lodgment of written submissions had already expired. Everyone who was entitled to attend the Federal Council meeting was advised of the new meeting time. So it can make no difference to Federal Council’s compliance with its natural justice obligations that the meeting was postponed from 27 to 31 March, in deference to the order made by Heerey J.
Invincible bias
Mr Green submitted that the Federal Council decision was vitiated by the “invincible bias” of Mr Noonan and Mr Allan. Mr Green explained that he used the term “invincible bias” to refer to a situation where a person has formed an opinion so fixed that he or she is not open to be swayed by contrary argument, however compelling.
There are several problems about this ground. First, it is difficult to see how a unanimous decision of 23 persons can be vitiated by the closed minds of just two of them. Second, the submission assumes that the principles governing discharge of judicial and quasi-judicial duties apply to the discharge of a political responsibility. Persons are frequently elected to public office, or office within an organisation, precisely because of an announced commitment to a particular policy. They are entitled (some would argue, morally bound) to give effect to that policy. Mr Green cited no authority for the proposition that a political or policy decision might be invalidated by a prior commitment to a particular viewpoint. We know of none. Third, and regardless of the first two points, the argument about “invincible bias” lacks any factual foundation. Not only is there no finding that Mr Noonan and Mr Allan had irrevocably closed minds about the necessity to disband the Tasmanian Branch, Marshall J accepted the evidence of each man that he was prepared to listen to contrary argument.
Illegality
Finally, it is argued that the Federal Council’s resolution was illegal. Mr Green explained that he meant by this that Federal Council had no legal authority to disband the Branch. This was because, in apparently concluding that the Tasmanian Branch had effectively ceased to function, the Federal Council relied upon the consequences of its decision of 6 July 1998, which was declared null and void by order of the Full Court. Mr Green’s submission is that the National Council cannot rely on its own illegal acts.
At least implicit in this submission is that, prior to the decision of the Federal Council of 6 July 1998, the Tasmanian Branch had not ceased to function and only did so thereafter as a consequence of the decision. No finding to this effect was made by the trial Judge; the point does not appear to have been put to him. Our attention was not drawn to any evidence which would support such a finding. In the absence of any factual foundation which would support the application of any such principle (the existence of which we are, for present purposes, prepared to assume), the point has no substance.
Disposition
All the grounds of appeal argued by Mr Green fail. The appeal should be dismissed.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. Associate:
Dated: 28 March 2001
Counsel for the Appellant: J Green Solicitor for the Appellant: John Green Counsel for the Respondents
(other than R D Marles):R W Hinkley Solicitor for the Respondent
(other than R D Marles):Jeremy Smith Date of Hearing: 1 March 2001
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