Hickson v Australian Electoral Commission
[1997] FCA 779
•19 August 1997
FEDERAL COURT OF AUSTRALIA
INDUSTRIAL LAW - Election inquiry - Nomination of candidate - Nomination rejected on ground that one of ten nominators was unfinancial at nomination date - Rule requiring Returning Officer to notify nominee of any perceived defect in nomination and allow opportunity to rectify defect within seven days - Within seven days alleged unfinancial nominator paid all arrears of contributions and an additional person (being a financial member) joined in the nomination - Whether defect cured - Application of rule to defect caused by a nomination being unfinancial.
Workplace Relations Act 1996, s 197(1)(c), (4), Division 5 of Part IX
DAVID HICKSON v AUSTRALIAN ELECTORAL COMMISSION and PAUL BASTIAN
NI 1123 of 1997
JUDGE: WILCOX J
PLACE: SYDNEY
DATED: 19 AUGUST 1997
IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) NI 1123 of 1997 ) GENERAL DIVISION )
BETWEEN: DAVID HICKSON
ApplicantAND: AUSTRALIAN ELECTORAL COMMISSION
First Respondent
PAUL BASTIAN
Second Respondent
JUDGE: WILCOX J PLACE: SYDNEY DATED: 19 AUGUST 1997
MINUTES OF ORDER
THE COURT:
DETERMINES the following irregularities have occurred in relation to the election for the office of State Secretary of the New South Wales Branch of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (“the Union”), the result of which was declared on 18 March 1997:
(a)Contrary to subrules 10 and 11 of Part “A” of Rule 2, “Elections and Voting”, of the Rules of the Union, the Returning Officer rejected the nomination of the applicant for the said office;
(b)Contrary to the said subrule 11, the Returning Officer declared Paul Bastian, the second respondent, elected to the said office without a ballot having been held, despite the alleged defect in the nomination of the applicant for the position having been remedied not later than seven days after the applicant was notified by the respondent of the alleged defect.
DECLARES THAT:
(a)the result of the said election may have been affected by the said irregularities;
(b)the applicant, David Hickson, was validly nominated for election to the said office;
(c)the decision of the Returning Officer to reject the nomination of the applicant is void;
(d)the declaration of the result of the said election is void; and
(e)Paul Bastian was not duly elected to the said office.
DIRECTS the Industrial Registrar to make arrangements for an election for the said office, subject to the following:
(a)The candidates for that election shall be David Hickson and Paul Bastian;
(b)The roll of voters in the election shall consist of all persons eligible under the Rules of the Union to vote in an election for the said office as at 30 September 1997 and updated 14 days prior to the opening of the ballot; and
(c)The ballot for the said election shall open on 28 October 1997 and close on 18 November 1997.
ORDERS that Paul Bastian continue to act in the position of State Secretary of the New South Wales Branch of the Union until the declaration of the ballot ordered by the Court.
GRANTS liberty to apply in respect of the above directions and orders.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) NI 1123 of 1997 ) GENERAL DIVISION )
BETWEEN: DAVID HICKSON
ApplicantAND: AUSTRALIAN ELECTORAL COMMISSION
First Respondent
PAUL BASTIAN
Second Respondent
JUDGE: WILCOX J PLACE: SYDNEY DATED: 19 AUGUST 1997
REASONS FOR JUDGMENT
WILCOX J: Application has been made to the Court for an inquiry, pursuant to Division 5 of Part IX of the Workplace Relations Act 1996, into an election for a position within the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (“AMWU” or “the Union”). On 18 March 1997, the second respondent, Paul Bastian, was declared elected unopposed as State Secretary of the New South Wales Branch of the Union. This was done after the Returning Officer, Lee Jones, had rejected, as defective, a nomination for the position submitted by the applicant, David Hickson. The Returning Officer was initially named as first respondent to the application. However, when the matter came on for hearing, by consent of all parties, his employer, the Australian Electoral Commission, was substituted in that position.
The Rules
Part “A” of rule 2 (“Elections and Voting”) of the AMWU Rules applies to elections to the office of State Secretary of a Branch. Subrule 4(a) requires an election every four years for each of the offices of State President, State Secretary and Assistant State Secretary. There are stipulated qualifications for candidates (subrule 4(b)). Subrule 4(e) requires ten nominators for positions governed by the subrule.
Subrule 8 deals with nominations. Paragraph (a) requires the nomination to be in writing in a prescribed form, “signed by the nominee and by the required number of nominators”, and forwarded to the Returning Officer in time to reach him or her before the closing date for lodging nominations. Paragraph (d) provides:
“(d)A nominator for offices under this Rule shall be a financial member of the Union and, having regard to the office in question, a member in the relevant State, Region, Zone or Division at the closing date for lodging nominations.”
Subrule 10 is important to the argument in this case. It reads:
“10.Where the Returning Officer finds a document purporting to be a nomination of a person as a candidate at an election under this rule is defective, the Returning Officer shall:-
(a)notify the person by notice in writing sent by telegram, facsimile or other means whereby the notice can be delivered to the candidate as soon as practicable of particulars of the defect or defects; and
(b)advise him/her that if he/she remedies the defect or defects he/she should so advise the Returning Officer by notice in writing forwarded to the Returning Officer at the place determined by him/her under this rule so as to reach him/her no later than 7 days after the date of sending the notice referred to in the previous paragraph.”
Rule 35 deals with financial membership of AMWU. Subrule 1 provides that, subject to any other specification in the Rules:
“... a member shall not be financial whilst in arrears with the payment of any contributions, fines, or levies such having to be paid by the last day of the quarter in which they fall due; once so paid the member again becomes financial.”
For the purposes of the rule, quarters are January-March, April-June, July-September and October-December. Subrule 2 makes provisions regarding payment of contributions by payroll deduction. A member who has authorised a payroll deduction from his or her salary is deemed to be financial for so long as the authority remains in force.
Rule 38 is headed “Contributions and Arrears”. It includes subrule 7:
“Every member not more than 12 months in arrears shall be supplied with a membership contribution card which shall be proof of membership and financial standing. The member shall be held responsible for its presentation for all purposes of these rules.”
The facts
The applicant, at all material times, was a financial member of AMWU and a person qualified for election as State Secretary of the New South Wales Branch. Prior to the closure of nominations on 4 March 1997, he submitted to Mr Jones a nomination for that position. The nomination was in the prescribed form. It was fully completed and signed by the nominators and endorsed by Mr Hickson himself, signifying his acceptance of the nomination. The nominators’ membership numbers were stated, as required by the prescribed form.
On the day following closure of nominations, by some means not revealed by the evidence, Mr Jones received a copy of an internal AMWU memorandum containing a reference to alleged arrears of contributions by one of Mr Hickson’s nominators, Mark Anthony O’Brien. Mr Jones reacted to this information by writing a letter to Mr Hickson in these terms:
“Your nomination for the office of State Secretary is defective as the organisation’s records show that one of your nominators, Mark O’Brien, is not a financial member of the Union as required by the rules of the organisation.
Unless you can produce evidence to the contrary by not later than 12 Noon on 12 March 1997, I will be obliged to reject your nomination.”
On 11 March 1997, Mr Hickson responded by a letter which said, in part:
“Referring to your letter 5 March 1997 regarding my nomination for the office of State Secretary of the AMWU, NSW Branch, stating that the AMWU records allege that Mark O’Brien is not a financial member of the union. Mr O’Brien has informed me that he believes he is a financial member of the AMWU, attached is an original copy of his January - March (financial) Membership ticket.
Given that Mark O’Brien is in possession of an up to date membership ticket I find it somewhat strange that union records would not reflect this fact ...
Presumably possession of a ticket issued by the union stating that the individual is financial (regardless of the other circumstances) is enough to show that the person is a financial member of the union. I would suggest that if there is an administrative error of some kind (or otherwise) then it has occurred in the office of the AMWU.
Without prejudice, enclosed is a nomination from a substitute for Mark O’Brien should his nomination not be allowed.
Finally in my view it would be grossly unjust to exclude me from the ballot on the basis of records which are obviously inaccurate.”
Mr Hickson enclosed a letter from Mr O’Brien asserting the latter’s belief that he was a financial member of the Union, stating his reasons for that belief, and attaching a copy of his membership card for the January-March 1997 quarter. The original card, with an accompanying tear-off section, is in evidence. It describes Mr O’Brien as “Financial Member” and sets out his membership number, name, address and workplace details. The accompanying tear-off section contains a statement of account. It shows a nil balance at 31 December 1996 and dues of $60.20 for the January-March 1997 quarter. Underneath the words “To be financial pay this amount before 31/03/97”, there is a large arrow pointing to the bottom line of the account, which reads “Amount Now Due $60.20”.
Mr Hickson also enclosed a second nomination form, again in the prescribed form. This form was completed by a new nominator, Robin Rahill. Mr Rahill properly completed his section of the form; Mr Hickson’s particulars were again set out, but he did not sign this form.
The letter of 11 March reached Mr Jones on or about 12 March. Mr Jones made inquiries as to whether Mr O’Brien’s employer, the State Rail Authority, had made payroll deductions from his salary. He was not satisfied deductions had been made. Accordingly, he decided to reject Mr Hickson’s nomination. In a letter to Mr Hickson of 18 March, he explained his reasons:
“I have rejected your nomination for the office of State Secretary as your nominator, Mr Mark O’Brien, was not a financial member of the Union, as required by the rules of the organisation, at the time of the close of nominations.
A nomination which is defective for the above reason can only be remedied if the ‘unfinancial’ nominator is proved to have been financial at the close of nominations. It can not be remedied after the close of nominations by having the nominator becoming financial or by substituting the nominator with another member who is financial.
Although Mr O’Brien appears to have paid his outstanding dues on 7 March 1997, this does not change his financial status at 4 March 1997 which was the date of the close of nominations. Mr O’Brien’s financial status at 4 March can not be altered retrospectively.
I note that you have also supplied me with a second nomination form which has been signed by a further nominator, Robin Rahill. As advised above an unfinancial member can not be replaced by a new nominator.”
On the same day, Mr Jones issued a declaration of results for uncontested offices in the Union. Mr Bastian was declared elected as State Secretary in New South Wales. Mr Hickson’s solicitors challenged the correctness of that declaration but Mr Jones maintained his position. On 1 April 1997, the solicitors filed an application for an inquiry.
Submissions
At the hearing of the application, Mr Hickson was represented by Mr L Wright QC and Mr A Hatcher. Mr G Johnson appeared for the Australian Electoral Commission to support Mr Jones’ decision. Mr W Haylen QC appeared for the Union and Mr L Riches for Mr Bastian, both also supporting Mr Jones.
Mr Hickson’s challenge to Mr Jones’ action was put on three levels. First, he attempted to show that Mr O’Brien was in fact a financial member of the Union when he joined in the nomination of Mr Hickson. For this purpose, he adduced affidavit evidence from himself and Mr O’Brien. The various respondents replied with affidavits tending to show that Mr O’Brien was not financial at the date of nomination. The result was to present the Court with a factual issue that could only be resolved by ascertaining what instructions had been given about Mr O’Brien’s payroll deductions and what action had been taken by the State Rail Authority.
Second, Mr Hickson said that, even if Mr O’Brien was not financial because of his employer’s failure to deduct and remit his contributions, at the relevant time he held a membership contribution card which showed him to be a financial member of the Union; by virtue of rule 38.7, this card constituted “proof of membership and financial standing”. Mr Wright said it was unnecessary to look behind the card and determine whether he was in fact financial. Moreover, it was inappropriate to do so. To take this course would be to impose an unreasonable checking burden on candidates for office, especially those who were not present incumbents with access to the Union’s membership records. The Rules ought to be applied in such a way as to allow other members to rely on the card. The contrary argument, put by Mr Haylen, was that subrule 7 of rule 38 refers merely to “proof of membership”; it does not say the card constitutes conclusive proof, so it may be contradicted by evidence as to the true position.
The applicant’s third submission is it does not matter whether Mr O’Brien was a financial member at the time of nomination or whether the contribution card was conclusive of his status; Mr Hickson remedied any defect within seven days; indeed, he did so twice over.
I think this last submission is correct. Accordingly, I need not pursue the factual contest between the parties concerning Mr O’Brien’s membership status or determine the effect of subrule 7 of rule 38. I will confine my reasons to the third point. It will be necessary to make orders setting aside the declaration of the result of the election and ordering a fresh election.
Remedying the defect: background
It will be recalled that subrule 10 of rule 2 arises where the Returning Officer “finds a document purporting to be a nomination of a person as a candidate at an election under this rule is defective”. The condition of the subrule’s operation is that the Returning Officer receives a document that purports to be a nomination but fails to comply with the rules; because of that failure, the nomination is defective. The evident purpose of the subrule is to provide the nominee an opportunity to remedy the deficiency, thereby saving the nomination from rejection. To that end, the Returning Officer must notify the nominee “as soon as practicable” of particulars of the defect or defects, and allow a period of seven days for remediation. The implication is that, if the defect is remedied within that time, the nomination is to be treated as redeemed and allowed to stand.
It seems probable that subrule 10 of rule 2 was inserted into the AMWU rules in order to meet a long-standing requirement of federal industrial legislation. The requirement was first enacted in 1973, as para (c) of a substituted subs (1) of s 133 of the Conciliation and Arbitration Act 1904. The paragraph was re-enacted, in almost identical language, as s 197(1)(c) of the Industrial Relations Act 1988. It survived unchanged the metamorphosis of that statute into the Workplace Relations Act 1996. The current provision reads:
“197(1) The rules of an organisation:
(a) ...
(b) ...
(c)shall provide that, if the returning officer conducting an election finds a nomination to be defective, the returning officer shall, before rejecting the nomination, notify the person concerned of the defect and, where practicable, give the person the opportunity of remedying the defect within such period as is applicable under the rules, which shall, where practicable, be not less than 7 days after the person is notified; ...”
That paragraph should be read with s 197(4), also enacted in 1988:
“(4)The reference in paragraph (1)(c) to a nomination being defective does not include a reference to a nomination of a person that is defective because the person is not qualified to hold the office to which the nomination relates.”
It will be noted that s 197(1)(c) speaks of a “nomination” being defective, rather than “a document purporting to be a nomination”. But it is difficult to think there is any difference in meaning. As the “nomination” is one that is found to be defective, in s 197(1)(c) the word must refer to something that purports to be a nomination but fails to comply with some requirement of the rules; that is, it is defective.
In Re Election for Office in Australian Building Construction Employees’ and Builders Labourers Federation (1978) 30 FLR 252 (“BLF”), J B Sweeney J considered the effect of a provision of the Conciliation and Arbitration Regulations (reg 146AE(2)) that was in terms similar to the AMWU subrule. The inquiry concerned an election for positions as trustees. The Returning Officer had received a nomination in favour of a member named Burns. On investigation he formed the view that one of the nominators had not been validly appointed as an honorary member of the federation, as was claimed. He notified Mr Burns of this defect and gave him the opportunity to rectify it. Mr Burns submitted a fresh nomination but the Returning Officer rejected this nomination also, on the basis that one of the new nominators was not a qualified nominator under the federation’s Rules. The Returning Officer declined to give Mr Burns a further chance to rectify the problem and J B Sweeney J held this decision was correct. His Honour said the reference in the regulation to documents lodged at the place and within the time specified under reg 146AC is a reference to the first nomination only: “(t)he intention of the regulation is to afford a candidate one opportunity of remedying a faulty nomination, but he is not entitled to have seven days’ notice given to him in which to remedy any subsequent nomination which may also be faulty”.
J B Sweeney J’s view about a further notice is immaterial to this case. But it is relevant to note his Honour supported the action of the Returning Officer in giving Mr Burns one chance to obtain a fresh nomination. He said at 255 the “returning officer’s duty under the rules and reg 146AE was to advise Mr Burns by telegram the reasons why the nomination was invalid and ... notify him that a further nomination might be lodged“ within seven days. Obviously, his Honour did not consider nomination by an unqualified person to be an irremediable defect falling outside the terms of reg 146AE.
In Re Application by Shahid Naqvi (26 March 1981, not reported) J B Sweeney J considered a similar question in the context of rule 2 of a predecessor of AMWU, the Amalgamated Metal Workers’ and Shipwrights Union, which imposed on the Returning Officer an obligation:
“Where any defective nomination occurs, to notify the member concerned of the defect and, where practicable, afford such member the opportunity of remedying same, such to be done no later than 7 days after being so notified.”
The case differed from BLF in that the applicant’s nomination had been rejected on the basis that he himself was unfinancial. J B Sweeney J held the rejection was wrong; the applicant was a financial member at the time of nomination. This was enough to dispose of the case. But his Honour commented upon a submission that the words ”defective nomination” in rule 2 referred only to defects in the nomination document. He said:
“In my view, the term used in the rule, ‘defective nomination’, covers the whole act of nominating, including the requirement that a member be financial.”
Moreover, his Honour thought Mr Naqvi would have been entitled to remedy any defect, and become financial, either by paying any outstanding contributions or seeking an exemption.
Having regard to s 197(4) of the Act, it may now be permissible to frame a rule that would preclude the application to a future case of the last-mentioned view of J B Sweeney J. Financiality may arguably be an element in the nominee being “qualified” to hold the relevant office. It is not necessary to determine that matter. Nor is J B Sweeney J’s comment about the width of the term “defective nomination” directly applicable to this case; this case relates to a rule concerning “a document purporting to be a nomination” that is found to be defective. The significance of Naqvi is simply the attitude of J B Sweeney J to the rule: his readiness to read it expansively and treat it as providing a generous opportunity to remedy a defect.
Keely J considered this decision in Re Australasian Meat Industry Employees Union (19 July 1988, not reported). That case concerned alleged defects in nominations for candidates at elections for certain offices in the Victorian branch of the union. One nomination was rejected on the ground that the nominee was not a financial member of the union. Nominations to two other offices were rejected because a person who was one of the two nominators in each case was not a financial member. The relevant provision was rule 53(18)(b), as follows:
“(b) The Returning Officer shall have the right in accordance with these rules to accept or reject such nominations; provided that if he rejects any nomination, the following provisions shall have effect:-
(I)The Returning Officer shall notify the person concerned of the defect in the nomination; and
(ii)The Returning Officer shall, where practicable to do so, give the person concerned the opportunity of remedying the defect within seven (7) days after being notified of the defect.
(iii)If the person concerned within such period is able and does in fact remedy the defect in the nomination in accordance with these rules, the Returning Officer shall thereupon accept such nomination.”
Keely J considered several issues. It is necessary to mention only those parts of his reasons that deal with the consequences of unfinanciality of a nominee and unfinanciality of a nominator. The former part is important, not because it reflects the situation in the present case, but because it casts light on Keely J’s approach to the second matter.
In relation to the first matter, Keely J referred to a submission by Mr A M North for the successful candidates and Mr G Moore for the Australian Electoral Commission that unfinanciality of a nominee was a defect that could not be remedied under rule 53(18)(b) because rule 50 required the nominee to be financial “at the time of nomination”. Counsel said it would not be “practicable” to “remedy” that defect after the closing of nominations; a payment of outstanding dues could not have a retrospective effect. They also said that, in inserting rule 53(18)(b), the union could not have intended to over-ride the rule requirement that nominees be financial “at the time of nomination”. Keely J accepted this submission. In so doing, he expressed disagreement with the observation of J B Sweeney J in Naqvi that the words “defective nomination” covered “the whole act of nominating, including the requirement that a member be financial”. Keely J did not explain the significance of the word “practicable”, used by counsel. That word did not appear in the rule. Nor did he explain the basis of his assumption about the union’s intention.
Turning to the position of an unfinancial nominator, Keely J noted submissions by Mr R Tracey, for the applicant, and Mr Moore, that the defect could be remedied. However, the reasons for judgment suggest Mr Moore immediately made a major concession; he said the defect could not be remedied by the nominator paying his outstanding dues and becoming financial as this would do violence to the requirement that the nominator be financial at the time of nomination. But he contended a new nominator could be obtained, provided that person was financial at the date of nomination. Keely J said:
“In my opinion, by the same reasoning process, the rules require not only that the ‘nominator’ be financial at the time of nomination but also that he be the nominator at that time. Mr. Moore accepts that, after the closing of nominations, it is too late for a nominator (or a candidate) by paying contributions to become financial retrospectively i.e. at the time when nominations closed. In my opinion, for essentially the same reasons, it is too late for a person to become a nominator at that time.”
It followed, his Honour thought, that rule 53(18)(b)(i) did not empower the Returning Officer to give the nominee an opportunity of remedying the defect in the nomination.
I would not criticise the logic of Keely J’s response to Mr Moore’s submission. If the concession made by Mr Moore was correct, his Honour’s conclusion naturally followed. But was the concession correct? The case concerned a “defect in the nomination” occasioned by the unfinanciality of a nominator. Why could the nominee not cure that defect, within the permitted seven days, either by obtaining a new nominator, as Mr Moore contended, or by arranging for the existing nominator to make himself financial, as Mr Moore denied? In neither case, of course, would the nominator be a person who was both a nominator and financial at the date of nomination, as rule 50 required. But rule 53(18)(b) assumed non-compliance with some rule; otherwise there would be no “defect in the nomination”. What was there in rule 53(18)(b) to exclude its application to a nomination whose defect took the form of a nominator being unfinancial at nomination day? Keely J did not say. The only clue given in his reasons was his acceptance of a submission about the presumed intention of the union not to over-ride its rules’ requirement for nominees to be financial at the time of nomination, and his extension of this reasoning to nominators. But the same attitude could be taken to any rule requirement. No doubt the union had a general desire that all its rules be observed. But it recognised, if only because it was required to do so by legislation, that there might be occasions when they were not observed, in relation to nominations. To meet that possibility, it provided a limited opportunity for the nominee to remedy the non-compliance. That provision was itself in the form of a rule, which was no less important than any other rule. Rule 53(18(b) operated, in effect, as an exception to rule 50 and every other rule relevant to nominations.
Keely J referred to Australasian Meat Employees in Re Finance Sector Union of Australia; Re Hall (1994) 58 IR 19. The nominator there was not a member of the relevant Branch Committee as required by the union’s rules. His Honour mentioned s 197(4) of the Act:
“In my opinion the latter section, which was inserted in 1988, was inserted to make it quite clear that the nomination of a person who ‘is not qualified to hold the office to which the nomination relates’ does not constitute a ‘defect’ in the nomination within the meaning of s 197(1)(c) of the Act. It is not merely a ‘defective’ nomination because it is a purported ‘nomination’ of a person who, under the rules, is not qualified to hold the office. In my opinion the same reasoning applies where, as here, the purported nominator is a person who, under the rules, is not qualified to nominate a person for the office in question. In both cases the document claimed to be a ‘nomination’ is not merely a ‘defective nomination’. I accept the submission by the union’s counsel that it is ‘fundamentally flawed’ and is not a defective nomination that can be remedied”.
In this case there is, with respect, a problem about logic. Keely J relied on s 197(4) for the conclusion that unfinanciality of a nominee constitutes an irremediable defect; if that is so, it must be because financiality is a qualification for the office. He then applied “the same reasoning” to the problem of an unfinancial nominator, ignoring the fact that s 197(4) was limited to nominees. In other words his Honour applied a statutory provision to a situation to which it did not extend.
Remedying the defect: conclusions
It is apparent there is a significant difference between the approaches of J B Sweeney J and Keely J to provisions giving an opportunity to remedy a defective nomination. Keely J read such provisions restrictively, as excluding the opportunity for a nominee to remedy a defect arising out of non-compliance with a rule requirement. The difficulty about that approach is that the issue only arises where the nomination is “defective”, that is, it fails to comply with the rules; so any rectification must have the effect of allowing to go to ballot a nomination that originally contravened the rules. Keely J sought to meet that point by drawing a distinction between a defective nomination and one that was “fundamentally flawed”. But he did not explain at what point a defective nomination should be regarded as fundamentally flawed. To say that a “fundamentally flawed” nomination is one that cannot be remedied is to engage in circular reasoning.
The approach of J B Sweeney J, in contrast, was to read provisions like subrule 10 of rule 2 liberally, so as to enable any defect to be remedied; but there was to be only one opportunity for remediation.
With respect to Keely J, I think this is the better interpretation of such provisions. There is nothing in the AMWU Rules justifying a distinction between a “defective” nomination and one that is “fundamentally flawed”. A nomination either complies with the Rules or does not. If it complies, there is no occasion to resort to subrule 10 of rule 2. If it does not, the nomination is defective or, to use a synonym, “flawed”. Of course, the relevant document must purport to be a nomination: it must be a document that proposes a particular person for a particular office. But if it answers that description, no question of degree arises; if the nomination is not good, it is bad. The word “fundamentally” adds nothing. If it is defective, the AMWU subrule requires the Returning Officer to give the nominated person the opportunity to remedy the defect within seven days. The rule contains no restriction on the way this may be done.
In terms of policy, everything favours the Sweeney approach. That approach requires the prompt identification and notification of any defect, and a single opportunity to remedy it, exercisable within seven days. If the defect is remedied, the nomination can be included in the ballot, very likely without any delay having been occasioned. If it is not remedied, that is likely to be the end of the matter. On the Keely approach, a question of degree may arise as to whether the defect is a “fundamental” flaw, and therefore not remediable. This may give rise to litigation. In the case of a nomination by a person said to be unfinancial, the Keely approach excludes easy and obvious solutions such as the nominator paying the alleged arrears or a new nominator being found, with the result that the nominee may feel little choice but to litigate the question whether the particular nominator was in fact unfinancial on the day of nomination. The potential complexity of such an issue is illustrated by the detailed evidence in the present case concerning the Union’s records and the State Rail Authority payroll deduction system, none of which has anything to do with the welfare of Union members or the merits of the nominees. And the uncertainty this may occasion is illustrated by the Australasian Meat Employees case, in which judgment was delivered nearly two years after nominations closed.
Another policy consideration is the effect on candidates. An aspiring candidate (especially a non-incumbent candidate without access to membership records) cannot reasonably be expected to investigate the history of the financial relationship between the Union and each of the people he or she invites to act as a nominator; if a potential nominator claims to be financial, the candidate has little option but to accept that assurance. However, on the Keely view, the candidate does so at peril. If the assurance turns out to be wrong, however small the outstanding contributions, the nomination is irremediably bad. And this is so, even if the problem concerns only one of ten nominators.
The apparent purpose of a provision such as subrule 10 of rule 2 is to ensure candidates for election have some support amongst their fellow-members; thereby reducing the incidence of unnecessary ballots and unnecessarily cluttered ballot-papers. That purpose is fulfilled by the Sweeney approach; unless within seven days the candidate has the active support of the required number of nominators, the nomination must be rejected.
In the present case, within seven days the defect identified by Mr Jones was remedied twice over. First, Mr O’Brien paid all his outstanding contributions on 7 March. Whatever might have been his position on 4 March and the effect of the endorsement on his membership card, he was clearly a financial member on 7 March. If the defect in the nomination was that only nine of the original nominators were financial members, by 7 March that was no longer so. Second, Mr Hickson secured an additional nominator, Mr Rahill. Mr Rahill was a financial member of the Union at all material times. If the defect was that Mr Hickson was nominated by only nine financial members, that was no longer true.
Mr Haylen pointed out that Mr Rahill’s nomination form was not signed by Mr Hickson. He said this meant that Mr Rahill’s nomination was itself defective. I do not agree. The words appearing above Mr Rahill’s particulars and signature were: “We, the undersigned financial members (of AMWU) hereby nominate David Hickson 2444569 for election to the position of State Secretary”. Mr Rahill completed the act of nomination by subscribing that statement. The purpose of having the nominee sign a nominator form was to ensure that any nominee admitted to the ballot was willing to be elected to the relevant office. Mr Hickson had already indicated his willingness, by signing the first nomination form. There was no need for him to do so again; the document signed by Mr Rahill was not a new nomination of a candidate but a remediation, by the addition of a new nominator, of a supposed deficiency in an existing nomination.
Orders
In large measure the parties are agreed as to the orders that ought to be made to give effect to a conclusion in favour of the applicant. The dates they propose for opening and closing the ballot are later than I would have wished. But I understand these dates are those already chosen in respect of elections to some other offices in the Union. That being so, I accept their proposed timetable. The disadvantage of delay is outweighed by the cost savings and convenience of making the ballots coincide.
There is disagreement about two matters relating to orders. First, the applicant seeks to have included amongst the findings of irregularity the failure of the Returning Officer “to advise the applicant that an alleged defect in his nomination for the office of State Secretary could be remedied not later than seven days after notification of the alleged defect”. The respondents oppose this finding on the basis that this issue was not litigated. I agree. Moreover, if this was the only irregularity, given the applicant’s knowledge of the situation and subsequent action, I doubt that it would be appropriate to make any substantive order: see s 223 of the Act. Without endorsing the form of Mr Jones’ letter of 5 March, I do not propose to include this finding.
The second area of disagreement concerns an application by the Australian Electoral Commission for an order granting leave to appeal to a Full Court. This application is supported by the Union and Mr Bastian but opposed by Mr Hickson.
Until the 1996 amendments to the Act, there was no facility for appeal to a Full Court from a judgment of a single Judge in an election inquiry: see s 421 of the Industrial Relations Act 1988. That provision reflected a longstanding legislative policy, apparently based on concern about the unsettling effect of prolonged litigation regarding the tenure of office in a registered organisation. But the policy had the disadvantage that there was no capacity for a Full Court to resolve differences between single Judges on issues of law. Moreover, it was not wholly effective in preventing prolonged litigation; parties sometimes resorted to applications for prerogative relief: see The Queen v Gray; ex parte Marsh (1985) 157 CLR 351 and The Queen v Keely; ex parte Kingham (1995) 1 IRCR 311. The new form of s 421, inserted in 1996, attempts to meet these problems. It provides a facility for appeal; thereby hopefully eliminating applications for prerogative relief. But it enables the Court to restrict the occasions for appeal; thereby hopefully avoiding the unnecessary prolongation of litigation, especially about factual matters, and consequential delay in determining election outcomes.
In the present case there is a substantial argument in favour of a grant of leave to appeal. There are conflicting first instance decisions on a matter of general importance. It is particularly understandable that the Australian Electoral Commission wishes to have a decision of a Full Court on the issue I have determined. Officers of that Commission regularly act as Returning Officers in elections for offices within registered organisations. It is almost inevitable that, from time to time in that capacity, those officers will receive a nomination signed by a person who appears not to have been financial at the date of nomination. An officer in that situation will have to determine the appropriate course to take and will be confronted with conflicting decisions of Judges of this Court.
On the other hand, I have to bear in mind that this consideration concerns only the Australian Electoral Commission, not any participant in the election. An appeal would involve Mr Hickson incurring significant legal costs. It seems wrong to impose a costs burden on an individual, interested only in the conduct of a particular election in a particular organisation, simply to allow a public authority to obtain guidance for its conduct of future elections in organisations generally. In saying this, I particularly bear in mind the terms of s 347 of the Act. Even if an appeal was dismissed, it is unlikely that Mr Hickson could persuade the Full Court that the appeal had been instituted vexatiously or without reasonable cause.
Having regard to these considerations, it seems to me appropriate to grant leave to appeal to the Commission, but only if it is prepared to give an undertaking to pay Mr Hickson’s reasonable costs of the appeal, as assessed if necessary by a taxing officer of the Court. That puts the burden where it belongs; public funds being used to determine a matter that is primarily one of public importance. If the Commission is prepared to give that undertaking, it should be recorded in Short Minutes that include an order granting leave to appeal. Upon the Short Minutes being forwarded to my Associate, I will make the order in Chambers. If the Commission decides not to give that undertaking, the application for leave to appeal should be regarded as refused.
I have considered whether I should impose a similar condition in respect of any costs of appeal incurred by the Union or Mr Bastian. I have decided against this, not because Mr Bastian’s position is less worthy of consideration than that of Mr Hickson, but because it is not evident to me that it would be essential for either of these parties to take an active role in any appeal. The argument any appellant could advance is both obvious and short; a Full Court would not be assisted by having it put twice. On the other hand, it would be important for the Full Court to have a contradictor, and Mr Hickson is the only party inclined to fulfil that role.
I certify that this and the preceding twenty-two (22) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox
Associate:
Dated: 19 August 1997
Counsel for the Applicant: L Wright QC and A Hatcher Solicitor for the Applicant: Jones Staff & Co Counsel for the First Respondent: G Johnson Solicitor for the First Respondent: Australian Government Solicitor Solicitor for the Second Respondent:
Taylor & Scott
Counsel for AFMEPKIU:
Solicitor for AFMEPKIU:
Date of Hearing:
W Haylen QC
Taylor & Scott
8 August 1997
Date of Judgment: 19 August 1997
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