In the matter of an application by Anthony Longland for an inquiry into an election for offices in the Victorian Branch of the Public Sector, Professional, Scientific Research, Technical, Communications, Aviation..
[1995] IRCA 381
•15 Aug 1995
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA ) VI: 1535 of 1994
VICTORIA DISTRICT REGISTRY )
IN THE MATTER of an application by
ANTHONY LONGLAND for an Inquiry
into an election for offices in the
Victorian Branch of the Public Sector, Professional,
Scientific Research, Technical,
Communications, Aviation and Broadcasting UnionREASONS FOR JUDGMENT
15 August 1995 Keely J.
Anthony Longland ("the applicant") is employed as a training officer in the Department of Veteran Affairs and has worked in, or in relation to, that Department since January 1985. He applied under s.218 of the Industrial Relations Act 1988 (Cth) ("the Act") for an inquiry into an election for the four offices of Branch Executive Members ("the four offices") in the Victorian Branch of the CPSU Community and Public Sector Union. By consent he was given leave to change the union's name in the application to the Public Sector, Professional, Scientific Research, Technical, Communications, Aviation and Broadcasting Union ("the union"), which was the name of the union at the time of the election. The applicant was at all material times a Branch Conference Delegate and a financial member of the union, which is the product of six amalgamations that took place between August 1989 and July 1994. The election was conducted by an officer of the Australian Electoral Commission ("the Electoral Commission"), who fixed dates for the ballot to open on 7 February 1994 and to close on 28 February 1994.
At the inquiry the applicant was represented by counsel, as were the union and the branch secretary ("the respondents"). During the morning of the first day of the hearing the court invited the Electoral Commission to assist the court either by being represented or by written submissions as to a number of matters that it then appeared might need to be considered by the court. On the following morning Mr. R. Hallowell, solicitor, represented the returning officer, who was given leave to appear. Both the information which he placed before the court and his address, including the authorities to which he referred, were carefully prepared and disposed of a number of the matters which had earlier appeared to the court to require consideration.
As to the desirability of the returning officer being represented by a lawyer at election inquiries, the attention of the Electoral Commission and of the parties is drawn to Re Federated Liquor and Allied Industries Employees' Union of Australia; Ex parte Huxtable (1979) 40 FLR 418. In that case Northrop J at the conclusion of the hearing (i.e. some weeks before delivering written reasons for judgment) referred (at 420) -
"to the practice in Victoria and New South Wales that the returning officer in matters of this kind appears in court usually represented by a lawyer to assist the court in any material way. Although a party in some respects he is not a party taking sides but is a party in the sense of being there to assist the court in unravelling the facts and saying what in fact did happen."
I agree with that statement and add that in my experience, including the conduct of a number of election inquiries in Adelaide, the returning officer's representative has also assisted the court by referring it to relevant authorities and to information as to the manner of conducting elections. It may be noted that Northrop J also said (at 420) that "if the [returning] officer knew of the hearing and did not attend because of no formal notification . . . this could amount to a discourtesy, and possibly could amount to contempt of court."
The first alleged irregularity
The applicant claimed that an irregularity had occurred in that the rules of the union "insofar as they restrict the eligibility of financial members to nominate for the" four offices contravened s.195(1)(b)(iv) and s.196 (c) of the Act. He contended in his application that:
"A number of financial members of the Victorian Branch who supported the applicant could not nominate for the office of Branch Executive Member as they did not hold the office of Conference Delegate. The small number of Conference Delegates in a Branch with over 23,000 financial members imposes such extreme restrictions on the eligibility to nominate for a position on the Victorian Branch Executive as to make the election undemocratic."
It was admitted by the respondents ". . . that in order to qualify as a candidate for the Branch Executive it is necessary for a member to be a Branch Conference Delegate and that Branch Conference Delegates may only be elected in accordance with Rule 36(d)(sic). . . ".
The contentions
The applicant's counsel contended that an irregularity occurred when the returning officer on or about 8 September 1993 placed a notice to members in the official journal of the branch, which stated that:
"Nominations which must be in writing and comply with the registered rules of the Organisation, may be made at any time from . . ." (italics added).
He submitted that that notice by the returning officer required that the nominations "comply with the registered rules" which, in his submission, meant the registered rules as to eligibility to nominate even if, as submitted by him the relevant rules contravened s.195(1)(b)(iv) and s.196(c) of the Act.
The respondents sought to rely on an opinion expressed by Smithers J in Re Inquiry into elections in the Vehicle Builders Employees' Federation of Australia;Ex parte Allen (1978) 34 FLR 294 at 304. In relation to the words "must be in accordance with the rules of . . ." (which are set out at p.301 of the report) his Honour said that they were "and could only be [a reference] to the rules of the organisation actually in force . . .". The applicant's counsel submitted that that decision was distinguishable because the words considered by Smithers J were "the rules" and that in the present case the words were "the registered rules". In so submitting he relied upon a passage in Rule v. Australian Workers' Union (1985) 9 FCR 280 ("Rule's Case") where Wilcox J, sitting in the Federal Court, said (at 297):
"In the present case the notice called for applications in accordance with the `registered rules' of the organisation, that is in accordance with a particular document, valid or invalid. Readers of the notices were in terms told that nominations would be accepted only in accordance, inter alia, with rr 51 and 68. That irregularity goes to the heart of the nomination process."
I accept the applicant's submission that the notice calling for nominations in the present case is in the same position. Applying that statement by Wilcox J, it follows that the first alleged irregularity will have been established if the court accepts the contention by the applicant's counsel that the union's rules prescribing the qualifications for nomination for the four offices contravened s.195(1)(b) (iv) or s.196(c) of the Act. Notwithstanding the submission by the respondents' counsel to the contrary, I accept the submission by the applicant's counsel that the reasons for judgment of the Full Court in Re Keely and Another; Ex parte Kingham and others (1995) 129 ALR 255 should be read as being consistent with the judgment in Rule's case, which the court was informed by counsel, had been cited to the Full Court during the hearing.
It may be added that in Rule's case Wilcox J said, immediately after the passage quoted above, that it "is, at least, possible that potential candidates were deterred from attempting to nominate by the limitation contained in the notices." In the present inquiry it was not just a matter of that result being "possible". There was unchallenged evidence that potential candidates were deterred. The applicant's solicitor filed affidavits by Judith Anne McVey, Ray Fulcher, Jack Wind and Derek McPherson. They all deposed that they were financial members of the union, that they wished to nominate as candidates in the election for the four offices, that they had discussions with the applicant with a view to standing in a team with him and some other members of the union, that because they were not Victorian Branch Conference Delegates they were "ineligible" and that, "but for the . . . disqualification", they "would have nominated in the election and stood as a team with the said applicant." It should be noted that another document, purporting to be an affidavit by Michael Cooke, made exactly the same statements as those detailed above. However the jurat had not been completed; it did not contain details of the place where it was sworn (if it in fact was sworn before Mr. Nowicki, the applicant's solicitor) nor the day nor the month on which it was sworn.
The applicant's contentions included the following passages:
"46.The Rule of the Union under which the elections were conducted, failed to comply with Section 195(1)(b)(iv) in that:
(a)They improperly restrict eligibility to stand for the position of Victorian Branch Executive Office by imposing the requirement that only Branch Conference Delegates are eligible, and Branch Conference Delegates may only be elected from Workplace Delegates;
. . .
47.Further or in the alternative the rules contravene Section 196 (c) in that -
(a)They impose restrictions on members of the organisation in relation to the eligibility of candidates for the position of Victorian Branch Executive Office which are oppressive unreasonable and/or unjust having regard to the objects of the Act and the purpose of the registration or organisations, namely that eligibility for those offices is restricted to Branch Conference Delegates who in turn may only be elected from Workplace Delegates;
. . . "
Rules of the union relevant to the right to nominate
The governing body of the union at the material time was the National Council (rule 18) and the executive body was the National Executive (rule 28). The union was divided into branches (rule 34), which were divided into Sub-Branches (rule 67), each of which "shall be divided into Workplaces" (rule 68(a)).
Rule 48 included the following provision:
"48 - BRANCH EXECUTIVE - CONSTITUTION
(a)In each Branch there shall be a Branch Executive which shall consist of the Branch Officers, the National Councillors representing the Branch . . . and four Executive Members elected from the Branch Conference Delegates by a secret ballot of the financial members of the Branch excluding members of the Branch employed by the ABC, conducted at the same time as the election of Branch officers and Rule 138 shall apply, with the necessary changes being made (italics added).
. . . "
Rule 36 was a very long rule which included the following provisions:
"36 - BRANCH CONFERENCE - CONSTITUTION AND POWERS
(a)There shall be in each Branch, a Branch Conference which shall be the supreme governing body of the Branch (italics added).
(b)A Branch Conference shall be constituted by the Branch Officers, the National Councillors of the Branch and Delegates from Sub-Branches and Sub-Divisions. . . .
(c). . . Conference Delegates shall be elected biennially by the financial members of each Sub-Branch from the Workplace Delegates and Deputy Delegates of the Sub-Branch at elections conducted in conjunction with the annual election of Workplace Delegates. . . (italics added).
. . . "
Rule 68 appeared under the following heading and provided as follows:
" PART III - CONSTITUTION, MANAGEMENT AND POWERS
SECTION G - WORKPLACES, WORKPLACE DELEGATES AND DELEGATES COMMITTEES
68 - WORKPLACES AND WORKPLACE DELEGATES
(a)Each Sub-Branch shall be divided into Workplaces. A Workplace shall consist of such members as are determined from time to time by the Branch Conference after giving prime consideration to any recommendations of the Sub-Branch.
(b)A Delegate and a Deputy Delegate shall be elected annually by and from the financial members of each Workplace by secret ballot under the provisions of these Rules.
(c)The duties and powers of a Delegate shall be as determined from time to time by the National Council or Branch Conference. A Deputy Delegate shall perform the duties and exercise the powers of the Delegate during the Delegate's absence, unavailability or when the position of Delegate is vacant.
(d)The office of a Delegate or Deputy Delegate shall become vacant if he or she dies, resigns, is removed from office under these Rules, ceases to be a member of the Union or is transferred out of the Workplace represented for a period in excess of three months" (italics added).
The court was informed by counsel that Workplaces might consist of "the local office of the CES" or "a floor of a . . . multi-storey building" or "part of a floor [of a building]". As appears from rule 68(a), set out above, a Workplace "shall consist of such members as are determined from time to time by the Branch Conference after giving prime consideration to any recommendation of the Sub-Branch."
Considerable reliance was placed by the applicant's counsel upon the fact that rule 36(c) requires that "Conference Delegates shall be elected . . . from the Workplace Delegates and Deputy Delegates . . ." (italics added). He also relied upon the fact that the "office of a Delegate or Deputy Delegate shall become vacant if he or she dies . . . or is transferred out of the Workplace represented for a period in excess of three months" (rule 68(d) - set out above). It will have been noted from rule 36(a) that "a Branch Conference . . . shall be the supreme governing body of the Branch."
The respondents accepted that the number of members in the Branch was approximately 23,000 members. The number of Workplaces was not fixed by the rules and may vary from time to time (see rule 68(a)). The applicant's contentions set out the following results for the election in December 1993. It is convenient to set out here the comparable figures for 1990, 1991 and 1992 which also appear in his contentions:-
Workplace and Deputy Workplace Delegates Elections
Sub-branches
Workplace
Delegate
Vacancies
Workplace
Delegate
Elected
Deputy
Workplace Delegate
Elected
1993
48
991
230
92
1990
62
892
325
119
1991
65
1081
305
175
1992
54
1015
311
139
Counsel for the parties agreed that the above figures for Workplace Delegate vacancies had to be doubled in order to include the vacancies for Deputy Delegates. Accordingly, in November/December 1993 the figure of 991 Workplace Delegate vacancies became 1982 vacancies for Workplace Delegates and Deputy Delegates and only 322 were elected (being 230 Delegates and 92 Deputy Delegates) i.e. 1660 of those vacancies were not filled at the 1993 election. The high proportion of Workplace Delegate vacancies that were not filled in the elections in the years 1990-1993 is one of the matters relied upon by the applicant in his contention that the rules restricted the eligibility of the financial members to nominate for the four offices to an extent that contravened s.196(c) of the Act. As to the role of a Deputy Delegate it will be seen from rule 68(c) above, that a "Deputy Delegate shall perform the duties and exercise the powers of the Delegate during the Delegate's absence, unavailability or when the position of Delegate is vacant."
The applicant's counsel pointed out that, in order to be nominated for Branch Executive Member, it was necessary, inter alia, for a member to "become a Workplace Delegate", which he described as a "position . . . [with] no particular security of tenure and . . . at the mercy . . . of [the] employer [who may transfer the member] out of the Workplace represented for a period in excess of three months." As to the "unreasonableness" of a rule which can result in the right of a member to nominate in an election being lost by matters "out of [his] control," the applicant cited the decision of Moffitt v Vehicle Builders Employees' Federation of Australia (1985) 11 IR 174 at 177-178, where Smithers, Keely and Wilcox JJ declared that a sub-rule contravened the Act, saying that: "In a real sense the subrule creates a situation in which not only is the member's eligibility subject to the artificiality created by r 6(d)(iii), but, the escape route provided by r 6(d)(iv)(c) offers no certainty to the member."
In the present inquiry the possibility of losing office as a Workplace Delegate was not merely hypothetical. The affidavit evidence of the applicant showed that he "forfeited the office of Workplace Delegate . . . [when he was] seconded from [his] workplace to work as a union representative on a union-management working party reviewing office organisation and procedures in [the Department of Veteran Affairs]." His affidavit also showed that, on a later occasion, he "lost the office of Workplace Delegate for the 17th floor `workplace' . . . [when his] section moved onto the 16th floor." In addition his affidavit gave examples of other Workplace Delegates being transferred out of a Workplace and thereby losing their offices of Workplace Delegates. In my view that evidence is of considerable significance having regard to the statement (quoted above) from the reasons for judgment of the Full Court in Moffitt.
In response to the submission by the applicant's counsel that the union's rules in relation to eligibility to nominate for the office of Branch Executive Member contravene s.196(c) of the Act, the submissions by counsel for the respondents relied partly upon factual material in the affidavit of Mr. D.S. Lilly, affirmed 16 December 1994. Counsel said that the affidavit showed that the rules as to nominations for those offices ". . . came about as a result of a conscious process and decision by the union." The affidavit also dealt with the history of earlier rules of the Commonwealth Public Service Clerical Association as far back as 1932. It also dealt in some detail with an internal debate within the Administrative and Clerical Officers' Association ("the ACOA"). That debate led to a special conference of ACOA in 1981 which decided, inter alia, "to make it a requirement of nominating for election to Branch Conference that the person nominating be a Workplace Delegate or Deputy Delegate." Mr. Lilly was a member of it and became the full-time Assistant Secretary of its Victorian Branch in January 1983.
Having considered those matters I have come to the conclusion that the rules relating to the eligibility of members of the union to nominate for the four offices of Branch Executive Member contravened s.196(c) of the Act in that they restricted the eligibility to nominate for the four offices to members who are Branch Conference Delegates, "who in turn may only be elected from Workplace Delegates" (paragraph 47(a) of the applicant's contentions - set out earlier). Because of that contravention the returning officer's notice calling for nominations that "comply with the registered rules" was an irregularity that went "to the heart of the nomination process" - per Wilcox J in Rule's Case (at 297), quoted earlier in these reasons. Plainly the result of the election may have been affected (s.223(4) of the Act) by that irregularity. I have not found it necessary to reach a concluded opinion on the question whether the rules also contravened s.195(1)(b)(iv).
The second alleged irregularity
It was contended by the applicant that rules 169 and 171 of the union's rules contravened the provisions of s.195(1)(b)(iv) and s.196(c) of the Act and accordingly that the acts of the returning officer in conducting the ballot, including counting the votes, in compliance with the rules were irregularities within the meaning of the Act.
It was common ground that there were printed on the ballot papers a number of directions to voters by the returning officer, including the following:
"Directions: You must vote for at least FOUR candidates by placing the numbers 1 to 4 opposite the names of the candidates for whom you wish to give your primary votes
CANDIDATES
MURRAY, Robert
LONGLAND, Anthony Ian
BYRNE, Tracey
HARRIS, Julia
HOXLEY, Graeme"
On the ballot papers squares appeared opposite the names of the candidates. The candidates other than the applicant had campaigned as part of a team of candidates, which distributed election leaflets headed "A New Team - A New Approach".
The rules of the union re voting and counting votes
Rules 169 and 171 of the union's rules included the following provisions:
"169 - METHOD OF VOTING
(a) Voting shall be on the preferential system in all elections under these rules.
(b)The voter shall vote by marking on the ballot paper the numbers 1, 2 and so on as the case requires opposite at least the same number of candidates as there are positions to be filled.
(c) . . .
171 - COUNTING OF VOTES - ELECTION
OF MORE THAN ONE CANDIDATE
Where two or more candidates are to be elected the Returning Officer shall observe the following procedure to determine the successful candidate (sic):
(a)The votes shall be classified into two categories as follows:
(i)The preference votes to the number of vacancies to be filled shall be termed `primary' votes, and shall have equal value in the first count and be credited to the candidate for whom they are cast, whether marked 1, 2, 3, etc., according to the number of vacancies;
(ii)The preference votes beyond those referred to in (1) (sic) shall be termed `secondary' votes and shall have rank according to their numerical number and shall be allocated in rank order unless the ranking secondary vote has been previously allocated.
(b)The `primary' votes shall first be counted and a list shall be prepared of the candidates in order according to the primary votes cast for them. The candidate who is lowest on the list thus compiled shall be excluded from the count.
(c)Each ballot paper on which such excluded candidate received a `primary' vote shall then be examined to determine its `secondary' vote and the preference so found shall be allotted to the appropriate unexcluded candidate on the first count.
(d)On the conclusion of the second count, the above procedure or (sic) exclusion of candidates from the count and the distribution of their secondary votes shall continue until the required number of successful candidates has been determined.
. . . . "
It should be noted that in rule 169(a) the words "voting shall be on the preferential system in all elections" (italics added) are not readily reconcilable with rule 171 (a)(i), which states that the "preference votes . . . shall have equal value in the first count . . ." (italics added). It was submitted by the applicant's counsel that reading "the two rules together may create a misleading impression." The overall intention may be clear to a lawyer but the wording may well be productive of confusion in the minds of the voters and there is a danger that they may be misled.
The results of the election for Branch Executive Members
On 7 March 1994 the returning officer declared the results of the election for the four Branch Executive Members as follows:
"Total Ballot Papers Issued: 23,166
Total Ballot Papers Counted 6305
Branch Executive Members (4)Candidates Number of Votes
MURRAY, Robert 5435
LONGLAND, Anthony Ian 4150
BYRNE, Tracey 5998
HARRIS, Julia 5851
HOXLEY, Graeme 4222"
Every candidate except the applicant was declared elected as a Branch Executive Member by the returning officer.
Certain decisions of the High Court
Certain judgments of the High Court were cited by Mr. Hallowell on behalf of the returning office in answer to questions from the court as to authorities dealing with Parliamentary elections. Counsel for the respondents said that he did not rely on those authorities "in order to advance [his] case", and that they dealt "with a different issue
. . . whether a person has a valid and sufficient reason for not voting . . . "; however as will later appear, he did cite some passages from a decision of the High Court.
In Judd v. McKeon (1926) 38 CLR 380 the High Court held valid the provision in s.128A of the Commonwealth Electoral Act 1918-1925 ("the Electoral Act"), which imposed a duty on citizens to vote and made it an offence to fail to vote "without a valid and sufficient reason" for not voting. It further held that it was not a valid and sufficient reason that the defendant as a member of the Socialist Labour Party was prohibited from voting for the candidates, all of whom, in his opinion, "support and do all in their power to perpetuate capitalism with its exploitation of the working class . . .". That decision was followed by Barwick CJ, McTiernan and Owen JJ in Faderson v. Bridger (1971) 126 CLR 271. Barwick CJ, with whose reasons for judgment McTiernan J agreed, said (at 272):
"A failure to vote therefore involves a failure to attend, accept the ballot paper and having marked it, to put it in the ballot box. Of course there is no offence committed by not marking the ballot paper in such a fashion that the elector's vote is in law a valid vote."
The opinion that "there is no offence committed by not marking the ballot paper in such a fashion that the elector's vote is in law a valid vote" meant that, although the Electoral Act made it an offence for a citizen to fail "to vote . . . without a valid and sufficient reason for such failure" in elections for the Australian Parliament, it was not an offence against the section if the ballot paper put in the ballot box was marked by the voter in such a way that it was not a valid vote or if it was placed in the ballot box without any mark at all on it.
Both those cases related to convictions for a failure to vote without a valid and sufficient reason for such failure; the reason for the failure in Judd was a positive desire not to vote for any of the candidates (at 381) and in Faderson "that he did not have any preference amongst the candidates" (at 272). A detailed analysis of those and other authorities appears in the reasons for judgment of Blackburn CJ in O'Brien v Warden (1981) 54 FLR 16. It may be noted that his Honour suggested (at 19-20) "that there may be more than one tenable view on the question of what the elector's legal obligation is under Pt XIII of the [Electoral] Act."
The respondents' submissions re voting and counting votes
Counsel for the respondents submitted that rule 169(b) did not impose unreasonable conditions on members in requiring that, the members, in casting their votes had to express their "preferences" for "at least the same number of candidates as there are positions to be filled". It was put that that requirement by the rule "is likely to impress upon them the need or the desirability for them to inform themselves about the candidates" and "then they are more likely to take an interest in union affairs . . . [and] in any information that is circulated prior to the election."
That submission encounters a number of difficulties. Leaving aside the absence of any evidence to support it, it might be considered inherently improbable that rule 171 would have such an effect upon any significant proportion of the members. It is arguable that, in an election in which an individual candidate is opposed to a team of candidates who have campaigned as a team, members who would otherwise have voted, for that individual candidate might well be discouraged from voting at all i.e. by reason of the requirement that, in order to cast a valid vote for that individual candidate, they would be required to cast valid votes in favour of three members of the team, although those voters and the individual candidate were opposed to the election of those three team members. If such an argument were to be accepted, it would be strongly arguable that the rule imposed on members "conditions, obligations and restrictions that, having regard to the objects of [the] Act and the purposes of the registration of organisations under [the] Act" were unreasonable.
Counsel for the respondents also said that:
". . . the authorities . . . and particularly the judgment of Sir Ninian Stephen in McKinlay's case indicate that there is nothing offensive to democratic principles in having a requirement that an individual, when voting, votes to either the end of the ballot paper or to some point, a required point short of it. It is clear in the passage from Sir Ninian Stephen that he does not see it [as] the role of the court to make those judgments, and . . . that his judgment means that it is not for the court here to make a judgment as to whether or not decision making will be enhanced by this process. If the organisation takes the view that it will be enhanced, then that is sufficient, or if the organisation justifies the decision on the basis that it will have a tendency to enhance decision making then that would be sufficient."
It is strongly arguable that in McKinlay (1975) 135 CLR 1 Stephen J did not express the opinion attributed to him by counsel, namely, "that there is nothing offensive to democratic principles in having a requirement that an individual, when voting, votes to either the end of the ballot paper or to . . . a required point short of [the end]". As to counsel's attempt to gain support from his Honour's statement (at 57-58) that "it is not for this [High] Court to intervene so long as what is enacted is consistent with the existence of representative democracy", it must be remembered that, when the Industrial Relations Court is conducting an election inquiry, it is not being asked to "intervene". It has a duty to decide any issue that requires determination in that election inquiry.
Rule 169 (b) requires that, for a vote to be valid, the "voter shall vote by marking on the ballot paper the numbers 1, 2 and so on as the case requires opposite at least the same number of candidates as there are positions to be filled." In my opinion it is strongly arguable that that requirement imposed upon the members of the union "conditions, obligations or restrictions that, having regard to the objects of [the] Act and the purposes of the registration of organisations under [the] Act, are oppressive, unreasonable or unjust". On the other hand, it could be submitted that that requirement did not have that effect. Such a submission might seek to gain support from the requirement imposed upon electors in marking their ballot papers in elections for the Senate and for the House of Representatives; however, that requirement must be considered in its context that the statute makes it an offence to fail to vote without a valid and sufficient reason, whereas the rules of the union do not make voting compulsory.
The applicant's counsel submitted that a determination by the court as to the validity of the rules (1) might obviate the need for further proceedings under s.208 and (2) might have advantages if these reasons for decision had to be considered by the High Court of Australia or by this Court. However, as I have found that the first alleged irregularity has been established and that the result of the election may have been affected, I have decided to refrain from expressing an opinion as to whether rules 169 and 171, which relate to the manner in which members shall vote and the method of counting the votes, contravene the Act. The reasons for that decision are:
(a)It is not necessary to decide those questions for the purposes of the inquiry and, generally speaking, the court should confine itself to deciding questions which must be determined.
(b)Any such opinion would not operate as a declaration for the future (compare s.208(5) of the Act).
(c)The union's counsel informed the court on the last day of the hearing that the question of the possible amendment of the rules was already under consideration by the union (without conceeding that there was any doubt as to the validity of any of the rules).
I have formed the opinion that an irregularity "has happened" (s.223(3)) in that potential candidates in the election were told, by the returning officer's notice in the union journal, that nominations would only be accepted if they complied with the registered rules of the union i.e. the rules which limited the right to nominate for the four offices to "Branch Conference Delegates", and (2) required that those Branch Conference Delegates must have been elected "from the Workplace Delegates and Deputy Delegates" (rule 36(c)). Having regard to that irregularity as to the right to nominate, in my opinion it necessarily follows that "the result of the election may have been affected . . . by irregularities" (s.223(4))
Orders will be made:-
(1)declaring the election to be void.
(2)declaring that the four persons purporting to have been elected to the four offices of Branch Executive Members, namely, Robert Murray, Tracey Byrne, Julia Harris and Graeme Hoxley have not been so elected.
(3)directing the Industrial Registrar to make arrangements for a new election to be held including the calling for nominations.
(4)reserving liberty to all parties to apply.
I certify that this and the preceding fourteen (14) pages are a true copy herein of the reasons for judgment of the Honourable Justice Keely.
Associate:
Date: August 1995
Solicitors for the applicant : Harry Nowicki & Co.
Counsel for the applicant : Mr. H. Borenstein
Solicitors for the respondents : Slater & Gordon
Counsel for the respondents : Mr. B. Lawrence
Solicitor for the returning officer : Australian Government Solicitor
Appearing for the returning officer: Mr. R. Hallowell
Date of hearing : 9, 10, 11, 12 & 18 May 1995
Date of judgment : 15 August 1995
IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA ) No. VI 1535 of 1994
VICTORIA DISTRICT REGISTRY )
IN THE MATTER of an application by
ANTHONY LONGLAND for an Inquiry
into an election for offices in the
Victorian Branch of the Public Sector, Professional,
Scientific Research, Technical,
Communications, Aviation and Broadcasting Union
CORAM: Keely J.
PLACE: Melbourne
DATE: 15 August 1995
MINUTES OF ORDERS
THE COURT ORDERS:
The election be declared void.
The persons purporting to have been elected to the offices of Branch Executive Members, namely, Robert Murray, Tracey Byrne, Julia Harris and Graeme Hoxley, be declared not to have been elected.
That the Industrial Registrar be directed to make arrangements for a new election to be held, including the calling for nominations.
That liberty be reserved to all parties to apply.
NOTE:The settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.
CATCHWORDS
INDUSTRIAL LAW - ELECTION INQUIRY - UNION RULES restricting eligibility of financial members to nominate for Branch Executive - right to nominate lost if transferred by employer for more than three months - whether notice requiring nominations to comply with rules was an IRREGULARITY - RETURNING OFFICER'S duty to be represented before the court
Attorney-General of the Commonwealth (at the relation of McKinlay) v. The Commonwealth of Australia and Anor. (1975) 135 CLR 1
Re Inquiry into elections in the Vehicle Builders Employees' Federation of Australia; Ex parte Allen (1978) 34 FLR 294
Rule v. Australian Workers' Union (1985) 9 FCR 280
Moffitt v. Vehicle Builders Employees' Federation of Australia (1985) 11 IR 174
IN THE MATTER of an application by ANTHONY LONGLAND for an Inquiry into an election for offices in the Victorian Branch of the Public Sector, Professional, Scientific Research, Technical, Communications, Aviation and Broadcasting Union.
VI 1535 of 1994
KEELY J
MELBOURNE
15 August 1995
0
7
0