In the matter of an application by Clive Raymond Ferris for an Inquiry into an election in the Australian Workers Union

[1982] FCA 230

Re: IN THE MATTER OF AN APPLICATION BY CLYDE RAYMOND FERRIS FOR AN INQUIRY
INTO AN ELECTION IN THE AUSTRALIAN WORKERS' UNION
And:IN THE MATTER OF A REFERENCE OF SUCH APPLICATION BY THE INDUSTRIAL
REGISTRAR TO THE FEDERAL COURT OF AUSTRALIA
Qld No. 4 of 1982
Industrial law
2 IR 432

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
INDUSTRIAL DIVISION
Fitzgerald J.

CATCHWORDS

INDUSTRIAL LAW - registered organisation - election inquiry - whether ballot papers sent to all eligible voters and only to eligible voters - diverse other grounds not made out or not such as would have affected the result of the election - court not satisfied that reasonable grounds for the application.

Conciliation and Arbitration Act 1904 ss. 152, 159, 165, 170 and 171

HEARING

BRISBANE

#DATE 25:10:1982

ORDER

The Application by CLYDE RAYMOND FERRIS for an inquiry into an election in the Australian Workers' Union is dismissed.

JUDGE1

On 13 March 1981, Kevin John Fitzgerald, a public servant employed in the Brisbane office of the Australian Electoral Office, was appointed by the Industrial Registrar of this Court to be the returning officer for elections for various positions in the Queensland Branch of the Australian Workers' Union. Nominations opened on 22 May 1981 and closed on 11 June 1981. A number of positions were uncontested. However, there were two nominations for Branch President, four nominations for two positions of Branch Vice-President, two nominations for Northern District Secretary, seventeen nominations for fifteen positions as an Organiser and eighteen nominations for ten positions as a Delegate to the 1982 Annual Convention. The poll in respect of each of the contested positions opened on 2 September 1981, closed on 11 December 1981, and was declared on 24 December 1981. The applicant, Clyde Raymond Ferris, was an unsuccessful candidate for the positions of Branch President, Northern District Secretary and a Delegate to the Convention.

The Australian Workers' Union ("the Federal body") is an organisation of employees registered under the Conciliation and Arbitration Act 1904. Its branches in each State, including Queensland, are simply parts of the total organisation and have no separate existence, although each branch has its own office-bearers and is generally responsible for its own affairs. So much appears from Rule 37.

Rule 6 of the Federal body's Rules defines who is eligible for membership, which is renewable annually. Rule 6 provides:

FULL MEMBERSHIP
6 (1) Subject to these Rules, every bona fide worker, male or female, engaged in manual or mental labour in or in connection with any of the following industries or callings, namely: Pastoral (otherwise than as a shearing contractor), agricultural, horticultural, viticultural, which includes employees in wineries (except in the State of South Australia), dairying, fruitgrowing, sugar growing, cane cutting, milling and refining, the growing, cutting and treatment of flax and tobacco, rabbit trapping, timber and sawmilling industry, afforestation and silviculture, employees engaged in or in connection with the manufacture of masonite and/or cancite and all operations incidental thereto (excepting persons employed at the works of Colonial Sugar Refining Co. Ltd. at Pyrmont), meat preserving and meat trade generally, road making, water and sewerage, railway construction work, all persons (except persons eligible to be members of The Federated Engine Drivers' and Firemen's Association of Australasia in Queensland) other than tradesmen and welders engaged in or in connection with the construction of pipelines used in or in connection with the extraction and transmission of hydrocarbons, solids, slurries and similar substances, all persons engaged in or in connection with the manufacture or preparation, applying, laying or fixing of bitumen emulsion, asphalt emulsion, bitumen or asphalt preparations, hot pre-mixed asphalt, cold paved asphalt, and mastic asphalt, (other than tar paving or asphalt work in connection with building operations), metalliferous mining, smelting, reducing and refining of ores including all workers engaged in or in connection with dredging or sluicing work, mining for brown coal including the extraction of the by-products; the search and/or drilling for hydrocarbons, the production, processing and transmission of hydrocarbons, the prospecting, surveying, exploration and drilling for minerals and metals (except as to members of organizations in the shipping industry); the manufacture of briquettes, the distillation of oils and all labour incidental thereto, all surface labourers engaged about or in connection with all brown coal mines, and all persons engaged in timber getting for mining purposes, stone quarrying, land surveying, fish cleaning, net making, employees engaged in or in connection with the treatment of whales and by-products, and general labour in connection with fish trawling, manufacture of copper bars, rods and wire, all persons engaged in or in connection with the manufacture of cables and all persons engaged in the process of covering or insulating cables and all persons engaged in the production or manufacture of aluminium for use as a raw material in the manufacture of articles, the construction, maintenance and conduct of the Commonwealth Railways, and all kinds of general labour, the manufacture of soap and candles, of butterine and margarine, of potato crisps and nut foods, of drugs (other than the milling thereof), of chemicals and gasses, of blue, of toys (other than sheet metal) of the manufacture and milling of paper and all labour connected therewith, of the extraction and refining of vegetable oils, of tea packing, employees engaged in or in connection with the dehydration of vegetables and fruit, of all work in laundries, of all work in connection with fire brigades, including that of permanent, partially-paid and volunteer firemen under Boards of Fire Commissioners, all employees other than craftsmen or engine drivers engaged in boring for water or oil or engaged in refining such oil or in the extraction of the oil products, all persons engaged in or in connection with the production of charcoal, all employees engaged as ginners, stackers, feeders, branders, oil refiners, moulders, and labourers in the cotton industry, all employees other than engine drivers and craftsmen engaged in the destruction of prickly pear or of noxious weeds and vegetation or in the treatment of prickly pear or of the products thereof, the manufacture of cement and cement articles and/or the operation of concrete batching plants, the manufacture of fibrolite article; the formation and maintenance of racecourse tracks, golf links, bowling greens and tennis courts and of all gardens, lawns and greens in connection therewith, persons employed in or about the Newcastle Iron and Steel Works or any Works directly subsidiary thereto, or in any quarry or mine, or other industrial establishment where the work done is wholly or mainly the supply of materials incidental to the manufacture of iron and steel at the Newcastle Iron and Steel Works other than those employees who are engaged as foremen or staff employees, all persons employed in and about the works of the following companies at Port Kembla, namely: Metal Manufactures Limited, Electrolytic Refining and Smelting Company of Australia Limited, and Australian Fertilizers Limited, excepting in the case of each company, staff employees, blacksmiths, boilermakers, bricklayers, carpenters, electricians (including electrical fitters and linesmen), engine drivers (including crane or winch drivers, firemen, motor drivers or attendants, dynamo attendants, greasers, trimmers and cleaners), engineers (including drillers, fitters, machinists, pipe fitters and turners), moulders, painters, plumbers, storemen and packers within the jurisdiction of the Storemen and Packers' General (State) Conciliation Committee, rubber workers, motor-waggon drivers, riggers, strikers and assistants to the following class of tradesmen, namely: boilermakers, blacksmiths, engineers (including electrical engineers), moulders, coppersmiths, sheet-iron workers, plumbers, springmakers, electricians, motor-mechanics and any other mechanics engaged in the iron, steel and metal industries; all persons (other than those who have power to engage or discharge employees) who are bona fide employees wholly or partly engaged in or in connection with the business of fellmongers, woolsorters, woolscourers, basil tanners and their assistants shall be entitled to become and remain members of the Union and all persons elected or appointed as Officers of the Union shall be entitled to remain members of the Union.
(2) Without limiting the generality of the foregoing or being limited in any way by the foregoing every person employed in or in connection with the industry or calling of horse training and/or horse racing (excluding apprentice jockeys, judges, starters and stewards) shall be entitled to become and remain a member of the Union. Provided however that persons who are eligible to be members of the Federated Clerks Union of Australia shall not be eligible for membership of the Union.
(3) Without limiting the generality of the foregoing or being limited in any way by the foregoing every bona fide worker employed in or in connection with the industry or calling of either or both catering and cleaning for or at premises provided for persons working in or in connection with any of the following industries or callings:
road construction,
water and/or sewerage works construction,
railway construction,
metalliferous mining,
reducing of ores,
throughout Australia excepting persons employed:
(a) in such industry or calling in the Northern Territory; and
(b) by catering contractors in or in connection with the said industry or calling in the local authority areas of East Pilbara, West Pilbara, Roebourne and Port Hedland in Western Australia. The boundaries of such local authority areas are those defined in the map showing Western Australian local authority boundaries as at May 1978 prepared by the Mapping Branch. Surveyor General's Division. Department of Lands and Surveys, Perth. Western Australia.

Members of the Federal body in Queensland are also members of one or more distinct legal entities registered under or continued by the Industrial Conciliation and Arbitration Act 1961-1980 (Qld) There is no present need for a detailed discussion of the situation which exists, how it arose, or of the practical consequences. Such matters may be seen from, for example, Allingham v. Australian Workers' Union (1971) 21 F.L.R. 228; (1972) Qd.R. 217, where a number of earlier decisions were referred to. All that is currently important is that the qualifications for membership of the Federal body are narrower than those for membership of the entity or entities registered under the Queensland legislation, so that not all members of the latter are eligible members attached to the Queensland Branch of the Federal body. Because the same membership ticket books and membership tickets are used for both the Federal and Queensland bodies, it is obviously essential that members of the Federal body be separately identified. The membership tickets issued to members of the Federal body have voting slips attached; the butts of such tickets are stamped "Federal Rule 6". Each butt must contain the member's full name, occupation and address: Rule 13(d). A voting slip must be attached to a ballot paper when used to cast a vote in an election for an office in a Branch of the Federal body: see Rule 70.

So far as presently relevant, those entitled to vote in the subject elections were "financial members". The Federal body's rules contain what is described as a "General Definition Clause", numbered 4, which provides:

"In the interpretation of these Rules the following definitions shall be taken as a guide:
. . .
(d) "Financial member" means a member who has paid all contributions and dues payable under these Rules, and is entitled to the full benefits of membership in the Union."

Further assistance is provided by Rule 9(b) which states:

"Once a person has been issued with a membership ticket, membership of the Union shall continue unless it is terminated in accordance with these Rules."

In addition to usual provisions dealing with resignation and expulsion (e.g. Rules 14, 15 and 40), specific provision for an eligible person to be excluded by resolution is made by Rule 9(c), which provides:

"(c) Any person, who has received such ticket may be required, by notice in writing given at any time to such person by a Branch Executive or the Executive Council to produce to such Branch Executive or the Executive Council on any date stated in such notice, not being less than one month after the date of such notice, evidence satisfactory to such Branch Executive or the Executive Council that such person was at the time of receiving his ticket, and has continued to be entitled to become and remain a member of the Union. In default of such evidence a Branch Executive or the Executive Council may by resolution declare that such person did not become or has ceased to be, a member of the Union, and such declaration shall be binding on such person and upon all members of the Union."

Rule 70 is concerned with the conduct of Branch elections in the Federal body. It provides:

METHOD OF BALLOTING
70 Whenever a ballot is necessary under these Rules, ballot papers marked with a proper distinguishing letter and having printed thereon the date of closing of ballot, names (in alphabetical order), occupations, and residences of candidates, and the positions and offices to be filled, or particulars of the questions submitted for determination, as the case may be, and stamped addressed envelopes to the Returning Officer, shall be supplied.
The ballot shall be conducted as follows: Ballot papers, together with stamped addressed envelopes to the Returning Officer, shall be posted by pre-paid post to financial members by the Returning Officer.
Each member, on receiving a ballot paper, shall record thereon his votes for the candidates for whom he wishes to vote for the respective offices set out in such ballot paper or as the case may be his vote on the questions submitted for determination. Where a member records a vote for more or less persons than are required to fill any particular office, the vote insofar as regards such particular office shall be disallowed. Members having recorded their vote and annexed thereto the voting slip bearing the distinguishing letter corresponding with that on the ballot paper shall fold the ballot paper and voting slip and post same direct to the Returning Officer in the stamped addressed envelope provided for that purpose.
Any member passing through any Branch on production of his ticket may procure a ballot paper and stamped addressed envelope from the Returning Officer. The member shall then record his vote, attach his voting slip, and post his ballot paper and voting slip to the Returning Officer.
The Returning Officer shall not give progress reports, nor divulge the result, until the declaration of the ballot. He shall not count any ballot paper unless the correct voting slip is attached. The ballot papers, envelopes, lists and other documents shall be preserved and kept for a period of one year after the completion of an election.
The Returning Officer shall make complete returns of all voting in the Branch and he shall note all discrepancies.
Any candidate for office shall have the right to appoint a Scrutineer, who must be a financial member of The Australian Workers' Union; the expense incurred thereby shall be borne by the candidate.

What were said to be the butts of tickets issued in Queensland to 1981/82 financial members were received by the Australian Electoral Office on a progressive basis from 24 August 1981 to 7 December 1981 from the Queensland Branch Secretary of the Federal body. The butts supplied had been obtained from the six District Secretaries, who are respectively located as follows:
Southern District Brisbane
Central District Bundaberg
South Western District Charlesville
Western District Longreach
Northern District Townsville
Far Northern District Cairns

The butts were individually checked by the Australian Electoral Office for accuracy of address and to ensure that those butts showing occupations establishing eligibility for membership of the Federal body and only such butts were appropriately marked "Federal Rule 6". Obviously, that check depended on the correctness of the information available to the Australian Electoral Office, particularly the statement of occupation on each butt, and on its officers' interpretation of Rule 6. The information on all butts in respect of members considered eligible to vote was entered in a computer's memory and computer runs were obtained whereby the following documents were produced:
(a) A list of members' names and addresses in that run in alphabetical order for each district of the Union;
(b) an alphabetical list of all names and addresses in that run with any names identified by the computer as possible duplications of information contained in previous runs being indicated by an asterisk;
(c) adhesive envelope labels containing names and addresses of all members on the list referred to in (a) above.

Not all members eligible to vote were entitled to vote in respect of all positions. For example, only members in the Northern District were entitled to vote in the election for a Northern District Secretary: Rule 87(a). There were accordingly a number of different ballot papers, not all of which were inserted into every envelope to be posted. Envelopes containing what were considered appropriate ballot papers were selected and labelled in accordance with list (a) supra. Steps were taken where appropriate to avoid any possible duplication revealed by list (b) supra, and the envelopes were posted. The information on all unprocessed butts remaining after the last computer run on 4 December 1981 was typed on to adhesive envelope labels with a carbonised backing sheet so that a supplementary list was produced similtaneously with the addressing of the envelope labels. The labels were then applied to envelopes containing ballot papers which were posted. The process was completed on 7 December 1981. The roll of members eligible to vote was compiled from the computer run lists (a), supra, and the supplementary list above referred to. At a number of points in the process, appropriate checks were made to avoid error.

According to the Australian Electoral Office the total number of ticket butts processed was 37,649. Of these, 3,584 had been cancelled and 7,434 were considered to be outside Federal Rule 6 and were not forwarded any ballot papers. A total of 26,633 persons were forwarded ballot papers concerning elections for positions in respect of which all eligible members were considered to be entitled to vote; for example, Branch President, Branch Vice-Presidents, Organisers and Delegates to the 1982 Annual Convention. One of these involved a duplication. The additional persons included were two eligible financial members from the Central District where ticket butts had been lost. A total of 1,258 unopened envelopes were returned unclaimed. The total number of ticket butts processed in respect of persons in the Northern District was 11,630. Of these 1,040 had been cancelled and 2,506 were considered to be outside Federal Rule 6 and were not forwarded any ballot papers. A total of 8,084 persons were forwarded additional ballot papers concerning elections for positions such as Northern District Secretary in respect of which only persons in the Northern District were entitled to vote. No analysis has been done on how many of the envelopes returned unopened had been forwarded to Northern District members, although approximately one-third of the 957 returned unclaimed prior to the close of the poll related to members in the Northern District, much the same ratio as the proportion overall of Northern District members sent ballot papers to all members sent ballot papers.

The majority of the ballot papers concerning each election were not returned or were rejected on scrutiny, as informal etc. The voting figures for the positions in the elections now in question were:
1. Branch President
Votes counted 3968
Successful candidate 2522
Unsuccessful candidate 1446
(Mr Ferris)
MARGIN: 1076

2. Two Branch Vice-Presidents
Votes counted 3672
Successful candidate with 1904
lowest vote
Unsuccessful candidate 1706
with highest vote
MARGIN: 198

3. Fifteen Organisers
Votes counted 3668
Successful candidate with 3182
lowest vote
Unsuccessful candidate with 2391
highest vote
MARGIN: 791

4. Ten Delegates to Annual Convention
Votes counted 3710 Successful candidate with 2192 lowest vote Unsuccessful candidate with 1798 highest vote (Mr Ferris) MARGIN: 394
5. Northern District Secretary
Votes counted 1346 Successful candidate 835 Unsuccessful candidate 511 (Mr Ferris) MARGIN: 344

On 13 May 1982 the Industrial Registrar pursuant to sub-s. 159(4) of the Conciliation and Arbitration Act, referred to the Court an application by Mr Ferris, dated 6 May 1982 and apparently filed on 11 May, and purportedly made pursuant to s.159, by which Mr Ferris claimed that there had been irregularities in or in connection with the five elections detailed above and seeking an inquiry. It is not possible to summarize the application by Mr Ferris and, since its sufficiency has been called in question, there is no alternative but to set it out in full. REGULATION 138 FORM 27A
Conciliation and Arbitration Act 1904.

APPLICATION FOR INQUIRY CONCERNING AN ELECTION.

To the Industrial Registrar:
In the matter of election for offices in The Australian Workers' Union . . . Queensland Branch.
I, Clyde Raymond FERRIS of 28 Michael Street, AYR, 4807, in the State of Queensland, being a member of The Australian Workers' Union, hereby apply for an inquiry by the Federal Court of Australia into the matter of alleged irregularities specified in this application, which I claim have occurred in or in connection with the election specified in this application. I rely on the facts stated in this application.

PARTICULARS OF ELECTIONS
The Australian Workers' Union - Queensland Branch.
OFFICES:
QUEENSLAND BRANCH PRESIDENT . . . BRANCH VICE-PRESIDENTS (2)
NORTHERN DISTRICT SECRETARY . . . DELEGATES TO 1982 ANNUAL CONVENTION
TWO (2) ORGANISERS IN THE MT.ISA/CLONCURRY/MARY KATHLEEN AREA
IN THE NORTHERN DISTRICT
Yes . . . elections complete.
Election voting ceased on the 11th December 1981 and the ballot declared a few days subsequent to that date.

PARTICULARS OF ALLEGED IRREGULARITIES
I) The most glaring defect in the 1981 elections occurred in the election of organisers. The system used was to have the full state register of members vote in all organiser areas. Nominations were called for fifteen (15) organiser positions.
Two organisers, David Harris and Pat McKean, reside in Mt. Isa and organise an area defined as the Mt. Isa/Cloncurry/Mary Kathleen area in the Northern District. Two Mt. Isa miners, L.J. Horsefield and R.J.Burdon, nominated for the positions held by Harris and McKean but the elections were held on a state-wide basis which meant that members in distant regions voted in the election of union officers who did not represent them.
The only members who should have been held eligible to vote in the election of the two Mt. Isa organisers are the members whose names are recorded in the register of members kept at the Mt. Isa A.W.U. office. This register contains the names and addresses of the financial members who live and work in the area represented by the two organisers. The organisers represent no other members. It could never be said, for instance, that the Mt. Isa organisers represent A.W.U. members in the sugar growing areas of Ayr or Mackay.
It is well established that A.W.U. organisers in Queensland operate in well-defined regions within a District. The Northern District is made up of the following areas, with the number of organisers in brackets.
Townsville/Charters Towers and surrounds (2) . . . Ingham area (I) . . . Ayr/Giru/Bowen/Collinsville area (I) . . . Mackay/Sarina/Saraji area (2) and Mt. Isa/Cloncurry/Mary Kathleen area (2).
It can be seen that the Northern District contains five (5) organising areas requiring eight (8) permanent organisers and a District Secretary. The organisers are employed by the District Secretary, see Rule 64(b) of the union rules.
It is worth mentioning that of the eight (8) permanent organisers required in the Northern District, only four (4) nominated for election in the 1981 general elections.
Each of the five (5) organising areas has its own registered office and each retains its own register of members. It is ridiculous in the extreme to say they could be considered "state officers". They are, in fact and performance, area organisers representing only the members in their own areas.
In Mt. Isa there was a contest between four members for the two organiser positions in that area and it must surely constitute an irregularity that members in other regions and other Districts were permitted to vote in that contest.

2) GROUND:
BALLOT PAPERS NOT SUPPLIED TO EVERY PERSON ENTITLED TO RECEIVE THEM.
With a reported Federal Rule 6 membership of 37,763 in Queensland, only 26,633 ballot papers were posted out from the Australian Electoral Office. This means more than 11,000 members were denied the right to record votes and this would constitute an irregularity within the meaning of Section 4 of the Act and such an omission might well have affected the ballot results. I will supply to the Court the names of financial members who did not receive ballot papers in the 1981 elections.

3) GROUND:
BALLOT PAPERS SUPPLIED TO PERSONS NOT ENTITLED TO RECEIVE THEM.
It seems that a number of persons received ballot papers who were not eligible to be members of The Australian Workers' Union. One such person may be Margaret Davis, the wife of Ernest Davis, a Townsville based organiser. I have received information from the Australian Electoral Office that Mrs Davis received ballot papers and it is extremely doubtful that Mrs Davis' occupation is included in the membership eligibility in The Australian Workers' Union. In an attempt to ascertain this, I made a written request to the Union to inspect and copy sections of the register of members and this was denied to me by the Queensland Branch Secretary. This would most certainly constitute an offence and may even constitute an irregularity in itself.

4) GROUND:
INSUFFICIENT INFORMATION ON UNION TICKET BUTTS.
There were 957 ballot papers returned unclaimed to the Electoral Office and this may have come about because of incomplete or incorrect address information on the butts of the union tickets. This would place the Union in breach of Rule I3 (d) of its own rules and Section I52 of the Act. I will produce evidence that ballot papers were posted to members "c/- M.I.M." (Mt. Isa Mines) and this would surely offend Section I52 of the Act and might constitute an irregularity in the eyes of the Court. I expect the Court would want to examine the addresses on the 957 envelopes that were returned unclaimed.

5) GROUND:
UNION OFFICIALS USED UNION FACILITIES NOT AVAILABLE TO RANK-AND-FILE CANDIDATES.
There is a strong suggestion that union officials compiled "ready lists" of union members from the membership records and used these lists to synchronise the posting and/or delivery of how-to-vote cards to coincide with the posting of ballot papers from the Electoral Office. I have been given information from members in Mt. Isa, Ayr, and Sarina, that they received how-to-vote cards favouring incumbent officials, the same day they received their ballot papers from the Electoral Office. The "ready lists" were not available to rank-and-file candidates and there is no doubt in my mind that this operation played a significant part in affecting the ballot results and the Court may look on this as an irregularity.

6) GROUND:
SUGGESTION OF LOSS OR DISADVANTAGE TO INDUCE A WITHDRAWAL OF CANDIDATURE.
Developments during the 1981 elections give rise to the probability that David Gordon Place, of I3 Atherton Street, Sarina, may have been subjected to a "suggestion of loss or disadvantage to induce a withdrawal of candidature."
Also to the probability that Ronald Gill, of 22 Cedar Street, Allingham via Ingham, may have been subjected to a "suggestion of loss or disadvantage to induce a withdrawal of candidature."

7) GROUND:
UNFACTUAL MATERIAL PRINTED IN "THE AUSTRALIAN WORKER" DURING THE COURSE OF THE ELECTIONS.
I am of the opinion that material printed in "The Worker" of 30th October 1981 was unfactual and designed to injure my candidature in the elections. Although the article did not specifically mention my name, a large number of potential voters would easily have identified me with the article, and because it appears the intention of the article was to swing votes away from me, this might well have affected the ballot results, and might constitute an irregularity.

8) GROUND:
THE APPOINTMENT OF MR.E.R.HODDER AS A QUEENSLAND BRANCH DELEGATE TO ANNUAL CONVENTION.
There were eighteen (18) nominations for ten (10) positions as Delegates to Annual Convention and Mr. Hodder was not a candidate. The Queensland Branch Executive knew on 22 September 1981 that Mr Don Willmot did not intend taking his seat at Convention, if elected, but this information was kept secret and not made available to the electors.
Mr. Willmot was duly elected and on 11 December 1981, the day voting ceased, the Queensland Branch Executive in session carried the following resolution:
"That Mr. Errol Raymond Hodder, of 15 Raelene Terrace, Springwood be appointed as a Queensland Branch Delegate to 1982 Annual Convention in place of Mr. D. Willmot."
It appears the Queensland Branch Executive, in acting as it did, breached Rule 39 (g) of the union rules, and this might constitute an irregularity within the meaning of the Act.

9) GROUND:
PROVISIONS OF RULE 68 - "BRANCH NOMINATIONS" - MIGHT NOT HAVE BEEN VALID.
To be eligible to be nominated for an office in the 1981 elections, a member was required to have five (5) years membership and three (3) years continuity of membership. His nominators were required to have two (2) years continuity.
However, decisions given in the "Leveridoe Case" and the "Lovell Case" might have rendered the relevant part of Rule 68 invalid. If this is so, the Court may rule that the nominating provisions prescribed in Rule 68, were based on false premises when nominations were called, and this may constitute an irregularity.

ADDENDUM TO GROUND 1.
Further, in addition to Ground 1, it is submitted that the fact that organisers are directly responsible to District Secretaries who are themselves elected only by the members of the District they represent, creates in my submissions not only an inconsistency within the spirit of the Rules but an unsatisfactory situation in that the District Secretary must depend on area support for his continuity of service, whereas those serving under him, in some instances may be seen to require no such regional support.
It is submitted the spirit of the Rules would be strained to suggest that organisers, subordinate to a District Secretary who must be elected by popular vote within a District, should not be elected by a similar process.

I would submit respectfully, that if it is considered there is merit sufficient to refer this matter on to the Court, that it is appropriate that this matter be heard in Queensland.
I also advise, that due to my limited resources, it will be necessary for me to make application for financial assistance pursuant to Section 168 of the Act.

To the Industrial Registrar,
Level 35,
Nauru House,
80 Collins Street,
MELBOURNE.

Dated this SIXTH day of MAY, 1982.

Signed Ray Ferris
Applicant.
ELECTION INQUIRY
FACTS RELIED ON.
1)------Porter v Aust. Federated Union of Locomotive Enginemen: 7 FLR 396; 1965 AILR Rep 512; 20 IIB 1576.
"Its application to any particular position in the organisation will depend on the duties allotted to that position, rather than to the title given in the Rules."
2)------Section 133 (1)(e) ". . . shall ensure that, subject to reasonable provisions with respect to enrolment, every financial member . . . has a right to vote . . . "
3)------Section 4 . . . "Irregularity."
I have referred to the fact that I have been denied proper access to membership rolls which does appear to be particularly significant upon the question whether the registered number of unionists (referred to in Ground 2) as published by Allan D. Aitken & Son, is accurate as compared to the figures from the Electoral Office. You will note that I have been prevented from obtaining confirmation of these figures but I note pursuant to the Act that as Registrar, you have the power and presumably the right to inform yourself as to such matters.
4)------Section 152 (5) "An organisation shall, at all times during which a person is a member . . . keep a duplicate or butt of the latest union ticket issued to him, showing his name and usual place of residence. . . "
5)------Short v Wellings (1951) 72 CAR 84.
6)------Section 171 (2) of the Act.
7)------The material complained of was authorised by Mr. G.G.Goding, the then Secretary of the Central District in the Queensland Branch of the A.W.U. and at the time of the alleged offence, Mr. Goding was also President of the Queensland Branch of the A.W.U.
8)------Section 133 AA (5) "This section, and the regulations made for the purposes of this section, have effect notwithstanding anything contained in the rules of an organisation."
9)------"Leveridge Case" . . .Federal Court of Australia - Industrial Division - Smithers, Sweeney and Evatt JJ - V Nos 4,5,8,9,10 and 12 of 1977 - 29 August 1977 - 17 ALR 145.
"Lovell Case" . . .Federal Court of Australia - Smithers, Evatt and Northropp JJ - V Nos 17 and 18 of 1978 - 10 November 1978 - 22 ALR 704.
To the Industrial Registrar.
Dated this SIXTH day of MAY, 1982.

An accompanying statutory declaration by Mr Ferris stated that, so far as he had been able to ascertain, all particulars supplied by him were true and correct. A later document, dated 27 May 1982, sent by Mr Ferris to the District Registrar of the Court in Brisbane, specified that the orders sought were as follows:
1) That the Court issue an Order directing the holding of a ballot in order to determine which two members are entitled to hold the two permanent Organiser positions associated with the A.W.U. office in Mount Isa, and further, the Court direct that the only persons eligible to vote in the ballot be limited to those financial members whose names and addresses are recorded in the register of members in the A.W.U. office in Mount Isa.
2) That the Court issue an Order for a new election to be held for the positions of - Branch President, and Two (2) Vice-Presidents, on the grounds that so many irregularities and offences appear to have been committed in connection with the 1981 election that a correct ascertainment of the will of the membership has not been determined.
3) That the Court issue an Order for a new election to be held for the position of Northern District Secretary on the grounds that irregularities and offences most probably affected the ballot results.
4) That the Court issue an Order instructing the A.W.U. to prepare future union tickets in such a manner that Federal members of the A.W.U. are distinguished from members of a State union bearing a similar name, so that irregularities such as those outlined in Ground 3 of my Application can be avoided in future elections.
5) That if the Court finds that an offence, or offences, in connection with the 1981 elections have been committed, that the person or persons responsible for any infringements be prosecuted to the full extent of the law.

When the matter first came before me on 4 June 1982, I directed, inter alia, that:

"2. The applicant file and serve on the solicitor for the respondents and the Solicitor for the Australian Electoral Office a full statement of the facts relied on in respect of each of the grounds 2,3,4,5,6,7 and 8 contained in the Application, on or before 25 June 1982.
3. The Returning Officer file and serve on or before 9 July 1982 an Affidavit dealing with the actions taken by him in the conduct of the subject election insofar as they relate to the grounds set out in that Statement of Facts."

At a further directions hearing on 16 July 1982, directions were given including directions by which the times were extended, the Returning Officer was required to file and serve a copy of the Roll of Voters, and the applicant and his representatives were given access to the ticket butts. The respondents wished to raise preliminary questions and a direction was given for each party to notify the others what preliminary questions it was wished to have determined. Pursuant to that direction, the respondents delivered the following list of preliminary matters, involved in which is the question posed by sub-s. 159(4)(b), viz., whether the inquiry should be proceeded with. Because the elections were conducted by the Industrial Registrar pursuant to s.170 of the Act, the inquiry need not be proceeded with unless the Court is satisfied that there are reasonable grounds for doing so.
1. (a) Does the application comply with s.159(2)(a), (c) and (d) of the Conciliation and Arbitration Act, 1904?
(b) Is the application invalid by reason of failure to comply in full with the requirements of s.159(2)(a), (c) and (d) of the said Act within the required time?

2. (a) Does the material before the Court establish a "reasonable ground" for the application, within the meaning of s.159(4)(b) of the Conciliation and Arbitration Act 1904?
(b) In the case of each of the nine irregularities alleged in the application, does it disclose a ground which, if proved, would constitute an "irregularity in relation to an election or ballot" within the meaning of s.4 of the Conciliation and Arbitration Act 1904?
(c) In the event that the Court proceeds with an inquiry, which of the nine irregularities, alleged in the application, shall be the subject of the inquiry?

3. In the case of each of the nine alleged irregularities, is the alleged irregularity validated by s.170A(3) of the Conciliation and Arbitration Act, 1904?

4. In the case of the OFFICE, described in the Application as "TWO (2) ORGANIZERS IN THE MT ISA/CLONCURRY/ MARY KATHLEEN AREA IN THE NORTHERN DISTRICT" :
(a) Was there an election for the position so described into which an inquiry can proceed?
(b) Does the application institute any valid proceedings in respect of the election in the Australian Workers' Union for the offices described in the Decision of Mr K.D. Marshall, Industrial Registrar, of 13th March 1981, as:- "QUEENSLAND BRANCH Organisers (15) (paid positions)"?

Although the proceedings have not yet passed the threshold, there is a considerable volume of material concerning the irregularities alleged by Mr Ferris, including four affidavits by him which have been filed since the first directions hearing. A preliminary hearing took place on 2 September 1982 and was then concluded on the basis that schedules and supplementary submissions in writing would be provided by the applicant and the respondents. That has been done; the final submission from any party came in on 18 October 1982. The course proposed by the applicant, who conceded that the inquiry could not extend to all the people in Queensland who had tickets at the relevant time, was as follows:

"(a) direct that an inquiry proceed
(b) court to select a cross section of people named in the schedules and direct that applicant obtain from such people affidavits deposing to:
(i) in the case of people alleged not to have received ballot papers but entitled to receive them: whether or not they received ballot papers;
(ii) in relation to the people whom it is alleged should not have received ballot papers
(aa) whether they did receive ballot papers
(bb) whether they were entitled to be members
(cc) whether they were members at the material time."

That course was opposed by the respondents. Their primary contention is, of course, that there should be no inquiry. If I am against them on that, they are "opposed to the use of a cross-section on the ground that the sample suggested may not be representative and that the Court does not have sufficient information before it to enable it to select a representative sample". It might, I think, have been added with considerable force that the people selected may decline to make affidavits, that it is not the role of the Court to select witnesses, and that the applicant has had ample opportunity to obtain evidence from persons named in the schedules which are based on his affidavits. The respondents' suggestion for an inquiry, if there is to be an inquiry was the following:

"(1) Permit the cross-examination of deponents of the affidavits relating to the grounds two and three;
(2) On the proper construction of Rule 6 of the organisation's Rules, determine whether each person named in the material filed by the application was -
(a) entitled to be a member;
(b) a member at the material time;
(c) entitled to vote.
(3) Where there is conflict on whether particular individuals received ballot papers, determine the questions of fact which arise;
(4) On the basis of those findings, decide whether there is an irregularity within the meaning of the Act;
(5) Following submissions from the parties determine what, if any, declarations or orders are to be made in relation to the election."

THE APPLICANT'S GROUNDS

The schedules, although agreed, were not entirely accurate. They related to grounds 2 and 3 and formed the basis of written submissions with respect to those grounds. I will first deal separately with each of those grounds and then deal briefly with the other grounds, even ground 8 which was abandoned. Before doing so, however, brief reference to some of the most important of the statutory provisions is appropriate.

Sub-section 159(4) of the Conciliation and Arbitration Act 1904 provides that -

"An application may be made under this section in respect of an election conducted under s.170 if the application is made within the time that is applicable under the next succeeding sub-section and, where such an application is made -
. .
(b) the Court is not required to proceed with an inquiry unless it is satisfied that there is reasonable grounds for the application. . . ".

That provision must be read in conjunction with sub-s. 159(1) which refers to "an irregularity in or in conjunction with an election for an office of the organisation, or in a branch of the organisation", which, in turn must be construed together with the definition of "irregularity" which appears in s.4:

"'Irregularity', in relation to an election or ballot, includes a breach of the rules of an organisation or of a branch of an organisation, and any act, omission or other means whereby the full and free recording of votes by all persons entitled to record votes, and by no other persons, or a correct ascertainment or declaration of the results of the voting is, or is attempted to be, prevented or hindered . . "

Sub-section 165(4) provides that -

"The Court shall not declare an election, or any step taken in or in connexion with an election to be void, or declare that a person was not elected, unless the Court is of opinion that, having regard to the irregularity found, and any circumstances giving rise to a likelihood that similar irregularities may have occurred or may occur, the result of the election may have been affected, or may be affected, by irregularities."

It has been said that paragraph 159(4)(b) does not oblige the Court to satisfy itself that there are reasonable grounds for the application before proceeding with an inquiry. (Bucknell v. Printing and Kindred Industries Union, supra; cf Re Federated Liquor and Allied Industries Employees' Union of Australia; ex parte Huxtable, (1979) 40 F.L.R. 418 at p.423) but that it rather provides the means by which, in the case of a conducted election, (in respect of which the Court does not have the assistance of a preliminary investigation by the Industrial Registrar: para 159(4)(a); cf. s.160), the Court need not embark upon a time consuming and expensive inquiry if it appears that there is no reasonable ground for doing so.

GROUND 2

The substance of this ground was the assertion that some eligible persons did not receive the ballot papers to which they were entitled. In its broadest form the argument submitted that all persons issued with tickets, not just those with "Federal Rule 6" tickets were entitled to vote. That submission is quite inconsistent with other parts of the applicant's case and plainly incorrect: see Stewart v. Oliver (1971) 17 F.L.R. 99. This ground, however, also was advanced on a narrower basis. In an early affidavit, Mr Ferris swore that he had been informed by a Mr Pease, the union representative at the Tully Sugar Mill, that a great number of "Haul-out drivers" had not received any ballot papers. No evidence was ever forthcoming from Mr Pease or any of the "Haul-out drivers" and the matter was not again adverted to or referred to in the schedule dealing with this ground; an affidavit by Mr Twomey, the Far Northern District Secretary of the Queensland Branch of the Federal body strongly suggests that, having regard to the Australian Electoral Office procedure, the information given to Mr Ferris was probably incorrect. The schedule does, however, contain 37 names of persons who Mr Ferris states he was informed did not receive ballot papers and 2 names of persons who Mr Ferris states he was informed did not receive ballot papers until after the close of the ballot. No evidence was provided from even one of those persons named or one informant. Five of these persons were admittedly not sent ballot papers because ineligible to vote according to the information on the ticket butts. I will refer to these persons again under ground 3. According to the Australian Electoral Office, 27 of those persons referred to by Mr Ferris were on the Voters' Roll which it prepared and another 4 have similar names to names on the Voters' Roll and might be the same persons. Another one was on the Voters' Roll but his address was different from that referred to by Mr Ferris. The only additional names are "Parsons" and "Tolsher", who admittedly received no ballot papers, but who, according to what Mr Ferris swears he was told, are "Sugar Workers" at the Tully Sugar Mill.

In my opinion, it would be quite irresponsible to order an inquiry into the election for the subject positions or any of them on this ground on the basis of the material put forward by Mr Ferris. It is a curious feature of these proceedings that, although he is legally represented, it seems clear that Mr Ferris has prepared his own affidavits and exhibits which have been filed without revision. Much of what is put forward is not only hearsay, or hearsay upon hearsay, or irrelevant, but positively embarrassing. I do not suggest that the question whether an inquiry should be proceeded with can be answered only by reference to strictly admissible evidence; sub-s. 159(2) of the Act itself provides merely for a statutory declaration that facts stated by the applicant are, to the best of his knowledge and belief, true. On the other hand, in my opinion the Court when considering whether an inquiry should be undertaken is entitled to look not only at the application and statutory declaration but to have regard to all available material, including in this case both the applicant's own affidavits and the affidavits filed by the respondents and the Returning Officer. The applicant's view seems to be that it is for him merely to make allegations and for someone else - it seemed to be the Court - to undertake the daunting task of searching into every possible nook and cranny to ensure that there is no substance in what he alleges and/or that there may not be more. I do not share that view, and it seems to me quite contrary to sub-s. 159(4)(b) of the Act, to which I have already referred. Quite apart from the fact that I consider that the Rules were complied with by the procedures followed by the Australian Electoral Office even if some ballot papers posted were not received (cf. Lincoln v. Transport Workers' Union of Australia unreported), there is no reliable evidence that any, certainly not any potentially significant, number of persons eligible to vote did not receive ballot papers. The most that can be said is that there was very little time between the posting of the last of the ballot papers and the close of the poll, but that is presumably unavoidable where there is an ongoing recruitment of members across the State by organisers, job representatives, agents, and office staff, as is the case according to the evidence of Mr Hodder, the State Branch Secretary: cf Re Australian Glass Workers' Union (1973) 22 F.L.R. 17, 23-25.
GROUND 3

This ground related in terms to persons whom Mr Ferris alleged received ballot papers and/or voted, although not entitled to vote, principally because of ineligibility for membership of the Federal body by reason of occupation. As I have already mentioned in connection with ground 2, there were also five persons named by Mr Ferris as entitled to vote who did not receive ballot papers because considered ineligible to vote; according to their ticket butts each was a "domestic" whilst according to Mr Ferris each was a "laundry worker": cf Stewart v. Oliver, supra. Similar perceived distinction formed the substantial foundation for the applicant's allegations elsewhere on this part of the case. However, the conflict ranged somewhat more widely and there are a number of categories.
(a) A considerable number of persons named by Mr Ferris as having received ballot papers could not have done so consistently with the procedures followed by the Australian Electoral Office. Thirty-three persons named by the applicant do not appear on the Voters' Roll which records those to whom ballot papers were sent and, of these, the majority did not join the union until after the declaration of the poll.
(b) One area of contention concerned "factory hands" working in a factory where ice cream was made. Mr Ferris named 19 such people whom he contended were not entitled to be members of the Federal body. The respondents contended to the contrary, although it seems that two of these people, Kerry and Birnie, did not in fact have a ballot ticket posted to them. A similar dispute concerned four "Van Salesmen" associated with the ice cream factory.
(c) Another similar disagreement existed over Mr Don Fraser, a "Port Attendant" employed by the Townsville Harbour Board and "at least 30 other members employed by the Townsville Harbour Board".
(d) A still further group consisted of three named "Seafood Factory Workers" (two in the schedule), and some "50 to 70 employees called 'processors' with preference given to A.W.U. members" whom Mr Ferris was told were employed at premises of K.F.V. Fisheries (Qld) Pty Ltd in Townsville known as the "Sea Food Factory".
(e) The remainder named were isolated examples:
(i) Margaret Davis, a 'Hospital Supervisor' at Townsville General Hospital;
(ii) Maxwell, a 'Car Park Attendant';
(iii) Vines, a 'Service Tyre Fitter' working in a tyre fitting depot;
(iv) Scott and Shay and Shields, 'Pest Control Labourers';
(v) Stretton and Turner, 'Motor Cycle Sprayers';
(iv) Van Triest, a 'Locator'.
(f) The applicant's final complaint was that there were many hundreds of persons merely designated as "Labourers" who might or might not be eligible for membership of the Federal body.
I propose to say no more of this general allegation than that one of the categories specifically provided forin Rule 6 is "all kinds of general labour", and that, in any event, any vagueness or uncertainty in the description of an occupation seems to me neither to require that it be concluded that he or she was ineligible for membership of the Federal body or that there is therefore cause to inquire. In the absence of evidence from the applicant as to the facts upon his contentions are based, or anything else save broad and generalized assertions, there seems no foundation for an assumption that those who applied for membership and those who enrolled them were in error.

Emphasis is given to these considerations by what is put forward by Mr Ferris himself as the notion underlining his contention in many instances, viz., that in the rules of the State registered body there is a classification which he considers appropriate to a particular person's occupation which classification is not in terms repeated in Rule 6. It is an obvious non sequitur that such an occupation is not encompassed by Rule 6: cf Stewart v. Oliver, supra.

The apparent lack of substance in the applicant's broad assertions, generally made as the result of no more than what he says he was told, is further reinforced by the material filed by the respondents in an effort to give some idea of the nature of the occupations of those to whom Mr Ferris has referred. I do not propose to canvass individual cases in these reasons. If there were some ineligible members of the Federal body in Queensland, and that would not be suprising in view of the dual registration but single membership administration system which is practised (cf Stewart v. Oliver, supra), I am far from convinced that the number might have been significant. Particularly bearing in mind that the criticism to which the applicant's material is susceptible in respect of ground 2 is equally applicable to this ground 3, I am far from satisfied that there is any reasonable ground for an inquiry.

Finally on this aspect, it may be noted that eligibility problems would arise not only by reference to circumstances existing at the time of joining but also by reference to subsequent events, e.g., a change of employment: cf Stewart v. Oliver, supra, and Troja v. Australian Meat Industry Employees' Union (1978) 23 A.L.R. 18. There seems to me much to be said for a view that the Rules intend that an entitlement to vote depends upon possession of an appropriate Federal Rule 6 ticket genuinely applied for and granted rather than more objective considerations involving the need for continuous investigation. However that may be, I am, as I have said, not satisfied by the material that this ground 3 affords a reasonable ground for an inquiry.

GROUND 1

In my opinion, this ground which asserts that only members in a particular part of the State were entitled to vote for Organisers for that area is founded on a basic misconception of what the relevant Rules provide. My opinion is supported by the decision of three judges of the Australian Industrial Court in Rounsevell v. Mitchell (1968) 11 F.L.R. 414, at p.426.

GROUND 4

There is nothing to indicate that any of the envelopes returned unopened failed to reach the address by reason of some inadequacy in the information recorded on the ticket butts. Mr Ferris referred to envelopes addressed to members of the Federal body "C/- M.I.M." or "C/- Mt Isa Mines". The reason why such addresses are used was explained by an affidavit filed on behalf of the respondents. Whether or not there was a technical breach of sub-s. 152(1) or Rule 13(d), the election was unaffected. The applicant's own material established that the envelopes so addressed were received by the addressees.

I could not possibly be satisfied that on this ground there may have been an irregularity by which the result of the election may have been affected or that there is reasonable cause for inquiry.

GROUND 5

No basis exists in fact for the applicant's suspicions. The material available satisfies me that there is no basis for an inquiry into whether "union officials" had and took advantage of "ready lists" of eligible voters not available to others in order to gain an electoral advantage. There is no need to comment upon whether what the consequences might be were the position as suspected by Mr Ferris.

GROUND 6

The applicant's sixth ground was based on the provisions of s.171 of the Act which enacts offences in connection with union elections, and, in particular, sub-paragraph 171(2)(a)(i) which provides:

"A person shall not, in or in connexion with an election for an office -
(a) threaten, offer or suggest any violence, injury, punishment, damage, loss or disadvantage for or on account of, or to induce
(i) any candidature or withdrawal of candidature;
. . ."

The conduct which the Applicant relies upon as constituting an offence under that section is that a candidate in the election had withdrawn his nomination after accepting an appointment as Supervisor which was offered to him by his employer on condition that he disengage himself from union activities. The proposition that an outside party such as an employer, which is neither a candidate nor a member of nor otherwise connected with a union, can by its conduct avoid an election, would require careful scrutiny. That is, however, not an issue which falls for the expression of a final view, as I am otherwise satisfied that there is no "reasonable ground" for an inquiry in respect of the incident in question. Nor is it necessary to comment upon whether if what is alleged did occur, s.171(2) was offended.

It is obvious that the employee in question no longer wished to be a candidate and, of course, could not be made to nominate in the event of a re-election even if there was any good reason to order him to do so. The suggestion by counsel for the applicant that, had it been known at an earlier stage that he would not be standing, some other person or persons might have nominated, is left as mere speculation, unsupported by evidence or reason. Further, such a failure to stand would be at least one stage removed from the inpugned conduct of the employee. And, another leap of the imagination is required to speculate as to the possible effect of the other hypothetical candidacy on the outcome of the election.

GROUND 7

The applicant's seventh suggested ground of irregularity related to an article which appeared on page 13 of a newspaper called "The Australian Worker", described in its banner as the "Official Journal of the Australian Workers' Union", of Friday October 30, 1981. The article in question is headed "A Little Knowledge is a Dangerous Thing" and consisted principally of a statement attributed to Mr G. Goding, the Queensland Central District Secretary of the A.W.U., which was severely critical of "a person" who, it was said, "twisted information in an attempt to use it to his advantage when seeking an official position within the Union". The article did not specifically mention the applicant's name although the applicant says that the circumstances set out in the article were sufficient to identify him with "the person" referred to therein, and that "a large number of potential voters" would have so identified him. Whether or not Mr Ferris was "the person" referred to, and whether or not that would have been apparent to a significant number of voters, does not seem to me to be particularly relevant. It is sufficient, for the purpose of considering whether it constitutes "a reasonable ground" for an inquiry, that it expressly related to a person "seeking an official position within the Union" at a time when the subject elections were in train. Further, although the matter was not argued on such a basis, it is my view appropriate to proceed on the basis that what was done seems to have been done at the expense of the Union: see Rule 145. It is well established by a series of cases commencing with In re Federated Iron Workers' Association of Australia; Short v. Wellings (1951) 72 C.A.R. 84, and including Stephenson v. Dowdell (1980) Law Book Company's Industrial Arbitration Service, Current Review June 1980, p.303 and Valentine v. Butcher (1981) Law Book Company's Industrial Arbitration Service, Current Review, March 1981, p.168, that there is a prohibition upon the "use of the resources or funds of an organisation to support one candidate in an election in circumstances where they have been denied or will be denied to another candidate": (Valentine v. Butcher, supra, per Keely J. at p.174).

In my opinion, however, especially in view of the facts that the conduct impugned was merely an article in the Union journal and that there is nothing to indicate that it added in any way to the expense of publication and distribution, or to indicate that it is not open to any member to have views on union matters published, the present applicant's claim is considerably weaker than that rejected by Sheppard J. in Re Australian Postal and Telecommunications Union; ex parte Wilson (1979) 28 A.L.R. 330. See also Evans v. Crichton-Browne (1981) 55 A.L.J.R. 287, 288.

GROUND 8

The eighth ground set out in the Application is that one of the candidates for the ten positions of Delegate to the 1982 Annual Convention did not nominate bona fide in that he did not intend, if elected, to take his seat at the Convention and, indeed, when he was elected he immeditely resigned and by resolution of the Queensland Branch Executive his position was filled by another. That ground was abandoned by the applicant. In any event, I am not satisfied that it could conceivably constitute a "reasonable ground" for the holding of an election inquiry. There is nothing, even rational suspicion, to relate the later resignation to a conclusion that his nomination was not bona fide.

GROUND 9

The applicant's final ground consisted of an attempt to impugn the validity of Rule 68 in that it requires -
(a) "that a candidate has been a financial member within the meaning of sub-clause (d) of Rule 4 continuously for at least three (3) years immediately preceding the date of nomination and has been a member of the Union for at least five years immediately preceding the date of nomination";
and
(b) "The nomination paper must be signed by at least two (2) members of the Union who have been continuously financial in the Union for two (2) preceding years . . . ".

In support of this ground, the applicant relied upon a number of decisions in which the validity of provisions in the rules of other unions, fixing a minimum period of continuous membership as a condition of eligibility for election to office within the union, had been called into question. These include Leveridge v. Shop Distributive and Allied Employees' Association (1976) 31 F.L.R. 385, Allen v. Townsend (1977) 31 F.L.R. 431, Lovell v. Federated Liquor and Allied Industries Employees' Union of Australia (1978) 35 F.L.R. 72, and Bucknall v. Printing and Kindred Industries Union, supra.

Although possible reasons why a period of continuous financial membership is an appropriate requirement are perhaps most obvious when the requirement is a condition of holding office, it is not difficult to see that a similar requirement may also be an apt condition on the exercise of other rights.

It would seldom be possible, in my opinion, for the need for such a requirement and the reasonableness of what a rule provided to be determined in the absence of explanatory facts. Certainly, such a course would be inappropriate where, as here, the very Rule, in substance, has been previously upheld: see Cameron v. Australian Workers' Union (1961) 2 F.L.R. 45, 59, 73-74, 91-92. The possibility of invalidity of a particular Rule if unspecified facts exist, without any indication that they do exist, affords no reasonable grounds to proceed with an inquiry into an election which, in any event, it is not shown might possibly have been affected.

THE RESPONDENT'S PRELIMINARY OBJECTIONS

Since I am not satisfied that there is any reasonable ground for proceeding with the inquiry requested, other matters raised by the respondents need not be dealt with. However, because they were argued, I will mention them briefly.

(i) It is clear that neither the unreported judgment of J.B. Sweeney J. in Re an Election for Officers in the Australian Meat Industry Employees' Union, Queensland Branch, nor the unreported judgment of Keely J. in The Amalgamated Metal Workers' and Shipwrights Union v. Carey and Hastings, is authority for the proposition that an election conducted by the Australian Electoral Office under s.170 of the Act upon request by a union is beyond challenge. Such a proposition would be in plain contradiction of the Act and inconsistent with what has been done on numerous occasions: see, e.g. Allen v. Vehicle Builders Employees' Federation of Australia (1977) 20 F.L.R. 263.

(ii) It has been held that an inquiry is not restricted to the grounds particularized in the Application or to the facts there alleged. Sub-section 159(1) does not provide for an inquiry into the alleged irregularity; it provides for an inquiry into the "matter". As was explained by Kerr J. (as he then was) in Re Election for Officers in the Federated and Liquor Allied Industries Employees' Union of Australia (1970) 16 F.L.R. 107, 111, a case dealing principally with the powers of the Industrial Registrar in respect of such inquiries, the "matter" mentioned in sub-s. 159(1) is the claim that there has been an irregularity in the election and not the claim that there has been the particular irregularity specified in the application. The same principle has been applied to the powers of the Court, in two decisions of Mr Justice Dunphy in election inquiries conducted in the Commonwealth Industrial Court, Re Elections for Officers in Australasian Meat Industry Employees' Union, (1963) 5 F.L.R. 260, and Jutte v. Amalgamted Engineering Union, Australian Section (1967) 10 F.L.R. 195, and, more recently, in an inquiry conducted by Sheppard J. in this Court, Re Australian Postal and Telecommunications Union; Ex parte Wilson (1979) 28 A.L.R. 330. See also Allen v. Vehicle Builders, supra, at pp 274-275 and 281 and Troja v. Australian Meat Industry Employees' Union (1978) 23 A.L.R. 18, 22.

If that is correct, it may be that a similarly wide view should be taken at the threshold stage in determining whether an inquiry should proceed, notwithstanding the words of para 159(4)(b), "unless it is satisfied that there is reasonable grounds for the application".

(iii) On any view of the matter, if Mr Ferris did make an Application it was within the time limited by para 159(5)(b) of the Act which permits a period of six months commencing on the date of the election. If there were separate elections, the positions now in question were contested and the elections for them were not completed until December 1981. If there was only one election, including the uncontested positions, it was not completed until December 1981, when the election for the contested elections was completed.

(iv) However, the time limitation for which sub-s. 159(5) provides add force to what seemed to me to be a very real argument for the respondents that the Application by Mr Ferris failed to satisfy the requirements of sub-s. 159(2) which provides:

"An application under this section shall -
(a) be in writing and in accordance with the prescribed form;
. . .
(c) specify the election in respect of which the application is made and the irregularity which is claimed to have occurred, and state facts relied on in support of the application; and
(d) be accompanied by a statutory declaration by the applicant declaring that the facts stated in the application are, to the best of the applicant's knowledge and belief, true."

A number of authorities indicate that the requirements of sub-s. 159(2) are mandatory and that a failure to comply with them substantially avoids the Application. The first of these cases seems to be R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Federated Clerks Union of Australia, New South Wales Branch (1950) 81 C.L.R. 229; see p.242 per Latham CJ with whom McTiernan and Kitto JJ agreed and Webb J. at p.244. That decision has since been applied on two occasions by single judges of this Court: see Re Election in Administrative and Clerical Officers Association, Commonwealth Public Service (1980) Law Book Company's Industrial Arbitration Service Current Review, July 1980, p.363, a decision of Sheppard J., and the unreported decision of Evatt J. in Re an Application for an Election Inquiry in the Amalgamated Metal Workers and Shipwrights Union by Shahid Naqvi. Contrast R. v. Commonwealth Court of Conciliation and Arbitration; ex parte Grant (1950) 81 C.L.R. 27.

The particular requirement of sub-s. 159(2) upon which the respondents placed reliance is that contained in paragraph (c), that the application shall "specify . . . the irregularity which is claimed to have occurred, and state the facts relied on in support of the application". Insofar as the Application fails sufficiently to set out the facts relied on, Counsel for the Union further submitted that the applicant has failed to comply with paragraph (d) of sub-s. 159(2), in that there is no statement of facts in the Application to which the statutory declaration can be regarded as referring.

It is unnecessary for the purpose of this matter to say more than that this seems to me a submission of considerable force: see R. v. Commonwealth Court of Conciliation and Arbitration; ex parte Federated Clerks Union, supra, at p.241; cf In re Berrill (1978) 52 A.L.J.R. 359; and Evans v. Crichton-Browne, supra.

In my opinion, the inquiry should not proceed and the application should be dismissed and the Court so orders.

There is one final matter. The reports reveal that there are numerous disputes concerning union elections. It is, of course, right and proper that there should be a mechanism to challenge the results in such elections which must be conducted with scrupulous fairness. However, judicial resources and the funds and energies of the unions should not be permitted to be wasted. It may not be possible to standardise union rules or to provide a code of procedure for all union elections. Nonetheless, it may be possible to deal with a number of matters which continue to arise and cause disproportionate problems; for example, qualifying periods of membership to nominate, stand, or vote. Perhaps even more importantly, there seems reason to distance the question of entitlement to membership of a union from that of eligibility to vote in its elections once admitted as a member. Persons disappointed with an election result should not be permitted to introduce technicalities in an attempt to affect the outcome of an election by disenfranchising some who have voted, although no doubt perfectly content otherwise to have such persons continue as union members. Consideration might be given to recognizing, by statute, that those who have been bona fide admitted to membership and recorded as members constitute an appropriate electorate for union elections provides that they continue to be financial.