In the matter of an application by Ferguson, Glenn William for an inquiry into an election in the Australasian Meat Industry Employees Union Western Australian Branch and in the matter of a reference of such..

Re: IN THE MATTER of the Conciliation and Arbitration Act 1904;
IN THE MATTER of an application by GLENN WILLIAM FERGUSON
for an Inquiry into an Election in THE AUSTRALASIAN MEAT
INDUSTRY EMPLOYEES UNION, WESTERN AUSTRALIAN BRANCH and
IN THE MATTER of a reference of such Application by the
Industrial Registrar to the Federal Court of Australia
No. WA 5 and 6 of 1985
Industrial Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA
DISTRICT REGISTRY
GENERAL DIVISION
Toohey J.

CATCHWORDS

Industrial Law - alleged irregularities in conduct of union election - application for an inquiry under Part IX of Conciliation and Arbitration Act - allegation that members ineligible to vote issued with ballot papers - construction of eligibility rule - waiver by union of contributions of members involved in prolonged industrial dispute - whether waiver lawful - effect of waiver on eligibility to vote - allegation of common authorship of a number of ballot papers - conflicting evidence of handwriting experts - completion by election candidate of more than one ballot paper - involvement of election candidate in distribution, collection and posting of ballot papers - action taken with authority of members in question - whether "irregularities" in terms of the Act - members elected to position of representatives from small-goods and bacon curing area employed as slaughtermen in abattoir at small-goods factory - whether "normally employed in the small-goods and bacon curing manufacturing area" in terms of the rules - whether eligible to stand - 94 members to whom ballot papers issued found ineligible to vote - real possibility that other members to whom ballot papers issued also ineligible - whether result of election affected - whether Court has a residual discretion not to avoid election where result of election affected by irregularities

Conciliation and Arbitration Act 1904 ss.4, 159, 165, 167

HEARING

PERTH

#DATE 10:7:1986

JUDGE1

This is an inquiry, under Part IX of the Conciliation and Arbitration Act 1904 ("the Act"), into an election held by The Australasian Meat Industry Employees' Union, Western Australian Branch ("the Union"), an organization registered under the provisions of the Act.

The election was conducted by postal ballot between 30 August and 13 September 1985 for the following positions which, other than those of delegates, comprise the Committee of Management of the Union:

President

Vice-Presidents (2)

Secretary

Treasurer

Organizer

Federal Council Delegates (2) Representatives to the Committee of Management (15)

The fifteen representatives represent what the Union's rules describe as "areas". Since the representation of one of those areas is directly in issue, it is desirable to set out their origins:

Metropolitan

Registered abattoirs (2)

Export boning rooms (1)

Wholesale and/or retail area (2) Small-goods and bacon curing manufacturing area (2) Areas other than those covered by the above (1)

Country

Albany (2)

Bunbury (2)

Northern (1)

Central (1)

Katanning (1)

At the request of the Union, the election was conducted by the Australian Electoral Commission pursuant to s.170 of the Act. The applicant was one of four candidates for the position of Secretary. He was unsuccessful. He alleges various irregularities in the conduct of the election. They fall into three categories:

(1) an allegation that a substantial number of persons to whom

ballot papers were sent were not eligible to vote

(2) an allegation that two substantial groups of ballot papers

were completed, in each case by the one person, and

(3) an allegation that the successful candidates for the position

of representatives from the small-goods and bacon curing manufacturing area were not eligible to stand for those positions.

The first and third categories turn to some extent on the construction of the Union's rules. That construction and indeed an understanding of membership of the Union involve some consideration of the nature of the industry with which the Union is concerned.

Employment in the meat industry is largely seasonal. This is particularly true of the export processing side which is related to such factors as lambing, culling and weather. In the north-west of the State, killing can take place only during the dry season. There is stability of operations, hence stability of employment, to a greater degree in the case of small and medium sized country abattoirs which process meat for the local market and not for export. Likewise, employment in butcher shops and smallgoods factories is reasonably stable though there is a lot of casual and part-time work in supermarkets and butcher shops. Work at the large country abattoirs - Broome, Albany and Katanning - is seasonal and the work force comes and goes. At Robb's Jetty there is a core work-force whose employment is stable but this expands in the lambing and culled sheep seasons by 100 or more employees.
Thus within the meat industry may be found employees who work for the same employer the year-round, employees who work at an abattoir for a substantial part but by no means the whole of the year and other employees whose work is of a casual nature. The casual workers may be ignored for the purpose of this application for they were not treated as eligible to vote.
Because of the seasonal nature of employment, it suits many employees to pay their membership subscriptions to the Union by deduction on a weekly or other periodic basis rather than have to find a substantial lump sum each time they return to work at an abattoir or other place of employment. A weekly deduction is calculated, having regard to the annual membership fee which the rules set at between $135 and $150. The basis on which deductions are forwarded to the Union may vary from employer to employer. There are members who prefer to pay their contributions on a six monthly basis. Those who so pay receive a combined receipt Union ticket. Those who pay by deductions receive a membership card deeming them to be financial members provided that contributions are deducted.
It is relevant, in relation to the eligibility of certain persons to vote, to be aware that in or about March 1985 there was a series of industrial disputes at Borthwick's Albany abattoir resulting in closure of the abattoir and the dismissal of a number of workers. The abattoir ceased to operate in March and did not re-open until late in 1985. At a meeting of the Committee of Management held on 22 June 1985, it was noted that, due to Borthwick's closure, the Albany workers had with a few exceptions paid no deductions since 30 March. The meeting resolved:

" That all arrears for Albany members be waived and credits be brought forward to the commencement of the Albany works, providing that those workers do not gain re-employment in the meat industry prior to the works re-opening".

Against this background, it is necessary to say something about the rules of the Union. Such rules are often drawn without professional advice. The Court should therefore avoid too literal a construction of the rules and should try to give effect to their apparent intention. See for instance Re Isaac; Ex parte Argyle Diamond Mines Pty. Ltd. (1985) 62 ALR 385 at 398. However there are limits to the extent a court may go in this regard. There may be inconsistencies between rules which it is impossible to reconcile and there may be gaps which cannot be filled. Some of the inadequacies of the rules of this Union were exposed by the decision of the Federal Court in Troja v. Australasian Meat Industry Employees' Union (Victorian Branch) (1978) 46 FLR 340.
An appropriate starting point is r.10 which prescribes the circumstances under which a member of the Union "shall be deemed unfinancial". The rule makes it clear that a member who is unfinancial (broadly speaking, this means anyone whose contribution, levy or fine is in arrears for more than one month) is excluded from all the privileges of membership, "except the right to vote pursuant to Rule 6A". On the face of it then, eligibility to vote and financial standing are not synonymous.
Rule 53(19)(e) reads:

"(e) Only members of the Union eligible to vote pursuant to Rule 6A shall be entitled to exercise a vote at any election".

Rule 6A reads in part:

"(1) Notwithstanding any provisions to the contrary in these rules, a member shall be deemed eligible to vote in any elections provided for by these rules,

(a) if he has paid during the half-year immediately preceding the half-year in which the ballot is conducted the contributions fixed pursuant to Rule 6(1) of these rules for that preceding half-year, and has also paid any fine, levies or other monies (other than arrears of contributions) which may be owing to the Union not later than 30 days before the date fixed for the closing of the ballot.

(b) If he has failed to pay during the half-year immediately preceding the half-year in which the ballot is conducted the contributions fixed pursuant to Rule 6(1) of these rules for that preceding half-year, and he subsequently pays the current half-year's contributions and all arrears of contributions, fines, levies and other monies owing to the Union not later than 30 days before the date fixed for the closing of the ballot."

Despite the declaration in r.10 that a member who is unfinancial is not precluded from voting, payment of contributions is an essential element of eligibility under r.6A.
On its face the rule prescribes two independent conditions of eligibility. Bearing in mind that the election in question was conducted in the second half of 1985, a member of the Union was eligible to vote if

(a) he had, between January and June 1985, paid the contribution

fixed by r.6(1) for that period and, not later than 30 days before 13 September 1985, paid any fines, levies or other moneys owing to the Union save for arrears of contributions, or

(b) not later than 30 days before 13 September 1985, he paid his

contribution for the period July to December 1985 together with all arrears of fines, levies and other moneys including contributions.

There are several curious features of r.6A. If between January and June 1985 a member paid his contribution for that period, he would be eligible to vote in the election even though he was in arrears in respect of a period earlier than January 1985 and even though he had made no payment in respect of the contribution due for July to December 1985. If, for instance, the election were held in November 1985, a member would be eligible to vote if he had paid his contribution for the period January to June 1985, though he had contributions outstanding from 1984 and made no payment for the contribution due between July and November 1985. This may be thought an odd situation but in my view it is the inevitable result of the language of r.6A.
On the other hand, what if a person joined the Union in July 1985? He could not qualify under para.(a) of r.6A(1). Could he qualify under para.(b) by paying his contribution for the period July to December 1985, there being no arrears of contributions, fines, levies or other moneys? In my view, such a person would be entitled to vote, his eligibility arising from para.(b). It was argued by counsel for Mr. Ferguson that the reference to failing to pay the contribution for the preceding half-year carried with it an implication that a person must have been a member of the Union in the preceding half-year in order to vote. Put another way, the rules require membership not only during the half-year in which an election is conducted, but in the preceding half-year as well. I do not accept that construction of para.(b). In my opinion, the reference to failing to pay implies an obligation that has arisen and which has not been met. But if there was no obligation to pay a contribution for the preceding half-year, because the person was not a member of the Union at that time, he cannot be said to have "failed to pay" that contribution. And he has paid the current half-year's contribution.
I accept that this construction pays little regard to the use of "subsequently" in para.(b). Nevertheless it is the construction that, in my view, should prevail, avoiding as it does the anomaly that would result if a person who joined the Union during the half-year in which an election was held could not vote at that election. As Smithers J. commented in regard to a somewhat similar situation in Re Australian Glass Workers' Union (1973) 22 FLR 17 at p 23:

"It would require strong indications to lead the court to infer that the rules intend to produce these results".

A guide to the construction of eligibility rules such as r.6A may be found in s.133(1)(e) of the Act which requires the rules of an organization to ensure that "every financial member of the ... organization has a right to vote at any ballot taken for the purpose of submitting a matter to a vote of the members of the ... organization ...".
Rule 5 is concerned with admission to membership. In effect sub-r.(1) provides that any person eligible to become a member of the Union is deemed to be a member as from the date of receipt by the secretary of the Union of a signed application form. Sub-rule (2) requires an applicant to forward, with the application form, payment of the current half-year's contribution; but, the rule goes on, "payment of such sum shall not be a condition precedent to such applicant being constituted a member under this rule". Rule 5(2) also provides that, for the purposes of the sub-rule, where an employer makes deductions pursuant to r.6(2A), the date upon which the first deduction is made shall be deemed to be the date on which payment is made of the first half-year's contribution.
The purpose of that portion of sub-r.(2) is not clear. Payment of contributions is not a condition precedent to membership. Rule 6A(2) makes it clear that the Union may recover contributions that may be owing from time to time. What then is achieved by providing in r.5(2) that the date upon which the first deduction is made is deemed to be the date on which payment is made of the first half-year's contribution? Presumably all it could achieve is ensure that no action is taken against the new member, at any rate until after the half-year has expired and it is apparent that some of that half-year's contribution has not been paid. But it is still far from clear why that deeming provision should be for the purposes of r.5(2) rather than, say, r.6(2A).
Rule 6(2A) empowers a branch of the Union to make arrangements with an employer for deducting, on the authority of any member, amounts by way of contributions from the wages payable to the member. Nothing is said in r.6 as to the legal consequences of the first deduction. Rule 5 is concerned only with admission to membership and I am quite unable to import into r.6 the deeming provision of r.5(2). There is simply no foundation for that to be done. Nevertheless, it must be remembered that financial standing is said not to be the criterion for eligibility to vote; the criterion is that spelt out in r.6A. And that is by no means the same question as was discussed by Evatt J. in Re Stapleton (1983) 50 ALR 293 at 312, where his Honour said:

"Accordingly, where an employer makes such a deduction from a member's wage then that member would be deemed to be financial, whether the money has been received in the office of the branch or not".

In the case now before the Court, the question is not whether certain members were financial but whether they were eligible to vote in terms of r.6A.

Take the case, which is quite common in the industry, of a member who returns to a particular abattoir each year for the killing season and immediately makes arrangements for the deduction from his pay of a weekly amount commensurate with the annual contribution spread over fifty-two weeks. He makes this arrangement with the concurrence of the Union; indeed the Union is a party to the arrangement. Of course, in the case of an election held in the second half of 1985, that person may be eligible to vote by reason of para.(a) of r.6A(1). But what if he is not, but he makes payments during the half-year in which the election is held? He has not "failed to pay" during the preceding half-year the contribution fixed pursuant to r.6(1) if he had no obligation to pay in respect of that period. Can it be said that "not later than 30 days before the date fixed for the closing of the ballot", he pays the current half-year's contribution? In my view that is the proper construction to place on what has happened. The Union is content that he pay his current contribution in that manner and the matter is one between the member and the Union. So long as he is paying by deduction at the time the election is held, I am of the opinion that he pays his subscription within the terms of para.(b). But he pays, not by reason of the first deduction, but more broadly because of the arrangement he has made with the Union. Thus, if after the first deduction he countermands the arrangement or leaves the particular employer and makes no further payment, whether by deduction or otherwise, it can no longer be said that he pays his subscription. His eligibility to vote then ceases.
There may be some straining of language in this view of r.6A but that criticism can be made of any construction to be placed on the rule. The construction I have placed is, I think, more consonant with the intention of the rule, its place in the Union's rules generally and a just result.
Rule 6A was introduced in 1978 in response to an application for an election inquiry. The application was brought on the ground that the election had been attended by a number of irregularities, one of which was that, contrary to the rules of the Union, persons who were not financial members of the Union were offered a vote.
At the time of the election eligibility to vote was tied to financial status under the rules, members being deprived of that status where they were indebted to the Union in respect of any contribution, fine or levy, for a period in excess of one calendar month after the due date for payment thereof. See Troja's case at p.345. Notwithstanding this requirement of eligibility, the practice had grown up within the union management of according financial status to members who had paid their current contribution, but owed contributions in respect of past periods. The practice had arisen out of the seasonal nature of the industry which caused a large number of regular employees to depart the industry for certain periods each year. In respect of those workers, so long as they remained members the Union did not demand payment of contributions in respect of any period during which they were out of the industry. If they had paid the contribution required for the current period of employment, then they were treated as financial by the Union.
The Court found that the members to whom this practice related were unfinancial in terms of the rules and thus ineligible to vote. Foreshadowing this result, and in an attempt to bring the eligibility rule into line with practice, the Union, prior to the completion of the inquiry, took steps to amend its eligibility rule. The purpose of the amendment was thus to extend the opportunity to vote to a class of members who, if financial status were the sole determinant of eligibility, would be ineligible. In other words the amendment, while preserving the link between eligibility and payment of contributions, prescribed a lesser standard than its predecessor.

In light of this history, it would be a curious result indeed if r.6A, while extending the right to vote to certain unfinancial members, at the same time disenfranchised that class of members, who, while newly joined, were financial in terms of the rules. This is especially so when viewed against the rules as a whole, in which the almost invariable qualification for the exercise of rights is financial status. (See e.g. rr.50, 53(20).) That financial members are entitled to vote is also implicit in r.10, which specifially retains the right to vote for members who are unfinancial in terms of that rule.
The applicant, Mr. Ferguson, presented in book form 326 ledger cards from the Union's records of membership which are maintained on a computer. It was common ground that these were persons to whom ballot papers had been sent. Ballot papers were issued to 2,476 members so that the ledger cards represented 13% or thereabouts of members. It was their eligibility that was questioned. There was some selectivity in the presentation of ledger cards in that they related only to members employed at Robb's Jetty, Katanning and Albany. These are places where the seasonal element is substantial and, in the case of Albany, a place where there was a serious industrial dispute resulting in cessation of employment. Nevertheless, if it were shown that the 326 persons in question were ineligible to vote, there would have been a serious irregularity in the election.
Counsel for the applicant initially submitted that all of the 326 persons to whom ballot papers were sent were ineligible to vote. Later he conceded that 3 of these were eligible. Several arguments were offered in support of the submission of ineligibility. But in the main they focused on contentions that membership of the Union during the half-year preceding the election was a prerequisite to voting, that persons who paid by deduction could not be said to have paid their contributions and that the employees at Albany, for whom a waiver of contributions was made by the Committee of Management, had not paid their contributions. Counsel for the Union accepted that 3 of the 326 persons were ineligible to vote because they made no payment of contributions at all. As to those members at Albany for whom waiver had been granted, counsel for the Union maintained that the waiver was lawful and that the members were eligible. He conceded that if the waiver was unlawful, an additional 23 members were ineligible to vote. But, whether or not the waiver was unlawful, a question of eligibility surrounds some of those workers. The Union's case, put broadly, was that persons operating under a deduction arrangement were eligible so long as they had made some payments in the first half of 1985. This was said to be the effect of r.5. For reasons already given I do not accept that r.5 has this effect.
Counsel for the applicant and for the Union each produced an analysis of the ledger cards with a view to demonstrating, on the one hand ineligibility and on the other eligibility of the persons to whom those cards related. Neither analysis was, in my view, entirely comprehensive. To deal with each ledger card in the body of these reasons for judgment would be laborious both to writer and reader and would inflate the reasons excessively. Therefore I have attached as an appendix to these reasons an analysis of the cards, identifying the numbered pages in which the cards appear, the number of cards falling into each category, a conclusion of eligibility or ineligibility as appropriate and a code describing each category in such a way as to indicate why the conclusion of eligibility or ineligibility was reached. Against the background of these reasons for judgment, including the observations to follow, the analysis should be self-explanatory.
Some further reference must be made to the position of the Albany workers, in particular their situation after dismissal in March 1985.
The resolution of the Committee of Management on 22 June 1985, in which Mr. Ferguson participated, was that "credits be brought forward to the commencement of the Albany works". What happened was that, in the case of each worker, a debit of $62 for the half-yearly contribution due on 1 July 1985 was raised. This appears from the ledger cards. Against a notation "waived", a credit was then raised, not for $62 but for $60. It appears that the half-yearly contribution was raised from $60 to $62 as from July 1985. The ledger cards show the waiver as having been effected on 18 November 1985 but I am satisfied that this was simply the date on which the waiver was recorded. The effect of the waiver must be judged by reference to the resolution of the Committee of Management. Given the circumstances leading to the waiver and in particular the reference in the minutes to the non-payment of deductions since 30 March, the waiver was to operate in respect of the period after 30 March 1985. There is no warrant for treating it as intended to have some earlier operation. The fact that the amount waived was $60 does not justify a contrary conclusion. I think it is no more than a reflection of the fact that at the time of the resolution the half-yearly contribution was $60.
The rules contain no express provision for waiving members' contributions. However r.51 provides that the function of a Committee of Management is "to administer the rules for the benefit of the members, to carry out the policy of the Union to deal with all matters and transact such business as may arise, and endeavour to carry out the objects of the Union." The same rule empowers committees of management to "decide in all cases for which no provision is made in these rules." Clearly r.51 does not empower a committee to act in an arbitrary manner nor does it give a committee unlimited power in a situation where the rules are silent.
As to the situation where rules are silent, counsel for the Union referred to Jones v. Farrow (1971) 20 FLR 73 and in particular at p 83 where Joske J. said:

"The Union is not to be stultified in its actions by the absence of rules. The rules of the Union may provide how, where they are silent, action is to be taken, but where this is not so the Union is entitled to adopt its own machinery to meet the situation. The ordinary rules of commonsense must apply".

The principle expressed by Joske J. may be applied readily enough to enable a union to adopt machinery provisions to implement an object for which the rules expressly provide, for instance the holding of an election. In the present case the Committee of Management sought to relieve workers, in a particular situation, from the payment of contributions so that they might remain in good standing as members of the union. There was no evidence that this step was taken for any ulterior motive. I am satisfied that it was taken bona fide and for the benefit of members in a particular industrial situation and that the decision was one the Committee was empowered to make.

Counsel for Mr. Ferguson did not challenge the Union's powers to waive a contribution but he submitted that the waiver did no more than suspend payment, leaving each worker under an obligation to pay what was due on resumption of work. I do not accept this submission. While the term waiver may be used in several senses, its ordinary meaning is the abandonment of a right. See 14 Halsbury (4 Ed.) para.1471. That, I think, is the sense in which it was used by the Union. The intention was to relieve the Albany workers of the obligation to make any payments by deduction during the periods of their unemployment.
Between January and 30 March 1985 the Albany workers were operating under a deduction arrangement. That fact, coupled with the waiver of contributions after 30 March, brought them within para.(a) of sub-r.6A(1). In my view no useful distinction can be drawn, in terms of the Union's records, between those workers who had paid $30 at 30 March and those who had not. It is apparent that payments were often credited well after they had been paid and the evidence does not permit an analysis of the precise situation relating to each of those workers.
In the light of the attached analysis, I am of the opinion that of the 323 persons whose eligibility is under attack, 94 were ineligible to vote. Of course, it is not known which, if any, of the 94 did vote. The Court has before it an affidavit sworn by Angelo Michael Panegyres, an officer of the Australian Electoral Commission who was the returning officer for the election in question. From the material furnished by Mr. Panegyres, it can be seen that the margins between successful and unsuccessful candidates in the various positions varied from 68 (in the case of the representatives for the Albany area) to 264 (in the case of the secretary).
Sub-section 165(4) of the Act precludes the Court from declaring an election void "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". Thus the Court may look not only at irregularities found to have occurred but at circumstances pointing to a likelihood that similar irregularities may have occurred. An assessment of the likelihood of ballot papers having been issued to ineligible persons in other places of employment is not easy. The applicant singled out Robb's Jetty, Katanning and Albany as places where he believed irregularities to have occurred. He also looked at the ledger cards for employees at Watsonia in Spearwood but dismissed those cards as "well in order", meaning that there was no evidence of ineligibility. Having regard to the way in which the Union's computer was programmed, there is a real possibility that ballot papers were issued to persons in other places of employment who were not eligible to vote. For instance the Broome abattoir was described by Mr. Payne, the secretary of the Union, as one of the "purely seasonal sheds" and I infer from his evidence that the deduction system operated there.
Miss Galati, who operated the Union's computer until October last year, said that in preparing the electoral roll she sought advice from Mr. Panegyres. She said that, in the preparation of the roll, persons who had paid for a six months' ticket for the first half of 1985 were treated as eligible (This was the proper course.) As to persons who paid by deductions, "if you had paid part of the ticket in the first six months of the ticket you were entitled to a vote. In the second six months of the ticket you are entitled to a vote because as a deduction person you are entitled to a vote".
To some extent this was a misreading of r.6A because a person whose eligibility depended on para.(a) of sub-r.(1) might not have paid the entire contribution for the first half of the year. And a person whose eligibility depended on para.(b) of sub-r.(1) might have been under an obligation to pay the previous half-year's contribution and failed to pay. A question was put to Miss Galati in cross-examination:

"Your instructions were that people who were paying by deductions, no matter what their previous situation was, for the six month's commencing 1 July 1985, got a vote?"

Her answer was: "That is right".

One can see readily enough the practical difficulties in applying r.6A in the case of persons paying by deductions but they arise from the dictates of the rule itself.
The records produced suggest that, at least in some cases, persons who paid by deductions in the six months commencing 1 July 1985 were treated as eligible even when they had arrears from the first half of 1985. See category (a) of the analysis. With the exception of Watsonia, the Court was given no specific information about other places of employment in the industry.
I turn now to the allegation that two substantial groups of ballot papers were completed, in each case by one person.
The evidence in support of this allegation came from a handwriting expert. Save in a very limited situation, to which I shall refer in which the Union itself called evidence that one of the candidates completed a few ballot papers at the request of persons whose knowledge of English and understanding of voting procedures were limited, there was no evidence that any person other than each voter completed his or her ballot paper. If the evidence of a handwriting expert was clear and unchallenged that one person had filled in a number of ballot papers, the absence of such evidence would not stand in the way of a finding of a serious irregularity. But in the circumstances of the present case, its absence is a matter of some significance.
In the application for an inquiry, Mr. Ferguson gave the following particulars relevant to this allegation:

"1. 72 ballot papers were marked by the one individual

2. Approximately 124 ballot papers were marked in such a way that it is probable the same person marked them."

No attempt was made to support the reference to 124 ballot papers which apparently arose from some confusion in the mind of the applicant's instructing solicitor. The handwriting expert relied upon by the applicant was Leo Thomas Murphy, a retired police superintendent who for many years was with the scientific branch of the Western Australian Police Force. In Mr. Murphy's words "I was a recognized handwriting expert for the department over the greater period of my service with the department". Mr. Murphy has given evidence in regard to questioned documents in different courts on many occasions though, not surprisingly, his experience in drawing conclusions about the authorship of crosses in ballot papers was limited. In the election the subject of this inquiry, voters were required to place a cross in a box alongside the name of the candidate of their choice.
Mr. Murphy gave evidence that on 18 November 1985 he went to the Australian Electoral Commission and examined ballot papers relating to the election. He had been asked by the applicant to examine the crosses on ballot papers. There were no markings on the ballot papers other than crosses which, Mr. Murphy acknowledged, limited the scope of his examination. Nevertheless he selected 72 ballot papers marked with blue biro and bearing what he described as "distinctive cross markings". He also observed "numerous other ballot papers in black biros of a similar colour, also with distinctively formed cross markings on those documents". He did not count those ballot papers at the time nor did he examine all of the ballot papers. He examined about 500. On 14 May 1986 when Mr. Murphy returned to the Electoral Commission the ballot papers, the particular ones in blue biro and those in black biro which Mr. Murphy had isolated and placed in bundles were no longer in that form. They were simply part of the total collection of ballot papers. In consequence he went through the papers again, this time noting in particular 100 marked with blue biro and 44 marked with black biro. These he placed at the top of each pile of ballot papers marked with different coloured ink. The ballot papers were in this condition when produced to the Court on the hearing of the inquiry.
Dealing with what I shall call the blue biro papers, Mr. Murphy said:

"The crosses contained on these ballot papers are distinctively formed and not in conformity with the conventional type of symbol, the oblique stroking cross. They have double stroking."

He elaborated by saying that the conventional cross is similar to a lower case x, "comprised of two single strokes, oblique strokes crossing one another, without any appendages or double impressions". He said that while the crosses on the papers were variable, they were distinctively formed either by a double stroke or a small appendage at the apex of each stroke, an appendage in the form of a small hook. He did not suggest that all the markings on the 100 blue biro papers were formed in the same way, rather that they stood out from other ballot papers by reason of the predominance of double strokes and appendages. He made it clear that he was not saying that all the 100 papers possessed both characteristics, though some did. Mr. Murphy expressed his conclusion regarding the authorship of these papers in the following way:

"For the reasons of the same coloured blue biro in all instances, in connection with the blue list, the unusual stroking, a combination of varying styles but double outlines and various appendages throughout all these 100 blue forms - in my opinion it indicates a very strong probability of common authorship".

Dealing with the 44 black biro papers, Mr. Murphy said:

"These particular papers bear similar characteristics, salient features, which are present in the blue biro markings consistent throughout these as well".

Once again he was not saying that all papers possessed both characteristics, though some did. His opinion about these papers was that:

"... there was a very strong probability of them being of common authorship by the same person, and by the same person who filled in the boxed in the blue biro".

It should be noted that, when the case was opened by counsel for the applicant, it was on the basis that one person was responsible for the blue biro papers and another for the black biro papers. It was also said that the degree of probability of common authorship in the case of the blue biro papers was higher than in the case of the black biro papers. But, as appears from the passage from Mr. Murphy's evidence just mentioned, he was speaking of the probability that one person completed both sets of papers. That is a significant difference.
According to Mr. Panegyres' report, 1116 envelopes were returned at the close of poll and 1116 ballot papers were admitted to scrutiny. Although Mr. Murphy's recollection was that he went through 600 or 700 papers, he said that this was just an estimate and I took him to be saying that he looked at all ballot papers that were at the Commission.
In cross-examination Mr. Murphy agreed that in the case of the blue biro papers, some were in light blue ink and others in dark blue ink and that it was not possible to say whether these had been done with different inks or with one ink subjected to different pressures. He also agreed that there were some "slight variations" in crosses on those papers.
Mr. Murphy made it clear that what he had done was go through the ballot papers, looking for common characteristics. He agreed that there were a "lot of variations" in those that he had selected but said that he was influenced by the predominance of salient characteristics in those papers.
The Union called Geoffrey William Roberts, a consulting chemist and examiner of questioned documents from Victoria. Like Mr. Murphy, Mr. Roberts has had long experience with questioned documents and has given evidence on many occasions.
Mr. Roberts only arrived in Perth on the morning of the day on which he gave evidence and his opportunity to examine the original ballot papers was very limited. Indeed he had not seen any of the black biro papers in their original form until some were shown to him in the course of his evidence. However he had been sent photocopies of bundles of ballot papers, identified as having been marked with blue crosses or black crosses. Although there was no specific evidence as to the correlation between these photocopies and the ballot papers tendered through Mr. Murphy, counsel for Mr. Ferguson did not object to Mr. Roberts addressing himself to the photocopies on the basis that they were the ones referred to by Mr. Murphy.

In relation to the blue biro papers, Mr. Roberts was shown in evidence exhibits 7A, 7B, 7C and 7D, being four papers referred expressly to by Mr. Murphy in the witness box. Mr. Roberts rejected the notion that these were completed by the one person and he did so because:

"... They are internally inconsistent, but secondly there is no particularly significant characteristics in common with one paper to the next".

Speaking of the blue biro papers generally, Mr. Roberts disagreed with Mr. Murphy's conclusion of common authorship. The basis of his disagreement was that while double strokes or hooks existed on most of the papers, there was no consistency in their reproduction. In many cases, according to Mr. Roberts, it might equally be said that a ballot paper was completed by more than one person. He was not propounding that view, merely emphasising that a person's handwriting and marking may vary and for a number of reasons.

As to the black biro papers, Mr. Roberts thought there was no basis at all for a conclusion of common authorship. Against such a conclusion was the degree of variation from ballot paper to ballot paper and within ballot papers.
I think it fair to say that in the end counsel for the applicant did not press with any enthusiasm the allegation of common authorship in the case of the blue or black biro ballot papers. In particular he said that he was unable to offer any reason why the Court should accept the evidence of one handwriting expert in preference to that of the other.
I am not satisfied on the balance of probabilities that either the blue biro or black biro ballot papers, or for that matter both blue and black biro papers, were completed by the one person. I accept Mr. Roberts' evidence about the degree of variation from paper to paper and indeed within papers. The range of these variations is apparent on a perusal of the papers. While acknowledging Mr. Murphy's expertise in the matter of handwriting, I am of the opinion that he placed too much emphasis on the presence of double crosses and appendages without making sufficient allowance for the differences which they possess.
There are three other matters that have some bearing on the allegation of common authorship and something should be said about each of them.
The first concerns the existence of any voting pattern in the blue biro and black biro papers. Mr. Murphy was asked, in the course of cross-examination, whether he had adverted to this point and he said he had not. The point was not pursued nor was anything said about it in final addresses by counsel. However, since the Court is conducting an inquiry some comment may be appropriate. Without attempting a detailed analysis, the general impression left by a perusal of the papers is that most followed the successful "ticket" though some voted what may be called the Ferguson ticket and there were a few that did not conform with precision to either ticket. In my view, no useful inference can be drawn from this situation.
There was evidence of ballot papers being handed out at Robb's Jetty by Mr. Peribonio, the successful candidate for President. But the evidence went no further than to indicate that Mr. Peribonio arranged for members who had not received ballot papers to receive them, that he was nearby while papers were filled out and that on one occasion, towards the close of the election, he took four or five envelopes containing completed ballot papers and posted them in Perth. Since the conclusion to be drawn from the evidence is that Mr. Peribonio acted with the authority of the members in question, no offence was committed under s.171 of the Act; nor, in my view, did his conduct constitute an irregularity. Nevetheless, it is undesirable that a candidate for election should take possession of ballot papers, even for the purpose of ensuring their return.
The third matter arose in a somewhat unusual way. One of Mr. Ferguson's allegations was that the successful candidates from the small-goods and bacon curing area were not eligible to stand. The successful candidates were Jose de Sousa and Carlos Gastao Correia. Counsel for the Union called Mr. de Sousa to speak to his and Mr. Correia's eligibility. First however he was asked in examination-in-chief whether anyone had approached him for assistance in connection with ballot papers for the election. Mr. de Sousa said that his neighbours, mother and daughter both of whom worked at Watsonia Foods where Mr. de Sousa was employed, came to his home and asked for his assistance in completing their ballot papers. Again, his uncle and aunt who also worked at Watsonia asked him to call at their house to help them complete their ballot papers. All were Portuguese who were not literate, even in their own language. Mr. de Sousa said that having asked them for whom they wished to vote, he completed the ballot papers in accordance with their instructions. I have no reason to doubt Mr. de Sousa's evidence which was volunteered. Nevertheless it is highly undesirable for a candidate to play such an active part in the completing of ballot papers even though, if done with the authority of the persons concerned, it would not constitute an offence under s.171 of the Act.
But I am of opinion that his conduct constituted an irregularity within s.165. I do not find that there was an irregularity as defined in sub-s.4(1) because I am not persuaded that the "full and free recording of votes" was or was attempted to be prevented or hindered. However the definition is not exhaustive (Re Gray; Ex parte Marsh (1985) 62 ALR 17). Conduct by a candidate in filling out ballot papers, which must be seen by others to place undue pressures upon electors to cast their votes in a particular way and to carry the risk that the electors' wishes are not accurately reflected, is a sufficient departure from established practice or generally accepted principle governing the conduct of an election to constitute an irregularity. It is not an irregularity which of itself, in terms of sub-s.165(4), would justify declaring the election void.
Mr. de Sousa completed six papers in all, his and his wife's, the two neighbours and his uncle and aunt's. It is not without significance on the question of common authorship that there was no separate identification by Mr. Murphy of six ballot papers, admittedly completed by one person.
The last allegation concerns the eligibility of Mr. de Sousa and Mr. Correia. Rule 49 of the rules provides that, in the case of Western Australia, the Committee of Management includes 15 representatives "representing the whole of the membership", two of whom are from the metropolitan area and "normally employed in the small-goods and bacon curing manufacturing area".
At Watsonia Foods there are pig slaughtering facilities and there is a small-goods manufacturing area. Both Mr. de Sousa and Mr. Correia are slaughtermen and work on the slaughter floor. Most of the pork is used by Watsonia for small-goods but a quantity is sold through a pork wholesale section. The small-goods section is physically separated from the slaughter area; Mr. de Sousa said that he had never been there.
The applicant's case was that the reference in the rules to "the small-goods and bacon curing manufacturing area" was a reference to locations in which those activities were conducted and that, as Messrs. de Sousa and Correia worked in the slaughter section, they were not eligible to stand as representatives. The Union's argument was that one looked, not at the vocation of the particular member, but at the kind of place at which he was employed. In the present case, it was said, Messrs. de Sousa and Correia were employed by Watsonia in a business which could fairly be described as small-goods and bacon curing, to which the slaughter of pigs was incidental.
Counsel for the Union drew attention to the Meat Industry (State) Award 1980, being the relevant award for members of the Union. He suggested that there was some correlation between the classifications in cl.9 - Rates of Wages - and the provision for representatives in cl.49 of the rules. But, in my view, the correlation is not close enough to be helpful.
There is no difficulty with the term "area" in relation to representatives from the "metropolitan area" and the "country area" in cl.49. That is clearly a geographical reference. And the same is true of country representatives; "area" is related to geographical location. But in the case of representatives from the metropolitan area, I am of the opinion that where "area" is used, it is a reference to the activity being conducted. Thus, within the metropolitan area, representatives are elected from registered abattoirs and from export boning rooms. Equally, in my view, they are elected from places which may be described as wholesale or retail areas and from places that may be described as small-goods and bacon curing manufacturing areas. The intention is to obtain a spread of representation from various aspects of the meat industry. While Watsonia undoubtedly conducts the business of small-goods and bacon curing manufacturing, it also has employees who work in that part of its business which may be described as an abattoir. There was no evidence on the point but counsel for the applicant submitted that Watsonia was a registered abattoir. Counsel for the Union submitted that it was a licenced abattoir as indeed are all abattoirs but that it was only abattoirs concerned with export which were required to be registered. And, it was said, this was not such an abattoir.
Whatever the precise status of the Watsonia abattoir, the evidence was that it was a quite separate activity from that of the small-goods and the two were physically separate. In my view Messrs. de Sousa and Correia were not eligible to stand as representatives "normally employed in the small-goods and bacon curing manufacturing area".
The question then is what orders are appropriate in the light of the findings I have made. Counsel for the Union submitted that, even if the Court forms an opinion in terms of sub-s.165(4), it has a residual discretion not to avoid an election. This was the view taken by Sheppard J. in Kelly v. The Amalgamated Metal Workers and Shipwrights Union (1981) 56 FLR 124. The basis for inviting the Court to exercise that discretion in favour of the Union was that the election inquired into was also the election for officers in the State registered union - West Australian Branch, Australasian Meat Industry Employees Union, Industrial Union of Workers, Perth and that no application for an inquiry had been made under the Industrial Relations Act 1979 of Western Australia.
What is known is that 94 persons to whom ballot papers were sent were ineligible to vote. Whether they voted is not known. It is possible that ballot papers were sent to other persons who were ineligible to vote in terms of r.6A. Having regard to the basis upon which the eligibility of persons on deductions was determined, that is a real not merely theoretical possibility. What is also known is that there was an irregularity in the case of four voters (five, if Mrs. de Sousa is included) whose ballot papers Mr. de Sousa completed. The evidence does not persuade me that the will of those persons was overborne but there was a real risk of that happening. Finally, I am of the view that Messrs. de Sousa and Correia were ineligible to represent the small-goods and bacon curing manufacturing area.
In all the circumstances I am of opinion that the result of this election may have been affected by irregularities that occurred and that may have occurred. Putting to one side the question of representation from the small-goods and bacon curing manufacturing area, that opinion derives from the eligibility of persons to vote. The irregularity associated with Mr. de Sousa would not be enough of itself to justify declaring the election void. A fresh election for the representatives of the small-goods and bacon curing manufacturing area is inevitable in any event.
Assuming that a residual discretion exists not to avoid an election, I am not persuaded that this is an appropriate case for the exercise of that discretion. The eligibility of persons to vote is not a merely formal matter and I do not think there is any aspect of public interest that warrants an exercise of discretion. While the rules are in their present form and eligibility to vote determined in the way that it is, the problems that have arisen in this election are likely to be repeated. This is no criticism of the management of the Union; it simply emphasises the need for close consideration to be given to the rules and to the ascertainment of eligible voters.
Sub-s.167(1) operates to give validity to all acts done by a person in an office, his election to which is declared void. But I shall hear from counsel as to the precise form of orders that are appropriate, having regard to my findings and my decision to declare the election void.

[1986] FCA 272

10 JULY 1986