In the matter of an application for an inquiry into an election for the office of South Australian/Northern Territory Branch Secretary of the Insurance Employees Section in the Finance Sector Union of Australia In..

[1994] IRCA 138

C A T C H W O R D S

Election inquiry - candidate's failure to be nominated by a member of the Branch Committee as required by rules - whether failure constituted a "defect" in the nomination - whether failure by returning officer to give an opportunity to remedy the "defect" constituted an irregularity

Industrial Relations Act 1988 (Cth) ss. 197(1)(c), 197(4) and 218

Re election A.B.C.E. and B.L.F. (1978) 30 FLR 252

Naqvi - Re Election Inquiry (unreported - delivered 26 March 1981)

Re Australian Meat Industry Employees Union; ex parte F. Troja and others (unreported - delivered 19 July 1988)

Re A.W.U. S.A. Branch; ex parte J. R. Thomas (unreported - delivered 21 July 1992)

IN THE MATTER of an application for an inquiry into an election for the office of South Australian/ Northern Territory Branch Secretary of the Insurance Employees Section in the Finance Sector Union of Australia

IN THE MATTER of an application by Elizabeth Jane Hall

SI 219 of 1994

KEELY J.
MELBOURNE
8 December 1994

IN THE INDUSTRIAL RELATIONS COURT )
  )
OF AUSTRALIA  )  No. SI 219 of 1994
  )
SOUTH AUSTRALIA DISTRICT REGISTRY )

IN THE MATTER of an application for an inquiry into an election for the office of South Australian/ Northern Territory Branch Secretary of the Insurance Employees Section in the Finance Sector Union of Australia

- and -

IN THE MATTER of an application by Elizabeth Jane Hall

CORAM:  Keely J.
PLACE HEARD:                 Adelaide
PLACE JUDGMENT
DELIVERED:  Melbourne
DATE:  8 December 1994

MINUTES OF ORDERS

THE COURT ORDERS THAT:

The inquiry into an alleged irregularity in relation to the election for the office of Secretary of the South Australian/Northern Territory Branch of the Finance Sector Union of Australia be terminated.

NOTE:Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Act.

IN THE INDUSTRIAL RELATIONS COURT )
  )
OF AUSTRALIA  )  No. SI 219 of 1994
  )
SOUTH AUSTRALIA DISTRICT REGISTRY )

IN THE MATTER of an application for an inquiry into an election for the office of South Australian/ Northern Territory Branch Secretary of the Insurance Employees Section in the Finance Sector Union of Australia

- and -

IN THE MATTER of an application by Elizabeth Jane Hall

CORAM:  Keely J.
PLACE HEARD:                 Adelaide
PLACE JUDGMENT
DELIVERED:  Melbourne
DATE:  8 December 1994

REASONS FOR JUDGMENT

Elizabeth Ann Hall (the applicant) on 13 October 1994 applied for an inquiry by the court under s.218 of the Industrial Relations Act 1988 (Cth) (the Act), alleging that an irregularity occurred in relation to an election for the office of Secretary of the South Australian/Northern Territory Branch of the Finance Sector Union of Australia (the respondent union).  A motion by the respondent union, notice of which was filed on 15 November 1994, sought the termination of the inquiry.

Nominations opened on 31 March 1994 and closed on 18 April 1994.  On the day on which nominations for the office of Branch Secretary closed, the applicant lodged a document, which was headed "nomination form".  That form included a "NOTE TO PROSPECTIVE CANDIDATES AND NOMINATORS" which said "You should verify your financial status and any other qualifications required by your Organisation's rules prior to lodging nominations".  The nominator was not a member of the Branch Committee, as required by sub-rule 43.2.3, which provided as follows:

"43.2.3A nominee for the position of a full time paid Section or Branch Officer shall, as at the date of nomination, be a financial member of the Union and the appropriate Section and/or Branch provided that -

. . .

43.2.3.2in any event the nominator must be a member of Committee of the Branch."

In a letter to the applicant, dated 19 April, the returning officer quoted that sub-rule and wrote:

"Your nominator, Susan McCrae, was not a member of the South Australian/Northern Territory Branch Committee as at the date of nomination.

On this basis it would appear that your nomination should be rejected.  If you have any matters you wish to raise with me prior to this taking place please advise them to me . . . not later than 27 April 1994."

The irregularity alleged in the application is that the returning officer failed to give to the applicant "the opportunity to remedy a defect in her nomination", an alleged breach of sub-rule 43.4.4, which provided as follows:

"The Returning Officer shall check all nominations received for compliance with the requirements of these Rules and shall reject any that do not so comply; provided that, in the event of his/her finding a defect in any nomination, he/she shall, before rejecting the nomination, notify the person concerned of the defect, and, where it is practicable to do so, give him/her the opportunity of remedying the defect where practicable within seven days of his/her having been so notified."

That sub-rule is in substantially the same terms as s.197(1)(c) of the Act.

The applicant's counsel submitted (1) that the fact that the nominator was not a member of the Branch Committee was a "defect" in the nomination which might have been remedied by the applicant, (2) that the failure of the returning officer to give the applicant an "opportunity of remedying the defect" was a breach of sub-rule 43.4.4 and (3) that was an "irregularity" within the meaning  of the definition of that word in s.4 of the Act.  Counsel referred to decisions of J.B. Sweeney J. in the Federal Court in Re election for office in Australian Building Construction Employees and Builders Labourers Federation (1978) 30 FLR 252 and in Naqvi - Re Election Inquiry (matter no. 17 of 1980 - unreported - delivered 26 March 1981).

Counsel for the respondent union referred to my decisions in the Federal Court in Re election inquiry in Australian Meat Industry Employees Union; ex parte F. Troja and others, at pages 20-24 (matters no.s VI 48, 49 and 51 of 1986 - delivered 19 July 1988 - unreported) and in Re election inquiry in A.W.U. S.A. Branch; ex parte J. R. Thomas (matter no. SI 4 of 1991 - delivered 21 July 1992 - unreported).  Decisions of the Federal Court are not binding upon this court but are of persuasive value.  In Troja's case (at page 19-20) the court referred to the reasons for decision of J.B. Sweeney J. in Naqvi's case and said:

"          His Honour did express the further view that the words "defective nomination" in the rule there under consideration covered "the whole act of nominating, including the requirement that a member be financial".  It may well be, as Mr. North submitted, that that statement was based primarily on the fact that the rules in that case included a provision that "[w]here members acceptance qualifications are not in accordance with the rule, they be notified as soon as possible".  If it was not so based, then, with the greatest of respect to his Honour, the statement was made obiter and, having heard very full argument in the present case, I am unable to accept it as stating a general proposition of law.  It may be added that the reasons for judgment in Naqvi suggest that the matter was not fully argued before J.B. Sweeney J.; certainly the reasons for judgment do not suggest that his Honour heard and rejected submissions comparable with the cogent submissions advanced to me on behalf of both the respondents and the returning officer."

The purported nomination lodged by the applicant was plainly in breach of the express requirement, in sub-rule 43.2.3.2, that "the nominator must be a member of [the] Committee of the Branch". In my opinion the breach of that sub-rule did not constitute a "defect" in the rule within the meaning of that word in sub-rule 43.4.4; nor was it a "defect" within the meaning of s.197(1)(c) of the Act.

The applicant's counsel sought to gain support from s.197(4) of the Act which provided that:

"The reference in paragraph (1)(c) to a nomination being defective does not include a reference to a nomination of a person that is defective because the person is not qualified to hold the office to which the nomination relates."

He submitted that rule 43.4.4 must be interpreted so that it is consistent with s.197(1)(c) of the Act, which is qualified by s.197(4). In my opinion the latter sub-section, which was inserted in 1988, was inserted to make it quite clear that the nomination of a person who "is not qualified to hold the office to which the nomination relates" does not constitute a "defect" in the nomination within the meaning of s.197(1)(c) of the Act. It is not merely a "defective" nomination because it is a purported "nomination" of a person who, under the rules, is not qualified to hold the office. In my opinion the same reasoning applies where, as here, the purported nominator is a person who, under the rules, is not qualified to nominate a person for the office in question. In both cases the document claimed to be a "nomination" is not merely a "defective nomination". I accept the submission by the union's counsel that it is "fundamentally flawed" and is not a defective nomination that can be remedied.

The applicant's counsel sought to invoke the maxim "expressio unius est exclusio alterius", saying that "the failure to exclude from the scope of a defective nomination the lack of qualification of a nominator means that we can infer that it is intended to come within the scope of Section 197(1)(c) and hence rule 43.4.4". In my opinion the maxim does not support that submission. I agree with the following statement in Pearce's Statutory Interpretation (2nd edn - para 56), which was cited by counsel for the returning officer:

"The legislature may have included specific references to a certain subject matter with the intention of limiting the scope of the Act to those matters.  Or it may, on the other hand, have simple overlooked other possible matters to which the Act could have extended or have thought that they were included in the subjects specifically mentioned."

In any event, in the present case the court is considering the construction of sub-rule 43.4.4 of the union's rules, as distinct from the construction of s.197 of the Act.

In reaching my conclusion I have not found it necessary to take into account the Minister's Explanatory Memorandum, quoted by the union's counsel, which said that s.197(4) was "designed to clarify the meaning of technically defective nominations in paragraph (1)(c) . . . where a person is not qualified to hold the office, it is not possible for a returning officer to treat that as a technical defect".

The returning officer was required by sub-rule 43.2.3.2 to reject the applicant's nomination.  The union's motion must succeed and the inquiry must be terminated.

I certify that this and the preceding four (4) pages are a true copy of the reasons for judgment herein of the Honourable Justice Keely.

Associate:

Dated:   8 December 1994

Solicitors for the applicant  :          Duncan & Hannon
Counsel for the applicant  :          Mr J. Weatherill

Solicitors for the Finance Sector Union
of Australia  :          Maurice Blackburn & Co.
Counsel for the Finance Sector Union
of Australia  :          Ms A. Chambers

Solicitors for Australian Electoral Commission  :          Australian Government
  Solicitor
Counsel for Australian Electoral Commission   :          Mr S. Cullimore

Date of hearing  :          30 November 1994

Date of judgment  :          8 December 1994