In the Matter of the Federated Clerks Union of Australia, an organisation under the Conciliation and Arbitration Act 1904 and in the Matter of an Application by Bernadette Anne Callaghan for an inquiry into an..

[1983] FCA 318

Re: IN THE MATTER OF THE FEDERATED CLERKS UNION OF AUSTRALIA, AN ORGANIZATION
UNDER THE CONCILIATION AND ARBITRATION Act 1904
And: IN THE MATTER OF AN APPLICATION BY BERNADETTE ANNE CALLAGHAN FOR AN
INQUIRY INTO AN ELECTION IN THE FEDERATED CLERKS UNION OF AUSTRALIA
Q. No. 3 of 1983
Industrial law
6 IR 258

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
INDUSTRIAL DIVISION
Northrop J.
Lockhart J.
Kirby J.

CATCHWORDS

Industrial law - conciliation and arbitration - election inquiry - whether declaration of ballot an irregularity - time of completion of election.

Conciliation and Arbitration Act 1904 (Cth.) ss.160, 161, 165

HEARING

BRISBANE

#DATE 3:11:1983

ORDER

The Court orders that the application be dismissed.

JUDGE1

On 27 May 1983 the Industrial Registrar referred this election inquiry to the Court pursuant to paragraph 160(1)(a) Conciliation and Arbitration Act 1904, "the Act". Thereupon the inquiry was instituted in the Court (sub-section 161(1) of the Act) and the Court is required to inquire into and determine the question whether any irregularity has occurred in or in connection with the election and such further questions concerning the conduct and results of the election as the Court thinks necessary (sub-section 165(1) of the Act).

The application was made under sub-section 159(1) of the Act. The applicant, Bernadette Anne Veronica Callaghan, is a member of the Federated Clerks Union of Australia, "the Union", an organization under the Act. The irregularity claimed relates to the election to two offices in the Union, namely the office of Deputy Federal President and the office of Federal Vice-President from the Federated Clerks Union of Australia (Central and Southern Queensland Branch) Union of Employees, "the C. & S.Q. Branch", a branch of the Union.

The parties to the inquiry agreed on the material facts and on the questions raised by the inquiry. On 3 August 1983, the Court, constituted by a single Judge, pursuant to sub-section 118C(1) of the Act, ordered by consent that the proceedings, being the inquiry, be heard and determined by a Full Court. The questions raised by the inquiry, as agreed by the parties, were:

1. (a) Was Joan Riordan eligible for election as Deputy Federal President of the Union on 17 November 1982?
(b) Was Joan Riordan elected as Deputy Federal President of the Union on 17 November 1982?

2. (a) Was Maxwell Ronald Muller eligible for election as Federal Vice-President from the C. & S.Q. Branch on 17 November 1982?

(b) Was Maxwell Ronald Muller validly elected as Federal Vice-President from the C. & S.Q. Branch on 17 November 1982?
Having regard to the Act, and in particular to the powers conferred on the Court by s.165 of the Act, difficulties arise concerning the formulation of those questions. This matter will be discussed later.

In order to understand the nature of the claim made by the applicant, it is necessary to make reference to some of the rules of the Union, "the Federal Rules", and of the C. & S.Q. Branch, "the Branch Rules". Under Federal Rule 16(1), subject to the provisions of Federal Rule 32, the supreme control of the Union is vested in a Federal Council consisting of "the Federal President, the Federal Deputy President, the Federal Secretary and the Assistant Federal Secretary, and the Councillors". The Councillors are elected by each branch of the Union respectively. There are nine branches of the Union and each branch is entitled to elect Federal Councillors, the number from each branch being determined by the formula contained in Federal Rule 16(1). Under the formula, the C. & S.Q. Branch is entitled to elect six Federal Councillors.

Under Federal Rule 16(3) the Federal Councillors to be elected by a branch of the Union are to be elected by a direct vote of all financial members of the branch and are to be elected in accordance woth the rules of the relevant branch. Each Federal Councillor holds office "until his successor is elected". For present purposes, Branch Rules 21, 22, 23, 24 and 38 are the relevant rules for the election of Federal Councillors from the C. & S.Q. Branch. Those elections for Federal Councillors are held every three years. At all relevant times prior to 12 noon on Monday, 15 November 1982, Joan Riordan and Maxwell Muller were Federal Councillors elected in accordance with the Branch Rules. Under the Branch Rules, the ballot for the triennial election of Federal Councillors was to take place in November 1982. Under Branch Rule 24(a), the ballot was to open on the first Monday in November (1 November 1982) and to close at 12 noon on the third Monday in November (15 November 1982). In that ballot Joan Riordan and Maxwell Muller were each a candidate, but neither was successful. The ballot closed at 12 noon on 15 November 1982, but the declaration of that ballot did not take place until about 2.30 p.m. on Wednesday, 17 November 1982.

It is necessary now to return to the Federal Rules. Under Federal Rule 16(4), the biennial meeting of Federal Council must commence within one calendar month of 1 November 1974 and in the same period every second year thereafter. Accordingly, a biennial meeting of Federal Council was to commence within one calendar month of 1 November 1982. In 1982, the biennial meeting of Federal Council was due to commence and did commence at 10 a.m. on Wednesday, 17 November 1982.

Under Federal Rule 23A, the Deputy Federal President is to be elected by and from the members of Federal Council in accordance with Rule 22. The duties of the holder of that office are set out in Federal Rule 23A. The Deputy Federal President is, ex officio, a member of Federal Executive of the Union; see Federal Rule 27(1).

Under Federal Rule 26, the Federal Vice-Presidents, one from each branch of the Union, are to be elected by and from the members of Federal Council in accordance with Federal Rule 22. The duties of the holders of those offices are set out in Federal Rule 26. Each Federal Vice-President is, ex officio, a member of the Federal Executive of the Union; see Federal Rule 27(1).

Federal Rule 22 prescribes the method of elections to be conducted within the Federal Council. Nominations for the positions of Deputy President and the Vice-Presidents are to be called for by the returning officer one month prior to each biennial meeting of Council. It follows that elections for those offices take place every two years. Nominations close at 12 noon and ballot papers are to be despatched by midnight on the opening day of the biennial meeting of Council. The ballot is to close at noon on the closing day of the biennial meeting of Council or ten days after the despatch of the ballot papers, whichever is the later.

Under Federal Rule 22(d)(i) the returning officer calls for nominations by notice to each member of Federal Council. In the present case, the returning officer did this on 16 October 1982. Under Federal Rule 22(d)(ii) any member of Federal Council may nominate or be nominated as a candidate for election by submission, in writing, to the returning officer. In the present case the nomination in writing of each of Joan Riordan and Maxwell Muller was received by the returning officer on 9 November 1982. Federal Rule 22(d) prescribes the manner in which any ballot is to be conducted. In the present case, the nomination of Joan Riordan was the only nomination received by the returning officer for the office of Deputy Federal President and the nomination of Maxwell Muller was the only nomination received by the returning officer for the office of Federal Vice-President from the C. & S.Q. Branch. Accordingly, there was no need for a ballot to be undertaken with respect to the election to those two offices.

Under Federal Rule 19, unless otherwise ordered by Federal Council, the second item in the order of business at meetings of Federal Council is "Election of Officers". At the Federal Council meeting commencing on 17 November 1982, following certain procedural matters, the returning officer's report was presented to Federal Council. This took place at about 12.30 p.m. The returning officer reported that one nomination only had been received for each of the offices of Federal Deputy President and Federal Vice-President from the C. & S.Q. Branch. He thereupon declared Joan Riordan and Maxwell Muller duly elected to those offices.

The result of the C. & S.Q. Branch election did not become known until about 2.30 p.m. on Wednesday, 17 November 1982 when the returning officer announced the result of that election. Joan Riordan and Maxwell Muller were not elected. It follows, therefore, that upon that declaration being made, the successors of Joan Riordan and Maxwell Muller were elected as Federal Councillors and thereupon Joan Riordan and Maxwell Muller ceased to be Federal Councillors at least from 2.30 p.m. on Wednesday, 17 November 1982. Despite ceasing to hold those offices, each has continued to claim to be the holder of the offices of Deputy Federal President and Federal Vice-President from the C. & S.Q. Branch, respectively.

By way of aside, it is noted that the apparent incongruity arising from the facts of this inquiry result from the coincidental timing of the elections in the C. & S.Q. Branch and the Federal Council respectively. That could happen every six years. I cannot happen with respect to other branches of the Union where the branch elections do not overlap with the Federal Council's biennial meeting. Nevertheless, the same incongruity could arise with respect to all branches in circumstances where a branch election takes place in a branch and as a result a Federal Councillor from that branch who had been elected to the office of Deputy Federal President or Federal Vice-President from that branch is not re-elected a Federal Councillor from that branch. Such a person, apparently, would cease to be a Federal Councillor but would, apparently, continue to hold office in the Federal Council or Federal Executive or both. No Federal Rule appears to be directed to this matter, although the Federal Rules seem to be based on the assumption that those officers should be Federal Councillors and that they hold those offices only so long as they remained Federal Councillors. However, it is difficult to see how that problem can be resolved in these proceedings, which, of necessity, are limited to the elections themselves.

From the facts of this case, it can be seen that in conducting the elections for Deputy Federal President and Federal Vice-President from the C. & S.Q. Branch, the returning officer has complied with the requirements of the Federal Rules. In other words, in relation to those elections there has been no breach of the rules of the organization; see definition of "irregularity" contained in sub-section 4(1) of the Act. That definition is not in a definitive form. It follows that the applicant is free to attempt to establish that an irregularity, within the ordinary meaning of that word, has occurred in or in connection with the election. In Re Federated Liquor and Allied Industries Employees' Union of Australia; Ex parte Huxtable (1979) 40 F.L.R. 418, Northrop J. said at p.424:

"The issue remaining to be decided on the preliminary issue is whether the facts assumed for the purposes of submission are capable of constituting an irregularity within the meaning of that word when used in s.165 of the Act. The word 'irregularity' is defined in the Shorter Oxford Dictionary (23rd ed. 1972 reprint) as 'the quality or state of being irregular; something that is irregular'. In the same dictionary, the word 'irregular' is defined in relation to things as 'not in conformity with rule or principle, contrary to rule; disorderly in action or conduct, anomalous, abnormal'."

His Honour then gave consideration to the meaning of the word "irregularity" contained in the Act.

In the present case, the real question raised by the inquiry is whether the declaration that Joan Riordan and Maxwell Muller had been elected to the offices of Deputy Federal President and Federal Vice-President from the C. & S.Q. Branch respectively, at 12.30 p.m. on 17 November 1982 was an irregularity in or in connection with the election. Counsel for the applicant contended that a declaration of the result of an election is not a necessary step in an election, but that an election is completed when the ballot closes. He contended that the ballot for Federal Councillors from the C. & S.Q. Branch closed on 15 November 1982, and, therefore, at that time the successful candidates, although not identified until 2.30 p.m. on 17 November 1982, became elected to the offices of Federal Councillors and thus on 15 November 1982 were elected as the successors to Joan Riordan and Maxwell Muller respectively and that at that time, namely 15 November 1982, Joan Riordan and Maxwell Muller ceased to be Federal Councillors and thus could not be elected to the other offices.

In support of his contentions, counsel relied upon expressions of opinion contained in Lynch v. McGrane (1965) 7 F.L.R. 188 and Beeson v. Blayney (1966) 8 F.L.R. 292. In Lynch v. McGrane one of the issues was whether the participation by a member in a meeting of a committee of management of an organization before he had been declared elected to that committee vitiated a decision made at that meeting. That member had been the only member nominated for the position and thus a ballot was not necessary. The Industrial Court, Spicer C.J., Dunphy and Eggleston JJ., said at p.194:

"As stated above, Ryan's nomination was the only one received for the office to which he was declared elected. He was therefore entitled to be declared elected without the taking of any vote. If the meeting of 17th January, 1962 had refused to approve his election, he could have obtained an order from this Court to enforce his rights. In these circumstances it seems to us that a formal declaration of his election was not a pre-requisite to his participation in the affairs of the committee of management, and that the resolution of 15th August, 1962, could properly be seconded by him. In the case of R. v. Coaks ((1854) 3 El. & Bl. 249; 118 E.R. 1133) it was held that a person who was entitled to be declared elected as a councillor at a municipal election was entitled to participate in the election of mayor, even though the returning officer had declared the poll in favour of another candidate. This case would seem to show that in the absence of express provision to the contrary, the declaration of the poll in favour of the successful candidate is not essential to his participation in the affairs of the body to which he is elected."

In Beeson v. Blayney, rule amendments affecting the term for which an officer could hold office came into effect after a ballot for election to that office had closed but before the returning officer had declared the result of the ballot. The issue in the case was whether the successful candidate held office for the term specified in the old rule or that specified in the new rule which was in operation at the time of the closing of the ballot. Joske J. at p.295 said:

"There is, however, an additional reason in the present case for saying that the amendment of the rules does not apply and that is that the election in question was already completed at the time the amendments to the rules were certified by the Registrar and became effective. It is true that at that time the declaration of the ballot had not taken place, but the actual election is complete as soon as the ballot closes. The ballot has been finally determined and the result is in the ballot box. The election is by the votes. The declaration of the poll is not the election. It merely declares the result of the election which has already been completed. The entitlement of the elected candidate flows from the poll of the votes and the rights which he possesses as the elected candidate belong to him and vest in him immediately the poll closes."

Neither of those authorities assist the applicant. In the present case, the successful candidates elected to the offices of Federal Councillors were not identified until the declaration of the ballot at 2.30 p.m. on 17 November 1982. Under Federal Rule 16(3), Joan Riordan and Maxwell Muller each held office as a Federal Councillor from the C. & S.Q. Branch until her and his "successor is elected" under the Federal Rules and the Branch Rules. At the very earliest, the successors could not be elected until they had been identified. In some circumstances the close of the ballot may be the relevant time, as in Lynch v. McGrane where the time of the election determined the length of the term for which the successful candidate was to hold office. In other cases, if the one candidate only is nominated, the close of nominations may be the relevant time, but this may depend upon the particular rules of the organization. But even there, it may well be that that will not be known until the returning officer declares that the one nomination only has been received. Where a holder of an office holds office until his successor is elected, there can be no gap in the holding of that office.

In the present case, the votes recorded on the ballot papers for the election of Federal Councillors from the C. & S.Q. Branch had to be counted. For the purposes of the Federal Rules and the Branch Rules, the relevant time is the declaration of the ballot, since that is the time when it is first ascertained who will be the Federal Councillors for the following two years. That is the time when the term of office of the previous holder ceases.

It follows that on the facts set out no irregularity under s.165 of the Act has occurred in or in connection with the election to the offices of Deputy Federal President and Federal Vice-President from the C. & S.Q. Branch respectively.

The application should be dismissed.

JUDGE2

The Federated Clerks' Union of Australia ('the Union'), an organisation of employees registered under the Conciliation and Arbitration Act 1904, has a number of branches. One of the branches is known as the Central and Southern Queensland Branch ('the Branch'). In August 1983, Justice Fitzgerald referred to a Full Court proceedings which raised certain questions in dispute following elections in the Branch and the Union. The questions involve no issues of fact but simply the application to agreed facts of the interpretation of the Act and the rules of the Union and of the Branch. Put shortly, this is a tale of two elections. The issue is whether, on inquiry, it is shown that an irregularity has occurred in the election. That issue raises the question whether certain candidates for election to Federal offices of the Union lost the right to be elected to such offices when they failed to secure election as Federal Councillors in the contemporaneous elections in the Branch. Typically, the answer to the questions depends upon a close examination of the rules of the Union ('the Federal Rules') and the rules of the Branch ('the Branch Rules'). But in this case more than usual attention must be paid to the events as they unfolded because of the virtual contemporaneity of relevant developments in the Federal and Branch elections.

Chronology of Events

On 27 September 1982 nominations were opened for a triennial election within the Branch. Six Federal Councillors were to be elected to represent the Branch on the Federal Council of the Union. The election of the Councillors was held under Branch Rule 24. Paragraph (a) of that rule provides for the timing of such triennial Branch elections. The paragraph requires (so far as relevant):

'24(a) the Triennial Branch elections shall be held during the month of November. The ballot shall open on the first Monday in November and close at 12 noon on the third Monday in November. The Union shall make application for the conduct of each triennial election in accordance with the provisions of section 170 of (the Act). Conduct of the ballot shall be left in the hands of the Returning Officer appointed pursuant to this application. . . . '

Faithful to this paragraph in the Branch Rules, the Branch election was conducted by the Australian Electoral Office. At 12 noon on 11 October 1982, nominations in respect of the Branch election closed. The nominees for election as Federal Councillors, to represent the Branch on the Federal Council of the Union, included the six Federal Councillors who then represented the Branch and certain other nominees. One of those other nominees was Bernadette Anne Callaghan, the applicant for the inquiry into the election now before the Court. Among those who nominated on 11 October 1982 and who on that day held office as a Federal Councillor was Joan Riordan. She also held the position of Federal Vice-President of the Union, Central and South Queensland Branch. Another was Maxwell Ronald Muller, also then a Federal Councillor. Miss Callaghan, Miss Riordan and Mr Muller are members of the Union and of the Branch.

On 16 October 1982 the Returning Officer for the Union called nominations for the other elections in the Union then proceeding, namely the election for offices in the Federal Council. Two of the offices included in the call were the offices of Deputy Federal President of the Union and Federal Vice-President of the Union (Central and Southern Queensland Branch). Election of the Deputy Federal President is provided for in Federal sub-rule 23A(1):

23A(1) The Deputy Federal President shall be elected by and from the members of the Federal Council in accordance with rule 22 and shall hold office until his successor has been duly elected or until the occurrence of an extraordinary vacancy in his position.

The reference to rule 22 includes a reference to paragraph 22(2)(a) of the Federal Rules:

22(2)(a) Nominations for the positions of the Deputy President and Vice Presidents shall be called for by the Returning Officer one month prior to each biennial meeting of Council. Nominations shall close at noon and ballot papers shall be despatched by midnight on the opening day of the biennial meeting of Council. The ballot shall close at noon on the closing day of the biennial meeting of Council, or ten days after the despatch of the ballot papers, whichever is the later.

So far as the Federal Vice-President is concerned, one is elected for each Branch. His election is provided for by Federal Rule 26 which in all material respects is in terms similar to sub-rule 23A(1). There is, however, in Federal Rule 26, a special provision for Branch recall of what may be termed the Branch Federal Vice-President. There is no equivalent provision in rule 23A relating to the office of Deputy Federal President. The recall provision is as follows:

26(4) The Federal Vice-President from a Branch may be removed by the Branch Council or, in the case of Branches where no Branch Council exists, by a special meeting of members summoned for that purpose.

Only one of the Branches of the Union was holding its Branch election at about the time of the biennial meeting of the Federal Council, namely the Central and Southern Queensland Branch.

Written notices calling for nominations in respect of the offices of Deputy Federal President and Federal Vice-President of the Union were posted on 16 October 1982 to each of the then members of the Federal Council of the Union, including Miss Riordan and Mr Muller. Otherwise there was no other notice of election or call for nominations.

The summoning of the biennial meeting of the Federal Council is itself provided for in sub-rule 16(4) of the Federal Rules. The Federal Council meeting is to commence within one calendar month of the first day of November in even years. It is to be held in such places the Federal Executive determines. In accordance with this rule, the Federal Executive determined on a meeting to commence on 17 November 1982 in Coffs Harbour, New South Wales. On 9 November 1982, the Union Returning Officer received a nomination from Miss Riordan for the office of Deputy Federal President. On the same day he received a nomination from Mr Muller for the office of Federal Vice-President for the Branch. Before the biennial meeting of the Federal Council of the Union opened in Coffs Harbour, events occurred in the Branch elections which are critical for the resolution of these proceedings.

At noon on Monday 15 November 1982, the ballot in respect of the Branch election closed. Officers of the Australian Electoral Office proceeded to count the votes. Curiously, there is no provision in the Branch Rules for a declaration of the outcome of the count. There is a requirement in paragraph 24(e) of the Branch Rules that the Returning Office shall arrange to supply certain newspapers with the names and polling figures of the candidates. There is also provision in paragraph 38(d) of the Branch Rules for a certificate to be issued not later than 14 days after an election. This procedure was followed, as will be described. However, by 9 am on 17 November 1982, when the biennial meeting of the Federal Council of the Union opened at Coffs Harbour, the outcome of the Branch election, though already effectively determined (by the closing of the ballot) was not yet known. Such was also the position at noon on that day when nominations for the elections in respect of the two Federal offices in question closed. At about 12.30 pm on 17 November 1982, there being no other nominations for the post of Deputy Federal President, the Union Returning Officer declared Joan Riordan elected to that office. Shortly thereafter, and in the same circumstances, he declared Mr Muller elected to the office of Federal Vice-President (Central and Southern Queensland Branch). It is these elections that are challenged.

Approximately an hour later, at 2.30 pm in Queensland, the Returning Officer of the Australian Electoral Office declared the results of the Branch election for the offices of the six Federal Councillors to represent the Branch on the Federal Council. Amongst those elected was Miss Callaghan. Miss Riordan and Mr Muller, as well as other members of their team, were defeated.

On 23 November 1982, the certificate previously referred to and issued under paragraph 38(d) of the Branch Rules was forwarded to the Federal Secretary of the Union. The paragraph in question must now be set out in full for it is of critical importance:

38(d) The Branch shall not later than fourteen (14) days after an election has been held in respect of any member/members of Federal Council forward to the Federal Secretary a certificate signed by the Branch President and Branch Secretary or such other person or persons authorised to act in their stead in accordance with the rules of the Branch, certifying that such election/elections has been held and advising the names of such Councillor or Councillors; at which time such Federal Councillor/Councillors shall assume office as members of Federal Council for the Central and Southern Queensland Branch.

Proceedings in the Court

In March 1983 Miss Callaghan lodged an application under section 159 of the Act seeking an inquiry by the Court into alleged irregularities in the election in the Union for the position of Federal Vice-President (Central and Southern Queensland Branch) and Deputy Federal President. The application was referred to the Industrial Relations Bureau for inquiry and report to the Industrial Registrar. The report of the Bureau was received by the Registrar at the end of April 1983. In the light of the principles he took to be expressed in Lynch v McGrane (1965) 7 FLR 188, 194 and Beeson v Blayney (1966) 8 FLR 292, 295, the Industrial Registrar concluded that neither Miss Riordan nor Mr Muller were entitled, after the ballot had closed on 15 November 1982, to hold office as Federal Councillors representing the Branch. Accordingly neither was eligible to take part in the election for Federal Deputy President or Federal Vice-President at the meeting on 17 November 1982 on the basis that they were Federal Councillors. For that reason he referred the matter to the Court for an inquiry under subsection 161(1) of the Act. These are the proceedings which Justice Fitzgerald, pursuant to section 118C of the Act, and with the consent of the parties, referred to the Full Court.

The Applicant's Contentions

The contentions of the applicant are essentially those accepted by the Industrial Registrar. According to her, when the ballot closed on 15 November 1982, the die was cast. True it was that the formalities of opening the ballot boxes, counting the votes, determining the result and announcing it remained to be done. But these were merely machinery matters. The fate of the candidates was sealed and, though they did not know it, Miss Riordon and Mr Muller, having been rejected in the ballot, and no longer enjoyed the status of Federal Councillors, a status required for election to each of the posts for which they had earlier offered themselves. Much emphasis was placed upon the formula found in both sub-rule 23A(1) in respect of the election of Deputy Federal President and 26(1) in respect of the election of Federal Vice-President. In each case, the Federal Rules require that the successful candidate should be elected by and from the members of the Federal Council. The preposition 'from' asserts the precondition of eligibility. The preposition 'by' asserts the necessity of election. Each, it was contended, must be present at the very least at the time of the election. Though pretending to membership of the Federal Council, unbeknown to them, neither Miss Riordan nor Mr Muller were in fact members. They had lost office the moment the ballots closed two days earlier at noon on 15 November 1982. As no Branch or Federal Rule requirement existed for a declaration of the poll by the Returning Officer, that formality, performed at 2.30 pm on 17 November 1982 had, so it is asserted, no legal consequence. If consequences were to turn on a formal declaration and if commencement of office was to be attached to such a public announcement, the rules would have so provided.

In support of these contentions, the applicant pointed to established jurisprudence in the predecessor to this Court. In Lynch v McGrane (above) Justice Joske said (at 94):

In the absence of express provision to the contrary, the declaration of a poll in favour of a successful candidate is not essential to his participation in the affairs of the body to which he is elected.

In Beeson v Blayney (above) at 295, a Full Court comprising Chief Judge Spicer and Justices Joske and Eggleston said:

. . . (T)he actual election is complete as soon as the ballot closes. The ballot has been finally determined and the result is in the ballot box. The election is by the votes. The declaration of the poll is not the election. It merely declares the result of the election which has already been completed. The entitlement of the elected candidate flows from the poll of the votes and the right which he possesses as the elected candidate belong to him and vest in him immediately the poll closes.

There is no doubt that these observations, taken in isolation, warranted the belief of the applicant that, at least from the moment the ballot had been finally determined ie at noon on 15 November 1982, Miss Riordan and Mr Muller were no longer Federal Councillors. They only thought they were. But from that moment their successors had been 'elected'. And this was so even though the outgoing Federal Councillors, the incoming Federal Councillors and the Federal Council itself were all equally ignorant of the change that had occurred because of the unknown results in the ballot boxes.

These arguments have a beguiling attractiveness. They appear to be supported by past decisions. They also draw some support from the general principle of democratic control of Unions, which it is an important policy of the Act to further and to protect. Although the contemporaneity of the Federal Council and Branch election was purely coincidental and could occur only once every six years (because the one was biennial and the other triennial) the result of upholding the election of Miss Riordan and Mr Muller would be, effectively, to frustrate the expression of opinion of the rank and file of the Branch so recently expressed in the Branch election. In Mr Muller's case, as Federal Vice-President for the Branch, he could be recalled (See sub rule 26.4 Federal Rules). But no such recall provision exists in respect of the Deputy Federal President. Miss Riordan would hold that office for at least two years, despite the virtually concurrent rejection of her candidature to be a Federal Councillor elected by the Branch.
Reconciliation of the Rules

There are a number of reasons why I do not accept the applicant's proposed construction of the rules. First, it must be remembered that that Federal Council is a continuing body of the Union. The Federal Rules pay particular attention to ensuring continuity, by providing that the offices here in question are to be held until the successor 'has been duly elected' or until the occurrence of an extraordinary vacancy. Normally elections for the Federal Council would proceed at times other than the Branch elections. It is no part of the design of the rules of this Union and the Branch that Federal Councillors will be elected in the Branch and then immediately take part in the election of Federal Council offices. Although the Union is organised on a collegiate basis, there is no necessity in the interrelationship of the Branch and Federal Rules for the results of Branch elections to be automatically and immediately reflected in elections to Federal posts. On the contrary, because of the different intervals of time at which elections for the Branch and for the Federal Council are held, it is quite possible, indeed likely, that intervals will arise when people who lose office in the Branch will nonetheless remain duly elected officers of the Federal Council. As I have said, in the case of the Federal Vice-President elected by the Branch, there is a specific provision (sub-rule 26(4)) by which this potential lack of representativity can be cured by Branch recall. The fact that such a provision does not exist in Federal Rule 23A merely underlines the fact that Federal office-holders such as the Deputy Federal President are, in a sense, holders of a national office, not necessarily responsive to the Branch that has originally sent them to the Federal Council. The fact that they may lose Branch support is embarrassing. It will prevent their holding office beyond the next biennial meeting of the Federal Council. But it is not a reason of itself for disqualification from an office to which they have been lawfully elected. Federal and Branch Rules are therefore to be read with the appreciation that democracy will ultimately catch up with a Federal Councillor who loses favour. But it is not part of the design of those rules that such loss a favour necessarily and immediately entails, without more, a loss of qualification for Federal office. Except every six years, the time is out of joint and the Federal and Branch elections do not coincide at all.

Secondly, the continuity of the Federal Council is emphasised by the provision for nominations to be called one month prior to the biennial meeting (Federal Rules, para 22(2)(a)). This procedure obviously envisages a lengthy period for reflection (and doubtless electioneering) on the part of the Federal Council, in the event of there being more than one candidate. In the case of Miss Riordan and Mr Muller, there were no other candidates. But that fact does not alter the implication to be drawn from paragraph 22(2)(a) of the Federal Rules. It is an implication that, even where there is a contemporaneous Branch election proceeding nominations are to be called a month prior to the biennial meeting of the Federal Council. In the present case, this was almost a month before the close of the ballot at the Branch election. Only a member of the Federal Council might nominate or be nominated. Upon the applicant's own case she, and the members of her victorious team, were not members of the Council until 15 November 1982. Hence from 16 November 1982 until 17 November 1982 the provision of paragraph 22(2)(a) could, on her submission, have no application. The alternative view is that the provision for a month's call for nominations reflects a policy of facilitating early nomination of people who have the standing to offer themselves for election. Of itself, this provision does not necessarily mean that the nomination of Miss Riordan and of Mr Muller for their respective posts on 9 November conferred an indefeasible right to candidature upon them. But it does suggest that the design of the rules is such as to contemplate, notwithstanding the circumstances of the overlap of the two elections, that there will be ample time for nomination, for reflection, for lobbying and candidacy. As on the applicant's view she did not become eligible to be candidate until 15 November 1982, that policy of paragraph 22(2)(a) of the Federal Rules would be entirely defeated in her case. Though the applicant knew of the biennial meeting of the Federal Council, neither she nor any of her team did anything, whether after noon on 15 November 1982 or before the close of that meeting of the Federal Council to assert a right to nominate as a candidate. To have complied with paragraph 22(2)(a) of the Federal Rules, the applicant would have had to offer her nomination by noon on the opening day of the biennial meeting of the Federal Council. At that time, the applicant was not aware of the outcome of the Branch election.

Thirdly, the construction of the rules urged by the applicant is one that would envisage a serious and potentially disruptive hiatus in the representation of the Branch on the Federal Council. It would be an hiatus outside the control of the Union or even of the Branch. Furthermore, it could result in the election of people to conduct the affairs of the Union who, without any irregularity or impropriety on their part were, without their knowledge, ineligible to participate in the Federal Council. As in the present case, the counting of the ballot and the declaration of the results were outside the control of the Union or the Branch. These were functions performed independently by the Australian Electoral Office. If the office, for whatever reason, had taken a week to complete the count, the result, on the applicant's submission, would be total disqualification of Federal Councillors of the Branch from participation in the biennial meeting of the Federal Council. That is an interpretation of the rules which should not readily find favour. It is one which runs counter to the patient attention of the rules to providing that persons, once elected, should hold office, normally, until their successors have been elected. This provision itself is designed to assure continuity in offices. The construction urged by the applicant is one which envisages serious gaps in representation by the Branch in the Federal Council. Had this been the intention of the rules, one would have expected it to be spelt out more clearly. One would also not have expected to find provisions in the rules such as those relating to the length of nomination and the holding of office until successors have been elected.

Fourthly, if the applicant's view were correct, and the incoming Federal Councillors were elected from the moment the ballot was closed on 15 November, even before their election was known or announced, problems would be presented if the ballot boxes were lost or destroyed. On the applicant's view, certain candidates, though unknown and unknowable, would have been 'elected'. Such an interpretation of the rules is plainly unacceptable. It could cause enormous confusion and disruption in the government of the Union. Though it may be true that the counting and announcement of the outcome of the ballot are machinery matters, until these steps are taken, it can scarcely be said that the election is complete in all its facets. If it were complete at the close of the ballot, the loss or destruction of the ballots could cause disenfranchisement of the Branch in the Federal Council because, though the new Branch Councillors had been 'elected', their identities were unknown or even unknowable. Until the successful candidates are known, it is unrealistic to talk of them as being 'elected' for the purposes of these rules.

Fifthly, the Branch Rules themselves provide notable machinery for the transfer of office following a Branch election. Paragraph 38(d) of the Branch Rules, cited above, specifically provides a time when, following an election, a Branch Councillor is to assume office as a member of the Federal Council. This is upon the forwarding, no later than 14 days after an election, of a certificate signed by the Branch President and Branch Secretary or persons authorised in their stead. It is only after such a certificate is signed and forwarded, advising the names of such Councillors, that they 'shall assume office as members of Federal Council for the Central and Southern Queensland Branch'. In the present case, the certificate was not signed and forwarded until 23 November 1982. But, whenever this was done, it is noteworthy that the Branch Rules themselves contemplate a post-election formality before the new Councillors 'assume office'. Even if it be true, as the appliant contends, that she and her colleagues were 'elected' as Federal Councillors on 15 November 1982, the Branch Rules postpone the assumption of office as members of the Federal Council after the post-election certificate is issued. In turn, this contemplates that newly elected Federal Councillors from the Branch will not immediately displace those who were previously lawfully elected. The displacement is not to occur until after the certificate is signed and forwarded. There is a sensible policy behind this provision. It is, in essence, for the establishment of credentials. The Branch President and Branch Secretary are required to certify the names of the new Councillors. The period of up to 14 days contemplates an hiatus for counting the ballot and informing those affected of the outcome. The certificate may be issued well after the biennial meeting of the Federal Council had concluded. In fact the certificate in this case was forwarded six days after the biennial meeting had concluded. There is no necessity, in the interrelationship between the State and Federal Rules, for the certificate to be issued in good time to permit newly elected and different Branch Councillors to 'assume office' in time to take their part in the proceedings of the Federal Council. Accordingly, on the face of the Branch and Federal Rules, there is a clear contemplation that, even in the unusual circumstance of coincidence of Branch elections and the biennial Federal Council meeting, there is no necessity for a certificate to be returned in time to permit the call for nominations to be answered by a qualified member of the Federal Council, newly elected and entitled to assume that office. On the contrary, the rules contemplate a lapse of time which would ordinarily take newly elected Federal Councillors from the Branch outside the period for nominations under the Federal Rules and even beyond the period before the close of the biennial meeting by which time the election of Federal offices in question here must, by the Federal Rules, be completed.

These conclusions leave only the judgments in the Commonwealth Industrial Court which appear, in isolation, to support the applicant. But even that support melts away when the cases are closely examined. The case of Lynch v McGrane dealt with the right of a member to participate in the business of a Union Council after his had been the only nomination for a position for which nominations had closed but before he had been formally declared elected. Clearly, in that case there was no uncertainty as to the identity of the victorious candidate. That is not the case here where, at the time of nomination, close of poll and declaration of the Federal elections and until the announcement was made at 2.30 pm on 17 November, the victors were unknown. Furthermore, the principle in Lynch v McGrane was specifically expressed to be subject to the qualification of an express provision in the rules to the contrary. In the present case there are numerous provisions in the Federal and Branch Rules, read together, which provide to the contrary of the proposition that the election of the Federal Councillors by the Branch was completed at the close of the ballot on 15 November 1982. The most notable is paragraph 38(d) of the Branch Rules. Until the Federal Councillors 'assume office' it is unthinkable that Federal Councillors for the Branch should take part in the activities of the Federal Council. In particular it is unthinkable that they should participate in the election of Federal officers. Yet the applicant's submissions would require that or the equally unacceptable alternative that between the close of the ballot and the assumption of office, the Branch was disenfranchised but then only contingently on the outcome of the Branch election..

So far as Beeson v Blayney is concerned, the case principally turned on the well-established rule that changes in rules which occur after an election has commenced and before it has concluded, do not affect the conduct or consequences of the election unless so provided in express terms. See Egan v Maher & Ors (1978) 20 ALR 421, 466; Re Federated Liquor & Allied Employees' Union of Australia (1979) 30 ALR 115, 119. Although some of the language of Justice Joske, when taken in isolation, lends support to the applicant's contentions, it is clear from His Honour's citation of Lynch as the authority for the proposition of his judgment that he intended his remarks to be read subject to the qualification offered in Lynch v McGrane. That is the qualification which, in any case, common sense requires. It is the qualification that gives primacy to the specific language of the Union's rules, in this case the Federal and Branch Rules of the Union, read together.

In the result, neither of the two authorities principally relied upon by the applicant constrain a departure from the consequences of a proper construction of the rules.

That proper construction appears to acknowledge adequately the policy of the Act and the Regulations which are designed to ensure the reflection of democratic elections in the control of organisations. But it also acknowledges the continuity of organisations and the need to avoid undesirable uncertainties and gaps in representation of Branches at the Federal Council of the Union, resulting from contemporaneous Branch elections. On the view I have taken, both Miss Riordan and Mr Muller were members of the Federal Council of the Union and eligible for election at all material times up to the moment when each was declared elected. They were certainly fortunate that time flowed in their favour. But this was fortune rather than design, as a comparison of the election requirements of the Federal and Branch Rules makes plain. In Mr Muller's case he must face the decision of the Branch Council, a decision that may follow this judgment of the Court, if it has not already been lawfully made. In Miss Riordan's case, though she has the satisfaction of due election as Deputy Federal President, it is doubtless a satisfaction tinged with disappointment that her election coincided, almost exactly, with her rejection as a Federal Councillor for her Branch. No irregularity under s.165 of the Act has been shown, warranting the intervention of the Court.

Orders

By agreement of the parties, the matters to be determined in these proceedings were posed in the form of a number of questions which are set out in the joint Judgment of Justices Northrop and Lockhart. I would propose that the questions be answered as follows:

1 (a) Yes
(b) Yes
2 (a) Yes

The proceedings before the Full Court appear to have commenced as a purported reservation of a question for the opinion of a Full Court under subsection 25(6) of the Federal Court of Australia Act 1976. However, the power to state a case in this way is confined to a matter with respect to which an appeal would lie from the judgment of a single Judge. Paragraph 118B(1)(a) of the Conciliation & Arbitration Act 1904 excludes such an appeal to a Full Court in the case of election inquiries. Accordingly, there was no jurisdiction in the Full Court to answer the questions stated as reserved questions and as part only of the proceedings. It was in these circumstances that, with the consent of the parties and pursuant to s.118C of the Conciliation & Arbitration Act 1904, on 3 August 1983 Justice Fitzgerald ordered that 'these proceedings in which the parties have agreed what are the material facts and what are the questions to be determined as set out in the Schedule . . . be heard and determined by a Full Court'. It was as a reference of the whole proceeding, therefore, not of questions of law reserved for opinion, that the application came before the Court as presently constituted.

In the course of argument, Counsel for the applicant indicated that he had only just become aware that there had been a change in the basis upon which the matter was before the Court. He expressed concern as to whether, by consenting to the reference of proceedings under s.118C, 'we foreclosed ourselves from determination of other aspects of the election'. Specifically, he foreshadowed other arguments which the applicant wished to raise, in the event of adverse determination of the questions previously reserved, originally in purported reliance upon subsection 25(6) of the Federal Court of Australia Act 1976. As expressed, these arguments related to a complaint 'about the ballot papers and who they went to' and the question of who was given notice of nominations and who then voted in the election for the Federal Council.

Because of the plain inconvenience of canvassing these additional arguments before the Full Court, Counsel were asked to offer written submissions as to the power of the Full Court, having the matter before it under s.118C, to refer the balance of the 'proceedings' back to a Single Judge. It would appear, however, that once proceedings have been referred to a Full Court under the section, the Full Court is not empowered to answer particular questions and then to remit the balance of the proceedings to a single Judge.

In the circumstances that have occurred, I do not believe that the applicant should be foreclosed from raising other objections she may have concerning the election. It is no answer to say that there are other remedies open to the applicant, whether under the Conciliation & Arbitration Act 1904 or otherwise. Subsection 159(5) of the Conciliation & Arbitration Act 1904 will probably prevent the applicant from commencing fresh proceedings for an inquiry. The Full Court now has the whole matter before it. It is on notice of residual questions for argument. Without hearing the parties, I do not believe that the acquiescence to the reference under s.118C should operate to exclude consideration by the Court of any remaining objections. I take this view particularly having regard to the public interest in the due conduct of elections which it is the purpose of the Act to ensure. This is not simply private litigation.

The circumstances of the reference of the matter to the Full Court call attention to an apparent defect in the Conciliation & Arbitration Act. It ought to be possible for a single Judge to reserve a question for the opinion of a Full Court, including in an election inquiry. It may not be appropriate to provide this facility by simply removing the prohibition on appeals in election inquiry cases. There are clear reasons for speed and finality in the determination of election inquiries. Furthermore, it is not every question that should properly be reserved to a Full Court under subsection 25(6) of the Federal Court of Australia Act 1976 (Cf Justice Sheppard in Barton v Westpac Banking Corp, unreported, 19 October 1983). But there will be proceedings where the stated case procedure is appropriate and beneficial yet where it would be undesirable and uneconomic to refer the entire proceedings to a Full Court. The need for consideration of this issue is drawn to attention by the present case. It should be considered by those responsible for reform of the legislation.

Because, on reflection, it might not be the intention of the applicant to pursue, at least in these proceedings, the remaining questions mentioned above, the order I would propose is that the reasons for judgment should be published and the further hearing of the proceedings should be adjourned to a date to be fixed to enable any party represented before the Court to make further submissions. Unless by 5 December 1983 any party requests that the proceedings should be listed for further consideration, the Court should order that the application be dismissed.