Matter of an application by Patterson, M. inquiry into elections Association of Railway Pro Officers of Australia

[1987] FCA 341

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CATCHWORDS

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Industrial Law - registered orqanlzation - elections - _

whether irregularities - duplicate ballot papers -

electioneering at organization's expense - misleading voters

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- blank envelopes instead of reply paid envelopes -

inaccuracies in roll of voters - whether irregularities may

have affected results - new ballot - interim orders.

IN THE MATTER of an application by MICHAEL PATTERSON for an

inquiry into elections in the ASSOCIATION OF M I L H A Y

PROFESSIONAL OFFICERS OF AUSTRALIA

NSW No. 27 of 1986

16th June 1987

I	Gray J.
Brlsbane

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I IN THE FEDERAL COURT OF AUSTRALIA 1

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i	NEW SOUTH WALES DISTRICT REGISTRY	1	NSW No. 27 of 1986
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DIVISION INDUSTRIAL )

.	IN THE MATTER of an application	IN THE MATTER of an application
by MICHAEL PATTERSON by MICHAEL PATTERSON for an

for an

inauirv into elections in the	inquiry into elections in the
AS~OCI~TION ASSOCIATION OF RAILWAY OF RAILWAY
PROFESSIONAL OFFICERS PROFESSIONAL OFFICERS OF

OF

AUSTRALIA

AUSTRALIA

JUDGE MAKING ORDER:	GRAY J.
DATE OF ORDER:	16th June 1987
WHERE MADE:	Brisbane

ORDER

The occurred in or in connection with the elections for the offices of General Treasurer and General Secretary in the Association of Railway Professional Officers of Australia, Court having found that irregularities have

and being satisfied that the results of the elections may

have been affected by irregularities declares and orders:

1. That the ballot conducted in the elections for the

offices of General Treasurer and General Secretary in

the Association of Railway Professional Officers of

Australia in and about September 1986 is void.

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3 . That John Pichsrd klillmrn Pohertson has not been

elected as General Scretary In the Aczeclation	of
l?allwa;r Prnfesslonal 9fficE.t-s cf Austrslia.

4. T h a t the Industrlsl Reqlstrsr is directed to make

arrangements f o r the condl-tct ,>f a new hallnt for the

offlces of:	5
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!a) General Treasurer, hetveen the existing

candidates. Mlchael Charles Patterson snd James

Vlner Snov, or such of them as -ish to contlnue

their candidature, and

!b) General Secretary, between the esi s t inq

candidates, Greqory Norman Woodward and John

Richard Willlam Robertson, or such of them as wish

to continue their candidsture.

S . That untll the result of such new ballot is declared

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or further order:

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(a) James Vyner Snow act in the office of General

Treasurer the Association in of Railway !

Professional Officers of Australia;

(b) John Richard William Robertson act in the office

of General Secretary in the Association of Railway

Professional Officers of Australia.

6 .	Liberty is reserved to any party to apply on 7	days	f
notice in writing to each other party.

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I IN THE FEDERAL COURT OF AUSTRALIA )

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NEW SOUTH WALES DISTRICT REGISTRY ) NSW No. 27 of 1986 I

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l	DIVISION	INDUSTRIAL	)
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I . IN THE MATER of an application

by MICHAEL PATTERSON for an

inquirv into elections in the

AS~OCIATION OF RAILWAY

!	PROF'ESSIONAL OFFICERS OF
I	AUSTRALIA
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I	JUDGE: GRAY J.
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I	m: 15th June 1987
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REASONS FOR JUDGMENT	i
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I	On 27th October 1986, the Industrial Reglstrar referred	i
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to the Court an application for an inquiry into two elections

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in the Association of Railway Professional Officers of

Australia ("the Association"). The elections were for the

offices of General Treasurer and General Secretary, both

I being offices at the federal level in the Association. The

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i	elections
were Conciliation and Arbitration Act conducted pursuant to s.170 of the
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1904 ("the Act"), by an

officer of the Australian Electoral Commission.

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Nominations for the elections opened on 29th July 1986

and closed on 19th August. There were two candidates for

each of the offices concerned. A ballot was therefore

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conducted between lot September and 18th September. 1,683

i	ballot papers were issued and 581 of them were returned. On 29th September, the result was declared. For the position of
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General Treasurer, Michael Charles Patterson (the applicant).
1	received 280 votes, James Vyner Snow received 291, and ten informal votes were cast. In the election for the office of
General Secretary, John Richard William Robertson received
1	I	301 votes and informal votes. Mr. Snow and Mr. Robertson Greqory Norman Woodward 269, with eleven

were therefore

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I declared elected. It will be noted that the margins were

i	eleven and thirty-two respectively. Prlor to the declaration
of the results, Mr. Snow had held office as General
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I	Treasurer, and Mr. Woodward as General Secretary. It is
worth noting that the ballots were conducted in conjunction i
with ballots for other positions within the Association.
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The inquiry was heard on 26th, 27th and 28th May and

I 4th June. Although he had retained solicitors during the

interlocutory stages of the proceeding, the applicant

appeared in person throughout the Inquiry. Mr. Woodward, the

I	defeated	candidate	for	the	office	of General	Secretary,	also
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I appeared in person. Mr. Harris of counsel appeared for the

successful candidates, Bridge of counsel appeared for the Australian Electoral Mr. Snow and Mr. Robertson. Mr.

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Commission. At the beqinnninq of the hearing, Mr. Harris

also announced his appearance for the Association. There was

some controversy between the applicant and Mr. Harris as to

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whether Mr. Harris's instructing solicitors had authority to

i	represent the Association.	The controversy was resolved by
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Mr. Harris applylng for and belng granted leave on 28th May

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to withdraw from representing the Association. Thereafter, the Associatlon was not represented, and was understood to take a neutral stance as to the outcome of the inquiry.

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Pursuant to s.165(1) of the Act, the task of the Court

is to inquire Into and determlne the question whether any

irregularlty has occurred in or in connection with the

subject elections. Section 4(1) of the Act contains a

definition of "irregularity" in the following terms:

""Irregularity", in relation to an election or

ballot, includes a breach of the rules of an

organization or of a branch of an organization,

and any act, omission or other means whereby the

f u l l and free recording of votes by all persons

entltled to record votes, and by no other

persons, or a correct ascertainment or

declaratlon of the results of the voting is, or

is attempted to be, prevented or hindered;"

This definition is inclusive and not exclusive, so that the

word "irregularity" comprehends such things as it would

ordinarily mean, as well those specifically included. See

v. Grav: Ex parte Marsh (1985) 157 C.L.R. 351, at pp.364-365.

The applicant alleged a number of irregularities. It

is convenient to deal with these allegations under separate

headings.

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Duplicate Ballot Papers

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As a result of an error, two ballot papers and two

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i reply paid envelopes were sent to twenty-eight members of the

I	Association.	The	error	occurred	as	a result of the
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amalgamation in or about July 1986 of the former Port

Augusta, Adelaide and Tasmanian branches to form the South

Australia/Tasmania Branch. The names of sixteen people in

Port Augusta and twelve in Tasmania were mistakenly included

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I	on two	lists of members	supplied	to	the	Returning	Officer,
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whlch were relied on in the preparation of the roll of

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I voters.

On 4th September, the Returning Officer discovered his

error. He took steps to secure the return of the extra

I ballot papers posting by each to the of twenty-eight

I recipients of them a request to return a ballot paper or

provide evidence of its destruction, together with a business

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i	reply paid envelope. As a result, the Returning Officer
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received twenty-one of the twenty-eight ballot papers. A

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further two recipients of them indicated that they had i -

I destroyed their ballot papers.

The duplicate ballot papers were the subject of

affidavits of Terrence Raymond G i l l and James Snow, each

sworn on 26th May 1987. Each deposed to enquiries made of

members who had received two lots of ballot material, and t I,

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I exhibited statutory declarations from persons from whom

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enquiries were made. Mr. Gill was one of the recipients of !

:	two ballot papers and his affidavit exhibited statutory
i	declarations from six other recipients. Mr. Snow’s affidavit.
exhibited statutory declarations.from five people in Port
Augusta. It which one J. Carlisle stated that also contalned evidence of a conversation, in

he had destroyed both sets

of papers received by him. Mr. Snow’s evidence was that Mr.

Carlisle was “currently on leave overseas”. Evidence in

these forms is not entirely satisfactory. It is, of course, hearsay, except in the case of Mr. Gill’s evidence as to the

fate of his own duplicate ballot paper. Further, the

statutory declarations are all in a form appropriate to

making a declaration under the Oaths Act 1900, an Act of the

New South Wales Parliament, although none of the declarations

was made in New South Wales. The statutory declarations

exhibited to Mr. Snow’s affidavit are in a standard form, and

are clearly copies of a single typewritten form, with spaces

left for the insertion of names and addreses by hand; they

were apparently typed on the same typewriter as Mr. Snow’s

affidavit. The statutory declarations attached to Mr. Gill’s

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affidavit have the operative words hand-written and vary in

form. Even if these statutory declarations are regarded as

no more

than received in evidence by the Court conducting written statements, however, they can be

an inquiry under

Part IX of bound by any rules of evidence, but may inform itself on any the Act. Under s.l64(4)(b), the Court is not

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matter in such manner as lt thinks just . No p a r t y ohlected

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i to the receipt in evidence of Mr. Snow's and Mr. Gill's

affidavlts, and thelr exhrblted statutory declarations, and

no party sought to cross-examine either deponent. I have no

difficulty, therefore, in making findings based	on	this
material.

Between them, the Returning Officer, Mr. Gill and Mr.

Snow have twenty-eight accounted for all but one or two of the

duplicate ballot papers. One is clearly

i	unaccounted for, namely	that	sent	to	one	G.	Templer.
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Another, sent to a member under the name "P. Thurm" may be

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accounted for by a statutory declaration of Dieter Gerhard

I	Thurm, exhibited to the affidavit of Mr. Gill.
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I The sending duplicate the of ballot papers clearly

I amounted to an irregularity. It gave to some members the

i	opportunity
to and free recording of votes by all persons entitled to record vote twice, and therefore hindered the full
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i	votes and by no other persons, or hindered a correct
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!	ascertainment of the results of voting. Because all but one
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or two of the duplicate ballot papers have been accounted
for, however, the irregularity could only have affected the
results of irregularities. This question will be dealt with separately. the elections in conjunction with other

Use of the Association's Resources

Improper use of the resources of the Association to

conduct campaigns was alleged on each side. It is necessary

to set out the nature of the allegations at some length.

Prior to the ballot, Mr. Woodward, as Branch Secretary

of the New South Wales Branch of the Association, sent out a

newsletter to members of the Association in its New South

Wales Branch. The first page of this newsletter contained a

report of the activities of four persons, including Mr.

Robertson and Mr. Snow, in holding a purported special

Federal Committee of Management meeting in Adelaide on 8th

August. The report stated that a special New South Wales

Branch Council authorize the Branch President meeting on 7th August had resolved to

to take action in the Federal

Court to stop the Federal Committee of Management meeting or

the implementation of any decisions made at it. There

followed a report of a proceeding in the Federal Court, and

of undertakings given by the four persons concerned in that

proceeding.

The second page of the newsletter contained information

concerning elections. There was a list of persons nominated

for four offices, including the two the subject of this

inquiry. The candidates were not listed in alphabetical

order, in which they subsequently appeared on the ballot

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paper, The members of the "New Tcam", OF which Mr. Woodward

was a member, were listed first. The given names, or

abbreviations thereof, of the New Team members were shown;

only one initial was shown for other candidates, including

Mr. Snow and certain industrial issues, including Mr. Robertson. Attention was then drawn to

an anomaly in pay, which

was a live issue within	the	Association.	The	newsletter
continued:

"This is your chance to vote for the Federal and other Federal matters.

Please give your vote to those you think will

best pursue the negotiations for the	new award to
the most beneficial result."

Copies of the newsletter were placed in unsealed

envelopes and given to members of the New South Wales Branch

Council to histribute amongst the members of the Branch in

their workplaces. Some were given to Mr. Kevin Nash, a

Vice-President of the New South Wales Branch. He believed

that the newsletter was biased, and resolved to prepare his

own electioneering material to counteract the bias. He had a

typist at his place of work type a list of the candidates the various positions in alphabetical order. for

He hand wrote

on the list numbers to show the preferences. Above the list,

he wrote:

"When you receive your ballot paper would you

please vote as follows for a more effective

Federal Council."

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The list was then photocopied at the expense of Mr. Nash's employer. Approximately fifty photocopies were then inserted

into envelopes with newsletters, and distributed to members. .

There is controversy over two matters as to

distribution. In the first place, there is conflict on t.he

evidence between Mr. Nash and Mr. Woodward as to the fate of

all the newsletters given to Mr. Nash. Mr. Woodward had

asked Branch Council members to distribute newsletters, and

to return any undlstributed newsletters to him so that they

could be posted. According to Mr. Woodward, Mr. Nash told

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him that he had "got rid of them all", and this surprised Mr.

Woodward, as there were some 200 newsletters given to M r .

Nash, and he expected Mr. Nash to have difficulty in finding

all of the members to whom they were addressed. Mr. Nash's I

evidence was that, out of approximately 150 newsletters given

to him, he returned about twenty to Mr. Woodward to be

posted. There was also an issue as to whether Mr. Nash

signed all of those copies of his list which were inserted

with newsletters. Mr. Nash gave clear evidence as to

signature, but Mr. Woodward polnted to evidence that other

copies of the list, not signed by Mr. Nash, were in evidence,

and raised the question whether Mr. Nash had signed all that

went with the newsletter. In my view, the evidence is	clear
that Mr. Nash did sign them, and that the unsigned copies

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were dlstributed by a Mr. Donald Charles Gee, otherwise than

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The successful candidates alleged that the production.

and distrlbution of the branch newsletter itself amounted to

an irregularity, as it contained electioneering material and

was produced and distributed by the use of the funds and

resources of the Association. It was alleged that the report

on the first page of the newsletter was inaccurate, and cast

certain persons, including Mr. Snow and Mr. Robertson, in an

unfavourable light. It was also alleged that the report on

the elections on page	2 was slanted in favour	of the New
Team.

I The inaccuracy alleged on the first page arose from the

fact that no resolution authorising the taking of Federal

Court proceedings appears in the minutes of the special

meeting of the New South Wales Branch Council held on 7th

August 1986. There was some evidence that such a resolution

was passed and omitted by accident from the minutes and that

the Branch Council received a report on the proceedings on

25th September 1986, without any member of the Branch Council

making complaint that the proceedings were unauthorized.

The successful candidates claimed that if Mr. Nash's actions would normally have amounted to an irregularity, they

did not so amount in the present case, because they were

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merely correcting irregularity created by the newsletter. The applicant and the position which arosc from the

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Mr. Woodward contended that Mr. Nash's action in distributing

his "how to vote" material with the newsletter amounted to an.

!	irregularity.
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It

has

been

held

that

the

use

of

funds

and

resources

of

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i	an organization registered under the Act to promote one set
I	of candidates In an election may amount to a breach of the
I	rules of the organization. Reference should be made to the
discussions in pp.270-212 and 287-288, Tanner v. Mavnes (1985) 7 F.C.R. Scott v. Jess (1984) 3 F.C.R. 263, at

432

at pp.440-441 and Tanner v. Darroch (Federal Court of

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Australia, Gray J., 24th October 1986, not yet reported).

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Accepting that such electioneering is a breach of the rules,

the question arises whether it amounts to an irregularity.

!	It will be noted that the definition of "irregularity" in
s.4(1) of the Act, set out above, contains a reference to a
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breach of the rules. It is not easy to decide whether the
words "whereby the full and free recording of votes by all
persons entitled to record votes, and by no other persons, or a correct ascertainment or declaration of the results of the voting is, or is attempted to be, prevented or hindered" are intended to qualify the reference to a breach of the rules,
or only to qualify the words "any act omission or other
means". See Re Australian Postal and Telecommunications
Union: Ex Parte Wilson (1979) 28 A.L.R. 330, at p.336.

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i	Certainly, not every breach of the rules could amount to an Irregularity, whether within the statutory definition or otherwise. Only such a breach as is likely to have some
effect in irregularity. There appear to he only two ways in which it relation to an election could amount to an
could be said that electioneering at the expense of the
organization amounts to an irregularity. The first lies in
the gaining of an advantage by those candidates who are
supported at the organization's expense, in that they or thelr supporters have been able to communicate with members
without expense, or without as much expense as they would
have incurred otherwise. The second is that, because it
occurs in organization, the electioneering material concerned may be or with an official publication of the
given an consequences are undesirable, but that does not conclude the question whether they amount to irregularities. air of official recommendation. Both of these

In most, if not all, cases the financial advantage

derived from electioneering at the expense of an organization

will be negated altogether if the persons concerned reimburse

the organization for any funds and resources used. Such

reimbursement, for example, for the cost of production and

distribution of a newsletter, would place the advantaged

candidates in exactly the same position as if they had paid

and electioneering material in the first place. There may be distribution of their own

for the production

cases or dirf icully, in which a candidate takes advantage or

1 a "free ride", not available to the other candidate. Compare

Valentine v. Butcher (1981) 51 F.L.R. 127. Indeed, the

allegations made in the present case about Mr. Nash's how to

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vote material appear to amount t.0 allegations that Mr. Nash

obtained a free ride. To the extent to which some of his

newsletters may Association's expense, and that some of those newsletters may have ended up in the post at the

have contained his how to vote card, he may have had a free

ride in distributing those how to vote cards, and thereby

saved himself some expenditure, without additional expense to

the Association. Whether such a free ride amounts to a

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breach of the rules is difficult to determine.

There is a more fundamental objection to regarding such

a breach of the rules as an irregularity. This objection

also overcomes the second way in which electioneering might

be described as objectionable, namely, the giving of an

official air to an electioneering material. In R. v. Gray;

Ex parte Marsh (1985) 157 C.L.R. 351 at pp.365-370, it was

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held that the publication of pamphlets and advertisements,

which were alleged to have been likely to mislead electors in

their choice irregularity, either within the ordinary meaning of of candidates, could not amount to an

the word,

or within the extended meaning given by the definition in

s.4(1) of the Act. At p.370, Gibbs C.J. (with whom the other

members of the Court concurred on this point) said:

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" ... it does not follow that the Parliament

intended that every statement by which voters , '

might be misled, or every failure to disclose

information which voters might consider material,

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should be an irregularity within the meaning of Pt IX of the Act. It was pointed out in Evans v.

Crichton-Browne C(1981) 147 C.L.R., at p.2077,

that 'the result of many elections might be

rendered uncertain if any untrue	or	incorrect
statement of fact, opinion, belief	or	intention

might have the effect of invalidating the

election if the statement was intended or likely

to mislead or improperly interfere with any

elector in the formation of his political

judgment'. The uncertainty might be even greater

if non-disclosure was a ground for avoiding an

election. It is entirely a matter for the

Parliament to decide whether considerations of

that kind should outweigh the need to attempt to

ensure absolute purity in the electoral process.

It cannot be assumed that the Parliament intended

to enable an election to be challenged under Pt

IX on the ground that statements were made which

might in some way mislead the electors in making

their decisions as to how to vote or that facts

were not revealed which might have influenced the

electors in their choice. If the Parliament had

so intended, it could easily have expressed that

intention, but it has not done so."

The distribution of electioneering material, whether at the

expense of the organization concerned or otherwise, and

whether with or without an official air, can only have the

effect of causing members of that organization to make up

their minds in a particular way as to how they should vote.

At least in the absence of a specific rule to the contrary,

this cannot amount to an irregularity for the purposes of

Part IX of the Act.

It is therefore unnecessary for me to determine whether

the report on the first page of the Branch newsletter was t -

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accurate or otherwise. I :t would a :Isn be inappropr iate to

attempt to determine whether or not the New South Wales

Branch Councll authorizing the taking of Federal Court proceedings. That on 7th August did pass a resolution

question may yet be the subject. of other proceedings, in

which all the appropriate parties may be joined. In any

event, even if the report on the first page be untrue, it did

not amount to electioneering. Merely to publish material

about issues which might reflect unfavourably upon candidates

in an election is not to infringe the ban on electioneering

material, even when such publication occurs during the

conduct of an election. See Scott v. Jess (19841 3 F.C.R. 263, at p.272, 286-287 and 290, and Tanner v. Mavnes (19851 7

F.C.R. 432 at p.441. It was proper for menders to be

informed about a Federal Committee of Management meeting,

whether or not an election was taking place, and whether or

not the report contained an inaccuracy as to the

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authorization of Federal Court proceedings. The Court does !

not act as a censor of the publications of registered

organizations, nor does it supervise the moral obligation to

state the truth in those publications. The processes of

debate about issues in such publications must be as free as

is reasonably practicable, subject to the application of the

principles approved in Tanner v. Mavnes (1985) 7 F.C.R. 432,

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at pp.440-441. There is no evidence of lack of bona fides,

and the report on its face does not amount to electioneering.

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As to the mat~rial rnncerning the elections, on the

I second page of the newsletter, I incllne to the view that a

breach of the rules of the Association was involved. The

order in which the names were listed, the use of "benign"

names for some candidates and initials for others, the choice

of issues discussed, and the urge to vote with those issues

in mind slanted the report in favour of the New Team. This

was sufficient to amount to electioneering. It could only

bear upon the result of the election by operating upon the

minds of potential voters, inducing them to vote for New Team

candidates. For the reasons which I have given above, this

could not amount to an irregularity.

It is unnecessary for me to attempt to resolve the

conflict between Mr. Woodward and Mr. Nash on whether some of

Mr. Nash's newsletters were posted. On either view, the only

effect of Mr. Nash's how to vote material could be in

inducing electors to decide to vote for particular

candldates, and that does not amount to an irregularity. In

any event, I am satisfied that Mr. Nash did sign the copies

of his how to vote material which he inserted with

newsletters. Having regard to the form of the how to vote

material and to these signatures, there could be no real

possibility of members regarding the	how to vote material as
some official recommendation.

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One witness, Mr. Malcolm Stones, dld g-ive evidence of receiving how to vote material in the same envelope as his

ballot paper. The Returning Officer gave clear evidence as to what was placed In the envelopes in which ballot papers-

were forwarded to members. There was also evidence that

profiles of candidates were forwarded with ballot papers in

elections for positions within the New South Wales Branch of

the Association, whlch took place in or about January 1987.

I am satlsfied that Mr. Stones was mistaken in believing that

he had received anything other than ballot papers and a reply

paid envelope in the subject elections. It is probable that

he was confused by the materials sent in the later branch

elections.

There was also an attempt made to obtain evidence in

cross-examination of Mr. Woodward that he misused the

resources of the Association in the production of

electioneering material for the New Team. Such material was and with the use of resources other than those owned by the

prepared for distribution in the Association's New South

Association, with the exception of the possible use of two

sheets of paper. In addition, Mr. Woodward appeared to have

attended at the Post Office during his working hours with

bundles of New Team electioneering material for postage.

Some technical breaches of the rules may have occurred, but

the position is exactly the same as if those responsible

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reimbursed the Association for anything used. For the

reasons I have given earlier, I am of the view that no

irregularlty occurred. If there was any such irregularity,

it plainly did not affect the results of the elections, as.

the New Team candidates were defeated In any event.

Blank Envelopes

It was intended that each ballot paper should be

accompanied by a reply paid envlope, addressed to the

Returning Officer at G.P .O. Box 9000, Sydney, N.S.W. 2001.

These envelopes are printed by the Government Printer and

purchased in bulk by the Australian Electoral Commission.

Stocks of envelopes are maintained, printed with the various

Post Office box numbers used by the Australian Electoral

Commission in the conduct of varlous elections in registered organizations.

A machine is used to place ballot papers, reply paid

envelopes, and any other necessary material into envelopes

addressed to voters. In the present case, without the

knowledge of the Returning Officer, some of the envelopes

which should have been printed as reply paid envelopes

addressed to the Returning Officer were blank. A similar

problem has occurred from time to time in relation to other

elections conducted by the Australian Electoral Commission,

but in those cases only one or two envelopes were affected.

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In the present case, there were far more. Approximately nine

telephone cornplalnts or inquiries, alleging the receipt of

blank envelopes, were received by the Australian Electoral

Commisslon. Two letters were also received on the same.

subject. Mr. Woodward received case either the Returning Officer .some complaints. In each

or Mr. Woodward advised or

attempted to advise the person concerned that the ballot

paper should be forwarded to the Returning Officer at an

appropriate address. Eight ballot papers were in fact

received in envelopes which had been blank, on which had been

written either the address for the election or P.O. Box 21

Darlinghurst, which is the postal address of the Australian

Electoral Commission in Sydney.

A conducted by Diana Crawford Mills, telephone survey of approximately 172 members,

a solicitor employed with

the firm which formerly acted for the applicant, gave rise to

five complaints of receipt of blank envelopes. Affidavits

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were also filed, sworn by two members who had received blank

envelopes; it is probable that these two persons were among

those whose ballot papers were returned to the Returning

Officer .

It is impossible to envelopes. There can be no doubt that those who did were know how many voters received blank

hindered in the exercise of their right to vote. The failure

to send reply paid envelopes amounted to a breach of a

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provlsion in r.14 of the Assoclation's rules. It should be

noted that, in this respect, the rules complied with s.133A

of the Act, in requlrlng elections to be by secret postal ballot, and with the definition of "Postal ballot" in s.4(1)

of the Act, which includes a requ-irement for the provision of

facilities for the return of a completed ballot paper by post

without expense to the voter. As well as a breach of the

rules, there was involved an omission whereby the full

recording of votes by all persons entitled to record votes

was hindered, and therefore, an irregularity within the

statutory definition. The likely effect of this irregularity

will be discussed later.

Inaccuracies in the Roll of Voters

There was evidence that some members who were on the

roll of voters did not receive ballot papers, that ballot

papers were forwarded to persons who had ceased to be members

(and in one case to a deceased member), and that the

addresses shown on the roll of voters were in some cases

inaccurate.

The telephone survey of Ms. Mills gave rise to six

complaints that no ballot paper had been received. There was

also evidence of a survey conducted by Dennis Paul Murphy.

among a number of members employed in a branch of the

Department of Motor Transport known as the Traffic Authority.

21.

Mr. Murphy received from Mr. Woodward a computer print-out

I

llst of members of the Association employed at the Traffic Authority, and their addresses as known to the Association. He followed up the list. He ascertained that three persons

on the roll had ceased to be members of the Association and

another one had died. Three persons who claimed to be

financial members were not shown on the list.

Between the opening of the ballot and 8th September,

Mr. Woodward received information showing a number of

inaccuracies on the roll of voters. He supplied this

information to Included in it were forty-one changes of address. Because the Returning Officer had already forwarded ballot papers to the Returning Officer on 8th September.

the persons concerned at the addresses shown on the roll of

voters, he was unable to forward other ballot papers unless

and until the earlier ones were returned unclaimed.	In five
cases out of the forty-one, ballot papers were returned

!	unclaimed and were redirected. In addition, Mr. Woodward
gave evidence of problems being experienced in the New South
Wales Branch of the Association at the relevant time with the keeping of records of members.

There are always difficulties about allegations of this

nature. It is impossible for the roll of voters in an

election in a registered organization to be perfect. It is

true that the Court may receive hearsay evidence in a case of

i

6 2 2 .

this kind, but a statement of a person that he or she has

I resigned from or is a financial member of an organlzation is

not necessarily evidence of compliance with the rules a5 to

I

resignation, membership or payment of dues. Nor is a

statement, made some months after. an election, that no ballot

I

paper was received necessarily to be accepted as accurate.

Nevertheless, the evidence from Mr. Murphy of a

relatively large number of inaccuracies of these kinds, in a

relatively small sample of forty-five members, shows a

substantial likelihood of inaccuracies in the roll. So also

does the contemporaneous information received by Mr.

I Woodward. For these reasons, I am of the view that it is

probable that irregularities occurred in the receipt of

ballot papers by persons not entitled to vote and the

!

non-receipt of ballot papers by persons entitled to vote.

The numbers of such persons cannot be known.

I

In making these findings, I am aware that evidence that

a ballot paper was sent to a former address of a member does

not constitute evidence that that member did not receive the

ballot paper. forwarding of their mail when they change addresses. Should Many persons make arrangements for the

a member fail to notify an organization of a change of

address, he or she can hardly expect a ballot paper to be

sent to the new address. Nor do I place any reliance upon

Mr. Murphy's evidence that he asked a number of persons

I

2 3 .

whether they had rccclved ballot papers and was given

negative answers. His survey, if it can be called that, was taken a very short time after the ballot opened, at a time

when ballot papers may yet have been undelivered in the mail.

I do not rely upon the proposition from Mr. Murphy's survey

that six persons shown on the list received by him had ceased

to work in the Traffic Authority. This is not of itself

evidence that their membership had ceased, although as Mr.

Woodward had financial members, and therefore not to have been entitled to vote, because of the cessation of the regular deduction of contributions from their pay. pointed out, they may have ceased to be

Finally, I do not place any reliance on evidence from

Ms. Mills's telephone survey that twenty-seven members

surveyed could not recall what they had received. It is easy

to understand that, for many people, a union election is not

such a major event that they would take careful note of every I '

item arriving in an envelope.

-

Whether Results Affected

i r

I have reached the conclusion that irregularities did

occur in the sending of duplicate ballot papers to twenty-

eight members, the sending of blank envelopes instead of

reply paid envelopes to an unknown number of members, the

receipt of ballot papers by persons not entitled to vote in

l . " '

24.

i ':

:F_.

an unknown number	of cases, and	the	non-receipt of ballot	i
!

papers by persons entitled to vote in	an unknown number	of
cases.

By s.165(3) of the Act, if the Court finds that an

irregularity has occurred, the Court may make one or more

orders of the kinds therein set out. By virtue of s.165(4),

however, the Court may not make such an order "unless the

Court is of oplnion 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." In applying this provision, the

Court is obliged to look at the irregularity which it	has
found to have occurred, and to consider whether similar

irregularities are likely to have occurred in all the

circumstances. It is then obliged to ask whether the

irregularities found, and such likely similar irregularities,

may have affected the result of the election. In taking this

last step, the Court is not asked to act on the balance of

probabilities; nor is it to look at fanciful possibilities.

It is to act on "real not merely theoretical possibilities".

See the helpful judgment of Keely J. in In re Application by

Noack for an Inquiry into an Election in the Vehicle

Builders' Federation of Australia, South Australian Branch

(23rd April 1987, not yet reported), citing Re Australasian

Meat Industry Employees Union, Western Australian Branch: Ex

25.

*

parte Ferquson ( F e r l ~ r a l Court of A ~ ~ s t r a l i a , Toohey J. 5th

November 1986, unreported).

,"he inaccuracies which I have found to have existed in.

the roll were found as a result of samples of the membership.

It is likely that, if evidence were available of the whole of

the membership of the Association, further inaccuracies in

the roll would be found to have existed. That is to say,

there is a

further ballot papers were sent to persons not entitled to

receive them, and further persons entitled to receive ballot

likelihood that it would be discovered that

papers did irregularities in combination with those resulting from the not receive them. These actual and likely

sending of an unknown number of blank envelopes instead of

1

reply paid envelopes, and the one or two duplicate ballot

papers unaccounted for, may have affected the results of the two elections the subject of this inquiry. It must be borne in mind that the margins of the successful candidates in

those two respectively. elections were eleven and thirty-two votes

In my view, the blank envelopes themselves

would have raised a sufficient possibility that the results

of the elections may have been affected. It was argued by

Mr. Harris that the only complaints of receipt of blank

envelopes appeared to come from those whose names began with

the letter "S" and "W" and that therefore it could be assumed

safely that only members whose names began with any of the

last few letters of the alphabet received blank envelopes.

2 6 .

e

Ms. Mills survey was conducted by telephoning or attempting

to telephone all those members on the roll whose names began

"X", " y " and

with the letters "S", "T", "U", "V", "W", " 2 .

Only five of those who responded said that they had received

blank envlopes. It could therefore be assumed safely, so Mr.

Harris contended, that there were very few such envelopes in

circulation. The reality is, however, that the number of

such envelopes is and always will be unknown. Ms. Mills

managed to speak to only eighty-seven of the 172 persons she

attempted to remember what they had received. contact. Twenty-seven of those could not

An extrapolation of the

i	percentage of positive informants who had received blank envelopes, even to the 172 persons whom Ms. Mills attempted
to contact,
is elections. I am therefore of the view that the results of the elections may have been affected by irregularities. discouraging for the validity of the
Orders L'-

I.           ~

The applicant originally sought orders that the

t.

elections be declared void. After discussion, however, he

indicated that he only sought orders that the ballot be

declared void and a new ballot conducted. Such an order is

clearly appropriate. There is no reason why fresh

nominations should be called, but every reason why a new

ballot should be conducted among the existing candidates, or

such of them as wish to continue their candidature. I shall

I

27.

therefore declare that the ballot conducted between 1st September and 18th September 1986, in the elections for the

offices of General Treasurer and General Secretary in the

Associatlon is void, and that Mr. Snow was not elected as

General Treasurer and Mr. Robertson was not elected as

General Secretary. I shall direct the Industrial Registrar

to make arrangements for the conduct of a new ballot between

the existing candidates,	or such of them	as wish to continue
their candidature.

The question then arises as to what orders should be

made for the occupation of the respective offices in the

meantime. Section 163(1) gives the Court power to make any

of the following relevant orders:

"(b)	an order that a person who has assumed an office, continued to act in an office, or
claims to occupy an office, being an
office to which the inquiry relates, shall not act in that office;

(c) an order that a person who holds, or who has last held before an election, an office to which the inquiry relates may

act or continue to act in that office;

(d) where it considers that an order under

paragraph (c) would not be practicable or

would be prejudicial to the efficient

conduct of the affairs of the organization

or would be inappropriate having regard to

the nature of the inquiry, an order that a

member of the organization or another

person specified in the order may act in

an office to which the inquiry relates;"

I

l

, .a r

I

I

I	2 8 .
I

The citcumstances which would prompt an order under paragraph

I

(d) do not exist in the present case. As to the position of

General Treasurer, both the applicant and Mr. Woodward

conceded that Mr. Snow, who held the position before the-

subject election, should continue- to hold the office pending

a new ballot. There was conflict as to who should hold the

office of General Secretary pending the new ballot. The

applicant and Mr. Woodward both contended that Mr. Woodward

should hold the office. This was on the basis that he had

been the General Secretary prior to the subject election, and

had been appointed as Federal Industrial Officer, at the same

salary and on the same conditions as he received as General upon the fact that the registered office of the Association

_ .

is in New South Wales, and that	Mr. Robertson lives and works	;
!
, _

in Perth, in Western Australia. They contended that the	L+ ,. '
preparation of the new roll of voters would be facilitated if

Mr. Woodward were acting as General Secretary, as he would be

the person to whom the Returning Officer could give any

directions as to the supply of lists of members.

The making of orders in acute problems for the Court. There can be little doubt that a person will derive advantage in a ballot from being called upon by the Court to act as caretaker in a particular office. For this reason, particular care needs to be taken to prevent a situation such as this poses

I

the Court from appearing to act in a partisan way in the

I	29.
I

election. In most cases, the preferable course is to act

upon the last expresslon of the will of the voters, even

though that expression may possibly be flawed by the

irregularities which the Court has found to have occurred. In the present case, I find that-last expression the safest

guide. I do not think that real problems will arise from Robertson being in Perth, Mr.

or that the preparation of the roll

of voters for the new ballot will be inhibited. In the

normal course, the Returning Officer will direct whoever acts

as General Secretary to supply lists of members, and that

person will obtain from the various branches, including the

New South Wales Branch, appropriate lists, and certify as to

their accuracy. This can be done just as easily by Mr.

Robertson in Perth as it can by Mr. Woodward in Sydney. For	l -
,-

these reasons, I shall order that Mr. Snow act as General

I :

Treasurer and Mr. Robertson as General Secretary.

i

I propose to leave to the Returning Officer the

question of dates for the conduct of the new ballot.

The Court having found that irregularities occurred in

the subject elections, s.168(1) of the Act operates in

relation to the applicant's costs of engaging solicitors in

the interlocutory stages of the inquiry. There is no need

for the Court to consider granting a certificate under

s.168(2).

30.

I certify that this and the

preceding twenty-nine ( 2 9 )

pages are a true copy of

the Reasons for Judgment of

the Honourable Mr.	Justice
Gray.

APPEARANCES:

Mr. M. Patterson appeared in person.

Mr. G. Woodward appeared in person.

Mr. G. Harris of counsel for Mr. Snow and Mr. Robertson.

Instructing Solicitors: Steve Masselos & Co.

Mr. A. C. Bridge of Counsel for the Australian Electoral

Commission.

Instructing Solicitors: Australian Government Solicitor

I