Municipal Officers' Association of Australia v Lancaster

[1981] FCA 165

Re: MUNICIPAL OFFICERS' ASSOCIATION OF AUSTRALIA
And: KENNETH LAWRENCE LANCASTER and MICHAEL JAMES CANNY (1981) 54 FLR 129
No. 27 of 1980 and No. 9 of 1981
Industrial Law - Conciliation and Arbitration

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Evatt(1), Northrop(1) and Deane(2) JJ.

CATCHWORDS

Industrial law - Commonwealth Conciliation and Arbitration Act - organization under Act - rules imposing restrictions on power to nominate persons as candidates for office - whether in contravention of s.140 of the Act - meaning of "direct voting system" and "collegiate electoral system".

Conciliation and Arbitration Act, 1904 ss.2, 4, 133, 140.

Conciliation and Arbitration - Registered organization - Rules providing for election of branch and federal office holders - Restrictions on persons who could nominate for offices - Whether direct voting system - Whether rules provided for manner in which persons could become candidates - Whether rules as to nominations were oppressive, unreasonable or unjust - Conciliation and Arbitration Act 1904 (Cth), ss. 2, 4 (1), 133, 140 (1) (a), (c).

HEADNOTE

Related proceedings under s. 140 (1) of the Conciliation and Arbitration Act 1904 raised the issues (i) whether the rules of the appellant (a registered organization) provided for the election of the holder of each relevant office either by a direct voting or a collegiate electoral system as required by s. 133 (1) (a); (ii) whether the rules failed to provide as required by s. 133 (1) (d) (ii) for the manner in which persons might become candidates at an election for each of the relevant offices; (iii) whether the effect of the nomination requirements in the rules imposed upon applicants for membership or members conditions, obligations or restrictions which were oppressive, unreasonable or unjust within s. 140 (1) (c). The terms of the rules (which appear fully in the joint judgment of Evatt and Northrop JJ.) provided that branch committes of management would elect councillors who could nominate eligible members as candidates for the federal offices of federal president, senior federal vice-president, junior federal vice-president, federal treasurer, federal secretary and assistant federal secretary and any two members of the branch committee of management were authorized to nominate persons as candidates to the office of branch secretary and assistant branch secretary. At first instance a single judge held that r. 73 (b) (x) dealing with nominations for the positions of the branch secretary and assistant branch secretary contravened s. 140 (1) (c) of the Act. On appeal the Full Court dealt with an appeal from this order as well as a rule nisi returnable before it raising the issue relating to the federal offices referred to above.

Held: Per curiam. (1) The rules relating to the election of the holder of each of the relevant federal and branch offices did not fail to satisfy the requirements of s. 133 (1) (a) of the Act. The rules made provision for a direct voting system but at the same time imposed a restriction upon the right of members to nominate persons as candidates to those offices.

Lovell v. Federated Liquor and Allied Industries Employees' Union of Australia (1978), 35 FLR 72, referred to.
(2) The rules did provide for the manner in which persons become candidates at an election for each of the offices under consideration.
(3) The limitation on the power to nominate candidates contained in the rules constituted a restriction within s. 140 (1) (c) of the Act but was not oppressive, unreasonable or unjust.

Lovell v. Federated Liquor and Allied Industries Employees' Union of Australia (1978), 35 FLR 72; Boland v. Munro (1980), 48 FLR 66, referred to.
(4) Appeal allowed, rules nisi discharged.

HEARING

Melbourne, 1981, July 14, 15; October 6. #DATE 6:10:1981

APPEAL.

Appeal from a judgment of a single judge of the Federal Court of Australia.

P. R. A. Gray, for the appellant.

H. T. Nathan Q.C. and J. C. Miller, for the respondents.

Cur. adv. vult.

Solicitors for the appellant: Ryan Carlisle Needham Thomas.

Solicitors for the respondents: Branicki, Milder, Isaac Brott & Co.

T. J. GINNANE

ORDER

1. The appeal be allowed.

2. The orders made on 4 December 1980 be set aside.

3. In lieu thereof the rules nisi made on 1 October 1980 in Matters V.15 and V.16 of 1980 respectively, be discharged.

The rule nisi herein made on 12 June 1981 be discharged.

Orders accordingly.

JUDGE1

Two separate but related matters are before the court. In Matter V. No. 27 of 1980, the Municipal Officers' Association of Australia (hereinafter called "the Association"), an organization under the Conciliation and Arbitration Act 1904 ("the Act") is the appellant from a judgment of the court constituted by a single judge. That appeal was heard on 19 and 20 March 1981 by a full court constituted by J. B. Sweeney, Evatt and Northrop JJ. and judgment was reserved. The appeal was listed for mention on 11 May 1981 and at that hearing the court was constituted by Evatt and Northrop JJ. On behalf of the court, Evatt J. said:

"This appeal was heard by a Full Court consisting of Mr. Justice J. B. Sweeney, Mr. Justice Northrop and myself. On 20 March 1981 the Full Court reserved its decision. In considering the matter it became apparent to the members of the court that although the proceedings related to a claim that a specified rule of the Association contravened s.140(1)(c) of the Conciliation and Arbitration Act 1904, the essence of the arguments raised an issue of whether the rules of the Association failed to make a provision required by the Act, see s.140(1)(a) of the Act. Section 133(1)(a) of that Act requires that the rules of an organization:

'Shall provide for the election of the holder of each office within the organization either by -

(i) a direct voting system; or

(ii) a collegiate electoral system being, in the case of an office the duties of which are of a full-time nature, a one-tier collegiate electoral system.'

The appeal affects directly the offices of Branch Secretaries and Assistant Branch Secretaries only and questions arise -

1. Whether the rules of the Association provide for the election of the holder of those offices either by a direct voting system or a collegiate electoral system.

1. Whether the rules of an organization which provide for the election of the holder of offices by a system which incorporates aspects of both a direct voting system and a collegiate electoral system comply with the requirements of s.133(1)(a) of the Conciliation and Arbitration Act.

During the hearing of the appeal, the court drew attention to these problems but counsel did not direct submissions on them because they claimed they did not come within the terms of the rule nisi, the subject of the appeal.

The court does not wish to express any opinion on those problems in the absence of submissions from counsel, particularly since it is possible those opinions could affect other rules of the Association, particularly those rules making provision for the election of persons to the offices of Federal President, Senior Federal Vice-President, Junior Federal Vice-President, Federal Treasurer, Federal Secretary and Assistant Federal Secretary respectively.

The court was aware that any reasons for judgment given in this appeal could affect the holders of those other six offices as well as the effect of orders made under s.140(5D), see sub-section (5G) and sub-section (7). The court is aware of the provisions of s.22 Federal Court of Australia Act 1976, the views expressed in McLeish v. Faure (1979) 40 F.L.R. 462 at p.471-2 and the unique effect an order made by the court has on persons not necessarily before the court.

In all these circumstances the court constituted by the three Judges decided to have the appeal re-listed for mention on Monday, 11 May 1981 and the parties to the appeal were informed of that listing for mention and it was requested that counsel appear. The court proposed to mention the matters already referred to and to suggest that the parties may see fit to have the essential issues raised for determination by the Full Court. It had been proposed that the court should suggest to the parties that the respondents apply to a Judge of the court for a rule nisi under s.140(1)(a) of the Conciliation and Arbitration Act raising the issues that the Rules of the Association failed to make a provision required by the Act in that they failed to provide for the election of the holder of each of the offices of Federal President, Senior Federal Vice-President, Junior Federal Vice-President, Federal Treasurer, Federal Secretary, Assistant Federal Secretary, Branch Secretaries and Assistant Branch Secretaries respectively. The application for such a rule nisi would be simplified by incorporating material already before the court. If thought appropriate, the application could include the issues of whether the relevant rules providing for the election of the Federal officers already referred to contravened s.140(1)(c) of the Act. It was then proposed that a Judge of the court could order that that proceeding be heard and determined by the same Full Court which heard the present appeal, see s.118(C) Conciliation and Arbitration Act. For the sake of convenience it was proposed that the existing appeal be listed for further hearing and be heard concurrently with the proposed new hearing, thus resolving the essential legal issues raised by the appeal and the legal problems facing the organization in this respect.

On Thursday, 7 May, Mr. Justice J. B. Sweeney died. Section 14 Federal Court of Australia Act provides that a Full Court shall consist of three or more Judges sitting together, or, to the extent permitted by sub-section 3, of two Judges sitting together. Sub-section 3 provides that where, after a Full Court has commenced the hearing of a proceeding and before the proceeding has been determined, one of the Judges constituting the Full Court dies, the hearing and determination or the determination of the proceeding may be completed by a Full Court constituted by the remaining Judges if, where the remaining Judges are two in number and the parties consent, by a Full Court constituted by those two Judges.

In the special circumstances of this appeal, the court does not, at this time, request the parties to indicate whether they consent to the determination of this appeal by the Full Court constituted by Mr. Justice Northrop and myself. We draw your attention to what has been said and propose to adjourn the hearing of this appeal to a date to be fixed to enable the parties to consider the matter. We request that within seven days the parties notify the District Registrar at Melbourne of what course they propose should be followed and thereupon the necessary administrative arrangements can be made."

Thereafter on 12 June 1981, Kenneth Lawrence Lancaster and Michael James Canny (hereinafter called "the claimants"), being members of the Association and the respondents to the appeal, commenced Matter V. No. 9 of 1981 raising the issues referred to on 11 May 1981. On 19 June 1981 the court, constituted by a single judge, in the exercise of powers conferred by s.118C of the Act, ordered that Matter V. No. 9 of 1981 be heard and determined by a full court. On 14 July 1981 the two matters came on for hearing before a full court constituted by Evatt, Northrop and Deane JJ. and with the consent of all parties were heard together.

The facts giving rise to these proceedings constitute but one of many illustrations of the confusion being caused to organizations thereby involving them in great expenditure by frequent amendments to the Act relating to the internal structures of organizations. In the present case, the relevant amendments were made by Act No. 138 of 1973, Act No. 64 of 1976 and Act No. 117 of 1976.

Each matter comprises proceedings taken under s.140 of the Act. The proceedings affect the six federal offices, namely the four part-time unpaid offices of federal president, senior federal vice president, junior federal vice president and federal treasurer respectively and the two full-time paid offices of federal secretary and assistant federal secretary respectively. They affect also the two full-time paid offices of branch secretary and assistant branch secretary respectively in each of the seven branches of the Association.

At this stage, a brief summary of the facts will assist in an understanding of the issues raised by these proceedings. Under the rules of the Association, the branch secretaries and assistant branch secretaries, not being members of the branch committee of management, are elected at a ballot in which all members of the respective branch are entitled to vote, but the candidates for those offices are limited to persons nominated by any two members of the respective branch committee of management. Each branch committee of management elects by and from its own members councillors to the federal council of the Association. The holders of the four part-time unpaid federal offices and the two full-time paid federal offices are elected at a ballot at which all members of the Association are entitled to vote, but candidates for those offices are limited to persons nominated by any two councillors.

The issues raised by the claimants are whether:

1. The rules of the Association contravene s.140(1)(a) of the Act in a specified respect in that they fail to provide for the election of the holder of each of the eight offices mentioned either by a direct voting system or by a collegiate electoral system, see s.133(1)(a) of the Act.

2. The rules of the Association contravene s.140(1)(a) of the Act in a specified respect in that they fail to provide for the manner in which persons may become candidates at an election for each of the eight offices mentioned, see s.133(1)(d)(ii) of the Act.

3. Parts of r.73 being paragraphs (iv) and (v) of sub-rule (b) of r.73 of the rules of the Association contravene s.140(1)(c) of the Act insofar as those paragraphs require a candidate at an election for each of the offices of federal president, senior federal vice president, junior federal vice president, federal treasurer, federal secretary and assistant federal secretary to be nominated by two councillors; and

4. Part of r.73 being paragraph (x) of sub-rule (b) of r.73 of the rules of the Association contravenes s.140(1)(c) of the Act insofar as it requires a candidate for each of the offices of branch secretary and assistant branch secretary of each branch of the Association to be nominated by two members of the relevant branch committee of management.

In order to understand the issue raised, it is necessary to refer in some detail to the internal structures of the Association as set out in its rules. The one set of rules, which came into operation on and from 1 January 1978, r.78, applies to the Association as an organization and to each of its branches. The rules are divided into Parts as follows:

PART 1 - CONSTITUTION AND OBJECTS
PART 11 - MEMBERSHIP
PART 111 - FEDERAL COUNCIL
PART 1V - FEDERAL EXECUTIVE
PART V - BRANCHES
PART V1 - SUB-BRANCHES
PART V11 - FUNDS
PART V111 - GENERAL
PART 1X - ELECTIONS.

In addition, the rules contain a schedule of prescribed forms.

Under Part 1 and Part 11, r.3 specifies the industry in connection with which the Association is formed. Rule 5 specifies the conditions of eligibility for membership of the Association. It is a federal organization and is composed of the seven branches enumerated in r.6. There is power to form additional branches. Under r.13 unfinancial members are not entitled to any of the rights and privileges of membership of the Association, nor to the right to hold or continue to hold office or to participate in any ballot of members nor to vote or speak at any meeting of the Association or branch, r.13(b). Provisions for ballots of members are contained in r.19.

Under Part 111, the supreme governing body of the Association is the federal council, consisting of the executive councillors and the federal councillors, together with the federal president, a senior vice president, a junior vice president and a federal treasurer who are the federal officers of the Association, r.20(a) and (b). The committee of management of each branch of the Association elects biennially from its members in accordance with Part 1X one executive councillor and in addition federal councillors, the number of whom varies according to the membership of the branch, r.20(c). At the present time there are seven executive councillors and twelve federal councillors making a total of nineteen councillors on the federal council. An executive councillor or a federal councillor who ceases to be a member of the branch committee of management from which he was elected forthwith ceases to hold the federal office and provision is made for the filling of casual vacancies, r.20(d) and (e). The federal officers of the Association are elected biennially by the members of the Association in accordance with Part 1X and a federal officer who ceases to be employed in the industry in or in connection with which the Association is registered forthwith ceases to hold that office and provision is made for the filling of casual vacancies, r.20(f), (g) and (h). As will be seen, some difficulty may be caused by a possible defect in the rules. Prima facie, the federal council should comprise twenty three persons being the nineteen councillors plus the four federal officers. There appears to be nothing to prevent a councillor being nominated as a candidate for any of the four part-time unpaid federal offices. If elected, the rules make no provision for a councillor to be elected to fill a vacancy thus arising. In theory, therefore, it is possible that at any time the federal council could comprise as few as nineteen persons. The federal council is the supreme governing body of the Association and has all powers, authorities and discretions necessary for the carrying out of the objects of the Association, and a number of those are specified, r.21(a). All its decisions are final and remain in force unless and until varied or amended by a subsequent federal council or by ballot of all members of the Association, r.21(c). The federal council meets at least biennially and provision is made for decisions to be taken between meetings by post, lettergram or telegram, but any matter under consideration may be such as to call for a meeting of federal council, r.22(a), (b) and (c). Special meetings may be called in the manner prescribed in r.22(e). Provision is made for a number of other matters and there is a weighted voting pattern, r.22(1). Minutes of meetings are forwarded to each branch committee of management and are available for inspection by members of the branch during office hours and at branch meetings, r.22(n). Members of federal council may be removed from office by procedures specified under r.23.

Under Part 1V the federal executive, subject to the rules and to the decisions of federal council, conducts and manages (emphasis added) the affairs of the Association, r.24(a). It consists of the federal officers and the executive councillors, r.24(b). It has express powers to appoint persons to act in an office, including the office of federal secretary and assistant federal secretary, for short periods, r.24(c) and (d). Between meetings of federal council, the federal executive has all the powers, authorities and discretions vested by the rules in the federal council except certain specified powers and those matters that federal council may reserve to itself, r.25. The federal executive meets at least once each three months and at such other time or times as its members may determine or by other procedures specified in r.26(a). There is provision for weighted voting, r.26(g) and minutes of meetings are forwarded to each branch committee of management and are available for inspection in the same way as minutes of federal council, r.26(h). Members of federal executive may be removed from office in the same way as members of federal council, r.27. Rules 28, 29 and 30 specify the duties and powers of the federal president, federal vice presidents and federal treasurer respectively. Rule 31 contains provisions relating to the federal secretary who is to be elected each four years by the members of the Association in accordance with Part 1X, sub-rule (a). Provision is made for the filling of a casual vacancy in the office, sub-rule (b), and sub-rule (c) specifies the powers and functions of the holder of that office. Extracts from sub-rule (c) are set out:

"(c) The Federal Secretary shall be the chief executive officer of the Association. Between meetings of the Federal Council and Federal Executive he shall conduct and manage the affairs of the Association.

He shall consult on matters of policy with the Federal President, or in his absence, a Federal Vice-President as to the course to be pursued in any matter pending the next sitting of the Federal Council or Federal Executive.
...
He shall be empowered to attend or be represented and to be heard on any matter at any meeting within the Association and, subject to approval of Federal Executive, to inspect and examine or cause to be inspected and examined all registers, books, papers, deeds, documents and accounts in or in connection with the conduct of the affairs of the Association or of any Branch or Sub-Branch of the Association." (Emphasis added.)

Rule 32 contains provisions relating to the assistant federal secretary who is elected each four years by the members of the Association in accordance with Part IX. Provision is made for the filling of a casual vacancy in the office, sub-rule (b). The assistant federal secretary assists the federal secretary in the performance of his duties and carries out the directions and instructions of the federal secretary while in the absence of the federal secretary, or when that office is vacant, he assumes all the powers and functions of the federal secretary, sub-rules (c) and (d). Under r.33, the federal executive annually appoints a federal auditor whose powers and functions are specified in that rule. It is important to note that neither the federal secretary nor the assistant federal secretary is a member of the federal council or the federal executive and has no right to vote at meetings of those committees.

Under Part V each branch of the Association has a committee of management which, subject to the rules and any resolution of federal council or federal executive, shall "control and manage the affairs of the Branch" (emphasis added), r.34(a). Subject to certain specified conditions a branch committee of management has power to adopt rules for its own guidance and government, r.34(b). Each branch committee of management consists of a branch president, a senior vice president, a junior vice president and a branch treasurer, all of whom are the officers of the branch, and not less than six nor more than twenty other members as the branch annual general meeting may from time to time determine, r.35(a). The officers and the other members of the branch committee of management are elected biennially by the members of the branch in accordance with Part IX, r.35(b). A member of the branch committee of management who ceases to be employed in the industry in or in connection with which the Association is registered or ceases to be a member of that branch forthwith ceases to be a member of the branch committee of management, and provision is made for the filling of casual vacancies, r.35(d) and (e). It is noted that if that person has been elected by the branch committee of management as federal councillor or executive councillor, his ceasing to be a member of the branch committee of management results in him ceasing to hold the federal position, r.20(d). Rule 36 specifies the powers and duties of a branch committee of management. It is required to "do all such things as are necessary for the control and management of the affairs of the Branch" (emphasis added), r.36(a). A number of specific powers and duties are set out in r.36. The branch committee of management has power to delegate to an executive committee comprising the branch president, branch vice presidents and branch treasurer such of its powers as it thinks necessary, sub-rule (c), and has power to delegate such of its powers to a sub-branch committee of management as it thinks fit, sub-rule (d). It presents, through its president, a full report of the business of the preceding year to the annual general meeting of the branch, sub-rule (f), has power to make appointments during periods of absence of specified persons, sub-rules (g) and (h), and has power to instruct its councillors how to vote on federal council or federal executive, sub-rule (i). Under r.37 the branch committee of management meets as least once each three months and at such other times as its members may determine. Upon the request of the branch president or at least one quarter of the members of the branch committee of management, the branch secretary is required to convene a meeting of the branch committee of management, sub-rule (a)(i). Minutes of meetings are to be forwarded to the federal secretary and to each other branch secretary and a copy is available for the inspection of members of the branch during ordinary office hours and at branch meetings, r.37(a)(vii). The annual general meeting of the members of the branch is held in August each year, r.37(b)(i), and other meetings are held as requested and in accordance with the provisions of r.37(b)(ii). The branch secretary may call a meeting of members of the branch or of a part thereof to consider matters affecting members or that part, as the case may be, to obtain the views of the members on the matters considered, r.37(b)(iii). Members of a branch committee of management, a branch secretary or a branch assistant secretary may be removed from office in the manner prescribed by r.38. Rules 39, 40 and 41 specify the duties and powers of the branch president, the branch vice presidents and the branch treasurer respectively. Rule 42 contains provisions relating to the branch secretary who is to be elected each four years by the members of the branch in accordance with Part IX, sub-rule (a). Provision is made for the filling of a casual vacancy in the office, sub-rule (b), and sub-rule (c) specifies the powers and functions of the holder of that office. Extracts from sub-rule (c) are set out:

"(c) The Branch Secretary shall be the chief executive officer of the Branch. Between meetings of the Branch Committee of Management he shall conduct and manage the affairs of the Branch.

He shall consult on matters of policy with the Branch President or in his absence the Senior Branch Vice-President or in his absence the Junior Branch Vice-President as to the course to be pursued in any matter pending the next sitting of the Branch Committee of Management.
...
He shall be empowered to attend or be represented and to be heard on any matter at any meeting within the Branch and subject to approval of the Branch Committee of Management to inspect and examine or cause to be inspected and examined all registers, books, papers, deeds, documents and accounts in or in connection with the conduct of the affairs of the Branch or of any Sub-Branch of the Branch." (Emphasis added.)

Rule 43 contains provisions relating to the assistant branch secretary who is to be elected each four years by the members of the branch in accordance with Part IX. Provision is made for the filling of a casual vacancy in the office, sub-rule (b). The assistant branch secretary assists the branch secretary in the performance of his duties and carries out the directions and instructions of the branch secretary, while in the absence of the branch secretary or where that office is vacant the assistant branch secretary assumes all the powers and functions of the branch secretary, sub-rules (c) and (d). Under r.44 the branch committee of management appoints a branch auditor whose powers and functions are prescribed by that rule. It is important to note that neither the branch secretary nor the assistant branch secretary is a member of the branch committee of management or its executive committee, if any, or has rights to vote at meetings of those committees.

Part VI makes provision for sub-branches and in each sub-branch there is to be a sub-branch committee of management which, subject to the rules and the control of the branch committee of management shall "control and manage the affairs of the Sub-Branch" (emphasis added), r.45. Rule 46 provides as follows:

"46. COMMITTEE OF MANAGEMENT

Membership of each Sub-Branch Committee of Management unless otherwise determined by the Branch Committee of Management shall be and shall be elected, removed or replaced in accordance mutatis mutandis with Rule 35 Branch Committee of Management. Provided that a Sub-Branch Secretary who shall be a member of the Sub-Branch Committee of Management shall be elected biennially in the same manner as other members of the Sub-Branch Committee of Management."

For present purposes, it is not necessary to refer to the other rules contained in Part VI. It is important to note that a sub-branch secretary is a member of the sub-branch committee of management, but he is not a paid officer of the Association. The federal secretary, the assistant federal secretary, the branch secretaries and the assistant branch secretaries are all full-time paid officers of the Association.

For present purposes it is not necessary to refer to the rules contained in Part VII and Part VIII.

Part IX makes provision for the conduct of elections to the various offices already mentioned. Rule 72 provides for the appointment of returning officers and prescribes their duties and powers. Rule 73 is headed "Nominations" and provides for the conditions of eligibility for nomination as a candidate for office and the method by which nominations are to be made. It will be remembered that the earlier rules specified the various members entitled to vote for candidates for various offices. Sub-rule (a) provides for the form of nomination which is contained in the schedule and requires the nominee to sign the form on accepting nomination. Sub-rule (b) is headed "Eligibility for Nomination". Paragraph (i) provides that only those members who were financial (see r.13) as at the last day of the month immediately preceding the month in which nominations for an election close are entitled to nominate and to be nominated for any office a prerequisite for which is membership at that election. Paragraph (ii) places restrictions on the eligibility to be nominated as a candidate for the office of branch or sub-branch president to members who have been members of a branch or sub-branch committee of management for at least six months and for the office of federal president to members who have, for at least six months, held branch or federal office. Paragraph (iii) is consistent with earlier rules and is as follows:

"(iii) No member shall be a candidate for nor continue to hold any office a prerequisite for which is membership if he is not employed in or in connection within the industry with which the Association is registered."

Paragraphs (iv) to (xii) inclusive contain provisions with respect to elections to specified offices at the federal, branch and sub-branch level respectively. For present purposes it is necessary to quote some of those paragraphs only, namely:

"(iv) As to elections for the office of:

Federal President Senior Federal Vice-President Junior Federal Vice-President Federal Treasurer

: any two Councillors may nominate any eligible member of the Association.

(v) As to elections for the office of:

Federal Secretary Assistant Federal Secretary

: any two councillors may nominate any person.

(vi) As to elections for the office of Executive Councillor:

: any two members of a Branch Committee of Management may nominate any other member thereof.

(vii) As to elections for the office of Federal Councillor:

: any two members of a Branch Committee of Management may nominate any other member thereof.

(viii) As to elections for the office of:

Branch President Senior Branch Vice-President Junior Branch Vice-President Branch Treasurer

: any two members of the Branch may nominate any eligibile member of the Branch.

(ix) As to elections for the office of Branch Committee of Management member:

(i) where the member represents a Sub-Branch any 2 members of the Sub-Branch may nominate any other member thereof.

(ii) Where a divisional representation system is used any 2 members within a division may nominate any other eligible member within that division.

(iii) In other cases any two members of the Branch except members of a Sub-Branch with representation on the Branch Committee of Management may nominate any eligible member of the Branch.

(x) As to elections for the office of:

Branch Secretary Assistant Branch Secretary

: any two members of the Branch Committee of Management may nominate any person."

The effect of these paragraphs can be summarized. A restriction is placed on the right of members of the Association to nominate candidates for the federal offices specified in paragraph (iv), councillors only having that right. Presumably the federal president, the federal vice presidents and the federal treasurer do not have the right to nominate candidates for any of these offices. To be eligible to be a candidate for one of those four offices a member of the Association must comply with the requirements of paragraphs (i), (ii), and (iii), but otherwise all members of the Association are eligible to be nominated as a candidate. Of necessity the members having the right to nominate a candidate comply with the requirements of paragraph (i). There is a similar restriction with respect to the right of members to nominate candidates for the offices of federal secretary and assistant federal secretary, paragraph (v). Persons nominated as candidates need not be members of the Association and need not comply with the requirements of paragraphs (i) and (iii). A candidate who did comply with the requirements of paragraph (iii) would, if elected, have to resign his existing employment in order to take up his new full-time paid office. Of necessity, the members having the right to nominate a candidate comply with the requirements of paragraph (i). The provisions of paragraphs (vi) and (vii) are typical of a collegiate electoral system where the nominators and the candidates are limited to members of the college and of necessity nominators and candidates comply with the requirements of paragraphs (i) and (iii). Under the provisions of paragraphs (viii) and (ix) all members who have the right to vote have the right to nominate eligible candidates and the provisions of paragraphs (i), (ii) and (iii) apply accordingly. Paragraph (ix) contains special provisions applying to special circumstances, but these do not affect the general structures within the Association, nor the principles to be applied in determining this appeal. A restriction is placed on the right of members of a branch to nominate candidates for the offices of branch secretaries and assistant branch secretaries, paragraph (x), the members of the relevant branch committee of management only having that right. Of necessity the members of the committee of management comply with the requirements of paragraph (i). Persons nominated as candidates need not be members of the Association and need not comply with the requirements of paragraphs (i) and (iii). A candidate who did comply with the requirements of paragraph (iii) would, if elected, have to resign his existing employment in order to take up his new full-time paid office. All branch members who comply with the requirements of paragraph (i) have the right to vote at an election under paragraph (x).

Rule 74 is headed "Election Procedure" and contains provisions for the conduct of elections. For present purposes the relevant provisions can be summarized. The branch returning officer is required to call for nominations for the biennial elections for the offices of member of a branch committee of management on a day between 1 and 15 June of every second year, sub-rule (a)(ii). The newly elected members of the branch committee of management take office at the declaration of the poll at the annual general meeting of the branch held in August of the year in which the elections take place, see r.37(b)(i), r.74(7) and r.75. The year 1980 was such a year, r.76(ii). The branch returning officer is required to call for nominations for the biennial elections to the offices of federal councillor and executive councillor on a day between the day after the holding of the branch annual general meeting in August and 1 September in the year in which there are biennial elections for branch committee of management members, sub-rule (a)(iii) and (iv). The year 1980 was such a year, r.76(iii). The branch returning officer is required to call for nominations for the quadrennial elections to the office of branch secretary and, where appropriate, assistant branch secretary on a day between the day after the holding of the branch annual general meeting in August and 1 September, the nominations to be received during the first meeting of the committee to be held after twenty-one days after the calling for nominations, sub-rule (b)(v). The year 1980 was such a year, r.76(iv). The federal returning officer is required to call for nominations for the biennial elections to the four part-time unpaid federal offices not less than twenty-one days prior to the commencement of each biennial meeting of federal council, the nominations to be received during the meeting and close at noon on the final day of the meeting, sub-rule (vi). The year 1979 was such a year, r.76(v). The federal returning officer is required to call for nominations for the quadrennial elections to the offices of federal secretary and assistant federal secretary not less than twenty-one days prior to the commencement of each alternate biennial meeting of federal council, the nominations to be received during the meeting and to close at noon on the final day of the meeting, sub-rule (vii). The year 1979 was such a year, r.76(vi). Under sub-rule (b) the returning officer is required to forward by post to each person entitled to nominate a candidate at the election a nomination form containing provisions appropriate to the particular election. This requirement applies to each election where there is a restriction placed on the right to nominate persons as candidates for office, i.e. to the offices of councillor, the six federal offices and the two full-time paid branch offices in each branch. A proviso to sub-rule (b) relieves the returning officer of that requirement for elections to positions on the branch and sub-branch committees of management, in which case notices calling for nominations are to be published in appropriate newspapers. Rule 74 contains provisions for any elections to be conducted by secret postal ballot. The returning officer declares the result of the biennial poll for membership of the branch committees of management immediately prior to the commencement of general business at the branch annual general meeting in August and, as to the poll for the other offices, at the conclusion of the count, r.74(c)(vii).

From these summaries, it will be seen that each newly elected branch committee of management elects councillors any two of whom in the following year are authorized to nominate eligible members of the Association as candidates for the four federal offices, while in every alternate second year any two of whom are authorized to nominate persons as candidates for the offices of federal secretary and assistant federal secretary. Likewise, in every alternate second year, any two members of the newly elected branch committees of management are authorized to nominate persons as candidates to the offices of branch secretary and assistant branch secretary.

The claimants commenced proceedings in the Federal Court seeking orders that r.73(b)(x) of the rules of the Association contravened s.140(1)(c) of the Act insofar as it purports to require a nomination of a candidate for election to the office of branch secretary and assistant branch secretary to be signed by two members of the branch committee of management, see r.73(a) and form of nomination. The Federal Court constituted by a single Judge, in reasons for judgment published on 4 December 1980 expressed the opinion that r.73(b)(x) contravened s.140(1)(c) of the Act. The court then exercised the powers conferred by s.140(6) of the Act and adjourned the hearing of the proceedings for the purpose of giving the Association the opportunity to alter its rules. The Association appealed against the judgment of 4 December 1980.

The first issue to be considered is whether the rules of the Association contravene s.140(1)(a) of the Act in a specified respect in that they fail to provide for the election of the holder of each of the eight offices mentioned either by a direct voting system or by a collegiate electoral system, see s.133(1)(a) of the Act.

For present purposes, the relevant parts of s.140(1)(a) are:

"140.(1) The rules of an organization -

(a) shall not ... fail to make a provision required by, a provision of this Act ..."

Such a provision of the Act is contained in s.133(1)(a), the relevant parts of which are:

"133.(1) ... the conditions to be complied with ... by organizations include a condition that the rules of the ... organizations -

(a) shall provide for the election of the holder of each office within the ... organization either by -

(i) a direct voting system; or

(ii) a collegiate electoral system being, in the case of an office the duties of which are of a full-time nature, a one-tier collegiate electoral system;"

Each of the eight offices under consideration constitutes an office within the meaning of that sub-section.

To understand the sub-section, reference must be made to the following definitions and provisions contained in s.4 of the Act:

"4.(1) ...

'Collegiate electoral system', in relation to an election for an office in an organization, means a method of election comprising a first stage, at which persons are elected to a number of offices by a direct voting system, and a subsequent stage or subsequent stages at which persons are elected by and from the persons elected at the next preceding stage;
...
'Direct voting system', in relation to an election for an office in an organization, means a method of election at which all financial members, or all financial members included in such branch, section or other division, or in such class, as is appropriate, having regard to the nature of the office, are, subject to reasonable provisions with respect to enrolment, eligible to vote;
...
'One-tier collegiate electoral system' means a collegiate electoral system comprising only one stage after the first stage;"

"4.(5) For the purposes of the application of the definition of 'collegiate electoral system' in sub-section (1) in relation to an election for an office in an organization, an electoral system that otherwise complies with that definition shall be deemed to comply with that definition notwithstanding that the persons comprising a body of persons by and from whom persons are elected at any stage subsequent to the first stage include persons (not exceeding in number 15 per centum of the total number of the body) who are the holders of offices entitling the holders to membership of that body (which may include the office to which the election relates) but are not members of that body by virtue of an election in accordance with that definition, being persons each of whom has held such an office (whether the one office or not) at all times since being elected to such an office under a collegiate electoral system, or a direct voting system, as defined in sub-section (1)."

A reference to s.133(1)(a) highlights the difference in wording between the phrases "a direct voting system" and "a collegiate electoral system" (emphasis added). The difference is maintained in the definitions of those two phrases. In substance, the essential feature of a collegiate electoral system is the method of election at which at a second or subsequent stage of the system "persons are elected by and from the persons elected at the next preceding stage" (emphasis added). In substance, a direct voting system is a method of election at which all financial members, subject to reasonable provisions with respect to enrolment, are "eligible to vote" (emphasis added). There is nothing contained in either definition concerning the right or necessity to nominate persons as candidates for election to an office.

Under the rules of the Association, all financial members of the Association or, where appropriate, the relevant branch, are eligible to vote at an election held to elect a person to each of the eight offices under consideration. No suggestion was made that the rules made provision for enrolment which was not reasonable. Prima facie, therefore, the rules of the Association provide for the election of the holder to each of the eight offices under consideration by a direct voting system.

Counsel for the claimants contended that the rules, by restricting the persons empowered to nominate persons as candidates for those offices, do not provide for a direct voting system. It was contended that in a direct voting system, persons eligible to vote should have the right to nominate eligible persons to be candidates. He referred to what was said by Northrop J. in Lovell v. Federated Liquor and Allied Industries Employees' Union of Australia (1978) 35 F.L.R. 72 at p.99:

"The democratic control of organizations includes the right of all financial members constituting the electorate to vote when a ballot is taken for the purpose of electing candidates to an office within the organization as well as when a ballot is taken for other purposes. A basic principle of democratic control is that if a person has the right to vote in elections, then subject to special provisions which may apply to a collegiate system and to sectional representation, he has the right to nominate as a candidate for the office for which he is entitled to vote. Democracy has not been reduced to the stage where the right to nominate for election to an office can be made conditional upon the candidate satisfying standards of eligibility, fitness or experience let alone dependent upon a period of inactive membership of the electorate. Of necessity, democracy permits the electorate to elect to office persons who may not be the most suited to perform the duties of that office. Any candidate for the office must face the electorate and that electorate has the democratic right to choose between candidates. The use of the words 'to encourage ... the full participation by members of ... an organization in the affairs of the organization' in object (f) together with the provisions of s.133 of the Act implementing that object, support strongly the view that subject to what was said earlier in this paragraph, all financial members of an organization should have the right to vote at any ballot for the purpose of electing a person to an office within the organization and that any financial member of that organization who has the right to vote in that ballot should be eligible to nominate as a candidate for that office. The other financial members must then make a choice, be it wise or unwise."

Those remarks related to an application based upon s.140(1)(c) of the Act where the rules of an organization imposed restrictions upon the right of a member to nominate as a candidate for election to an office. No case was based upon s.140(1)(a) of the Act. In any event, those opinions constitute a minority of a full court and were not accepted by the majority, see Smithers and Evatt JJ. at p.80.

The fact that a candidate must be nominated is conceded as being valid. This requirement is inherent in the provisions of s.133(1)(d)(ii). Whether rules making provision for such nomination contravene s.140(1)(c) is another question. The Commonwealth Electoral Act 1918 contains provisions for nomination of candidates to the Senate or the House of Representatives, see Part (XI). The qualifications required by a candidate and the qualifications necessary for a person to nominate a candidate need not be identical, see s.69 and s.71.

The Federal Court and the Australian Industrial Court have, on many occasions, upheld rules of an organization imposing restrictions upon the right of a member to nominate as a candidate in an election to an office within the organization. Lovell's case is but one of many such cases. It is true that all those cases were based upon applications under s.140(1)(c) of the Act, but they all proceeded on the basis that rules did not fail to make a provision required by a provision of the Act. Prior to Act No. 138 of 1973 coming into operation on 13 November 1973, the relevant provisions of s.133 were that the rules of an organization relating to an election to an office of the kind under consideration "shall provide that the election shall be by secret ballot", s.133(1)(a) of the Act as then in operation. Section 52 of the 1973 Act substituted a new s.133(1). For present purposes, the relevant part of the new provision, s.133(1)(a), was that the rules of an organization relating to an election to an office under consideration:

"(a) shall provide for the election of the holder of each office within the association or organization at an election at which all financial members, or all financial members included in such branch, section or other division, or in such class, as is appropriate, having regard to the nature of the office, are, subject to reasonable provisions with respect to enrolment, eligible to vote;"

The phrase "direct voting system" was not used, but the current definition of that phrase is identical with the description of the voting system required by the then s.133(1)(a). From a perusal of the amendments made by s.52 of the 1973 Act, it is clear that the legislature was concerned with the right to vote and not with a system of election. Prior decisions of the Australian Industrial Court had made it clear that rules of an organization making provision for a collegiate electoral system of a kind similar to the system currently defined in the Act, complied with the requirements of an election by secret ballot. The amendments made by the 1973 Act were designed, to a major extent, to abolish that type of electoral system within organizations. An exception was made with respect to an office the holder of which was a member of a committee of management of the organization but the duties of which were of a part-time nature, see s.133(1A) as inserted by s.52 of the 1973 Act. Likewise, provision was made that where the rules of an organization provided for the election of an office "otherwise than directly by the members of the organization who would be entitled to vote if the rules were in accordance with paragraph (a) of sub-section (1), but by a procedure in which those members indirectly take part" (emphasis added), the organization had time within which to amend its rules to bring them into conformity with the new provisions.

Further amendments to s.133 were made in 1976. Act No. 64 of 1976, the relevant provisions of which came into operation on 9 June 1976, provided for a definition of the phrase "direct voting system" to be inserted into s.4 of the Act, see s.3 of the Act. That phrase was defined as meaning "a method of election of the kind referred to in paragraph (a) of sub-section (1) of section 133". At the same time s.133AA was inserted into the Act to make provisions relating to elections "by a direct voting system", s.13 of Act No. 64 of 1976. Further amendments were made to the Act by Act No. 117 of 1976 which came into operation on 12 November 1976. Under s.3 of that Act, the then existing definition of the phrase "direct voting system" was deleted and the following definitions in their current form were inserted in s.4(1) of the Act, namely "collegiate electoral system", "direct voting system" and "one-tier collegiate electoral system", and s.4(5) in its current form was inserted. The same Act repealed the then existing s.133(1)(a) and inserted a new s.133(1)(a) in its current form, while s.133 (1A) was deleted, see s.4 of the 1976 Act.

In the light of the authorities of the Federal Court and in the light of these legislative amendments, we are of opinion that provisions contained in the rules of an organization imposing restrictions on the right of a member to nominate a candidate for office or to be nominated a person for office do not of themselves prevent the rules, if they otherwise make provision for a direct voting system, from being a provision providing for the election of officers by a direct voting system in s.133 (1)(a) of the Act.

In the present case, the rules of the Association do not make provision for a collegiate electoral system for the election of persons to the eight offices in question. The officers are not elected by and from the persons elected at the next preceding stage. The rules make provision for a direct voting system, but at the same time impose a restriction upon the right of members to nominate persons as candidates to those offices. Accordingly, in our opinion, the claimants' contentions on the first issue fail.

The second issue to be considered is whether the rules of the Association contravene s.140 (1)(a) of the Act in a specified respect in that they fail to provide for the manner in which persons may become candidates at an election for each of the eight offices mentioned, see s.133 (1)(d)(ii) of the Act.

Section 133 (1)(d)(ii) of the Act provides:

S.133.(1) . . . conditions to be complied with . . . by organizations include a condition that the rules of the . . . organization -
(d) shall provide that every such election shall be by secret ballot, with provision for - . . .
(ii) the manner in which persons may become candidates for election;"

There is no suggestion that the rules of the Association fail to provide that the election to the eight offices under consideration are not by secret ballot. There can be no doubt that the rules do provide for the manner in which persons become candidates at an election for each of the offices under consideration. The substance of the complaint made is that nomination forms are forwarded by post to those persons entitled to nominate but to no other person. The rules do not require that a public announcement be made calling for nomination of candidates to those offices. If for any reason those parts of r.73 imposing restrictions on the right to nominate candidates are altered, it may be necessary to make consequential alterations to r.74(b), but the contraventions of r.74(b), if any, are with respect to r.73 and not r.74. In our opinion the claimants' contentions on the second issue fail.

The third issue to be considered is whether parts of r.73 being sub-sections (iv) and (v) of paragraph (b) of r.73 of the rules of the Association contravene s.140(1)(c) of the Act insofar as those paragraphs require a candidate at an election for each of the offices of federal president, senior federal vice president, junior federal vice president, federal treasurer, federal secretary and assistant federal secretary to be nominated by two councillors. This issue can be considered together with the fourth issue which is whether part of r.73 being sub-paragraph (x) paragraph (b) of r.73 of the rules of the Association contravenes s.140(1)(c) of the Act insofar as it requires a candidate for each of the offices of branch secretary and assistant branch secretary of each branch of the Association to be nominated by two members of the relevant branch committee of management.

For present purposes, the relevant parts of s.140(1)(c) are:

"140.(1) The rules of an organization -
. . .
(c) shall not impose . . . members, of the organization, conditions, obligations or restrictions which, having regard to the objects of this Act and the purposes of the registration of organizations under this Act, are oppressive, unreasonable or unjust . . ."

The only object of the Act relied upon by the claimants is that referred to in s.2(f) of the Act. That paragraph is as follows:

"2. The chief objects of this Act are -
. . .
(f) to encourage the democratic control of organizations so registered and the full participation by members of such an organization in the affairs of the Organization."

The nature of the power conferred upon the court by s.140(1)(c) has been referred to in a number of recent cases, and in this respect reference is made to Allen v. Townsend (1977) 31 F.L.R. 431, Wiseman v. Professional Radio and Electronics Institute of Australasia (1977) 35 F.L.R. 24, and Lovell v. Federated Liquor and Allied Industries Employees' Union of Australia (1978) 35 F.L.R. 72. The history of the provisions contained in s.2, s.133 and s.140(1)(c) of the Act is referred to in Lovell's case by Northrop J. at pp.90-92, and in Wiseman's case per Evatt and Northrop JJ. at pp.32-34. In the latter case they said at pp.41-42:

"Prior to 1958, the power conferred by s.140 was of an administrative nature whereby the Court of Conciliation and Arbitration and the Commonwealth Industrial Court, by the exercise of the power of disallowance, was able to mould and re-fashion the rules of an organization to give effect to (in the phrase used by Kitto J. in The Queen v. Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty. Ltd. ((1970) 123 C.L.R. 361, at p.376)) 'its own idiosyncratic conceptions and modes of thought'. The position was changed by the amendments made in 1958 and, although the stated criteria may be vague and difficult to apply, nevertheless 'a duty is cast upon the court to determine, as a mixed question of law and fact, whether the challenged rule does or does not possess one of those qualities' specified: Shearer's case per Fullagar J. ((1960) 103 C.L.R., at p.376). This, essentially, is the basis of a judicial power. See also The Queen v. Joske; Ex parte Australian Building Construction Employees' and Builders' Labourers' Federation ((1974) 130 C.L.R. 87) and The Queen v. Joske; Ex parte Shop Distributive and Allied Employees' Association ((1977) 135 C.L.R. 194).

It must be remembered that the court is exercising a judicial power. The court is not at liberty to substitute its modes of thought for those of an organization. Subject to the provisions of the Act, an organization is free to determine its own internal structures; it is free to determine its own policies; it is free to pursue objects which it considers to be desirable; and it is free to decide what it considers to be in the best interests of its members or potential members.
. . .
The court, in the exercise of the judicial powers conferred by s.140 of the Act, is not permitted to substitute what it considers to be desirable internal structures of an organization; what it considers to be desirable policies; what it considers to be desirable objects; and what it considers to be in the best interests of the members of the organization; by determining that what is being pursued by the organization imposes on members of the organization conditions, obligations or restrictions which, having regard to the objects of the Act and the purposes of the registration of organizations under the Act, are oppressive, unreasonable or unjust."

It is important to stress that, subject to the provisions of the Act, an organization is free to determine its own internal structures.

In the present case the Court is required to exercise its discretion under s.140(1)(c) of the Act "having regard to the objects of the Act". In Wiseman's case, Evatt and Northrop JJ. said at p.34:

"In deciding whether r.15 contravenes s.140(1)(c) of the Act, it is necessary for the court to have regard to the objects of the Act. This means that the court must take those objects into account: see Cassidy v. Amalgamated Postal Workers' Union of Australia ((1967) 11 F.L.R. 124, at pp.126-127), per Dunphy and Kerr JJ. The objects are to be used as a guide by which the challenged rule is to be tested and the court must ascertain, on the existing state of affairs and in the light of the objects of the Act, whether its operation is or is not of one of the described kinds."

Since then the High Court has had to consider the words "have regard to" when used in the phrase "the Permanent Head shall, in determining the scale of fees, in relation to a nursing home . . . have regard to costs necessarily incurred in providing nursing home care in the nursing home", see R. v. Hunt; Ex parte Sean Investments Pty. Ltd. (1979) 25 A.L.R. 497. That case did not involve the exercise of a discretion pursuant to the exercise of judicial power, but it is useful to refer to what was said concerning the words "have regard to". In a judgment agreed to by Gibbs J., Mason J. said at p.504:

The provisions of the Rules relating to entitlement to vote in the election of the holders of the offices involved in the present proceedings comply fully with the object of democratic control and full participation: all financial members of the Organization or of the relevant branch are eligible to vote. On the other hand, the requirements that a candidate for any of the relevant federal offices be nominated by two Councillors and that a candidate for any of the relevant branch offices be nominated by two members of the relevant branch committee of management impose restrictions on the direct participation of financial members in the electoral process. Against this, it is to be remembered that all financial members of a branch are eligible to vote in the election of the branch committee of management and that the members of the federal council are, in turn, elected by the various branch committees of management.

There was considerable discussion, in the course of agrument before us, as to the relevance of whether the nomination requirements in respect of a particular office would or would not be appropriate to the type of collegiate electoral system which would satisfy the requirements of s.133(1)(a) as a method of election for that office. Section 133(1)(a) requires that the rules of an organization provide for the election of office holders by either a direct voting system or "a collegiate electoral system being, in the case of an office the duties of which are of a full-time nature, a one-tier collegiate electoral system". The nomination requirements under the Rules in the case of the relevant branch offices (nomination by two members of the relevant branch Committee of Management) are of a type which would be appropriate to a "one-tier" collegiate electoral system. The nomination requirements in relation to the relevant federal offices (nomination by two Councillors) would be appropriate to a two-tier collegiate electoral system. The offices of Secretary and Assistant Secretary, at both branch and federal level, are full-time offices. The other offices involved are not full-time offices. It follows that the nomination requirements as regards the offices of Federal Secretary and Assistant Federal Secretary are appropriate to a collegiate electoral system of a type which would not satisfy the requirements of s.133(1)(a) in respect of those two offices while the nomination requirements in respect of the other offices in question are appropriate to a collegiate electoral system of a type which would satisfy the requirements of s.133(1)(a) in respect of those other offices. In fact, as has been seen, the requirements of s.133(1)(a) are satisfied in respect of all of the offices in question by reason of the fact that election to each of them is, under the Rules, not by a collegiate electoral system but by a direct voting system. In these circumstances, I consider that little assistance on the question whether any of the provisions in the Rules relating to nomination requirements is oppressive, unreasonable or unjust is to be obtained from the consideration that that provision either would or would not be appropriate if it were necessary to satisfy the requirements of s.133(1)(a) on the ground that the Rules provided for a collegiate electoral system. The fact that a particular nomination requirement would be appropriate to a type of collegiate electoral system which would satisfy the requirements of s.133(1)(a) in respect of a particular office does not necessarily mean that, in the absence of a collegiate electoral system, that nomination requirement is an acceptable one. Nor, in my view, does the fact that a particular nomination requirement would be appropriate to a collegiate electoral system of a type which would not satisfy the requirements of s.133(1)(a) in respect of that particular office indicate that, in the absence of such a collegiate electoral system, the particular requirement is, in itself, contrary to the policy of the Act or oppressive, unreasonable or unjust.

If the relevant matter for decision were the identification of the most desirable electoral procedure in the light of the objects of the Act and the purposes of the registration of organizations under the Act, I would be of the view that it was desirable that any two financial members of the Organization be competent to nominate a candidate for the federal offices in question and that any two financial members of a branch be eligible to nominate a candidate for the relevant branch offices. There is some force in the view that it is desirable that candidature for the relevant offices be restricted to persons who have sufficient general appeal or support to enable them to obtain nomination, in the case of candidature for federal office, by two federal councillors or, in the case of candidature for branch office, by two members of the branch committee of management. There is some merit in adopting the method of nomination common under a collegiate electoral system with the result that the elected members of Committees of Management and the elected Councillors play some part, in their capacity as such, in the procedure for electing those who are to hold office during the period of their administration of branch or organization. On the other hand, it does seem to me that, overall, the objects of the Act would be best served by less rigorous requirements as to nomination and that much of the rationale behind the common collegiate electoral nomination procedure is absent when the actual election is by direct voting of financial members.

The matter for decision is not, however, what would, in the view of the Court, constitute the most desirable provisions to be contained in the Rules of the Organization. The matter for decision is whether the Court is persuaded that the conditions, obligations or restrictions imposed by the actual Rules of the Organization upon applicants for membership or members are "oppressive, unreasonable or unjust" within the ordinary strong meaning of those words. I am conscious of the force of the judgment of Keely J., who sat at first instance, and it is with diffidence that I differ from the conclusion which he reached. I have, however, come to the clear conclusion that any condition, obligation or restriction upon applicants for membership or members flowing from the relevant nomination requirements cannot properly be described as oppressive, unreasonable or unjust. To the contrary, the relevant provisions of the Rules of the Organization are, in my view, within the limits of what members can reasonably and properly, and without injustice or oppression, accept as appropriate to the requirements of their own particular organization.

It should be mentioned that it was also argued on behalf of the applicants that the Rules contravened s.140(1)(a) of the Act in that they failed to provide, as required by s.133(1)(d)(ii), for the manner in which persons may become candidates at an election for each of the relevant offices. It suffices to say that I agree with Evatt and Northrop JJ. that, for the reasons which they give, the argument to that effect should be rejected.

In the result, I am of the view that the appeal should be allowed and that all three orders to show cause should be discharged.