Poseidon Ltd v Adelaide Petroleum NL

[1991] FCA 663

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY	)
INDUSTRIAL DIVISION	1

No. V1 72 of 1991

IN THE MATTER of an application by CHRISTOPHER KEILY for an inquiry into a ballot of the members of the Transport Workers' Union of Australia

IN THE MATTER of an amalqamation in the

~ransgort	workeo
Australia

Corm:	Olney J	RECE/\/r
Place:	Melbourne	29 NflV 1991 -

FEDERAL COURT OF

Date :  6 November 1991 AUSTRALIA

c,	PRINCIPAL
REGISTRY /

EX TEMPORE RULING -4

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I am unmindful of the consequences of the ruling I gave recently concerning the construction of sub-regulation 94(4)(b), and without the assistance of counsel have given some thought as to where the matter goes from here. I am now indebted to counsel for having thoughtfully addressed the issues and it appears that I have to make decisions which take account of the real issues and also the provisions of the law so that this ballot can be conducted in a manner that complies with the regulations.

requirement of a secret ballot, but as I have indicated

But for 94(4) (b) I may well have been of the view that

the system envisaged by the returning officer met the

in the reasons I gave, that paragraph of the regulation seems to be aimed specifically at the perception of voters which it is said is such that a name or other identifying material on an envelope containing a ballot paper may in some way lead to the secrecy of the ballot being compromised. The three suggested alternatives that have been advanced today would all overcome the problem created by regulation 94(4)(b).

First, there is what I could call the "Gray scheme" (being that referred to by Gray J in Pullen's case), which is the preferred scheme of the returning officer. It contemplates that the name, serial number and signature of the voter would.appear on the outer self- addressed reply paid envelope. Second, as advocated on behalf of the applicant, there is the suggestion that only the serial number of the voter be shown, whether it be on the outer envelope or an intermediate envelope. Third, there is the scheme advocated on behalf of the	TWU, whereby there would be three envelopes, with name,	serial number and signature on the intermediate envelope.
It does appear to me that the perception that an irregularity may occur can be satisfactorily addressed by an appropriate and understandable explanation, particularly as these days union ballots and elections are conducted by the Australian Electoral Commission.

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Things may have been different in earlier days when	?. ..
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unions elected their own returning officers, but that is	p .., . . ;i
not the case here.	: ; 1 .
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There is merit in the TWU's argument, which is supported	1:.
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by counsel for the returning officer, that in addition to	'.:~  d.
the voter's serial number, the name and signature ought	, ,.' ...
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to appear on the ballot materials in a way that does not
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contravene regulation 94(4)(b).	I am satisfied that such	[...
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an addition would provide a useful purpose in assisting

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in the detection of fraud in the event of a subsequent

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inquiry and that such a requirement would, in my view,

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also tend to act as a deterrent to the committing of

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fraud. Whatever order or finding I make will require the

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name, signature and serial number to appear on an

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envelope which is not containing the ballot paper.

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The question of whether there should be two or three

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envelopes raises another issue. My first response to the

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idea of three envelopes is that it was unnecessarily

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complex and I thought initially that there was nothing in

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the early concern of the returning-..officer	that the name	1	':
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and other identifying material should not appear on the	.. .
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outer envelope. However, after further consideration,	c,
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the idea of the name and signature appearing on the outer	c <S
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envelope is one that is perhaps more likely to give rise	,.:
to fraud or the perception of it, than anything else, in	-.
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that if that envelope comes into the hands of a person	1':' p,.
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who knows the likely voting intentions of an individual	p,:
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there could be a temptation to mislay the envelope. Although it is a secret ballot, the chances are that in
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any particular workplace it would be likely that the	I . .
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views of individuals would have been discussed and known	:.
to others so that a completed ballot paper with the	, I , .

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voter's name on the outside would be readily identified	;	1
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as coming from the particular voter and if that should	i'-
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fall into the hands of the person who may not wish that	[<:,
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person's vote to be taken into account in the ballot, it	r<?
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could give rise to an opportunity for fraud.	, .

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Accordingly, I accept the concern expressed by the !h:

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returning officer in his affidavit. That means that the	d .
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three envelope system advocated on behalf of TWU is the	1:;:
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only adequate response, as I see it, to provide both a	K:!,
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guarantee (so far as a guarantee can be given) of a	r ~ . 1 : ,~
secret ballot, and also at the same time complying with	::;

the regulations.	1;::
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I think it is essential that -the new ballot material	i.5:
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explain in simple but clear terms the function of the	il. p.
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intermediate security envelope and it should be explained	p;;
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in such a way that the perceptions that apparently have	L:.;
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been rife, those sort of perceptions discussed by Gray J	l;.:
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in Pullen's case, and those which motivated the applicant	I-,,
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in bringing these present proceedings, are put to rest so	1:
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that it is established once and for all that the system	p;
is not amenable td fraud and the secrecy of the ballot is	t: v;? E..
not likely, except in perhaps the most extreme of	L' r..
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circumstances, to be compromised.	ij.'
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Whilst I appreciate that there is a significant

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difference between this type of ballot in which feelings	I -
of the rival camps tend to run fairly strongly in one	p;
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direction or another and Parliamentary elections, the	b:' : : 1.
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system of voting which Australians generally engage in,	!;'
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both at State and Commonwealth level to the extent that	t -
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it provides for postal and absentee voting, does not	l:': ,. .:,
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attract any real complaint concerning the secrecy of the
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ballot and that is a far less secure system than that	I-:
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originally proposed by the returning officer. I know	t
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there are other factors that readily distinguish	v..
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parliamentary elections from union elections and union	[.A
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ballots, but nevertheless I think that the alleged	p
Electoral Commission in the manner originally proposed	perception that ballots conducted by the Australian	: 1

are likely to be compromised ought-to	be put to rest once	I I
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and for all.	[,<.
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Accordingly, I indicate that I will give appropriate	!:..
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directions consistent with what I have said today. It
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would seem that the initial direction that needs to be	I!,'
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given is for the returning officer to send an appropriate F;?

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notification to the persons who have received ballot	p,
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papers, indicating what has occurred, and that steps will	"::
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be taken to re-run the ballot. I think that notification	i r
ought not to seek to attribute blame for the need to have	h..s
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a new ballot but should clearly explain the reason and,
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as I have also indicated ought to exonerate all of the	i j
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parties involved from any suggestion of fault.	r  1 : : : : .I
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I think the notification ought also to contain assurances	5 -
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that the new ballot will be conducted in a manner which	+>.:
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ensures the secrecy of votes cast and' that such ballot	i :
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papers as have been completed and returned to the	g  I.'.>
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returning officer will remain unopened and, at an	i
appropriate time, will be destroyed. It seems to be
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undesirable to have completed ballot papers with names	r .'..
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and signatures attached, simply remaining in limbo.	jr ;
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The form of the notification ought to be consistent with	,.
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what I have said, and submitted to me for final	...
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settlement at the earliest possible time. The question	.. .
of the dates for the sending out of the ballot material,	1;; 1 .
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the closing of the ballot and any amendments to the "yes"	c < -
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and "no" cases ought to be dealt with in the same order.
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I do not think that any purpose would be served by	; : ,
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involving the presidential member of the Industrial	I :
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Relations Commission in this aspect of the process.	l- .
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These are matters which I assume the parties to this application for an inquiry could settle between themselves but if a consensus cannot be reached, I will intervene as necessary.

Counsel for the.applicant	Mr H. Borenstein.
Solicitor for the applicant	Harry Nowicki & Co..
Counsel for the TWU and the	Mr A.M. North Q.C. and
other amalgamating	Mr M.D. Carn.
organisations
Solicitors for the TWU and	Ryan Carlisle Thomas.
the other amalgamating organisations
Counsel for The Australian	Mr K.H. Bell.
Electoral Commission

Solicitor for the Australian Australian Goverment

Electoral Commission Solicitor.