Re Bailey; Re Transport Workers' Union of Australia (Victorian Branch) - [1997] FCA 1507

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL LAW - registered organisation - elections - whether an irregularity happened - entitlement to vote dependent on financiality - whether adoption of scheme for pro rata payment of contributions in arrears, by payroll deduction or directly, an irregularity - whether removal of unfinancial members from computerised membership records an irregularity - whether increase in remuneration of commission delegates an irregularity - whether misleading “how to vote” material an irregularity - whether voters who had made a choice as to candidates were misled in giving effect to that choice - whether members in arrears when employers had deducted contributions from their pay - whether rules permit waiver of entrance fees - whether unfinancial members voted - onus of proof in election inquiry - role of Court in inquiry - whether results of elections may have been affected

Industrial Relations Act 1988 ss 3(e), 196(c), 210(1), 218, 222, 223
Workplace Relations Act 1996 ss 196(c), 210(1), 218, 222, 223
Workplace Relations and Other Legislation Amendment Act 1996 cl 64 of sch 16
Industrial Relations Regulations reg 62(1)

Young v Australian Workers’ Union (1984) 9 IR 373
Re Collins; Ex parte Hockings (1989) 167 CLR 522
R v Gray; Ex parte Marsh (1985) 157 CLR 351
Re Federated Liquor and Allied Industries Employees’ Union of Australia; Ex parte Farrow (1976) 27 FLR 430
Re Stapleton (1983) 50 ALR 293
Re Carter; Re Federated Clerks Union of Australia, Victorian Branch (No 1) (1989) 32 IR 1
Kelly v Amalgamated Metal Workers’ and Shipwrights’ Union (1981) 56 FLR 124
Re McGee; Re Inquiry into Elections for Offices within Transport Workers Union and the Victorian Branch thereof (1992) 41 IR 27
Re Application by Prichard; Re Federated Clerks’ Union of Australia (SA Branch) (1985) 11 IR 112
Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25
R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254
Attorney-General of the Commonwealth v The Queen (1957) 95 CLR 529
Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 138 ALR 220
Kable v Director of Public Prosecutions (NSW) (1996) 138 ALR 577
Re Ferguson; Re Inquiry into Election in Australasian Meat Industry Employees Union, WA Branch (1986) 17 IR 208
Re Vehicle Builders Employees’ Federation of Australia (SA Branch) (1987)13 FCR 350
Re Brophy; Re Federated Clerks Union of Australia (1987) 21 IR 225
Re Patterson; Re Association of Railway Professional Officers of Australia (1987) 19 IR 373
Re Carter; Re Federated Clerks Union of Australia, Victorian Branch (No 2) (1989) 32 IR 30
Re Transport Workers Union of Australia, New South Wales Branch; Ex parte Edwards (1990) 33 IR 436
In the Matter of an Application by Pullen for an Inquiry into Elections in the Federated Liquor and Allied Industries Employees Union of Australia (NSW Branch) (1990) 98 ALR 699
Re Australian Timber and Allied Industries Union; Ex parte Black (1991) 39 IR 106
Parker v Amalgamated Society of Carpenters and Joiners of Australia (1992) 43 IR 248
Re Keily; Re Transport Workers’ Union (Victorian Branch) (No 2) (1995) 63 IR 294.

IN THE MATTER OF AN APPLICATION BY GARY STEVEN BAILEY FOR AN INQUIRY RELATING TO ELECTIONS FOR OFFICES IN THE TRANSPORT WORKERS’ UNION OF AUSTRALIA (VICTORIAN BRANCH)

NO. VI 4687 OF 1995

GRAY J
MELBOURNE
19 DECEMBER 1997

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VI 4687 of 1995

IN THE MATTER OF AN APPLICATION BY GARY STEVEN BAILEY FOR AN INQUIRY RELATING TO ELECTIONS FOR OFFICES IN THE TRANSPORT WORKERS’ UNION OF AUSTRALIA (VICTORIAN BRANCH)

JUDGE:

GRAY J

DATE:

19 DECEMBER 1997

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

The Transport Workers’ Union of Australia (“the union”) is an organisation, registered pursuant to what was formerly called the Industrial Relations Act 1988 and is now called the Workplace Relations Act 1996 (“the Act”). Among its branches is its Victorian branch.

Rule 33 of the union’s rules governs the timing of branch elections. Rule 33(a) specifies that elections are to be held in branches in 1994 and every four years thereafter. By subr (e), the opening time for nominations is noon on the second Tuesday in November and the closing time for nominations is noon on the last Tuesday in November. By subr (g), any ballot required is to open at noon on 11 February and close at noon on 3 March in the year following the nomination process. Rule 33(j) requires that the roll of voters be a list of all members of the relevant branch who were financial at the closing time for nominations. In the case of the elections the subject of this inquiry, that date was 29 November 1994. By subr (p), the returning officer is required to declare the result of the ballot within twenty-one days of its close. Those elected take office from 20 April immediately following the declaration of their election.
In accordance with s 210(1) of the Act, the elections for offices in the Victorian branch of the union, which began in November 1994, were conducted by the Australian Electoral Commission. The returning officer was Mr Michael Small, who conducted the elections in accordance with the timetable in r 33 of the union’s rules. The elections were for one branch president, one branch vice-president, one branch secretary/treasurer, two branch trustees, ten branch committee members, sixteen branch organisers, three federal councillors and a branch industrial research officer. There were three candidates for the office of branch president, three for branch vice-president, four for branch secretary/treasurer, six for the two offices of branch trustees, thirty-six for the ten positions of branch committee members, forty-six for the sixteen branch organiser positions, twelve for the three offices of federal councillor and three for the office of branch industrial research officer. The candidates, or most of them, organised themselves into three “teams” or “tickets”, for the purpose of contesting the elections. In each case, the team or ticket was identified by a team name or names and by the name of its candidate for the office of branch secretary/treasurer. The Transport Workers’ Team was led by Bill Noonan; the Transport Workers Group, also known as the Driving Force, was led by John Driver; and the TWU Reform Group was led by Chris Keily. The candidates who identified themselves with the Transport Workers’ Team, led by Bill Noonan, were successful in being elected to all positions by substantial margins of votes.

The results of the elections were declared on 9 March 1995. On 6 September 1995, shortly prior to the expiration of the time limit laid down in reg 62(1) of the Industrial Relations Regulations, the applicant filed in the Industrial Relations Court of Australia an application pursuant to s 218 of the Act for an inquiry relating to the elections.

The application alleged that irregularities of two kinds had happened in relation to the elections. The first related to the alleged ineligibility of Bill Noonan to be a candidate for the office of secretary/treasurer. The second alleged the inclusion in the roll of voters of persons not eligible to vote. The facts relied on in support of the latter allegation were said to be the unfinanciality of an unspecified number of members, who were said to have joined the organisation in 1994 and to have paid less than the amount of the entrance fee and the annual contribution for the year 1994 fixed by the rules, because they had paid pro rata amounts according to the number of weeks remaining in the year at the dates when they had joined.

Somewhat unusually, there were allegations made under the heading of “Facts Relied on” which did not relate to any head of irregularity specified in the application. There was an allegation that in 1993 the Victorian branch secretary wrongly authorised employees of the union to cancel the arrears of contributions of between 5,000 and 6,000 unfinancial members of the branch, some of whom were said to have been on the roll of voters and eligible to vote in the elections. There was a further allegation that the team led by Chris Keily had sent by mail to every member on the roll of voters “how to vote” material which bore a copy of the logo of the team led by John Driver, and had thereby misled and confused voters and discouraged persons from voting for the team led by John Driver.

A judge of the Industrial Relations Court of Australia was satisfied that there was reasonable ground for the application and appointed 2 October 1995 as the date for the first directions hearing. Various parties filed notices of appearance and sought leave pursuant to s 222 of the Act to appear at the inquiry. The notice of appearance of the union was filed on 21 September 1995, that of a number of the successful candidates in the elections was filed on 28 September 1995 and that of Mr Chris Keily was filed on 5 October 1995. On 11 October 1995, Mr Bill Noonan filed a motion seeking that the inquiry be terminated, pursuant to the power contained in s 223(5) of the Act. On 16 October 1995, the solicitors who had filed a notice of appearance on behalf of some of the successful candidates filed a further notice of appearance on behalf of a number of other successful candidates.

On 9 December 1996, the proceeding came before me for directions. Despite the filing of affidavits by various parties, it was apparent that readiness for hearing was a long way off. On that day, the applicant abandoned his allegation of an irregularity arising from the alleged ineligibility of Mr Noonan to be a candidate for the office of branch secretary/treasurer. I ordered that the inquiry be terminated with respect to that alleged irregularity. I also ordered that, on or before 16 December 1996, the applicant file and serve contentions of fact and law, including full particulars of all allegations of irregularities, and any further affidavits on which he intended to rely, and that the applicant not be at liberty to pursue at the trial any issue not specified in the contentions of fact and law filed and served on or before 16 December 1996. I made further orders designed to ensure that the proceeding would be prepared for trial.

On 24 May 1997, pursuant to cl 64 of Div 2 of Pt 3 of Sch 16 of the Workplace Relations and Other Legislation Amendment Act 1996, this was one of the proceedings transferred from the Industrial Relations Court of Australia to this Court. On 25 July 1997, the applicant moved before Northrop J for further interlocutory orders, including a wide-ranging order for discovery of documents, being the records of the union relating to the financial status of 2,163 members who had voted in the elections, who were designated in an affidavit of Robert Handley, sworn on 25 November 1996 and filed on 6 December 1996. Northrop J dismissed the applicant’s motion for interlocutory orders and directed that the proceeding be listed for trial in October 1997. Accordingly, the hearing of the inquiry was listed to begin on 13 October 1997. By notice of motion filed on 2 October, the applicant sought an order vacating this trial date and sought orders for the discovery of all financial records in the possession, custody and control of the branch secretary in relation to the payment of membership fees by 2,350 persons referred to in the affidavit of Mr Handley and the payment of membership fees of all persons on payroll deductions in the calendar year 1994. On 7 October, I heard this motion and dismissed it, taking the view that the proceeding was long overdue for trial. There is a public interest in the propriety of the conduct of elections in registered organisations, which is reflected in the provisions of Div 5 of Pt IX of the Act. This public interest requires prompt and thorough investigation of allegations of irregularities in the conduct of those elections. It also requires that unproved allegations not be permitted to remain current for excessive times, particularly when further elections in an organisation are imminent.

Accordingly, the hearing of the inquiry began on 13 October. Mr Keily did not appear and was not represented, despite a telephone call from my associate to the solicitors who had filed a notice of appearance on his behalf. Counsel appeared for the applicant, the successful candidates and the union respectively. Based on the estimates of counsel, four days were set aside for the hearing. The inquiry focused on irregularities alleged in contentions of fact and law filed on 16 December 1996, pursuant to my order of 9 December 1996. On 13 October 1997, after hearing submissions from counsel for the successful candidates and counsel for the applicant, I made an order pursuant to s 223(5) of the Act, terminating the inquiry to the extent that it related to certain of those alleged irregularities. I then reserved my reasons for judgment in relation to those matters. These reasons for judgment contain my reasons for making those orders. I then proceeded to hear evidence and submissions with respect to the remaining allegations of irregularities. It was necessary to sit extended court hours on 16 October and a full day on 17 October 1997, the fifth day of the hearing. At the completion of evidence and submissions, I made an order dismissing the application. I reserved my reasons for judgment. These reasons for judgment contain my reasons for making that order. For convenience, I deal first with the alleged irregularities with which I dealt on a summary basis and then with those which were the result of a substantive hearing.

Payroll Deductions

Rule 18(a) of the union’s rules required each member to pay an annual contribution. Provision was made for the payment by new members of the full contribution if they joined during the first six calendar months and half of the annual contribution if they joined during the second six calendar months. Rule 18(b) required payment of contributions within fourteen days from the date of making application for membership. So far as it applied to the Victorian branch, r 18(c) made the full amount of the annual contribution due and payable on 1 January and required payment not later than 28 February. Rule 18(e) made it clear that the year to which an annual contribution related was the year commencing on 1 January and ending on 31 December. Rule 18(cc) provided as follows:

“Notwithstanding anything else in these Rules, a Branch Committee of Management may resolve that the members of the Branch may pay their contributions by instalments, payroll deduction or any other method appropriate to the Branch on such terms and conditions as the Branch Committee of Management considers appropriate.”

Reference should also be made to r 17, under which an entrance fee for membership of $5, or such greater amount fixed by a branch committee of management, is required to be paid at the time of joining and, if not paid, continues to be a liability to be paid before a member is a financial member. Provision is made for applicants for membership who have been members of any other recognised industrial union, and who present clearance certificates demonstrating that they have left their previous organisation as financial members, to be admitted on payment of 50 per cent of the current entrance fee.

Rule 21 provided as follows:

“Any member who fails to pay entrance fee, contributions, fines or levies, as prescribed by these Rules, or in accordance with a Branch Committee of Management resolution, ie [sic.] any, under Rule 18(cc) shall be deemed to be unfinancial until all such entrance fee, contributions, fines or levies have been paid and ten days thereafter.
Unfinancial members shall be debarred from all benefits, privileges or rights whatsoever connected with the Union.”

At a meeting on 3 November 1993, the branch committee of management of the Victorian branch of the union resolved as follows:

“1.      For the purposes of Rule 18(cc) the Branch Committee of    Management resolves:-
1.1      That the members of the Victorian Branch of the Union may pay their       contributions by the method specified in the document marked “A”.
1.2      That the Branch Secretary/Treasurer is authorised to negotiate, sign          and make relevant arrangements for the implementation of agreements           for the Deduction of Union Contributions.
2.        For the purposes of Rule 17, the Branch Committee of Management          resolves that the entrance fee for 1994 be $20.00.”

Included within the minutes was the document marked “A”, the full text of which I set out:

“1.      This method for payment of contributions applies for the purposes of         contributions due for the financial year commencing on 1 January,      1994.
2.        The annual contribution for 1994 is $180.00.
3.        The annual contribution may be paid in full, provided it is paid by 28         February, 1994.
4.        The annual contribution may also be paid in instalments, by regular           payroll deduction, provided that:-
- there is in force an Agreement for the Deduction of Union            contributions, and:-

- there is in force a Payroll Deduction Authority in respect of the company remunerating the member.

5.        A new member must pay whatever proportion of the annual           contribution remains payable for the balance of the financial year.          This proportion shall be calculated by reference to the number of        weeks remaining in the year. This amount may be paid in
           full provided it is paid in one sum within fourteen days from the date         of making application for membership or by regular payroll     deductions in accordance with paragraph 4.
6.        Each member who is financial in accordance with the Rules shall be          issued with a membership card. Any member losing the membership       card shall report the loss to the Branch Secretary/Treasurer within     seven days. Members shall carry their Union card when working and            shall produce it if requested to do so by an accredited official
           of the Union.

7. The Branch Committee of Management may, from time to time, take whatever steps are necessary to clarify or facilitate the payment of contributions in accordance with this document.”

Also in the minutes of that meeting were a pro forma agreement for the deduction of union contributions and a pro forma deduction authority. It is unnecessary for me to set out the contents of those documents.

Based on this material, the applicant contended that r 18(a) required that contributions be paid in advance and that any resolution of a branch committee of management pursuant to r 18(cc) must establish a scheme consistent with r 18(a), whereby members pay their contributions in advance. Since the effect of the resolution of 3 November 1993 was to establish a scheme whereby members would be paying their contributions in arrears, the applicant contended that the scheme was beyond power and void. In the course of argument, counsel for the applicant raised for the first time an argument that r 18(cc) contravened s 196(c) of the Act by imposing on members of the union conditions, obligations or restrictions that, having regard to the objects of the Act and the purposes of the registration of organisations under the Act, were oppressive, unreasonable or unjust.

The construction of r 18 advanced on behalf of the applicant is perverse. It ignores the opening words of subr (cc), “Notwithstanding anything else in these Rules...”, which are plainly designed to make the other provisions of the rules, including r 18(a), subordinate to the provisions of r 18(cc). Indeed, the construction advanced on behalf of the applicant would produce the opposite effect, whereby r 18(a) prevailed over r 18(cc). The clear purpose of r 18(cc) is to empower a branch committee of management to adopt schemes for the payment of contributions which need not involve their payment in accordance with r 18(a). If this were not the case, there would be little or no point in the presence of r 18(cc).

What is made clear by r 18 itself is made even clearer by r 21, which excludes from the category of unfinancial members those who have paid as prescribed by the rules or in accordance with a resolution made pursuant to r 18(cc). The expression of these two forms of exclusion as alternatives demonstrates that the scheme of the rules was to treat separately those who paid their entire annual contributions in advance and those who paid according to schemes of instalments, payroll deductions or other methods adopted by branch committees of management pursuant to r 18(cc).

The scheme adopted by the branch committee of management of the Victorian branch on 3 November 1993 was clearly one which permitted members to pay their annual contributions in arrears, as long as the conditions set out in paragraph 4 of the document marked “A” in the minutes were met, namely that there was in force an agreement for the deduction of union contributions and a payroll deduction authority. The scheme also permitted new members to pay their annual contributions on a pro rata basis, according to the number of weeks remaining in the calendar year from the time when they joined. Paragraph 5 of the document marked “A” expressly permitted such payment to be made in one sum within fourteen days or by regular payroll deductions in accordance with paragraph 4. The scheme adopted was plainly one which fell within the terms of r 18(cc).

The argument, raised late, in respect of the invalidity of r 18(cc), by reason of its contravention of s 196(c), could not be sustained. In conjunction with r 21, r 18(cc) is an enabling provision, under which members who would otherwise be unfinancial are given an opportunity to be financial and to enjoy the benefits of membership, including the right to vote in elections. At the relevant time, the objects of the Act included that found in s 3(e), namely, “encouraging the organisation of representative bodies of employers and employees and their registration under this Act”. The purpose of the registration of organisations under the Act was to enable them to represent persons employed in relevant industries in the process of the settlement of industrial disputes by means of awards and agreements. This purpose is best served if organisations are representative of persons employed in the industries. To be inclusive of members by affording rights to them on the basis that they commit themselves to the payment of contributions by instalments, payroll deductions or other methods accords with both the object and the purpose. Indeed, if significant numbers of members were disenfranchised because they opted to pay their contributions by periodical payments, the rules might be in contravention of s 196(c) of the Act for that reason. Compare Young v Australian Workers’ Union (1984) 9 IR 373, especially at 380-381.

For these reasons, on the first day of the hearing, I took the view that the alleged irregularity relating to members paying their contributions by instalments or payroll deductions could not be established.

Removal of Members from Branch Records

In or about November 1993, at the direction of the then branch secretary/treasurer, a list of names to be deleted from the computer membership records of the Victorian branch of the union was prepared. It included a number who had died, a number who had been cleared to other branches and a number who had resigned their membership of the union. It also included 1,457 names identified as involving duplicate, or in some cases triplicate or quadruplicate, records of persons who were otherwise recorded in the computer system. In those cases, a record of the member concerned remained in the computer system. The list of those to be removed also included 9,126 names of members each of whom owed more than $502 in arrears of contributions. This figure was chosen because it represented three years of arrears of contributions.

The names of the members who were to be removed from the records in the computer system were printed out onto a paper list. Their records were then deleted from the computer system. The printed copy was retained. In the process, however, no record was kept of the membership number or roll number of the members deleted from the computer records. The purpose of the exercise was to avoid the necessity to send accounts to members whose arrears were such that they were regarded as bad debts. The result of the process was that no account was sent to any of these members in respect of their arrears of contributions, or their contributions for the calendar year 1994.

The applicant contended that this process involved a breach of the rules of the union. Rule 12(b) required the branch secretary of each branch to keep, or cause to be kept, at the branch office a roll of the membership consisting of the roll number, name, address and date of enrolment of each member. The rules did not require the roll of members to be kept by means of computer records. There could be no objection to the keeping of the roll in part by means of a printed list on paper and in part by means of computer records. This was effectively what was done. The failure to keep roll numbers of the persons whose names appeared on the paper list might have amounted to a breach of r 12(b). Such a breach could not, however, be described as an irregularity “in relation to” the elections concerned, within the meaning of s 223(1) of the Act. Compare Re Collins; Ex parte Hockings (1989) 167 CLR 522, especially at 529-532 in the judgment of Gaudron J.

The members whose names were removed from the computer records were unfinancial. Unless they remedied their unfinancial status prior to 29 November 1994, they would not have been entitled to vote. If any of them had wished to remedy his or her financial status, it would have been open to him or her to do so, by paying the arrears of contributions at any time. If this had been done in accordance with the rules, in time to make the person concerned financial by 29 November 1994, then entitlement to vote would have followed. There was, however, no obligation to be found in the rules of the union, or arising otherwise, to send an account to an unfinancial member in respect of the contributions for 1994. Conversely, the failure to send accounts to these members whose unfinanciality extended over three years or more did not deprive any of them of the opportunity to vote. They were deprived of the right to vote by the operation of r 21 because they were unfinancial. It was open to any of them to remedy that situation, as I have said. There is no evidence that any sought to do so. In these circumstances, the removal of the names from the computerised membership records could not amount to an irregularity in relation to the subject elections. I therefore terminated the inquiry with respect to this alleged irregularity on the first day of the hearing.

Commission Delegates

Rule 32(g) of the rules of the union provided as follows:

“Commission Delegates shall be subject to the direction of the Branch Committee of Management as expressed through the Branch Secretary and, on behalf of and as agent for the Branch, shall collect in accordance with these Rules contributions, fees and levies from members employed in the area for which he [sic.] has been appointed.”

By r 30(d)(v), a branch committee of management has express power to appoint and dismiss such members of the branch as it deems necessary to act as commission delegates and determine from time to time what commission or other agency fee shall be paid to such commission delegates.

At a meeting of the branch committee of management of the Victorian branch on 27 May 1994, Mr Noonan, who was then branch secretary/treasurer, presented a draft proposal for the remuneration of commission delegates in respect of all money collected by them from members, including entrance fees and contributions. It appears that, prior to 27 May 1994, delegates had been paid a commission of 10 per cent on all money collected and paid by them into the branch office or to a branch organiser. There was concern that, with the introduction of a scheme of payroll deductions in 1994, delegates would be missing out on remuneration. The proposal was that delegates should be paid 7 per cent commission for money collected via payroll deductions, even where the money was sent to the branch office other than by way of the delegate. It was also proposed that country delegates be paid an additional payment of $100 to compensate for additional travel and telephone costs. In substance, the branch committee of management resolved to adopt these proposals. It is unnecessary for me to set out the full text of the resolution.

The complaint of the applicant with respect to this scheme, as specified in his contentions of fact and law, was that it involved a breach of r 32(g). It is impossible to see how this could be so, especially as r 30(d)(v) provided express authority for the branch committee of management to do what it did on 27 May 1994.

The applicant relied on a paragraph in an affidavit of Rupert Peak, sworn 20 December 1996 and filed on that day. In that affidavit, Mr Peake said:

“I believe that there were at least 600 Commission Delegates in the Branch in 1994 and that the resolution was in breach of the Rules and a vote winning exercise by the incumbents to get Commission Delegates on side as they had significant influence over the members.”

If this were the complaint, then it is plain that it could not amount to an irregularity. In R v Gray; Ex parte Marsh (1985) 157 CLR 351, at 364-370 in the judgment of Gibbs CJ, with whom the other members of the High Court of Australia agreed on this point, it was made clear that an act whereby voters are influenced in their choice of candidates for whom they will vote does not amount to an irregularity, for the purposes of s 223(1) of the Act. The very complaint expressed by Mr Peak is of that kind of act.

Counsel for the applicant sought to overcome this deficiency by attempting to characterise the resolution of 27 May 1994 as bribery of voters, which would clearly amount to an irregularity. The resolution lacks what must surely be at the heart of electoral bribery, namely a request that, in return for the consideration provided or offered, the voter cast his or her vote in a particular way. The resolution involved the payment of commission to delegates whatever their political or factional allegiances. It was not conditioned in any way upon their loyalty. It is not uncommon for elected officials to make decisions which benefit their constituents, in the hope that by doing so they will become more popular and hence more likely to be re-elected. Indeed, it could be said that such a process is fundamental to most systems of representative democracy. However cynically a disgruntled voter might regard such “pork-barrelling”, it must be distinguished from bribery by the absence of any overt appeal for the casting of a vote in a particular way as a quid pro quo for the conferral of the benefit.

It was clear that the applicant could not establish an irregularity on this basis. That is why I terminated the inquiry so far as it related to this alleged irregularity on the first day of the hearing.

Deceptive “How to Vote” Material

It is well established that an allegation of an act by which voters were influenced in their choice of candidates for whom they would vote cannot amount to an irregularity for the purposes of s 223(1) of the Act. See the passage in R v Gray; Ex parte Marsh to which I have already referred . In the course of his judgment, at 366-7, Gibbs CJ said:

“Some misleading statements may hinder the full and free recording of votes and so fall within the extended meaning of ‘irregularity’ contained in s. 4 of the Act. In Evans v. Crichton-Browne, the Court drew a distinction between misleading statements which were intended or likely to affect an elector when he sought to record and give effect to the judgment he had formed as to the candidate for whom he intended to vote, and misleading statements which might do no more than affect the formation of that judgment. Examples of statements of the former kind were given in the judgment [(1981) 147 CLR, at 205)]:
‘For example, a statement contained in a newspaper advertisement that a ballot-paper should be marked in a way that would not conform to the requirements of the Act and which would render the vote invalid might mislead or improperly interfere with an elector in the casting of his vote. The same might be true of a statement that a person who wished to support a particular party should vote for a particular candidate, when that candidate in fact belonged to a rival party.’

Another example is provided by the facts of Consandine v. Strathfield Municipal Council [(1981) 44 LGRA 435], where a ‘how to vote’ card falsely represented that a particular candidate was, with six other candidates, a member of a group whose members had similar or identical policies.”

It appears that the High Court of Australia was recognising that an irregularity may have occurred in connection with an election if voters were misled, not into selecting the candidates for whom they wished to vote, but in giving effect to the choices which they had made with respect to candidates for whom they wished to vote. This limited form of irregularity requires that there be voters sufficiently informed to have decided to vote for candidates representing some particular point of view on an issue, or some particular grouping. Those voters are then misled into voting for candidates who do not in fact represent that particular point of view or grouping, by representations that the people for whom they are actually voting do represent that particular point of view or grouping. This form of irregularity will be very limited, because there must be voters who are sufficiently informed to have made a decision as to their choice of candidates but who can nevertheless be misled into believing that they are giving effect to that choice when they are not in fact doing so. The applicant undertook the task of establishing that such an irregularity had occurred in relation to the subject elections.

Between 1989 and 1992, persons who were members of a group known as the TWU Reform Group held office in the Victorian branch of the union. During that time, they adopted a distinctive logo. It consisted of an outline map of the State of Victoria, within which were the initials “T.W.U”. Below the map appeared the words “THE DRIVING FORCE”. Forming an arc from the left hand side of the map to its right hand side, across the top, were the words “OUR UNITY IS OUR STRENGTH”. This logo was printed in union material distributed to members of the branch, printed on polo shirts available for purchase and worn by branch officials, and used on banners at official picket lines. An official history of the union, commissioned by the then federal secretary in 1990, was published under the title “Driving Force - The history of the Transport Workers’ Union of Australia 1883-1992”.

In the 1992 branch elections, the TWU Reform Group, led by Chris Keily, who was then the branch secretary/treasurer, campaigned using the slogan “The Driving Force” and the logo which I have described. They were not re-elected. Thereafter, there was a split within the TWU Reform Group. Some of the former members of the TWU Reform Group, one of whom was John Driver, formed the Transport Workers Group, one of the teams which contested the subject elections. That group adopted a logo which depicted an outline map of the State of Victoria, within which were the initials “T.W.G.”. Below the map, in white lettering against a black or coloured background, appeared the words “THE DRIVING FORCE”. Underneath those words appeared the words “TRANSPORT WORKERS GROUP”. In an arc from the left side to the right side of the logo, above the map, were the words “OUR UNITY IS OUR STRENGTH”. This logo was used in regular newsletters published by the Transport Workers Group, which were entitled “Driving Force”. The colour chosen by the Transport Workers Group for use on its newsletters and other material distributed to members within the branch was green. On at least some of those materials, the entire logo appeared in green.

At or about the time at which ballot papers were distributed to those eligible to vote in the subject elections, each of the teams contesting the elections also forwarded to all members on the voting roll its “how to vote” material. There is a widespread belief that there is advantage in having “how to vote” material arrive in the same mail delivery as the ballot paper, because most members who vote do so soon after receipt of the ballot paper. The material sent by the Transport Workers’ Team emphasised the colour red, the Transport Workers Group adhered to its use of green and the TWU Reform Group used blue.

The “how to vote” material distributed by the TWU Reform Group included two logos, both printed in blue, on two sheets, one of which contained materials urging people to vote for the TWU Reform Group and the other of which was a replica of the ballot paper, with holes, so that it could be placed over a ballot paper as a template; crosses marked in the holes would result in votes being cast for the candidates desired by the TWU Reform Group. One logo was a circle with a rectangle across the centre. The rectangle contained the initials “TWU”. Above the rectangle, within the circle, against a blue background there appeared in white the word “REFORM”. Against a similar background and in similar lettering, below the rectangle but within the circle, appeared the word “GROUP”. The other logo was the original TWU Reform Group logo which I have described, with the exception that the words “THE DRIVING FORCE” appeared in white lettering against a blue background.

The applicant contended that, by the time ballot papers were distributed in February 1995, the logo used by the Transport Workers Group had become distinctive of that group and that the use by the TWU Reform Group of the similar logo on its “how to vote” material misled voters who had decided to vote for the Transport Workers Group into voting for the TWU Reform Group.

On the face of the documents, it is difficult to see how this contention could be upheld. The differences between the two logos, both as to content and colour, coupled with the use by the TWU Reform Group of its distinctive logo in conjunction with the one complained of, ought to have been enough to alert any voter sufficiently aware to have made a decision to vote for the Transport Workers Group candidates to the fact that the material was not that of the Transport Workers Group. The words “Transport Workers Group” were not used. To the extent to which the teams contesting the elections were identified with their leaders, it was clear that a vote for John Driver was not advocated. The initials used were “T.W.U” and not “T.W.G.”. Further, the TWU Reform Group’s material had on it clear references to Chris Keily.

There was, however, some additional evidence. An affidavit of Robert Handley sworn on 6 December 1996 said the following:

“I was in the Driving Force office in Appleton Dock Road, Footscray, from the day the ballot papers were mailed out for about two weeks. The Driving Force office received hundreds of telephone calls from Branch members who rang up and said they were confused about how to vote for the Driving Force candidates. Some members had received the ballot paper and the How to Vote ballot paper authorised by Chris Keily before receiving the ballot paper authorised by Driving Force and had mistakenly voted for the candidates nominated in the TWU Reform Group How to Vote ballot paper. Many members were confused as to which How to Vote ballot paper was the properly authorised ballot paper of the Driving Force. Some members said they had thrown both the ballot paper and How to Vote ballot paper away because of the confusion between the Driving Force and TWU Reform Group ballot papers.”

Mr Handley unfortunately died prior to the trial. An affidavit of Rupert Peak, sworn on 20 December 1996 said:

“Following the posting of the ballot papers and the How to Vote Ballot Papers of the different groups contesting the said election I attended the Driving Force Offices in Footscray where I spoke to members on the telephone and I also received telephone calls home from members concerning the respective How to Vote Ballot Paper from the TWU Reform Group. Many members were confused about how to vote and some members believed that Driving Force had already split into two (2) factions. I believe that some members were deceived into voting for the TWU Reform Group candidates when they wanted to vote for Driving Force candidates and other members were discouraged from voting at all after seeing two (2) How to Vote Ballot Papers with the distinctive Driving Force logo.”

Mr Peak gave evidence. He referred to some half dozen members, to whom he said he had spoken, who had claimed to have been deceived into voting for the TWU Reform Group, in the belief that they were voting for the Transport Workers Group. He referred to the fact that the TWU Reform Group “how to vote” material advocated voting for some candidates who were also recommended by the Transport Workers Group.

Much of this evidence can be disregarded. It is entirely irrelevant that some members were confused as to the differences between the two teams or as to the allegiances of some candidates. Those matters went only to decisions as to the identity of candidates for whom those voters wished to vote. They therefore fell squarely within the rule enunciated in Marsh’s case. It is the evidence of actual deception of half a dozen members which causes the greatest difficulty. Its hearsay nature is inevitable. The Court should not intrude into the secrecy of a ballot by compelling, or even inviting, people to enter the witness box and reveal how they have voted in elections; see Re Collins; Ex parte Hockings, at 531 in the judgment of Gaudron J. In conducting an inquiry of this nature, the Court is not bound by the rules of evidence, so it is able to receive hearsay evidence of this kind. Nevertheless, the fact that the evidence is not of a primary nature and the circumstances from which it arises must affect its weight. Both Mr Handley, who could not be cross-examined, and Mr Peak gave evidence in similar terms. In each case, the evidence was in the context of large numbers of members being confused about the “how to vote” material of the two teams, but the complaints as to deception were distinguished from accounts of confusion.

Against this must be set the evidence of Wayne Mader, one of the successful candidates, who said that it was widely known among the members of the union in Victoria that the TWU Reform Group had failed to send out its “how to vote” material in sufficient time to have it in the hands of voters at the same time as the ballot paper. Mr Mader regarded this as a fortunate occurrence. It seems highly unlikely that voters who intended to vote for candidates from the Transport Workers Group would have been misled into selecting candidates from the TWU Reform Group if they had in front of them the “how to vote” material of both groups. A positive finding as to the misleading of voters in this way therefore depends upon accepting that the voters in question had only the TWU Reform Group “how to vote” material and not the Transport Workers Group “how to vote” material in their possession at the time they voted. I accept the evidence of Mr Mader on this point; it had about it the ring of truth. Nonetheless, I cannot ignore the possibility that the TWU Reform Group posted its “how to vote” material in instalments, or that the vagaries of the postal service are such that some voters received it earlier than others, and that some voters did receive the TWU Reform Group material and the ballot paper before they received the Transport Workers Group material.

In the circumstances, I am obliged to find that some voters were actually misled into selecting candidates of the TWU Reform Group when they had decided to vote for candidates of the Transport Workers Group. The number of voters the subject of this finding must have been extremely small. It was probably not many, if any, more than the half dozen or so who complained to Mr Peak. I say this because a voter sufficiently informed to have made a decision to vote for the Transport Workers Group would have been unlikely to be misled by the presence of the logo with the map of Victoria into voting instead for the TWU Reform Group. The improbability of such an occurrence is such that, without the evidence of Mr Peak, corroborated as it was by the affidavit of Mr Handley, whose evidence must be taken to relate to those members who complained to Mr Peak, I should not have made a positive finding that any member was misled in attempting to give effect to his or her choice of candidates. As I have said, the creation of confusion is irrelevant, as is any misleading effect of the recommendation by the TWU Reform Group of some candidates who had aligned themselves with the Transport Workers Group.

The question remains whether this finding that a few voters were misled into voting for the TWU Reform Group candidates, when they had formed a judgment that they wished to vote for the Transport Workers Group candidates, is to be transformed into a finding that an irregularity happened in relation to the elections. One possible issue is whether the use of the logo with the map of Victoria by the TWU Reform Group was illegitimate. There is no doubt that the logo, in its original form, was associated with the TWU Reform Group. After former members of that group formed the Transport Workers Group, they adapted the logo to suit their new group. In a sense, they did so at their own risk. It may be true, as Mr Peak contended, that Mr Keily and the TWU Reform Group were not very active in distributing material widely amongst the membership between 1992 and the opening of the ballot in February 1995. Nonetheless, there remained the risk for the Transport Workers Group that the TWU Reform Group would resurface and use the original logo. It may also be true that the turnover in membership in the period between Mr Keily’s time as branch secretary/treasurer and the 1995 elections was such that many members would be unfamiliar with the name Keily and unaware of the TWU Reform Group. These matters were also part of the risk taken by the Transport Workers Group. Nevertheless, it must be borne in mind that an election inquiry is not merely a contest between parties. It is open to any member to seek to establish that irregularities have occurred in relation to elections within an organisation. The Court must treat the situation as if the applicant has no connection with the Transport Workers Group, but is a disinterested bystander who wishes to see right done. Indeed, this may be the case, as the applicant did not give evidence. Apart from the statutory declaration accompanying the application, nothing was heard from him in the entire proceeding. I am therefore obliged to find that, in respect of the members who were misled into voting for the TWU Reform Group when they had formed a view and intended to vote for the Transport Workers Group, an irregularity has happened in relation to the elections. The consequences of this irregularity will be dealt with in conjunction with the consequences of the presence of unfinancial members on the roll of voters.

Unfinancial voters

The contentions of fact and law filed on behalf of the applicant, pursuant to my order of 9 December 1996, contained an allegation that the roll of voters contained “approximately about” 2,350 members who were unfinancial members of the branch as at the close of nominations and not entitled to vote in the elections. By way of particulars, the applicant relied on the affidavit of Robert Handley sworn on 25 November 1996 and the exhibits thereto.

Rule 33(j) of the rules of the union requires the compilation of a list of all members of the branch who were financial at the closing time for nominations. That list is the roll of voters. In the case of the subject elections, 29 November 1994 was the date of the closing of nominations and therefore the date at which the financial status of members was to be determined for the purpose of eligibility to vote.

The affidavit of Robert Handley sworn on 25 November 1996 recounted his compilation of a computer database of members of the Victorian branch of the union from various lists obtained by him from various sources. To that database, Mr Handley swore that he added the names of the 7,812 persons who voted in the subject elections. The affidavit then contained the following passage:

“After combining and merging all the information I have assembled concerning membership of the Branch and cross checking the various lists with the 7,812 people who voted in March 1995 I have assembled a list of 2,350 persons who I believe were unfinancial members of the Branch and not eligible to vote in the election of [sic.] the subject of this inquiry.”

Exhibited to the affidavit was a list of the 2,350 persons. The affidavit then disclosed that the list of 2,350 names could be divided into categories which, in some cases, overlap. There were said to be 745 members who paid their contributions by payroll deductions in 1994 in arrears and not in advance, 224 members who had two roll numbers (indicating that they may have resigned and rejoined and possibly owed arrears of contributions from their first periods of membership), seven who had three roll numbers, eighty-seven whose addresses were shown as outside Victoria, 2,163 members who were in arrears of contributions as at 25 August 1992 and who, it was asserted, would not have become financial by November 1994, and 313 who had various discrepancies in their addresses including those in respect of whom mail had been returned when posted to their last known addresses. No further explanation was given of the reasons why the 2,350 persons were said to have been unfinancial or ineligible to vote.

Robert Handley died in August 1997.

Immediately prior to a directions hearing on 25 July 1997, the solicitors for the successful candidates gave to the solicitor for the applicant copies of the computer print-outs showing the financial histories of 252 members. All were members whose names begin with the letters “A” or “B”. Almost all appeared on the list of 2,350 persons identified by Mr Handley as having voted, but not having been eligible to do so.

On 10 September 1997, a fortnight after Mr Handley’s death, Mr Harry Nowicki, the solicitor for the applicant, obtained from Mr Handley’s widow the copy computer print-outs relating to the persons whose names began with the letter “B”, a total of 202 people. Because of some confusion over people with the surname Brown, and a couple of erroneous inclusions, there were four, or perhaps five, financial records of persons who did not vote. Thereafter, Mr Nowicki examined those documents and concluded that, on the basis of the computer print-outs, some 104 out of the sample of 202 were unfinancial as at 29 November 1994. To a considerable extent, Mr Nowicki’s conclusions in relation to these members were based on assumptions which conflicted with my ruling, given on the first day of the hearing of the inquiry, with respect to the resolution of the branch committee of management of 3 November 1993, to which I have referred. Thus, Mr Nowicki’s calculations included members who had joined in 1994 and made pro rata payments of contributions from the dates they had joined, members who had joined in 1994 and had entered into the scheme for payment of their contributions by means of payroll deductions and members who had joined earlier than 1994 and had changed from the payment of contributions by lump sum to the payment of contributions by payroll deductions. To the extent to which members acted in accordance with the resolution of 3 November 1993, it could not be said that they were in arrears of contributions as at 29 November 1994. Mr Nowicki conceded in cross-examination that there were twenty-eight such people on the list.

Nonetheless, Mr Nowicki claimed in his evidence that there were many members on payroll deductions who were in arrears of payment. He did so on the basis of his assumption that the dates shown on the computer print-outs in respect of payments of instalments were dates on which those instalments had been deducted from the pay of the members concerned by their employers. Alternatively, Mr Nowicki made the assumption that the date shown in the computer print-out in each case was the date of the employer’s cheque, by means of which contributions deducted from the pay of employees were forwarded to the union. I am satisfied that both of these were false assumptions. The evidence of Mr Steven Moore, an employee of the union in its Victorian branch, was that the date recorded in the computer print-out is the date on which the money concerned was received in the union office or the date on which its receipt was entered into the computer. I accept that evidence; it is in accordance with the probabilities and the common sense of office administration.

There is ample authority suggesting that, where a scheme of payroll deductions is in place for the payment of contributions by a member of an organisation, the employer deducting money from the pay of the member concerned may receive that money as agent for the organisation. Receipt of the money by the employer may therefore be satisfaction of the obligation of the member to pay that money to the organisation. The member may be considered to have paid the money, for the purpose of becoming, or continuing to be, a financial member of the organisation. See Re Federated Liquor and Allied Industries Employees’ Union of Australia; Ex parte Farrow (1976) 27 FLR 430; Re Stapleton (1983) 50 ALR 293, at 312; and Young v Australian Workers’ Union referred to above, at 376; compare Re Carter; Re Federated Clerks Union of Australia, Victorian Branch (No 1) (1989) 32 IR 1, at 21. In the absence of evidence as to the actual circumstances of receipt by employers of money by way of instalments of union contributions from their employees, it is reasonable to suppose that the obligations of the members to pay were satisfied by receipt by the employers. This view accords with the scheme adopted by the branch committee of management on 3 November 1993 and the terms of r 21 of the union’s rules. The combined effect of the scheme and the rule is that the making of regular deductions, in accordance with the authority to deduct and the agreement between the union and the employer contemplated by the scheme, is sufficient to establish the financiality of the members concerned.

Mr Nowicki identified a number of the voting members whose names began with the letter “B” as unfinancial because their computer records did not indicate that they had paid any joining fee upon becoming members of the union. Counsel for the successful candidates countered this by submitting that it cannot be assumed that a joining fee was always required when there are circumstances in which joining fees are not paid or are reduced. A person who was already a member of the union through one of its other branches, and who transferred to the Victorian branch, would not be required to pay any entrance fee at all. It cannot therefore be assumed that anyone who is shown in the computer records as not having paid an entrance fee was obliged to pay one. Specific mention was made in evidence about the waiver of entrance fees in respect of a group of members who transferred as a group from another organisation to the union during 1994. They were employed by Ansett Airlines at Melbourne Airport, at Tullamarine, in its catering operations. There was evidence that the branch committee of management had resolved to waive entrance fees in respect of those members because of their previous membership of the other organisation. I doubt whether the branch committee of management had the power to waive the entire entrance fee in respect of each of those members. Rule 30(d)(i) gives a specific power to the branch committee of management to cancel the whole or any part of a member’s arrears of contributions, fines or levies. No mention is made of entrance fees, although these are treated as separate from contributions and levies elsewhere in the rules. An instance is found in r 8(a), which provides for the raising of funds through branches by payment of “entrance fees, contributions and levies”. As I have said, r 17 deals with entrance fees. Rule 18 deals with contributions and r 20 deals with levies. It is true that, under r 30(d), a branch committee of management has broad powers, which are not intended to be limited by the listing of specific powers in that rule. The proviso to r 17, which gives a specific power to reduce by half the entrance fee required from an applicant who has been a member of another union, might constitute a code with respect to entrance fees and operate to deprive a branch committee of management of a power to waive the whole of an entrance fee. All that can be said is that the possibility exists that some members who were unfinancial because of non-payment of entrance fees, which they were obliged to pay, voted in the subject elections.

Mr Nowicki also claimed to have found a number of computer print-outs in respect of voters whose names began with the letter “B” which indicated that those voters were simply in arrears of contributions. To assess this claim, it is necessary to understand something of the nature of the computer system from which the print-outs were derived.

Prior to 1987, records of the union’s account with each of its members in its Victorian branch were kept by means of a manual ledger. In 1987, those administering the Victorian branch of the union began transferring the process to a computer ledger. In 1990 and 1991, modifications were made to the computer system, which changed the manner in which the records were kept. At all times since the records have been kept by means of a computerised system, the computer has maintained what is described as a “running balance” in respect of each member. The running balance is the amount which the member owes to the union, or the union owes to the member, at a particular time. It is possible to ascertain from the computer a particular member’s current balance. It is not possible to ascertain from the computer directly the running balance of any member on any prior occasion. The computer system therefore does not make it possible to ascertain which members were recorded as owing money to the union on 29 November 1994, because no record is kept of the running balance of any member on that, or any other, particular date. Nor does the information available from the computer make reconstruction of a member’s financial history easy. This is because, at least since the changes made in 1990 and 1991, the system has allowed for changes to be made to a member’s running balance without any record of those changes appearing in the member’s history as shown by the computer. For instance, it appears that a decision by the branch committee of management pursuant to r 30(d)(i) of the union’s rules, to cancel the whole or any part of a member’s arrears of contributions, would result in an alteration of that member’s running balance without recording any corresponding entry of the kind that would be recorded if the member had made a payment. Complete reconstruction from the information shown in the computer print-outs of the financial history of any particular member may be impossible.

In attempting to ascertain which of the members who voted and whose names begin with the letter “B” were unfinancial, Mr Nowicki began at the beginning of each computer record. Between 1987 and 1990 or 1991, amounts which were owed by members to the union were part of the computer records. Thus, when a particular year’s annual contribution became due and payable, an entry would appear in each member’s record of the amount of that annual contribution, together with a “minus” sign. If the annual contribution were paid in full, the same amount would be entered in the record without the “minus” sign. It is therefore possible, at least to some extent, to trace debits and credits in the account of a particular member during that period. From 1990 or 1991 onwards, only payments made by or on behalf of members were recorded. The computer records do not show amounts due and owing by members.

Starting at the beginning, Mr Nowicki made calculations setting off the amount of each annual contribution against payments shown in the computer print-out as having been made by the particular member, in an endeavour to reconstruct what would have been that member’s running balance at 29 November 1994. On the figures available from the computer print-out, he found a number of such members whose reconstructed running balances showed that they owed money to the union as at 29 November 1994 and were therefore unfinancial.

In the course of cross-examination of Mr Nowicki, counsel for the successful candidates confronted Mr Nowicki with a number of instances in which, by working backwards from the running balance shown at the date on which the computer print-out was made, it was possible to show that the members concerned were financial at 29 November 1994. The computer print-out shows the running balance of each of the members concerned at the date on which it was made. With knowledge of the amount of each annual contribution and the record of payments of the member concerned shown in the computer print-out, it is possible to make such a reconstruction which results in the opposite conclusion to that arrived at by Mr Nowicki.

In reaching his conclusions on the examination of the computer print-outs, Mr Nowicki made one crucial assumption. This was that the computer print-out of each member was to be treated as if the record began with a nil balance. Those who were members prior to the adoption of the computerised accounting system in 1987 would not necessarily have had nil balances when their records were brought into the computer system. The assumption of a nil balance at any time is not a legitimate one to make in a system which has as one of its features a running balance which cannot be ascertained in respect of any particular past date. Mr Nowicki also failed to take into account the possibility that the running balance might have been altered without the altering figure being shown by the record if, for instance, the branch committee of management exercised the power under r 30(d)(i) to cancel arrears of contributions. There is no evidence that the branch committee of management exercised this power with respect to any specific member among those whose computer print-outs were in evidence, but evidence was given by Mr Mader that the exercise of the power is reasonably common in cases where members have been unemployed or employed in occupations not within the conditions of eligibility of the union for periods of time and request relief from their obligations to pay contributions.

Notwithstanding the invalidity of Mr Nowicki’s basic assumption, there are some computer print-out records which are difficult to understand. In some cases, an annual contribution has been shown as due and owing by a member prior to the change of system in 1990 or 1991 but there is no indication in the record of any payment of that contribution ever having been received. In such cases, the running balance at the time when the computer print-out was made indicates that the member concerned does not owe the union anything. In short, the figures do not add up. Even allowing for the possibility of cancellation of arrears, it is difficult to understand the record. In his evidence, Mr Moore did concede that a close examination of the computer print-outs of the voters whose names begin with the letter “B” did reveal a small number of members who were in fact unfinancial and who voted. The small number was thought to be in the region of six or seven.

In the result, it is necessary for me to find that it is probable that some unfinancial members voted in the subject elections. They were not eligible to vote and therefore an irregularity has happened in relation to the elections. The ascertainment of the numbers of persons in that category is impossible on the evidence. All that can be said with respect to the voters whose names begin with the letter “B” is that it was greater than six but fewer than sixty-six (the number for which counsel for the applicant contended if those who were paying their contributions in accordance with the resolution of the branch committee of management of 3 November 1993 were excluded). In my view, it is much more likely that the number would be closer to the lower end than to the upper end. I have already pointed out the falsity of some of the assumptions on which the higher figure was based. It should not be supposed that the running balances shown on the computer print-outs, reflecting the financial status of the member at the date of the print-out, were more likely to be wrong than right. The system is designed for accurate record keeping, not to be inaccurate. Those administering it in the office of the union are not given discretionary powers to manufacture records or to excuse members from the payment of their debts to the union. Those administering the system have no incentive to manipulate it. Nor should it be assumed that they are incompetent. As the evidence discloses, the accounts of the union have been audited each year in accordance with legislative requirements. It is hardly to be supposed that the auditors would be unaware of impropriety in the failure to collect contributions from members and the falsification of records to suggest that they had in fact paid. If those events were occurring, it would be very difficult to match the actual amounts received with the amounts which an examination of the members’ ledger would suggest should have been received. In short, it should not be supposed that inadequacy of the records amounts to inaccuracy of the records.

Counsel for the applicant was unusually frank about the case that he was putting. From time to time, he advanced the proposition that he did not have a case to rely on in respect of unfinancial members without further evidence. The major point of his submission at the conclusion of the inquiry was to suggest that the Court should order the successful candidates or the union to produce all of the documents in the possession of the union from which the financial histories of voters could be reconstructed. For a number of reasons, I rejected this submission. Some of those reasons went to the practicalities of the situation. Others were concerned with the proper role of the Court in a proceeding of this kind.

The applicant’s desire to inspect documents would have carried much greater weight if it had been expressed at a much earlier stage of the proceeding. As I have said, the proceeding has been on foot for a considerable time without it appearing that the applicant had any real desire to bring it on for trial. The application for discovery of documents was made at a late stage. It is true that the preparation of the applicant’s case was hampered by the death of Mr Handley, who appears to have been intended to be the applicant’s major witness (the applicant did not give evidence himself). Even so, the applicant’s case would have been much more easily understood if Mr Handley had been invited to swear an affidavit expressing his conclusions in relation to ineligible voters, and the reasoning on which those conclusions was based, more fully. The sketchy nature of the affidavit evidence of Mr Handley relied on has been a problem for the parties other than the applicant since the affidavit was filed. When Mr Handley died, it became a considerable problem for the applicant.

In the course of the hearing, I directed that the successful candidates produce such documents as they were able to locate overnight relating to six of the voters whose names began with the letter “B”, those six being selected by the applicant. On the following day, Mr Moore gave evidence as to the process undertaken. He indicated that it was impossible to find records going back beyond the change of office-bearers in 1993, following the 1992 elections. Those records appeared to have been destroyed or removed from the union office. Later records are stored in boxes in a large room, in an unsorted fashion. Some four hours of work by three people resulted in the production of applications for membership from some of the six members and little or nothing else. I am satisfied that any attempt to find documents which might enable the reconstruction of the financial histories of significant numbers of members would involve a massive undertaking to locate those documents. It would so delay the proceeding as to render it likely that its significance would be overtaken by the occurrence of the next elections in the Victorian branch of the union, scheduled to begin in November 1998. The resources of the union which would need to be devoted to the process would be out of all proportion to the likelihood that anything of great significance would be turned up. It is true that I have found that some unfinancial members voted. It is also true, as I point out later in these reasons for judgment, that the numbers of such voters would have to have been very large in order that the results of the elections might have been affected. In the circumstances, there is no warrant for requiring the successful candidates or the staff of the union to engage in the process of searching for documents which, if found, might enable the financial histories of some members to be reconstructed.

Counsel for the applicant argued that the applicant had no onus of proof to satisfy in relation to his allegations. He referred to the obligation imposed on the Court by s 223(1) of the Act to “inquire into and determine the question whether an irregularity has happened in relation to the election”. He referred to the statement of Sheppard J in Kelly v Amalgamated Metal Workers’ and Shipwrights’ Union (1981) 56 FLR 124, at 149, that, “the....section confers jurisdiction on a court in proceedings which are of an inquisitorial rather than adversarial nature in a setting where the public interest is very much involved.” He relied on the statement of Keely J in Re McGee; Re Inquiry into Elections for Offices within Transport Workers Union and the Victorian Branch thereof (1992) 41 IR 27, at 35, that, “It may be that there is no formal onus of proof on an applicant where, as here, the court is conducting an inquiry.”

It cannot be denied that the legislation relating to inquiries into elections in organisations registered pursuant to the Act indicates that there is an element of public interest in the proper conduct of the electoral processes within those organisations. In all cases of this nature, the Court considers the interests of persons who are not parties to the proceedings before deciding whether to make orders and what orders to make. Nor can it be denied that the proceeding is in the nature of an inquiry and that the Court has obligations to pursue issues, particularly if they are not presented adequately by the parties. As I pointed out in Re Application by Prichard; Re Federated Clerks’ Union of Australia (SA Branch) (1985) 11 IR 112, at 116, the Court does not have the resources to pursue investigations of its own motion. Whatever the nature of the inquiry to be undertaken by the Court, it is plainly not like that undertaken by a Royal Commission or similar commission of inquiry. There is a marked distinction between such administrative inquiries and a judicial proceeding. As to the nature of Royal Commissions, see Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25. The Court is a recipient of the judicial power of the Commonwealth, pursuant to ch III of the Constitution. A Court created under ch III cannot also be the repository of non-judicial powers, unless they are incidental to the judicial powers of the Court. See R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254 and Attorney-General of the Commonwealth v The Queen (1957) 95 CLR 529. There are recent indications that the distinction between judicial and non-judicial functions is to continue to be enforced strictly. See Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 138 ALR 220 and Kable v Director of Public Prosecutions (NSW) (1996) 138 ALR 577. If the Court began to conduct itself in the manner of a Royal Commission, it would not be exercising the judicial power of the Commonwealth. To the extent to which the Act authorised it so to proceed, the Act would be constitutionally invalid. An inquiry under s 223 of the Act must be conducted as a judicial proceeding.

Keely J in Re McGee was obviously well aware of this. His Honour is not to be taken as having accepted the proposition that an applicant in an inquiry pursuant to s 223 of the Act carries no onus. It is noteworthy that, in the passage which I have quoted above, his Honour used the adjective “formal” before the word “onus”. Immediately prior to the sentence which I have quoted above, his Honour expressly recognised that there was “no onus on the respondents”. Immediately following that sentence, his Honour said:

“However, the applicant has claimed, under s 218, that irregularities have occurred, and has given particulars of those irregularities as including the acceptance by the returning officer of the nominations of each of Messrs Keily, Price, Lancaster and Power. The Court is required by s 223(1) of the Act to ‘inquire into and determine the question whether an irregularity has happened in relation to the election’. In this inquiry the Court can not find that any of those alleged irregularities has ‘happened’ unless it first finds, on the balance of probabilities on the evidentiary material before it, that the relevant respondent was not, at the material time, ‘employed in the industry’ within the meaning of r 22.”

The purport of the entire passage from his Honour’s judgment is to suggest that those who wish to establish that irregularities have happened in relation to elections must at least bear an onus of producing evidence and that, on the whole of the evidence, the Court must be satisfied on the ordinary civil onus of proof that such irregularities have occurred, before it can make a finding to that effect.

Counsel for the applicant in the present case relied heavily on the proposition that the evidence which would clarify the financial status of voters was entirely within the control of the successful candidates. That is simply not the case. Quite apart from the documents on which Mr Handley relied, there were avenues through which the applicant could have brought evidence to the Court if he had been minded to do so. Despite the fact that the computer print-outs of the voters whose names begin with the letter “B” show the names and addresses of those members, no attempt was made to produce any of those members to give evidence about his or her own financial status. No attempt was made by the applicant or those representing him to procure any subpoena directed to any of those persons. Insofar as the applicant wished to contend that members who were paying their contributions by payroll deductions had fallen into arrears, it was open to the applicant to call the employers who were the primary recipients of the moneys deducted from the wages of those members to clarify the situation. Again, no attempt was made to do so. I reject entirely the proposition that there was nothing that the applicant could do to advance his case beyond that which he had done.

For all of these reasons, I took the view that the Court should not prolong the inquiry by attempting to procure further documents relating to the history of the payment of contributions by those who voted in the subject elections.

Whether the results of the elections may have been affected

The effect of s 223(4) of the Act is that, even if the Court in an inquiry of this nature finds that irregularities have happened in relation to the elections, the Court is not to make any orders unless the Court “is of the opinion that, having regard to the irregularity found, and any circumstances giving rise to a likelihood that similar irregularities may have happened or may happen, the result of the election may have been affected, or may be affected, by irregularities.” It is widely accepted that:

“Clearly the Court is not required to make a positive finding but, equally, the Court is looking at real not merely theoretical possibilities.”

The quote is from Toohey J in Re Ferguson; Re Inquiry into Election in Australasian Meat Industry Employees Union, WA Branch (1986) 17 IR 208, at 210. It has been followed on numerous occasions, including Re Vehicle Builders Employees’ Federation of Australia (SA Branch) (1987)13 FCR 350; Re Brophy; Re Federated Clerks Union of Australia (1987) 21 IR 225; Re Patterson; Re Association of Railway Professional Officers of Australia (1987) 19 IR 373; Re Carter; Re Federated Clerks Union of Australia, Victorian Branch (No 2) (1989) 32 IR 30; Re Transport Workers Union of Australia, New South Wales Branch; Ex parte Edwards (1990) 33 IR 436; In the Matter of an Application by Pullen for an Inquiry into Elections in the Federated Liquor and Allied Industries Employees Union of Australia (NSW Branch) (1990) 98 ALR 699; Re Australian Timber and Allied Industries Union; Ex parte Black (1991) 39 IR 106; Parker v Amalgamated Society of Carpenters and Joiners of Australia (1992) 43 IR 248; and Re Keily; Re Transport Workers’ Union (Victorian Branch) (No 2) (1995) 63 IR 294.

When, as in the present case, the elections have been completed and the irregularities found to have occurred relate to voting, it is necessary to look at the numbers of votes cast and the margins between winning and losing candidates. The returning officer admitted 7,811 ballot papers to the count, not all of which contained formal votes in relation to all of the elections. The smallest winning margin was 1,266, that being the difference between the 4,357 votes for Billy Campbell, the winning candidate with the lowest total, and the 3,091 votes for Graham Albert Howard, the losing candidate with the highest vote, in the election for sixteen branch organisers. All of the other winning margins fell between 2,053 and 2,437 votes. The former was the difference between the 4,304 votes for Clem Tickner, the lowest-scoring successful candidate, and the 2,251 votes for John Fremlin Richardson, the most successful losing candidate, in the election for ten branch committee members. The latter was the difference between the votes for Bill Noonan (4,564) and the votes for John Driver (2,127) in the election for branch secretary/treasurer.

Given that the number of voters who were misled into voting for the TWU Reform Group when they thought they were voting for the Transport Workers Group is so small, concentration must be on the estimation of the number of unfinancial voters. On the assumption that the number of unfinancial voters among the group of voters whose names began with the letter “B” was the best possible number for the applicant, it would fall somewhere in the sixties. As I have said, I do not accept that this is a valid assumption, but its use illustrates how far the applicant is from establishing that any irregularities may have affected the results of the elections. The group of voters whose names began with the letter “B” represents somewhat less than 10 per cent of the total group of 2,350 suggested to have been ineligible to vote in Mr Handley’s affidavit. Making the assumption that the list of voters whose names begin with the letter “B” is a reasonably representative sample of Mr Handley’s group, and multiplying the best possible figure for the applicant by a factor of ten, would result in an estimation of a number of unfinancial voters of around 600, which is equal to approximately half of the lowest margin of votes. Multiplying the same figure by a factor of twenty would cause it to exceed the lowest margin of votes, but still fall well short of any other margin. It would be necessary to multiply by a factor of approximately forty, in order to exceed the highest margin. The choice of such a multiplier could not be justified on the evidence.

It should not be assumed that the Court will overturn the result of an election if it can be established that irregularities affected a number of votes equivalent to the margin between successful and unsuccessful candidates. In the present case, there is nothing which would suggest that unfinancial voters came from any recognisable group of members who would be likely to vote in any particular way. Even if it were to be supposed that more than 1,266 voters were unfinancial, it could not be assumed that all of them would have chosen to vote for candidates on the Transport Workers’ Team ticket. According to the returning officer’s return for all positions contested, between 55.4 per cent and 58.8 per cent of votes were cast for candidates on that ticket. There is no particular reason why the distribution of votes amongst the unfinancial voters should be supposed to have been significantly different from that among voters as a whole.

It would therefore be necessary to be able to estimate a much higher proportion of unfinancial voters overall than those revealed by the sample which was the subject of evidence, in order to reach a conclusion that the results of the elections may have been affected. In the case of most positions, it would be necessary to assume that well over half of those who voted were unfinancial. The evidence does not point in the direction of any such conclusion. In my view it is extremely unlikely. Even in the case of the lowest margin, it would be necessary to show that more than a quarter, and perhaps a third of voters were unfinancial. Again, such a conclusion would be very far removed from reality. The addition of the handful of voters misled into voting for the TWU Reform Group when they wished to vote for the Transport Workers Group would make no significant difference to this conclusion.

The evidence therefore came nowhere near satisfying me that the irregularities which I have found to have happened in relation to the subject elections may have affected the results of those elections. Even on the basis that a substantial number of unfinancial members were likely to have voted, that number is unlikely to have come anywhere near sufficient to overturn the result, even in relation to the election for branch organisers, in which the margin between the lowest scoring successful candidate and the highest scoring unsuccessful candidate was the smallest of all the elections.

For these reasons, on 17 October 1997, I made an order dismissing the application.

I certify that this and the preceding thirty-two (32) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray

Associate:

Dated:

Counsel for the Applicant: Mr J Selimi

Solicitor for the Applicant: Mr H Nowicki

Counsel for the successful candidates: Mr M Bromberg

Solicitor for the successful candidates: Maurice Blackburn & Co

Counsel for the Transport Workers’ Union of Australia: Mr W Friend

Solicitor for the Transport Workers’ Union of Australia: Mr R Marles of the Transport Workers’ Union of Australia

Dates of Hearing: 13, 14, 15, 16 & 17 October 1997

Date of Judgment: 19 December 1997

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VI 4687 of 1995

IN THE MATTER OF AN APPLICATION BY GARY STEVEN BAILEY FOR AN INQUIRY RELATING TO ELECTIONS FOR OFFICES IN THE TRANSPORT WORKERS’ UNION OF AUSTRALIA (VICTORIAN BRANCH)
JUDGE:		GRAY J
DATE:		19 DECEMBER 1997
PLACE:		MELBOURNE

Counsel for the Applicant:	Mr J Selimi
Solicitor for the Applicant:	Mr H Nowicki
Counsel for the successful candidates:	Mr M Bromberg
Solicitor for the successful candidates:	Maurice Blackburn & Co
Counsel for the Transport Workers’ Union of Australia:	Mr W Friend
Solicitor for the Transport Workers’ Union of Australia:	Mr R Marles of the Transport Workers’ Union of Australia
Dates of Hearing:	13, 14, 15, 16 & 17 October 1997
Date of Judgment:	19 December 1997