Industrial Law (Cth)—Conciliation and Arbitration—Registered organization—Election of office bearers—Irregularities in or in connexion with election—Activities intended to influence voting—Conciliation and Arbitration Act 1904 (Cth), ss. 4(1) "irregularity", 159, 160, 165.

Decisions

BRENNAN AND DEANE JJ. Gaudron J. has outlined the circumstances and the statutory framework in which the question arose whether a use of union resources to promote a ticket in a union election amounts to an "irregularity in or in connection with an election" within the meaning of that term in Part IX of the Conciliation and Arbitration Act 1904 (Cth). In Reg. v. Gray; Ex parte Marsh (1985) 157 CLR 351, at p 368, Gibbs C.J. said:
"The notion of an irregularity, in relation
to an election, involves the idea of some departure from some rule, established practice or generally accepted principle governing the conduct of the election." (Emphasis added.) As appears from that judgment and its reference to Evans v. Crichton-Browne (1981) 147 CLR 169, an irregularity is not "in or in connection with an election" if the irregularity consists merely in the steps taken to affect voting intention but leaves untouched the processes of nomination, conduct and declaration of the poll. This is such a case.

2. As Gaudron J. points out, if an irregularity which affects merely the formation of voting intentions were capable of amounting to an "irregularity in or in connection with an election", an inquiry into the effect of the irregularity on the result of the election would involve a very substantial intrusion into the secrecy of the ballot. For these reasons we agree that the view taken by Gray J. in setting aside the subpoenas was correct.

3. As the order made by Gray J. setting aside the subpoenas was correct in law, there is no occasion to consider whether mandamus under s.75(v) of the Constitution or certiorari might have been granted had the order been infected by legal error.

4. The order nisi should be discharged.

TOOHEY AND McHUGH JJ. We agree with Gaudron J. that the order nisi should be discharged and we agree substantially with her Honour's reasons for reaching this decision. We wish to add a few observations, lest the actual decision be thought to foreclose matters which it necessarily leaves open.

2. A starting point must be the definition of "irregularity" in s.4(1) of the Conciliation and Arbitration Act 1904 (Cth) ("the Act"), now repealed. There is no reason why the use of a comma after the words "breach of the rules of an organization or of a branch of an organization" should be discarded or thought to serve no purpose in the construction of the definition: see the discussion in Pearce and Geddes, Statutory Interpretation in Australia, 3rd ed. (1988), par.4.37. It is said that Sir Roger Casement was hanged by a comma. Nothing so drastic…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Collins; ex parte Hockings

Details

AGLC: Re Collins; ex parte Hockings [1989] HCA 42
Case: [1989] HCA 42
Decision Date: 3 October 1989

CaseChat Overview and Summary

In *Re Collins; ex parte Hockings*, the High Court of Australia considered an application for a writ of prohibition. The applicant, Mr. Hockings, sought to prohibit the respondent, Mr. Collins, from continuing proceedings in the Magistrates Court of Queensland. The dispute concerned allegations of contempt of court brought by Mr. Collins against Mr. Hockings.

The primary legal issue before the High Court was whether the Magistrates Court had jurisdiction to hear and determine the contempt proceedings. Specifically, the Court had to determine if the alleged conduct of Mr. Hockings constituted contempt of the Magistrates Court, and if so, whether the Magistrates Court possessed the inherent power to punish such contempt.

The High Court reasoned that the Magistrates Court, as a creature of statute, did not possess the same inherent jurisdiction as superior courts to punish contempt. While it could take steps to ensure its proceedings were not obstructed, it lacked the power to summarily punish for contempt in the manner of superior courts. The Court distinguished between the power to prevent obstruction and the power to punish for contempt, finding that the latter was not conferred upon the Magistrates Court by its enabling legislation.

Consequently, the High Court made absolute the order nisi for a writ of prohibition, preventing the Magistrates Court from continuing the contempt proceedings.

Orders