Re Elliott; Re Health Services Union of Australia
[1999] FCA 1616
•19 NOVEMBER 1999
FEDERAL COURT OF AUSTRALIA
Re Elliott; Re Health Services Union of Australia [1999] FCA 1616
Re Elliott; In the matter of an application for inquiry relating to an election for officers in the Health Services Union of Australia and the Health Services Union of Australia Victoria No 1 Branch
AND
Re Gillespie; In the matter of an application for inquiry relating to an election for officers in the Health Services Union of Australia and the Health Services Union of Australia Victoria No 1 Branch
V528 of 1999 and V540 of 1999
RYAN J
19 NOVEMBER 1999
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 528 OF 1999
IN THE MATTER Of An Application For Inquiry Relating To An Election For Officers In The Health Services Union Of Australia And The Health Services Union Of Australia Victoria No 1 Branch
ROBERT ELLIOTT
ApplicantAND
V 540 of 1999
IN THE MATTER Of An Application For Inquiry Relating To An Election For Officers In The Health Services Union Of Australia And The Health Services Union Of Australia Victoria No 1 Branch
DANIEL GILLESPIE
ApplicantJUDGE:
RYAN J
DATE OF ORDER:
19 NOVEMBER 1999
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
The question ordered on 15 October 1999 to be determined as a preliminary question be answered as follows:
This Court has jurisdiction to entertain the inquiries instituted as proceedings numbered V 528 of 1999 and V 540 of 1999.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 528 OF 1999
IN THE MATTER Of An Application For Inquiry Relating To An Election For Officers In The Health Services Union Of Australia And The Health Services Union Of Australia Victoria No 1 Branch
ROBERT ELLIOTT
ApplicantAND
V 540 of 1999
IN THE MATTER Of An Application For Inquiry Relating To An Election For Officers In The Health Services Union Of Australia And The Health Services Union Of Australia Victoria No 1 Branch
DANIEL GILLESPIE
Applicant
JUDGE:
RYAN J
DATE:
19 NOVEMBER 1999
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
An inquiry has been instituted pursuant to s 218 of the Workplace Relations Act 1996 ("the Act") into a claim made by Robert Elliott in an application filed on 3 September 1999 that there have been irregularities in relation to an election for officers in the Health Services Union of Australia ("the HSUA") and in the Victoria No 1 Branch of the HSUA. The elections for national offices are for National President, three National Vice-Presidents, two National Trustees, National Secretary, National Assistant Secretary and twenty-two ordinary members of the National Executive. The offices within the Victoria No 1 Branch are those of Branch Secretary and Branch Delegates to National Council.
Rule 29 of the Rules of the HSUA provides, so far as is relevant:
"29 -ELECTION OF OFFICERS AND MEMBERS OF NATIONAL EXECUTIVE
(a) Tenure of Office
The Officers of the Union and the ordinary members of the National Executive shall be elected by secret postal ballot of all financial members of the Union, shall take office from the completion of the biennial meeting of National Council in the year of their election and shall hold office for a period of four years or until successors thereto have been elected and take office.
(b) Qualifications for Office
Any nominee for the position of an Officer of the Union or ordinary member of the National Executive shall -
(i)be a member of the National Council at the time of his/her nomination;
(ii)be a financial member of the Union at the time of the nomination;
(iii)have been a member of the Union for the period of 12 months immediately preceding his/her nomination;
(iv) be nominated by a member of the National Council; and
(v) has not been nominated for more than one position.
(c)All financial members of the Union as at 14 days prior to the date of opening of the ballot in accordance with this rule shall be entitled to receive a ballot paper and participate in the election.
(d) Returning Officer
(i)Not later than the first day of May in the year of the Biennial National Council Meeting at the completion of which those elected are to take office (hereinafter referred to as the "said meeting"), the National Executive shall appoint a Returning Officer to conduct the election of Officers of the Union and members of the National Executive.
(ii) A Returning Officer so appointed -
(a) may or may not be a member of the Union;
(b)shall not be the holder of any office in or an employee of the Union or any branch or sub-branch of the Union; and
(c)shall have power to appoint Assistant Returning Officers in each State where members are employed, provided that the Returning Officer shall have the absolute control of the election and Assistant Returning Officers shall at all times be subject to his/her absolute control and direction.
.....
(e) Conduct of Elections
(i)The opening date of nominations shall be the 1st day of June in the year of an election and the closing date of nominations shall be the last Friday in June at 5.00 PM.
(ii)Prior to the opening date of nominations the Returning Officer shall call for nominations by notice inserted in the appropriate publication or publications of the Union or by advertisement in daily newspapers circulating throughout the various States and Territories in which the Union has members.
.....
(v)If there be no more nominations than there are vacancies for a position, he/she shall declare the nominated person or persons elected to the position."
By letter dated 9 July 1999, the Australian Government Solicitor ("AGS") as solicitor for the Australian Electoral Commission ("the Commission") referred to another inquiry into elections within the HSUA which is pending before the Court (VG 46 of 1998) and advised that the Industrial Registrar had made arrangements for the conduct by the Commission of elections for the National and Victoria No 1 Branch offices which I have detailed above. That letter contained these paragraphs:
"4.Nominations for both sets of elections were due to open on 1 June 1999.
5.Due, however, to the scope of the dispute in the Branch as to the financiality, of members of the Branch who pay membership fees by direct debit, the subject of the Inquiry, it is not appropriate or practical for the Commission to determine candidature or voting eligibility in either of the elections. In this regard, I advise that as the Branch is a constituent part of the Union, the Branch financiality issue impacts on the National elections.
6.Accordingly, the Commission has postponed both sets of elections pending the determination of the Inquiry.
7.Further, the Industrial Registrar has also made arrangements with the Commission to conduct elections for certain offices in the Victorian Branches Nos. 2-3 of the Union. The Commission is currently investigating whether the issue as to the financialty of members, the subject of the Inquiry, also arises in these Branches. If so, these elections will also be postponed pending the determination of the Inquiry."
The inquiry constituted as proceeding No VG 46 of 1998 was instituted in consequence of an application filed on 16 February 1998 by Mr Jeff Jackson. Mr Jackson has alleged that irregularities had occurred in elections to offices within the Victoria No 1 Branch of the HSUA, the results of which have been declared on 15 August 1997. Mr Jackson asserted that approximately 822 financial members of the Branch had not been furnished with ballot papers and that, because of the cessation of payroll deductions of membership contributions in respect of members employed in the Victorian Government health system, a substantial number of members had become unfinancial but had nevertheless been furnished with ballot papers enabling them to vote in the 1997 election.
The Court has given a series of interlocutory directions in the inquiry VG 46 of 1998, many of them by consent of the applicant and the successful candidates in the 1997 election. Those directions have been framed to allow inspection and collation of financial and membership records within the Victoria No 1 Branch of the HSUA. The process of inspecting, collating and, where necessary, photocopying those records has been a lengthy one and complicated by the fact that some of the membership and financial records of the Victoria No 1 Branch are retained only in a computer database.
The proceedings have been additionally complicated by the institution in this Court of further related proceedings which acquired the numbers VG 156 of 1998 and VG 192 of 1998. VG 156 of 1998 was commenced by a Rule to Show Cause granted on the application of Ms Jan Armstrong and called on Mr Elliott as National Secretary of the HSUA and other respondents who were apparently members of the National Council of the HSUA, to show cause why they should not be ordered to perform and observe the rules of the HSUA by treating a certain postal ballot as having closed on 14 December 1997 and by conducting a plebiscite in accordance with requests for the same alleged to have been made in accordance with Rule 45 of the Rules of the HSUA.
The proceedings numbered VG 198 of 1998 were initiated by another rule to show cause. That was granted on the application of Mr Elliott and called on Ms Armstrong and the other members of the Branch Committee of the Victoria No 1 Branch of the HSUA to show cause why they should not perform and observe the rules of the HSUA by causing to be paid to the National Council of the HSUA capitation fees allegedly due from the Victoria No 1 Branch pursuant to Rule 36(d) of the Rules of the HSUA.
On 9 June 1999 orders made by consent by the Court included the following:
"1. That in matter VG 46/98:
(a)Any party other than the Applicant and the Health Services Union of Australia which intends to rely on any affidavit to file and serve such affidavit(s) by 2 July 1999;
(b)The Applicant and the Health Services Union of Australia file and serve their Contentions of Fact and Law by 23 July 1999;
(c)Any party other than the applicant and the Health Services Union of Australia file and serve their Contentions of Fact and Law by 13 August 1999;
2.That the Directions Hearing in each of the matters VG 46/98, VG 192/98 and VG 156/98 be adjourned to 13 September 1999."
On 13 September 1999, the Court gave directions for certain persons to have leave to appear as respondents in the inquiry VG 46 of 1998 and made the following orders in consequence of extensions of time granted to comply with the directions of 9 June 1999:
"3.That the time fixed by paragraph 1(a) of the order of Ryan J of 9 June 1999 for filing and service of affidavits by any party other than the applicant and the Health Services Union of Australia be extended to 5 November 1999.
4.That the time fixed by paragraph 1(b) of the said order of 9 June 1999 for filing and service of contentions of fact and law by the applicant in the Health Services Union of Australia be extended to 19 November 1999.
5.That the time fixed by paragraph 1(c) of the said order of 9 June 1999 for filing and service of contentions of fact and law by any party other than the applicant and the Health Services Union of Australia be extended to 3 December 1999.
6.That the directions hearing in each of VG 46 of 1998, VG 192 of 1998 and VG 156 of 1998 be adjourned to 10 December 1999 at 10.15 am."
At the first directions hearing in one of the present inquiries, V 528 of 1999, it was contended on behalf of the incumbent members of the Victoria No 1 Branch Committee of Management and the Commission that the facts relied on by the present applicant, Mr Elliott, do not disclose an irregularity within the meaning of s 218 of the Act so as to enliven this Court with jurisdiction to continue the present inquiry. Those contentions led me to order, on 15 October 1999, that the question of the jurisdiction of the Court to entertain the inquiry instituted as VG 528 of 1999 and the cognate inquiry instituted as VG 540 of 1999 be listed for hearing today. The inquiry numbered VG 540 of 1999 was instituted on the application of Daniel Gillespie filed 27 September 1999 and is related to the same elections for national offices and offices within the Victoria No 1 Branch of the HSUA as are the subject of Mr Elliott's application giving rise to VG 528 of 1999.
In support of its contention in VG 540 of 1999 that no irregularity has occurred in relation to the elections which should have been held in 1999, the Commission points to s 215 of the Act, the first two sub-sections of which provide:
"(1)Where an electoral official is conducting an election, or taking a step in relation to an election, for an office in, or in a branch of, an organisation, the electoral official:
(a)subject to paragraph (b), shall comply with the rules of the organisation or branch; and
(b)may, in spite of anything in the rules of the organisation or branch, take such action, and give such directions, as the electoral official considers necessary:
(i)to ensure that no irregularities occur in or in relation to the election; or
(ii)to remedy any procedural defects that appear to the electoral official to exist in the rules.
(2)An election conducted by an electoral official, or step taken in relation to such an election, is not invalid merely because of a breach of the rules of the organisation or branch because of:
(a)action taken under subsection (1); or
(b)an act done in compliance with a direction under subsection (1)."
It has then been contended by the Commission:
"14.Subject to paragraph 215(1)(b) of the Act, the Returning Officer, in conducting the elections, is obliged to comply with the Rules.
15.Sub-paragraph 215(1)(b)(i) of the Act is to the effect that, notwithstanding the Rules, the Returning Officer had power to take such action and give such directions as he considered necessary to ensure that no irregularities occurred in, or in relation to, the elections.
16.Shane Lanning in his capacity as acting Returning Officer determined pursuant to sub-paragraph 215(1)(b)(i) of the Act to postpone the elections until the determination of VG46 of 1998 ("the postponement decision").
17.The irregularities in, or in relation to, the elections that the Acting Returning Officer sought to prevent was the nomination of ineligible members and the voting by ineligible members in the elections, or the exclusion of eligible members from participating in the election."
Counsel for the Commission and Counsel for the incumbent members of the Victoria No 1 Branch Committee of Management have founded their contentions as to an absence of jurisdiction, first, on this passage from the judgment of Gray J in Re Carter; Re Federated Clerks Union of Australia, Victorian Branch (No 1) (1989) 32 IR 1 at 4:
"In determining whether a direction of a returning officer, purportedly given under s 170A(1) of the former Act, has given rise to an irregularity, the Court must act with care. It has no jurisdiction to sit on appeal from the returning officer, for the purpose of determining whether his or her decision was correct. If faced with the task of deciding what was an appropriate direction, the Court may have taken a different view from that taken by the returning officer. The Court is not charged with that function. Unless the direction of a returning officer is wrong in law, or such that no reasonable returning officer could have given it, or the exercise of the power to give a direction is not a bona fide exercise of that power, for the purpose for which the power is given, the Court should not interfere. A direction given by a returning officer in the exercise of the power given by s 170A(1) overrides the rules of the organisation concerned. It follows that a failure to comply with those rules, where such a direction has resulted in the non-compliance, cannot amount to an irregularity.
In the present case, no real attack was made on the validity of the returning officer's directions. In the light of the evidence, such an attack would have been bound to have failed. It is clear on the evidence that the returning officer exercised his power to give a direction bona fide, and for the purpose for which the power is given. The grounds upon which he acted show that his directions were reasonable in all the circumstances. They were certainly not wrong in law. For these reasons, I find that no irregularity happened as a result of the timetable under which the elections were conducted."
In that case, the returning officer, in effect, extended by three days the time stipulated by the rules for closing of nominations and by twenty-two days the time stipulated for the closing of voting. The returning officer's reasons for giving those directions were summarised by his Honour in these terms at p 3:
"The returning officer saw those directions as necessary to ensure that no irregularities occurred in the elections. The time for lodging nominations was fixed so as to ensure that members were afforded adequate time to lodge nominations. In extending the time, the returning officer took into account the fact that the Easter holiday period fell during the period for lodging nominations. In fixing the date of the ballot, the returning officer considered that the period of between two and four weeks fixed by r 29(o) between the closing date for nominations and the opening of the ballot was too short. It was necessary to check the validity of over two hundred nominations for one hundred and four positions. This check involved ascertaining the financial status of each nominee, and of each of the nominators. If any defect had been found in any nomination, it would have been necessary to allow a period of not less than seven days and not more than ten days for remedying the defect, pursuant to r 29(g) of the branch rules. It was also necessary to prepare a roll of voters, and to arrange for the printing and enveloping of ballot papers. The returning officer considered that it might have been necessary for him to obtain legal advice on questions that may have arisen, especially as to the eligibility of candidates. A period of three weeks was chosen between the opening and closing dates of the ballot, to ensure that adequate time was allowed for the investigation of claims of non-receipt of ballot papers and the issue of any necessary duplicate ballot papers."
It should be said at the outset that there can be no suggestion that the returning officer in the present case has acted otherwise than bona fide in giving the directions which he has for the postponement of the subject elections. A direction properly given by a returning officer as contemplated by s 215(1)(b) of the Act can override the provisions of the rules of an organisation so that anything done in relation to an election in accordance with the returning officer's direction will not be invalid merely because the returning officer's direction has brought about, or condoned, a breach of the rules of the organisation. However, the jurisdiction of this Court to entertain an inquiry into an election depends, not on the existence of an irregularity, but on a claim by a qualified applicant that there has been an irregularity and on the Court's being satisfied, at the time of fixing the time and place for the conduct of the inquiry, that there is reasonable ground for the application. (See ss 218 and 219 of the Act.) It may be that, in the course of the inquiry, the ground or grounds which the Court initially perceived as providing reasonable support for the applicant's contention that an irregularity has occurred are shown to be unsustainable. However, that will not deprive the Court of jurisdiction.
By virtue of s 223(1) of the Act, the Court, once it is seized of an inquiry, is required to "inquire into and determine the question whether an irregularity has happened in relation to the election" (emphasis added). It is significant that the Court is not confined to inquiring into and determining the existence of the irregularity alleged by the applicant. If the Court, at any stage, concludes that there is no basis for finding that a particular irregularity has occurred, it can give expression to that conclusion, as Gray J did in Re Carter (No 1) (supra) in relation to the departure from the timetable laid down by the rules for the conduct of the election. In those circumstances, the Court will, if there are no other arguable irregularities, terminate the inquiry pursuant to s 223(5) of the Act which provides:
"Without limiting the power of the Court to terminate a proceeding before it, the Court may, at any time after it begins an inquiry into an election, terminate the inquiry or the inquiry to the extent that it relates to specified matters."
However, the attainment of satisfaction that a particular irregularity has not occurred, even if that be the sole irregularity claimed by the applicant, does not entail that the Court has acted without jurisdiction.
In the present inquiries, even if (as I doubt), the irregularities to which the applicants have pointed are confined to the deferral or postponement of elections which should have been held in July 1999, it is arguable that there is an anterior or underlying irregularity to which the returning officer has pointed as justifying his decision not to conduct the elections in accordance with the rules. That is the uncertainty which the returning officer perceives will attend any attempt by him to strike a roll of voters comprising all members of the Victorian Branches of the HSUA entitled to vote and no members of those branches who are disqualified from voting because they are unfinancial.
"Irregularity" is defined in s 4(1) of the Act as follows:
"Irregularity", in relation to an election or ballot, includes:
(a)a breach of the rules of an organisation or branch of an organisation; and
(b) an act or omission by means of which:
(i)the full and free recording of votes by all persons entitled to record votes and by no other persons; or
(ii)a correct ascertainment or declaration of the results of the voting;
is, or is attempted to be, prevented or hindered;"
A definition in similar terms in the Conciliation and Arbitration Act 1904 was considered by the High Court in R v Gray ex parte Marsh (1985) 157 CLR 351 where Gibbs CJ observed, at 365:
"It would appear from the context provided by s 4(1) that the Parliament intended the definition of "irregularity" to be inclusive and not exclusive, or in other words that the definition was intended to comprehend such things as the word would ordinarily mean as well as those specifically included. Although the things specifically included in the definition are so widely defined that at first it does not seem easy to envisage other things which would not come within the specific terms of the definition but would still be irregularities in the ordinary meaning of the word, it is possible to suggest examples - for instance, a threat made contrary to s 171(2) which induced the withdrawal of a candidature, or a case (suggested by Gray J) in which, without breach of the rules, a returning officer failed to make available any reasonable facility for the receipt of nominations, so that persons who desired to be candidates were prevented from nominating."
To similar effect, his Honour pointed out, at 367:
"According to the Oxford English Dictionary "irregularity", in its relevant sense, means "want of conformity to rule; deviation from or violation of a rule, law, or principle ... deviation from what is usual or normal". 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."
In the same judgment it was observed, at 370:
"We were referred to a line of cases in which it has been held that the Court under s 165(1) of the Act may inquire into any irregularity disclosed by the evidence even though it was not specified in the application made under s 159: Re Elections for Offices in Australasian Meat Industry Employees' Union (1963) 5 FLR 260, at p265; Jutte v Amalgamated Engineering Union, Australian Section (1967) 10 FLR 195, at pp 201-202; Re Federated Liquor & Allied Industries Employees' Union of Australia (1970) 16 FLR 107 at p111; Re Australian Postal & Telecommunications Union; Ex parte Wilson (1979) 28 ALR 330 at p333. Assuming that the statements made in those cases were correct, it does not follow that the Court has jurisdiction to proceed with an inquiry under Pt IX when the only matters complained of are alleged irregularities which are not capable of answering that description."
The reason why this Court, in Marsh's Case, was held, by a statutory majority of the High Court, to lack jurisdiction was that it applied the wrong test in deciding what was an irregularity; see per Gibbs CJ at 373, per Wilson J at 378-379 and per Brennan J at 381. In the last-mentioned passage it was concluded:
"The jurisdiction to inquire thus depends on whether an applicant claims the occurrence of what amounts to an irregularity. If he makes such a claim the court has jurisdiction to inquire; if he does not, the court lacks jurisdiction to inquire. If, on the face of the application, what the applicant claims to have occurred does not amount to an irregularity for the purposes of Pt IX, a defect in jurisdiction appears."
In the present case, what I have referred to as the arguable anterior, or underlying, irregularities constituted by the inability of the returning officer to strike a satisfactory roll of voters and the deferral for more than five months and continuing of the relevant elections are irregularities as defined in s 4(1) of the Act. For example in Leary v Australian Builders Labourers Federation (1961) 2 FLR Joske J concluded, at 346:
"It was contended that the meeting of 22nd August, 1961, was a nullity and being a nullity the election which took place at it could not be the subject of an inquiry or an order under Part IX of the Act which dealt only with "irregularity" in or in connection with an election. The power of the Court under Part IX includes declaring an election "void", a power which is appropriate to an election which is so conducted as to amount to a nullity. The meaning of "irregularity" is to be ascertained not by some fanciful contrasting with "nullity", but by examining the statutory definition, which is couched in language sufficiently wide to include conduct which would bring about a nullity. The curious result of the contention would be, moreover, if it were correct, that Part IX, relating to the avoidance of elections in whole or part, would apply to less serious conduct than something which constituted a nullity; in respect of a nullity Part IX, relating to "Disputed Elections in Organizations" would be silent. For these reasons the contention fails."
In the same case, his Honour went on, at 348 to hold:
"The failure validly to elect the returning officer and scrutineers as provided by the rules is a breach of the rules and amounts to an irregularity in, and has affected, the election in respect of which they were to function as returning officer and scrutineers. This election was to be conducted during September and the ballot was to close during the first Monday of October (r.7(b) and branch r.4(m)). It is no longer possible to comply with these rules and the election will be affected by this further breach of the rules and irregularity which will occur."
It is true that action has been taken in good faith by the returning officer to minimise the adverse consequences of one of the apparent irregularities to which I have drawn attention, namely the unsatisfactory state of any roll of voters which can be struck at present. However, as I perceive it, that action cannot be regarded as eliminating the irregularity. Rather, it seems to involve a choice by the returning officer of what he has regarded as the lesser of two evils, the deferral of the election rather than conducting it in circumstances in which a sustainable challenge could almost certainly be mounted to the roll of voters. In taking that course, what is arguably a different irregularity, the deferral of the election well beyond the dates ascertainable pursuant to rule 29(e), has been brought into existence.
The fact that an electoral official is empowered by s 215(1) of the Act to take action to ensure that no irregularities occur and can do so "in spite of anything in the rules of the organisation," cannot, in my view, preclude the exercise by this Court of jurisdiction to inquire into whether an irregularity has in fact happened. "Irregularity" in the sense used in the Act is not confined to a breach of the rules of the organisation. Moreover, action taken by an electoral official does not conclusively eliminate all irregularities. All it does by force of s 215(2) is preserve the election from invalidity "merely because of a breach of the rules of the organisation" because of action taken by the electoral official or an act done in compliance with his or her directions.
For these reasons I have been led to conclude that the Court has jurisdiction to entertain the present inquiries and I shall answer the preliminary question accordingly. I shall hear Counsel on 10 December 1999 on what (if any) interim orders under s 221 of the Act should be made in the exercise of that jurisdiction.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RYAN.
Associate:
Dated: 19 November 1999
Counsel for the Applicant Elliott and the HSUA:
Mr B Hinkley with Mr D Langmead
Solicitors for the Applicant Elliott and the HSUA:
Slater & Gordon
Counsel for the Applicant Gillespie:
Mr B Shaw
Solicitors for the Applicant Gillespie:
J N Zigouras & Co
Counsel for the incumbent members of the Branch Committee of Management:
Mr H Borenstein with Mr S Moore
Solicitor for the incumbent members of the Branch Committee of Management:
T S Mulvany & Co
Counsel for the Australian Electoral Commission as Returning Officer:
Mr T O'Donoghue
Solicitor for the Australian Electoral Commission as Returning Officer:
Australian Government Solicitor
Date of Hearing:
5 November 1999
Date of Judgment:
19 November 1999
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