Transport Workers Union of Australia v application by Roy Leslie Lincoln for an inquiry into allegations in the Queensland Branch of the organization

JUDGES CHAMRERS

FEDERAL COURT OF AUSTRALIA

450 LllTLE BOURhE	SrFS,ET,
MELBOURNE 3000

f .'

- 4

IN THE FEDERAL COURT

OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY	N.S.W. No. 8 of 1980
INDUSTRIAL DIVISION

IN THE

MATTER of the TRANSPORT

ORKXRS' UNION OF AUSTRALIA

organization of employees under

the Conciliation and Arbitration

Act 1904

AND IN THE

MATTER of an application

by ROY LESLIE LINCOLN for an inquiry

into allegations in the QUEENSLAND

BRANCH of the Organization.

ORDER

JUDGE MAKING ORDER:	Northrop J.
DATE OF ORDER:	4 July 1980
WHERE MADE:	Brisbane

The Court makes no order under

s.165 of the Conciliation and

Arbitration Act 1904, as amended.

2. The Court certifies under s.168 of the Conciliation and

Arbitration Act 1904, as amended, that the applicant

Roy Leslie Lincoln acted reasonably in applying for the inquiry.

IN THE

FEDERAL COURT OF AUSTRALIA

NEW SOUTH

dALES DISTRICT REGISTRY

N.S.W. No. 8 of 1990

INDUSTRIAL DIVISION

in the QUSENSLAND BRANCH-of the

Organlzation.

NORTHROP J.

REASONS FOR JUDGMENT

4 July 1980.

The Transport Workers' Union

of Australia, hereinafter

called the T.W.U., is registered as

an organization of employees

under the Conciliation and Arbitration Act

1904, as amended,

hereinafter called The Act. The Transport Workers' Union of

Australia (Queensland Branch) hereinafter called the Queensland

Branch, is a branch of the T.W.U.

In November 1979 Brian John

Davis, hereinafter called the Returning Officer,

in hls capacity

as the Branch Returning Officer

of the Queensland Branch, commenced

to conduct an election to positions within the Queensland Branch.

The election was

t o be conducted pursuant to Rule

33 of the Rules

of the T.W.U. Some

of the positions for which the election was

to be conducted were

Queensland Branch President

Queensland Branch Vice President

Queensland Federal Councillors

Queensland Branch Organizers based in Brisbane Queensland Branch Organizer based in Toowoomba Branch Committee of Management Delegates elected

to Brisbane SubBBranch

Chairman, Brisbane Sub-Branch

.2..

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Brisbane Sub-Branch Committeemen

Branch Committee of Management Delegate elected

by Toowoomba, Warwick, Roma Sub-Branch.

The election was concluded and the declaration

of poll

was made by the Returning Officer

on 4 February 1980. On 11 February

1980 Roy Leslie Lincoln,

a member of the Queensland Branch, made

application under s.159 of the Act for

an inquiry by the Federal

Court of Australia into alleged irregularitles in the election to the positions set out above. Following receipt of the application,

the Industrial Registrar, pursuant to

s.160(3) of the Act referred

the applicatlon to the Industrial Relatlons Bureau

for inquiry and

report. Following receipt of that report, the Industrial Registrar,

in the exercise

o? the powers conferred by

s.160 of the Act, granted

the application insofar

as it related to the positlons

of Queensland

Branch Organizers based

in Brisbane and Brisbane Sub-Branch

Committeemen respectively and refused the application insofar as it

related to the otherpositions.

In the result, under

s.161 of the

Act, the only matters referred to the Federal Court for inquiry into alleged irregularities related to the election for Queensland Branch

Organizers based in Brisbane and

f o r Brisbane Sub-Branch Committeemen.

At the inquiry Mr. Hanger of counsel appeared on behalf

of Mr. Lincoln. Mr. Lincoln was

an unsuccessful candidate in each

of the elections. Mr.

Bolton of counsel appeared on behalf of the

Returning Officer. Mr. Moynihan of counsel appeared for five

of the

successful candidates in the election for Branch Organizer and for

one of the successful candidates

in the electlon for Sub-Branch

Committeemen. Mr. Hodgson, the Federal Secretary of the T.W.U. represented the T.W.U., see s.117A of the Act.

Under Rule 33 of the Rules of the T.W.U., all members of the Queensland Branch who were financial at the closing time for

nominatlons were eliglble

t o vote in the election

for Branch Organizers

based in Brisbane, while only the members attached to the Brlsbane

Sub-Branch were entitled to vote in the electlon for Brisbane Sub-

Branch Committeemen. All members of the Queensland Branch were

eliglble to vote

in some of the other elections, while in others

eligibility to vote was limited to members attached to specified

.3..

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Sub-Branches. In the event, any one member of the Queensland Branch could at the one time receive eight different ballot papers.

To help

to avoid confusion, different coloured ballot papers

were used for

each of the nine different ballots. The ballot papers for the

election to the positions of Branch Organizer based

in Brisbane were

coloured white. The ballot

ppers for the electlon to the positions

of Brisbane Sub-Branch Committeemen were coloured buff. The white

ballot papers were headed

"TRANSPORT WORKERS' UNION

OF AUSTRALIA

QUEENSLAND BRANCH

1979-1980 ELECTION

BALLOT

QUEENSLAND BRANCH

Members are required to note careful1

that they must place SEVEN CROSSES

In the squares opposite the names

of the

candidates for whom they desire to vote

leaving the other squares blank.

QUEENSLAND BRANCH ORGAXISERS

BRISBANE SUB-BRANCH AREA"

The buff ballot papers were headed

"TRANSPORT WORKERS' UNION

OF AUSTRALIA

QUEENSLAND BRANCH

1979-1980 ELECTION

BALLOT

BRISBANE SUB-BRANCH

Members are required

to note carefully

that they must place

SIX CROSSES (X) in

the squares opposite the names of the candidates for whom they desire to vote leaving the other squares blank.

COMMITTEEMEN"

There were twelve candidates for the position of

Queensland Branch Organizer based in Brisbane and seven to

elected, and there were elght candidates

for the S ~ X

positions of

.4..

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Brisbane Sub-Branch Committeemen and

so a ballot

was required for

their election. On each of the ballot papers including

the whlte

and buff coloured ballot papers, as well as the other ballot papers,

an asterisk appeared against the name of the candidate presently

holding a position for which he was standing as a candidate. The

Rules of the

T.W.U. make no provislon

for such an indication.

The Returning Officer complied with the requirements

of Rule 33 with respect

to the calling

of nominations in the election.

A ballot was required with respect to the nine elections being the

nine already referred to. In accordance with Rule

33, the Returning

Officer compiled the list

of all members of the Queensland Branch

who were financiaf’at the closlng time for nomlnations and used that

list in the conduct

of the election. This list of members, herem-

after called the list of members entitled to vote,

was prepared so

as to list the members according to their respective sub-branches.

Rule 33(k)-(p)

provides

as follows

“(k)

(1)

the election shall be conducted under

the ‘first past the

post’ votlng system.

(ii) the position of all candidates’ names for each office on the ballot paper shall be drawn for.

(iii)

the names

of all candidates

on the ballot

paper shall be

identical with those on

their nomination forms.

the occupation and place

of employmellt of

all candidates shall be clearly stated on

the ballot paper.

members shall be instructed

on the ballot

paper to place a cross

( X ) opposite the

name of the candidate

( o r names, where

more than one is required) that he deslres

to have elected.

(1) The Branch Returning Officer shall cause to be prepared sufficient ballot papers which shall not be numbered o r otherwise marked except wlth

the Branch Returning Officers’ inltlals,

together with pre-paid envelopes addressed

the box number at the

G.P.O.

The ballot paper

shall contain in a prominent position the date

and time of the closing of the ballot and ballot

papers received after that date shall not be

included In the ballot.

. .,.

- 5 -

The Branch Returning Officer shall post by pre-paid post the ballot papers and pre-paid envelopes in the presence of

such scrutineers as wish to be present (on a date to be determined by the Branch Returning Offlcer, which date shall

be at least twenty-one days prior to the close of the ballot) to each voter entitled

to vote within the Branch	In accordance
with the voters' list.
A candidate may authorise	a scrutineer

to watch his interests at any stage	of
the conduct of a ballot but such

scrutineer shall not

in any way obstruct

the Branch Returning Officer

in the

performance of his duties nor shall he

in any way interfere with the conduct	of
'the ballot.

A scrutineer shall be subject to the control

of the Branch Returning Officer but subject

thereto shall have the right

to be present

when the ballot papers are opened and counted

and to watch the interests of the candidate

whom he represents. He shall have the right

to examine any ballot paper after it has been

opened but shall not be entitled

to handle

the same without the express authority of the

Branch Returning Officer. He shall have the

rlght to object to the inclusion of any vote

in the count but the decision

of the Branch

Returning Officer on any objectlon shall, subject to the provisions of the Conciliation and Arbitration Act be final.

At the close

of the ballot, the Branch Returnlng

Officer in the presence of the

scrutmeers of

all candidates (if available) shall count all

ballot papers and shall within twenty one days

of the close of the ballot count the votes

recorded and communicate to the Branch Secretary

concerned in wrlting the result

of the ballot

in each instance and in such communication

declare the candidate (or candidates where more

than one is required) receiving the greatest

number of votes elected."

The

Returning Officer compiled the list

of members

entitled to vote

from the membership cards kept by the Queensland

Branch. At the inquiry, no suggestlon was made that the list

prepared did not accord with the membership cards. There were

13,699 names on the list, including

9,219 names of persons being

attached to the Brisbane Sub-Branch. The Returning Offlcer caused

to be prlnted and delivered to hlm

a total of 101,300 ballot papers,

, . C . .

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including 14,000 white ballot papers and

10,000 buff ballot papers.

Each ballot paper had printed

on its face a facsimile of the initials

of the Returning Officer and at the bottom

of the front

of each

ballot paper the following instructions appeared

"The Ballot Paper, after being voted upon, must

be placed in the addressed envelope supplied

herewith and posted without delay.

No stamp

is required. ALL BALLOT PAPERS MUST BE

IN TFS

HANDS OF THE RETURNING OFFICER, at

or before

8 a.m. on TUESDAY,

29th JANUARY, 1980.

In preparing the list

of members entitled to vote and

in placing the ballot papers and reply envelopes in the envelopes

to be posted to the voters, the Returning Offlcer

was assisted by

employees of the Queensland Branch and by other outside contractors

who were paid by the Queensland Branch. Some

100,000 ballot papers

and 28,000 envelopes were required to be handled. This work

was

done in the week commencing

17 December 1979. Some discrepancies

were discovered and as a result the envelopes

were opened and the

contents re-checked. A rubber stamp bearing a facsimile of

the

initials of the Returning Officer was prepared and

was used by those

assisting the Returning Officer to stamp the ballot papers before

being placed in the envelopeson the second occasion. The initials

of the Returning Officer thus appear twice

on the ballot papers.

In opening the envelopes some ballot papers had been damaged and

these were replaced by undamaged ones. As before, the Returning

Officer was helped in doing this by employees of the Queensland

Branch and by outside contractors. The envelopes were ready for

posting and the names

on the envelopes were checked against the list

of members entitled to vote and a tick

was placed against each name

on the listindicatingthat an envelope addressed

to that person at

the address appearing on the list was readyforposting.

No tick

was placed against the name "Blank, J.D.

12 Prenter Crescent,

Kippa-Ring, Q. 4020".

As will be seen later, this assumes some

importance in the light of subsequent events. Of the

14,000 ballot

papers 13,698 were placed in envelopes and 302 retained.

Of the

10,000 buff ballot papers,

9,218 were placed in envelopes and

792

retained. There were some discrepancies in relation to the ballots but none wlth respect to the two ballots the subject

of this Inquiry.

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At about 2.30 p.m. on Friday,

4 January 1980 the

Returning Officer, accompanied by three candidates, including

Mr. Lincoln who was then a Branch Organizer based in Brisbane, and a scrutineer for another candidate took the envelopes to the

bulk posting section

of the Roma Street Mail Exchange

of the

Australian Postal Commission and posted

13,698 envelopes. On

Tuesday, 29 January 1980, the Returning Officer, accompanied

by three candidates, including Mr.

Lincoln and a scrutineer

for another candidate, went to the Mall Exchange

of the Australian

Postal Commission at Elizabeth Street to collect the envelopes

posted back

to the

.. Returning Officer. The total number

envelopes so returned before

8 a.m. on that day

was 5,018.

There had been some difficulties concerning safe custody

of the

envelopes posted out to voters but returned to sender, but no

suggestion has been made that the ballot papers contained

those envelopes

were put to any improper use and no allegation

of irregularity has been made with respect to them. Subsequently,

other envelopes addressed to the Returning Officer were recelved

at the Mail Exchange, but the ballot papers contained in them

have not been used in the ballot.

It will be seen that

of the 13,698 envelopes posted

to voters, 5,018 envelopes were posted back to the Returning

Officer, a 36.6% return.

The envelopes addressed to the Returning Officer

were taken to the offices of the Brisbane Branch, opened and the

ballot papers extracted. The ballot papers

were sorted into

their different colours and the votes recorded

on them counted.

A summary of the number

of ballot papers posted to voters and

the number returned with respect to each of the nine ballots is

set out. These numbers are taken from the report of the

Returning Officer.

.9..

- 8 -

No. of

IXIEx

No. of

ballot papers

% return

m returned.

In- of ballot

Position

voters

Ret. Offlcer

Formal

formal

papers

Queensland Branch

President

(1)

4,809

4,903

13,698

35.8%

Queensland Branch Vice

President

(1)

4,898

4,963

13,698

36.2%

Queensland Federal

Councillors

( 3 )

4,818

4,887

13,698

35.7%

Queensland Branch

Organizers based in

Brisbane

35.9%

( 7 )

4,847

4,920

13,698

Queensland Branch

Organizer based in

Toowoomba (1)

34.6%

124

4,616

4,740

13,698

Branch Committee of

Management Delegates

elecEed by Brisbane

Sub-Branch

( 4 )

9 218

3,464

3,496

37.9%

Chairman, Brisbane

Sub-Branch

(1)

3,520

3,579

9,218

38.8%

Brisbane Sub-Branch

Committeemen

( 6 )

3,553

9,218

3 ,521

38.5%

Branch Committee of Management Delegate elected by Toowoomba,

Warwick, Roma

Sub-Branch

(1)

1,295

451

446

34.8%

A reference to the number of ballot papers returned to

the Returning Officer

in respect to each ballot shows that not each

voter returned each ballot paper he was entitled to complete.

particular, of the

5,018 envelopes returned,

98 did not contain white

ballot papers, but no figures can be given with respect to the buff

ballot papers since not all members of the Queensland Branch were

entitled to cast a vote in that ballot. The percentage return of

ballot papers compared with the percentage return of envelopes,

36.6%

illustrates that a higher percentage

of members of the Brisbane Sub-

Branch voted than the percentage

of members of the other sub-branches.

.9.

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The result of the ballot for Queensland Branch

Organizers based in Brisbane, as contained in the report

of the

Returning Officer, is set out

“LEE, Ronald L.

1,632

MacKENZIE, David	K.	1,169
WILLIAMS, Hughie	J.	3,802 ELECTED
RAY, Greg	2,765 ELECTED
NEWTON, Trevor R.	2,697 ELECTED
GOOLD, George A.	3,484 ELECTED
WARD, Leonard E.	3,694 ELECTED
HUGHES, Edward W.	1,523
MASTBRS , Allen R.	2,505

McPAUL, Allen D.	3,693 ELECTED
LINCOLN, Roy L.	2,656

BURGARTY, Charles

3,462 ELECTED”

The difference

between the number of votes for the

successful candidate with the lowest number

of votes, viz.

Mr. Newton, 2,697, and the number

of votes for the unsuccessful

candidate with the highest number of votes, viz. Mr. Lincoln,

2,656,

is 41. During the submissions it was contended that since the total number of votes cast in the ballot being the sum

of all votes

recorded, viz. 33,082, was less than the possible total number

votes that could have been cast

if each voter had cast seven votes

on each of the 4,847 formal ballot papers, viz. 33,929, irregularlties must have occurred in the ballot. The contention depends upon the assumption that each voter who completed a white ballot paper voted

for seven candidates. There was evidence, which is accepted, that the Returning Officer admitted as forrna1,ballot papers on which the voter had not voted for seven candidates, but there was no

evidence of the number

of such ballot papers. In my opinion the

calculation cannot	be used to support an inference that irregularities
occurred.

The Industrial Relations Bureau conducted

a full

examination and partial count of the ballot papers for the ballot for

Queensland Branch Organizers based in Brisbane. The result of the

partlal count is as follows, the Returning Officer’s numbers

b e m g

. .

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set out in brackets

ballot

papers

Total

(4 ,920)

4,915

Formal

ballot

papers

(4 ,847)

4,832

Informal

papers

ballot

( 7 3 )

Mr.	Newton	(2,697)	2,700
Mr.	Lincoln	(2,656)	2,645

Margin of votes

for Mr. Newton

over Mr.

Lincoln

( 4 1 )

The Industrial Relations Bureau made the following comments

!!The m b e r of ballot papers that bore more

than 7 crosses, and had been admitted to

the count

as formal by the Returning Officer,

was NINE. Of these 9 ballot-papers,

contained votes which had been credited to

candidate Lincoln.

Ballot-papers which had been 'altered

o r

corrected' by use of 'Llquld-Paper' totalled

23 (votes for Lincoln - 1).

Ballot-papers which had been 'altered

o r

corrected' b

biro totalled 51 (votes for

Lincoln

24 T . ' I

An examination of an example of the most common type

of biro alteration shows that the voter clearly expressed his

intention and that there could be no doubt as to the candidates to

whom he gave his votes.

The result of the ballot

for Brisbane Sub-Branch

Committeemen as contained in the report	of the Returning Officer,
is set out -

IILINCOLN,

Roy

2 ,

070

FLOYD,

John

2,499 ELECTED

LEWIS , Robert J.

826

BURGARTY,

Charles D.

2,680 ELECTED

MASTERS,

Allen

2,123

WARD, Leondard E.	2,970 m
HUGHES, Edward W.	2,838 m
MURPHY, John R.	3,065 m"

. .11..

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The difference between the number of votes for the successful

candidate with the least number

of votes, viz. Mr.

Masters, 2,123,

and the number

of votes for the unsuccessful candidate with the

highest number of votes, viz. Mr. Lincoln, 2,070, is 53.

On a

similar calculation to that referred to earlier, the total number of votes cast in this ballot was 20,071 which was less than the

total number

of votes that could have

been cast if each voter had

cast six votes on each of the

3,521 formal ballot papers, viz.

21,126. For reasons similar to those already expressed, this fact

does not support

an inference that irregularities had occurred.

The Industrial Relations Bureau conducted

a full

examination and partial count of the ballot papers for the ballot

for Brisbane Sub-fjranch Committeemen. The result

of the partial

count is as follows, the Returning Officer's numbers being set out

in brackets

"Total ballot papers

3,581

Formal ballot papers

3,542

(32

Informal

papers

ballot

Mr. Masters	2,108
Mr. Lincoln	2,048 E$%

Margin of votes for Mr. Masters

over Mr. Lincoln

(53)"

The Industrial Relations Bureau made the following comments

"Ballot papers altered by use

Total

Paper'

'Liquid

Ballot papers altered by biro Total

1711

At the inquiry evidence was given by Mr. Davls, the Returning Officer, Mr. Lincoln, the applicant, Mr.

Blank, all of

whom have been referred to earlier in these reasons, Archibald Bevis,

the Secretary of the Queensland Branch, Walter McGrath, the

Industrial Research Officer of the Queensland Branch, Graham Wright,

a member of the Queensland Branch who

did not receive ballot papers,

and the following candidates for office, namely Allen Masters,

David MacKenzie, Trevor Newton, Gregory Ray, George Goold, Hughie

Williams and Allen McPaul, In addition, those parts of the report

. .12..

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by the Industrial Relations Bureau to the Industrial Registrar

relating to the

two ballots, the subject of the inquiry, were

placed before the Court and the parties, by agreement, accepted

the matters of fact therein as being correct. The evidence given

by the various witnesses was remarkably consistent and where there

was a conflict, the facts as found are hereinafter set out and

were so found after considering all the evidence, the likelihood of

what happened and the general demeanour of the witnesses.

The election was keenly contested. During the course

of the ballot and after the declaration of the results, complaints

were made by

a number of members of the Queensland Branch that

they did not receyve ballot papers. Mr. Blank complained that

he had received ballot papers that had been completed.

Two main

fhow-to-votef tickets were available to members, the first being authorised by the Branch Secretary and the Federal Secretary, and the second by Pat. McGrath, the Vice Chairman of the Brisbane

Sub-Branch. The first ticket supported the retiring officers seeking

re-election in the

two ballots, the subject of this inquiry, while

the second ticket did not support

Mr. Lincoln or Mr. Masters in

either of those ballots. Mr.

Lincoln was unsuccessful

in each

ballot, while Mr. Masters was successful in one only.

In final submissions,

Mr. Hanger for the applicant

contended that there had been

a number of Irregularities

in or in

connection with the election and sought

an Order -

That there should be

a fresh ballot in the

t w o

elections,

the subject of the inquiry.

Alternatively -

That there should

be a re-count in the ballot held in the

two elections, the subject of the inquiry.

The Court proposes to consider the contentions made

by Mr. Hanger, and in the course of that consideration make any

additional findings of fact necessary

for the purpose of applying

the relevant legal principles to those contentions.

.13. .

Section 165 of the Act provides

tt165. (1) At an inquiry the Court shall inquire

into and determine the question whether any

irregularlty has occurred in

o r in connexion

with the election, and such further questions

concerning the conduct and results of the

election as the Court thinks necessary.

(2) In the course of conducting

an inquiry

the Court may make such orders (including an order

for the recounting

of votes) as the Court thinks

necessary for the purposes

of the inquiry.

( 3 )

If the Court finds that

an irregularity

has occurred, the Court may, subject to the next

succeeding sub-section, make one	o r more of the
following orders:-

(a)

an order declaring the election,

any step in o r in connexion with the

election, to be void;

(b)	to have been elected not to have been

an order declaring a person purporting to have been elected;

(c)

an order directing the Industrial

Registrar to make arrangements

(i)

in the case of

an uncompleted

election - for any step

In o r In

connexion with the election

(including the submission

nominations) to be taken agaln

and for the uncompleted steps

the election to be taken;

o r

(ii)

in the case of a completed electlon

for any step in

o r in connexion with

the electlon (including the submission

of nominations) to be taken again

for a new election to be

held;

(d)

an order (including an order modlfying the operation of the rules of the organization to the extent necessary to enable a new

electlon to be held, a step

in o r in

connexion with an election to be taken

again or an uncompleted step

in an election

to be taken) incidental

o r supplementary to,

or consequential upon, any order under this

section.

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Il(4) The Court shall not declare

an election,

or any step taken

in or in connexion with

election, to be void,

or declare that a person

was not elected, unless the Court is

of opinion

that, having regard to the irregularity

found, and

any circumstances giving rise to a llkelihood that

similar irregularities may have occurred

or may

occur, the result of the election may have been

affected, or may be affected, by lrregularities.ft

Particular attention is directed to

s .165(4) .

The word tlirregularity"

has an extended meaning under

s .4 ,

namely -

"4.(1)

In this Act, except where otherwise

clearly intended ...

fIrr&ularityf,

in relation to

an election or ballot,

includes a breach of the rules of

an organization or

of a branch of

an organizatlon,

and any act, omission

or other means whereby the full

and free recording of votes by all persons entitled

to record votes, and by no other persons, or a

correct ascertainment or declaration

of the results

of the voting is,	or is attempted to be, prevented
or hindered ;

The first contention

was that a number of members

entitled to vote did not receive ballot papers. On the material before the Court, it is accepted that the list of members entitled to

vote correctly records the names and addresses

of members entltled

to vote. The Court finds that with the exception

of Mr. Blank,

ballot papers were posted out

to each member whose name appears

the list

of members andwereposted to

them at their addresses

appearing on the list of members.

No tick appears alongslde the name

of Mr. Blank, and the Court finds that no ballot papers

were posted

to him by the Returning Officer. By an unstamped letter contained

an envelope which had a fold mark across it and which had the post

datt

8 January 1980, Mr.

Blank received the completed coples

of the ballot

papers. Each of these recorded a vote

in favour

of Mr. Llncoln and

Mr. Masters, and on the white ballot paper did not record a vote for

Mr. Newton. The envelope was marked "If not claimed wlthin

7 days

return to Box

1198 G.P.O.

Brisbane 4001" and was identical, apart from

the name and address of Mr. Blank, to the envelopes

in which the ballo-

papers were posted out to members entitled to vote.

To add insult to

injury Mr. Blank was required to pay

36 cents in order to receive the

letter.

In all probability, the envelope addressed to Mr. Blank was

.15..

- 15 -

folded and,

in lieu of the pre-paid envelope addressed to the

Returning Officer, was placed, together with the ballot papers into

an envelope addressed to another

member entitled to vote, which

latter envelope

was posted on 4 January 1980.

That unknown member

received the ballot papers, marked the ballot papers with his votes,

and in accordance with the instructions

on the ballot paper, placed

them "in the addressed envelope supplied herewith" and posted the envelope without delay. He noted the direction

"No stamp requlredtl,

and so placed no stamp

on the envelope. That envelope containing

the completed ballot papers was posted

on 8 January 1980 but instead

of being addressed

to the Returning Officer, that envelope was

addressed to Mr. Blank. These facts constitute

an irregularity within

the meaning of

s.165 of the

Act. On the assumption that Mr.

Blank

would have voted

for Mr. Lincoln and

Mr. Masters in each of the two

ballots, Mr.

Lincoln was thus deprived

of two additional votes, those

of Mr. Blank and the unknown member.

Mr. Newton did not receive the

benefit of an additional vote. As between Mr. Lincoln and

Mr. Masters

the difference in votes recorded would have remained the same.

my opinion, this irregularity does not satisfy the requirements	of
s.165(4) of the Act.

Mr. Wright gave evidence that

he did not receive ballot

papers, but his address appearing on the list

of members entitled to

vote was different from his address in January 1980.

In addition,

a number of members sought information from other members on whether

they had received ballot papers, a number

of members wrote to the

Secretary of the Queensland Branch complaining that they had not

received ballot papers, and a number of members, as part

of a planned

campaign, wrote to the Industrial Registrar complaining that they did

not receive ballot papers. One

of the documents so forwarded was in

the nature of a petition signed by a number

of members. Despite

objection, the Court admitted as evidence the letters and sheets

containing the names and addresses

of persons who claimed they

had not received ballot papers, even though the members concerned did

not give evidence. Altogether a total

of 55 names, including the

name of Mr.

Wright, was included in this category.

In a list of these

names prepared by counsel one name

was included, namely

Mr. Briggs,

who wrote to the Industrial Registrar complaining about the conduct

the election but dld not complain about non-receipt by hlm of the

. .16..

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ballot papers. His name has not been included

in the total of 55

names. At the request of the Court, counsel for the partles checked

the names and addresses

of these 55 persons against the names and

addresses appearing on the list of members entitled to vote. A

number of names were not included on that list,

while in other

instances the addresses given

on that list differed from the addresses

appearing on the list

of 55 names.

In the result, of the

55 names,

only 30 appeared on the list of members entitled to vote with

addresses corresponding to the addresses

on that list. For the

purposes of these reasons only, and notwithstanding the absence of

direct evidence of non-receipt of the ballot papers,

I am prepared

to assume that those

30 members entitled to vote did not recelve

ballot

papers.

On the findings made, ballot papers were posted to them

in accordance with the Rules

of the T.W.U.

The question then is

whether the non-receipt of the ballot papers constitutes irregularitie.

occurring in or in connection with the elections.

There has been no

breach of the Rules

of the T.W.U., and so the question can be

expressed in the form of whether the non-receipt

of the ballot papers

constitutes "any act, omission or other means whereby the full and free recording of votes by all persons entitled to record votes and by

no other persons

... is ... prevented or hindered".

Section 133 of the Act provides

for conditions to be

complied with by organizations. These include conditions that the

rules of the organization shall provide

for the election

of the

holder of each office, as defined in

s.4 of the Act, within the

organization by secret ballot and under

s.l33AA, the election

for

certain of those offices must be by secret postal ballot. The

expression "postal ballot" as defined in

s.4 means Ita ballot

for the

purpose of which a ballot paper

1s to be sent by pre-paid post to

each person entitled to vote and facilities are to be provided

for

the return of the completed ballot paper by post by a voter without

expense to him". Rule 33 of the Rules of the T.W.U. complles

in this

respect with the provisions

of the Act. The provisions of the Act

are based on the assumption that a postal ballot will be effective

and that the postal system is reliable.

I express no opmion on

whether some identifiable act

or omission which prevents

or hinders

the delivery of mail within the Australian Postal Comqission system

.17..

- 17 -

is capable

of constituting an irregularity within the meaning of

s.165 of the Act. In the present case there is no evidence

o r

suggestion of any such identifiable act

or omission. The reasons

for the non-receipt of the ballot papers could be many, and it is

idle to speculate on what might have occurred. The only facts

relevantfor present purposes are that some

of the letters posted

the Returning Officer on

4 January 1980 were not received even though

the procedure specified in the Rules and approved by the Act had been

followed.

In my opinion that evidence does not establlsh that any

irregularities occurred

in or in connection with these allegations.

In any event

I cannot draw the inference that other members did not

receive ballot papers. Even on the assumption that each of the

members would havcvoted for Mr.

Lincoln and

Mr. Masters and not for

Mr. Newton, the requirements of

s.165(4) would not be satisfied as

even with

an additional 30 votes Mr. Lincoln would not have been

elected as Queensland Branch Organizer based

in Brisbane.

The placing of

an asterisk on the ballot papers against

the name of the existing holders

of office does constltute

irregularity in that it constitutes

a breach of the Rules of the

T.W.U.

The ticket authorised by the

two Secretaries contamed the

asterisks against the holders

of office. It was deslgned to favour

those persons. Mr. Lincoln had the beneflt of

an asterisk. In my

opinion this Irregularity does not satisfy the requirements	of
s.165(4) of the Act.

It was further contended by

Mr. Hanger that under

Rule 33 of the Rules of the T.W.U. the Returning Officer personally

had to compile the list

of members entitled to vote, to address

the envelopes to be posted out to the members entitled to vote, to

place the ballot papers and the pre-paid return envelopes

in the

first envelopes, to open all envelopes returned and to count the

votes recorded on the ballot papers. It was argued that since Rule

made reference to the Returning Officer only, he could not engage

other persons to do the physical tasks involved in conducting an

election. The evidence shows that the Returning Officer supervlsed

all those tasks but engaged other persons to do them.

I reject the

contention.

A reference to the other Rules

of the T.W.U. discloses

that they are in

a form that speclfic officers have duties imposed

.le..

. .

- 18 -

upon them

in a manner similar to the form

in which the duties are

imposed upon the Returning Officer, see for example Rule

Federal Secretary, and Rule

32(a) Branch Secretaries. Reference is

made also to Rule

35 which makes provision for the appointment

the Branch Returning Offlcer.

In my opinlon, on the proper

construction of Rule 33, the Returnlng Officer, while assuming responsibility for the performance of the duties imposed upon him,

is entitled to engage other persons to perform the physical tasks by

which those duties are performed.

Any other interpretation would

make the rules impractical. These facts do not establish a breach

of the Rules of the

T.W.U.

and do not constitute irregularities

under s.165 of the Act.

It was further contended that the Returning Officer

should have rejected those ballot papers which had been altered by

biro or by "Liquid Paper!! and that

he should have rejected ballot

papers which to some extent had been mutiliated. The Returning

Officer accepted as formal all ballot papers which

in his opinlon

disclosed the intention	of the voter. He was quite entitled to do
this. An alteration to	a ballot paper, if done in a way which shows

the intentiton of the voter, can constitute a formal vote. The

Court was not referred to any ballot paper which

was admitted as

formal by the Returning Officer, but which did not disclose the

intention of the voter. The partial count by

the Industrlal

Relations Bureau

in the ballot for Queensland Branch Organizer

based in Brisbane disclosed that nine ballot papers had been admltted

as formal

by the Returning Officer, even though they contained eight

votes. The acceptance by the Returning Officer of those ballot papers as formal constitutes an irregularity, but the report of the Industrial Relations Bureau shows that Mr. Lincoln received

a vote on each of those nine ballot papers. Thus, that irregularity

d e s not come within

s.165(4) of the Act.

It was further contended that the count

of the ballot,

particularly of the votes

on the whlte ballot paper,

was conducted

in breach of Rule 33(p).

That Rule provides that at the close of

the ballot the Returning Officer "in the presence

of the scrutineers

of all candidates (if available) shall count all ballot papers".

. .19..

- 19 -

the present case there were some fifteen to eighteen people present

during the count of the white ballot papers. These persons included

some of the candidates, including

Mr. Lincoln, as well as scrutineers

The Returning Officer was present during the count, but

on odd

occasions left the meeting

for short periods. Before the envelopes

were opened the Returning Officer stated that

he proposed that if

all present were in agreement they could assist

in the count. No

one objected to that course, and no complaint

was made during the

conduct of the

count. The white ballot papers were

the first to

be counted. Those present operated

in pairs, but the same

two

persons did not always comprise the same pair. The first count

was

for Mr. Lee, the candidate first listed

on the white ballot paper.

Ballot papers which did not contain a vote for him were separated

out and placed

one box. These ballot papers were double-checked

by the other member of the pair before being placed in that box.

The ballot papers which did contain a vote for

Mr. Lee were placed

in groups of ten and checked by the other person in the palr. They

were then placed before the Returning Officer who grouped them in

groups of five before placing them in second boxes. The Returning

Officer was assisted by

two other persons in that task. The

Returning Officer kept a tally

of the votes cast in favour of

candidate.

If there was any query as to whether a ballot paper was

formal or not, it was referred

to the Returning Officer

who ruled

on whetherit should

be considered formal

or not. When the first

count was completed a count was made by a similar method with

respect to each subsequent candidate. During the course

of the

count efficiency increased, and about half way through the series

of counts some of the pairs were

left with nothing to do

so, with

the permission of the Returning Officer, they removed ballot papers

from the boxes before one count was completed and commenced the

count for the next candidate. There

was some confusion but

I find

that the Returning Officer remained

in control of the count and

that there was no unlawful interference wlth the ballot papers

any of them or any

of the votes recorded

on them. The presence

of a large number

of persons supporting candldates

on each of the

t w o “how-to-votett tickets had the effect of lessening the opportunity

for any unlawful interference with any of the ballot papers.

I have already held that the Returning Officer was

entitled to engage persons to count

the votes on the ballot papers.

LU..

b .

- 20 -

Rule 39(p) confers

a privilege on candidates whereby their

scrutineers have

a right to be present while

a count is made. This

privilege does not detract from the powers of the Returning Officer.

There is nothing to prevent

a candidate from being

a scrutineer, see

Rule 33(n).

It may have been unwise for the Returning Offlcer to

request candidates and scrutineers to assist

in the count, but

my opinion that participation does not constitute

an irregularity

under s.165 of the Act, particularly when this was done with the approval of all those present and where no objection was taken

during the course of the count.

In any event, even if the procedure

adopted did constitute

an irregularity, in my opinion it does not

come within

s.165(4) of the Act.

In the present case the election has been completed.

Some irregularities occurred

in or in connection with the election

of Branch Organizers based

in Brisbane and Brisbane Sub-Branch

Committeemen respectively. Those irregularities have been referred

to earlier in these reasons. The Court is not

of opinion that,

having regard to the irregularities found, either individually or

cumulatively, and having regard to the absence of any circumstances

giving rise to

a likelihood that similar irregularities may have

occurred, the result of the election may have been affected by

irregularities. Accordingly, the Court does not make any order

under s.165 of the Act.

The Court has found that some irregularities occurred.

Insofar as irregularities were alleged, but have not been found to

have occurred, the Court, pursuant to

s.168 of the Act, certifies

that the applicant, Mr. Lincoln, acted reasonably	in applying for
the inquiry.

[1980] FCA 98

4 Jul 1980