FEDERAL COURT OF AUSTRALIA

Sara, in the matter of an inquiry into the election for offices in the Australian Salaried Medical Officers Federation [2018] FCA 844

ORDERS

THE COURT DECLARES THAT:

1.    Pursuant to s 206(4)(a) of the Fair Work (Registered Organisations) Act 2009 (Cth), in relation to election number 2017/261 (the “Election”),

(a)    all steps already taken in relation to the Election, including any offices declared; and

(b)    the Election itself,

are void.

THE COURT ORDERS THAT:

2.    Pursuant to s 206(4)(d) of the Fair Work (Registered Organisations) Act 2009 (Cth), and subject to Order 3 below, the Electoral Commissioner of the Australian Electoral Commission is to take no further step in the Election.

3.    Pursuant to s 206(4)(d) of the Fair Work (Registered Organisations) Act 2009 (Cth), within three business days of this order:

(a)    the Australian Salaried Medical Officers Federation is to publish these orders on its website; and

(b)    the Electoral Commissioner is to notify the nominees in the Election of these orders.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

STEWARD J:

1    On 5 June 2018, I sat as a court of inquiry pursuant to s 201 of the Fair Work (Registered Organisations) Act 2009 (Cth) (the “FWRO Act”) into an election for Federal and Branch officers of the Australian Salaried Medical Officers Federation (the “ASMOF”), that had commenced to be conducted by the Australian Electoral Commission (the “AEC”) in early 2018, known as election “2017/261” (the “Election”). The inquiry was convened on the application of the applicant, Dr Antony Sara, who is a member of the ASMOF.

2    Earlier, on 6 April 2018, I made orders pursuant to s 201 of the FWRO Act convening this inquiry, as I was satisfied that there were reasonable grounds for the claim that there had been an “irregularity” in relation to the Election. I also made interim orders pursuant to s 204 of the FWRO Act restraining the AEC from taking further steps in the Election.

3    Following the making of these interim orders, and in accordance with my directions, on 9 April 2018, the ASMOF caused to be published:

(1)    a notice on its website notifying members of the time and place fixed for the inquiry and informing them that the affidavit material which had been filed by the applicant was available to them upon request from the solicitors for the applicant; and

(2)    the applicant’s originating motion.

4    At the inquiry, the applicant was represented by Mr Dowling, S.C. and Mr Tran. No other party appeared or made submissions. The AEC, which had appeared by its counsel before me in April, did not appear, but did otherwise offer its assistance through Mr Rawson of counsel, for which I am grateful. The applicant relied upon five affidavits which were read. For that purpose, I note that pursuant to s 205(3) of the FWRO Act, the Court was not bound by any rules of evidence and was entitled to inform itself on any matter in such manner as it considered just.

5    Satisfied that the applicant was entitled to final relief, I pronounced judgment in his favour on 5 June 2018 and made the orders in the terms sought by him. What follows are my reasons for judgment.

PROCEDURAL HISTORY

6    The procedural history is unfortunate. In simple terms, at the time when the election commenced to be conducted an altered Constitution for the ASMOF came into effect, creating new and significant offices for election and changing, in some cases, the basis for election.

7    In amplification:

(1)    the process for changing the Constitution of the ASMOF had commenced prior to July 2013. On 28 November 2017, a resolution for the replacement of the existing rules of the ASMOF was put to the Federal Council of the ASMOF for determination, with the ballot closing on 28 December 2017;

(3)    meanwhile, on 14 December 2017, the ASMOF lodged with the Registered Organisations Commissioner (the “ROC”), in accordance with s 189 of the FWRO Act, prescribed information in relation to the triennial election of officers in accordance with its then existing Constitution;

(4)    upon the ballot closing on 28 December 2017, it was found that a majority had voted in favour of the alterations to the Constitution and, save in certain respects which are not material, the Federal Council consequently approved the changes;

(5)    on 9 January 2018, application was made to the Fair Work Commission (the “FWC”) for approval of the alterations, pursuant to s 159 of the FWRO Act;

(6)    on 23 January 2018, a delegate of the ROC determined that he was satisfied that the triennial election of the officers of both the Federal and Branch Councils of the ASMOF was required, and that he would make arrangements for the conduct of the election by the AEC. The nomination period for that election opened on 1 March 2018 and closed on 22 March 2018;

(7)    on 13 March 2018, a delegate of the General Manager of the FWC certified, for the purposes of s 159 of the FWRO Act, that the alterations to the Constitution met the requirements of s 159, and accordingly, they took effect from that date;

(8)    on the same day, pursuant to s 189 of the FWRO Act, prescribed information consistent with the Constitution as amended was lodged by the ASMOF with the ROC. On 3 April 2018, a delegate of the ROC, determined that a further election was now required to be held in accordance with the Constitution as now amended for officers of the ASMOF;

(9)    in the meantime, the AEC commenced the Election for officers under the pre-amendment Constitution, and at various dates between the end of March and early April, declared those offices which had been uncontested for the New South Wales branch, the Western Australian branch, the Queensland Branch, the Victorian Branch, the Tasmanian Branch and the South Australian branch.

8    On 6 April, pursuant to orders made by this Court, the AEC was restrained from taking any further step in the Election and a court of inquiry was convened to be held on 5 June 2018.

APPLICABLE LEGISLATION

9    A member of an organisation registered under the FWRO Act may apply for an inquiry into an alleged irregularity in relation to an election. Section 200(1) of the FWRO Act provides:

If a person who is, or within the preceding period of 12 months has been, a member of an organisation claims that there has been an irregularity in relation to an election for an office in the organisation or a branch of the organisation, the person may make an application for an inquiry by the Federal Court into the matter.

If there are reasonable grounds for such an application, this Court may conduct an inquiry into the alleged irregularity pursuant to s 201 of the FWRO Act, which provides:

Where:

(a)    an application for an inquiry has been lodged with the Federal Court under section 200; and

(b)    the Court is satisfied that there are reasonable grounds for the application;

the Court must fix a time and place for conducting the inquiry, and may give such directions as it considers necessary to ensure that all persons who are or may be justly entitled to appear at the inquiry are notified of the time and place fixed and, where the Court fixes a time and place, the inquiry is taken to have been instituted.

10    The word “irregularity” in relation to an election, is defined in s 6 of the FWRO 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; and

(c)    a contravention of section 190.

11    Section 204 of the FWRO Act gave this Court power to make interim orders, which power, as previously mentioned, I exercised on 6 April 2018. The power to grant final relief at an inquiry is set out in s 206 of the FWRO Act, which provides:

(1)    At an inquiry, the Federal Court must inquire into and determine the question whether an irregularity has happened in relation to the election, and such further questions concerning the conduct and results of the election as the Court considers necessary.

(2)    For the purposes of subsection (1), the Court must determine whether an irregularity has happened on the balance of probabilities.

(3)    In the course of conducting an inquiry, the Court may make such orders (including an order for the recounting of votes) as the Court considers necessary.

(4)    If the Court finds that an irregularity has happened, the Court may, subject to subsection (5), make one or more of the following orders:

(a)    an order declaring the election, or any step in relation to the election, to be void;

(b)    an order declaring a person purporting to have been elected not to have been elected, and declaring another person to have been elected;

(c)    an order directing the Commissioner to make arrangements:

(i)    in the case of an uncompleted election – for a step in relation to the election (including the calling for nominations) to be taken again and for the uncompleted steps in the election to be taken; or

(ii)    in the case of a completed election – for a step in relation to the election (including the calling for nominations) to be taken again or a new election to be held;

(d)    an order (including an order modifying the operation of the rules of the organisation to the extent necessary to enable a new election to be held, a step in relation to an election to be taken again or an uncompleted step in an election to be taken) incidental or supplementary to, or consequential on, any other order under this section.

(5)    The Court must not declare an election, or any step taken in relation to an election, to be void, or declare that a person was not elected, 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.

(6)    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.

12    Section 159 of the FWRO Act, referred to earlier, provides for the certification of alterations made to the rules of a registered organisation. Without certification, the alterations have no legal effect. It relevantly provides:

(1)    An alteration of the rules (other than the eligibility rules) of an organisation does not take effect unless particulars of the alteration have been lodged with the FWC and the General Manager has certified that, in his or her opinion, the alteration:

(a)    complies with, and is not contrary to, this Act, the Fair Work Act, modern awards and enterprise agreements; and

(b)    is not otherwise contrary to law; and

(c)    has been made under the rules of the organisation.

…

(3)    An alteration of rules that has been certified under subsection (1) takes effect on the day of certification.

13    Section 182(1) provides that each registered organisation election is to be conducted by the AEC. It provides:

Each election for an office in an organisation, or branch of an organisation, must be conducted by the AEC. The expenses of conducting such an election are to be borne by the Commonwealth.

14    A registered organisation must lodge with the ROC “prescribed information” for an election to be called. Section 189 of the FWRO Act provides:

(1)    An organisation or branch of an organisation must lodge with the Commissioner the prescribed information in relation to an election that is to be conducted by the AEC.

(2)    The prescribed information must be lodged before the prescribed day or such later day as the Commissioner allows.

(3)    If:

(a)    the prescribed information is lodged with the Commissioner by the organisation or branch (whether or not before the prescribed day or the later day allowed by the Commissioner); and

(b)    the Commissioner is satisfied that an election is required to be held under the rules of the organisation or branch; and

(c)    if the election is not an election for an office – the organisation or branch has made a request under section 187;

the Commissioner must arrange for the conduct of the election by the AEC.

15    Section 193(1) of the FWRO Act is directed at how the AEC is to conduct elections. It provides:

(1)    If an electoral official is conducting an election, or taking a step in relation to an election, for an office or other position in an organisation, or branch of an organisation, the electoral official:

(a)    subject to paragraph (b), must 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; or

(iii)    to ensure the security of ballot papers and envelopes that are     for use, or used, in the election.

16    Section 197 of the FWRO Act imposes an obligation on the AEC to prepare a post-election report and s 198 imposes an obligation on an applicable registered organisation to respond to it.

17    Finally, reg 132 of the Fair Work (Registered Organisations) Regulations 2009 (Cth) provides:

For sections 193, 197 and 198 of the Act, the rules of an organisation or branch are the rules in force on the day nominations for an election open.

18    The AEC relied upon this regulation before me in April as an explanation for why it considered that it was obliged to apply the former rules of the Constitution to the Election. That is because the former rules were in force on the day nominations for the Election opened, namely 1 March 2018.

THE ASMOF CONSTITUTION

19    The pre-amendment Constitution of the ASMOF provided in r 48 for Branch Councils consisting of a Branch President, Branch Vice-President, Branch Secretary and Assistant Secretary/Treasurer and one member of the Council for each 100 members, or part thereof, based on the branch membership. Rule 20 provided for a Federal Executive consisting of a Federal President, Federal Vice President, Federal Secretary and Federal Assistant Secretary/Treasurer together with representatives from each Branch. Rule 19 provided for a Federal Council consisting of delegates from the Branches.

20    The post-amendment Constitution differed from the old in the following two important aspects:

(1)    it introduced new offices. In the case of each Branch Council there is to be now specific representative “Practitioner Type” officers, such as, for example, a representative for “GP Registrars” and for “Specialist Medical Administrator” (see r 57). The type and number of “Practitioner” Councillors, varies between each state and territory. For example, the New South Wales Branch has eight Practitioner Type Branch Councillors. In the case of the Federal Council, two new “Doctor in Training” delegates were added (see r 27);

(2)    it changed the ratio for the number of Branch Councillors to be elected, depending on the state or territory in question. It also changed the number and composition of the Federal Council.

21    As a result of these amendments, the composition of each state Branch Council and the Federal Council will be different from the composition which those bodies had under the prior Constitution. The composition of the Federal Executive would appear not to have changed.

22    Both the pre-amendment and post-amendment Constitution provided for triennial elections. It would appear, in that respect, that the draftsperson or draftspersons of the alterations perhaps assumed that the scheduled 2018 elections would take place under the new rules; an understandable expectation having regard to the history of this matter. That expectation is reflected in r 57(1) which provides:

This rule is to operate for the purposes of the Branch elections, to be held under rule 76(1) of these rules, commencing in 2018.

23    Rule 89 is critical. It addresses the transition from the pre-amendment to the post-amendment Constitution, and is in these terms, which I set out in full:

(1)    The purpose of this rule is to provide for:

(a)    representational changes of each Branch of the Federation;

(b)    the conduct of the first Triennial Elections for the Branch Offices in the year 2018;

(c)    the conduct of the first Triennial Elections for the Federal Offices in the year 2018; and

(d)    other matters of a transitional nature.

(2)    In this rule, unless the contrary intention appears, the following words have the meaning assigned:

(a)    ‘Certification Day’ means the day on which this rule is certified under the Act;

(b)    ‘Branch Declaration Day’ means the date on which the Inaugural Branch Elections are declared in accordance with the Post-Amendment Rules;

(c)    ‘Branch Election Day’ means the day provided by rule 76;

(d)    ‘Branch Officer’ means a person who held an office in a Branch or was a member of a Branch Council of a Branch on the day immediately preceding Certification Day;

(e)    ‘Federal Declaration Day’ means the date on which the Inaugural Federal Election is declared in accordance with the Post-Amendment Rules;

(f)    ‘Federal Election Day’ means the day provided by rule 77;

(g)    ‘Federal Officer’ means a person who held an office on the Federal Executive or the Federal Council on the day immediately preceding Certification Day;

(h)    ‘Inaugural Branch Election’ means the first Triennial Election for the Branch Offices to be conducted in accordance with the Post-Amendment Rule in 2018;

(i)    ‘Inaugural Federal Election’ means the first Triennal Election for the Federal Offices to be conducted in accordance with the Post-Amendment Rule rules in 2018;

(j)    ‘Post-Amendment Rules’ means the rules of the Federation on the day immediately following Certification Day, other than this transitional rule;

(k)    ‘Pre-Amendment Rules’ means the rules of the Federation on the day immediately preceding Certification Day;

(l)    ‘Transitional Rule’ means this rule 89.

(3)    This Transitional Rule will:

(a)    apply on, and from, Certification Day notwithstanding other provisions of the Pre­Amendment Rules or the Post-Amendment Rules;

(b)    prevail to the extent of an inconsistency with the Pre-Amendment Rules or the Post-Amendment Rules; and

(c)    provide for the conduct of the Inaugural Branch Election and the Inaugural Federal Election.

(4)    The election for the officers who will take office following, respectively, the Inaugural Branch Election and the Inaugural Federal Election, will be conducted:

(a)    by an electoral officer from the Australian Electoral Commission; and

(b)    in accordance with the Post-Amendment Rules and this Transitional Rule.

(5)    For the purposes of the Inaugural Branch Election the offices to be elected are the:

(a)    Branch President;

(b)    Branch Vice-President;

(c)    Branch Secretary;

(d)    Branch Assistant Secretary/Treasurer;

(e)    Branch Councillors representing Practitioner Types.

(6)    For the purposes of the Inaugural Federal Election the offices to be elected are the:

(a)    Federal President;

(b)    Federal Vice-President;

(c)    Federal Secretary;

(d)    Federal Assistant Secretary/Treasurer;

(e)    Federal Council Delegates representing each Branch; and

(f)    Federal Council Delegates representing Doctors in Training.

(7)    On Branch Declaration Day, those officers to take office are the:

(a)    Branch President;

(b)    Branch Vice-President;

(c)    Branch Secretary;

(d)    Branch Assistant Secretary/Treasurer;

(e)    Branch Councillors representing Practitioner Types.

(8)    Following the Federal Election Day, those officers to take office are the:

(a)    Federal President;

(b)    Federal Vice-President;

(c)    Federal Secretary; and

(d)    Federal Assistant Secretary/Treasurer;

(e)    Federal Council Delegates representing each Branch; and

(f)    Federal Council Delegates representing Doctors in Training.

(9)    The persons who held office as Branch Officers on the day following Certification Day continue to hold office in accordance with this rule.

(10)    The persons who held office as Federal Officers on the day following Certification Day continue to hold office in accordance with this rule.

(11)    The persons who held office as Branch Officers on the day preceding Branch Declaration Day cease to hold office on Branch Declaration Day and the officers referred to in sub­rule (7) will, if declared elected, immediately take office.

(12)    A person holding a Federal Office on the day immediately preceding Branch Declaration Day, who ceases to hold a Branch Office in accordance with sub-rule (11), will continue to hold their Federal Office subject to sub-rule (13).

(13)    The persons who held office as Federal Officers on the day preceding Federal Declaration Day cease to hold office on Federal Declaration Day and the officers referred to in sub­rule (8) will, if declared elected, immediately take office.

(14)    Despite the Pre-Amendment Rules, the Branch Officers will (subject to this rule) on, and from, Certification Day exercise their powers, perform their duties and discharge their obligations under the Post-Amendment Rules.

(15)    Despite the Pre-Amendment Rules, the Federal Officers will (subject to this rule) on, and from, Certification Day exercise their powers, perform their duties and discharge their obligations under the Post-Amendment Rules.

24    The following aspects of r 89 are noteworthy. Rule 89:

(1)    prevails over the pre-amendment and post-amendment rules “to the extent of an inconsistency”;

(2)    came into force on 13 March 2018, being the Certification Day;

(3)    requires the pre-existing Branch and Federal officers to “continue to hold office” until “Branch Declaration Day” or “Federal Declaration Day” respectively, being the date when the first triennial election conducted pursuant to the post-amendment Constitution in 2018 is declared, and in turn;

(a)    provides for the newly-elected officers immediately to take office on Branch Declaration Day or Federal Declaration Day (whichever applies); and

(b)    requires newly-elected officers to “exercise their powers, perform their duties and discharge their obligations under the Post-Amendment rules.”

MEANING OF “IRREGULARITY”

25    I make the following observations about the definition of “irregularity” in s 6 of the FWRO Act:

(1)    first, the definition is inclusive;

(10)    secondly, analysis of this word usually commences with a consideration of R v Gray; Ex parte Marsh (1985) 157 CLR 351, a case concerning former s 159(1) of the Conciliation and Arbitration Act 1904 (Cth) which, like s 206 here, permitted a court of inquiry to be convened where there had been “an irregularity in or in connection with an election.” Gibbs CJ said at 367 - 368:

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.

(11)    thirdly, the ordinary meaning of the word can also refer to that which is anomalous or abnormal. As Northrop J said in Re Federated Liquor and Allied Industries Employees’ Union of Australia; Ex parte Huxtable [1979] FCA 17; 40 FLR 418 at 424:

The word “irregularity” is defined in the Shorter Oxford Dictionary (23rd ed. 1972 reprint) as “the quality or state of being irregular; something that is irregular”. In the same dictionary, the word “irregular” is defined in relation to things as “not in conformity with rule or principle, contrary to rule; disorderly in action or conduct, anomalous, abnormal”.

Whilst the word “irregularity” can in its ordinary meaning include that which is anomalous or abnormal, in my view, in its statutory context, the ordinary meaning is probably confined in the way described by Gibbs CJ above. The use, by his Honour, of the phrase “in its relevant sense” to qualify the dictionary meanings of the term “irregularity”, suggests that other meanings that word may denote are not relevant in the statutory context of elections;

(12)    fourthly, in its statutory context, the word “irregularity” does not extend to every breach of an organisation’s rules. The irregularity must be “in relation to” an election (s 206). There must be a breach of those rules governing the conduct of an election. As Toohey and McHugh JJ said in Re Collins; Ex parte Hockings (1989) 167 CLR 522 at 526:

While any breach of the rules of an organization may constitute an irregularity in terms of the definition, not any breach will give rise to an “irregularity in or in connection with [an] election”, the phrase used in Pt IX of the [Conciliation and Arbitration Act 1904 (Cth) (the “Act”)]: see ss. 159(1), 160(1)(a), 165(1). In Reg. v. Gray; Ex parte Marsh [(1985) 157 CLR 351, at p. 368] Gibbs C.J. noted: “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.” That is because the Court is concerned, under Pt IX of the Act, with an irregularity in or in connexion with an election; it is not that “irregularity” is itself so circumscribed. Furthermore, the Court is constrained, by s. 165(4), from declaring an election void unless of the opinion that “having regard to the irregularity found, and any circumstances giving rise to a likelihood that similar irregularities may have occurred or may occur, the result of the election may have been affected, or may be affected, by irregularities”. Conduct which constitutes a breach of the rules of an organization but which goes no further than supporting the candidature of members of a particular “team” amounts to an irregularity but it does not give rise to an irregularity in or in connection with an election because it does not involve a departure from some rule, practice or principle governing the conduct of the election.

(13)    fifthly, the irregularity must be of a kind that has affected, or may affect, the result of an election: see s 206(5) of the FWRO Act. As Siopis J said in Clancy, in the matter of an application for an inquiry in relation to an election for offices in the Australian Nursing and Midwifery Federation [2017] FCA 460 at [26]:

It follows that it is incumbent on an applicant under s 200 of the FW(RO) Act, to satisfy the Court not only that the claim that the irregularity occurred is based on reasonable grounds, but also that there are reasonable grounds to support the making of an order of the kind referred to in s 206(4) of the FW(RO) Act. In other words, in respect of a completed election, such as in this case, that the result of the election may have been affected by the claimed irregularity, if established.

In my view, the foregoing observation probably applies to both completed and incomplete elections.

MEANING OF “RULES”

26    A more difficult issue is whether the reference to the “rules of an organisation” in the definition of “irregularity” refers to the rules applicable from time to time or, as the applicant put it, the rules in force at the time of the alleged irregularity. Absent reg 132, supra, that submission would be accepted. It would make no sense to apply any different set of rules applicable at an earlier date or in the future. However, reg 132 purports to fix upon a version of the rules applicable at a particular date for the purposes of ss 193, 197 and 198 of the FWRO Act. Section 193, it will be recalled, empowers the AEC to give directions to ensure that no “irregularities” occur in relation to an election. Regulation 132 was purportedly authorised by s 359(1) of the FWRO which provides:

The Governor General may make regulations prescribing all matters:

(a)    required or permitted by this Act to be prescribed; or

(b)    necessary or convenient to be prescribed for carrying out or giving effect to this Act.

27    The applicant did not submit that reg 132 was not authorised by the terms of s 359. Rather, the applicant submitted that reg 132 did not apply to the definition of “irregularity” in s 6. That submission should be accepted. In my view, reg 132 is intentionally confined to three particular provisions of the FWRO Act which concern the functions and responsibilities of the AEC in relation to the conduct of election. It does not refer to s 200 or to s 206. It also does not refer to other provisions in the FWRO Act which deploy the word “irregularity”, such as s 332 which addresses irregularities set out in a report of an auditor. By its terms, it is limited to the three provisions it identifies.

28    There may be no necessary practical disconformity between the construction of the phrase “rules of an organisation” in the definition of “irregularity” and the use of that word in ss 193, 197 and 198, as altered by the operation of reg 132. In the ordinary course of events, the version of the Constitution to be applied by the AEC in conducting an election would be the same as the one in existence on the day nominations for that election opened. The circumstances of this case were not, inferentially, predicted by the draftsperson of reg 132. But where, as here, there is a difference between the Constitution in existence on that day, and the Constitution applicable thereafter for the purposes of conducting the election, reg 132 will have the effect of directing the AEC to apply the former version of the Constitution for the purposes of ss 193, 197 and 198. But, reg 132 has no greater reach than this and does not bind this Court for the purposes of ss 200 and 206.

29    It is, accordingly, unnecessary for me to consider whether s 359 authorised reg 132, or whether, reg 132 by its terms, could act as an effective amendment to the definition of “irregularity” in s 6: cf Morton v Union Steamship Co of New Zealand Ltd (1951) 83 CLR 402. In that respect, s 359 is not drafted as a “Henry VIII” clause. It does not authorise the making of regulations which might potentially expand the operation of the primary Act.

DISPOSITION

30    If the reference to “rules of organisation” is a reference to the rules applicable at the time of the alleged irregularity, then, in my view, there is here an irregularity, in the defined sense. The Election, which had been commenced, was taking place in accordance with the rules in the pre-amendment Constitution. In my view, that constituted a breach of the new rules in force since 13 March 2018. That is because the Election failed to provide for the election of the new Practitioner Type officers, and failed to apply the new ratio for determining the number of Councillors. That irregularity would be one “in relation to” an election and may have affected the result of that election, in the sense required by s 206(5), if it had proceeded.

31    I am also satisfied that holding an election pursuant to the pre-amendment Constitution constituted a breach of r 89. Rule 89, in my opinion, required the preservation of the existing Federal and Branch offices pending completion of an “Inaugural Federal Election” and “Inaugural Branch Election”, being in each case the “first triennial election ... to be conducted in accordance with the Post-Amendment Rules in 2018.” Upon completion of that election, called the “Federal Election Day” and “Branch Election Day”, r 89 specifies that the former officers were to cease to hold their respective offices, and newly-elected officers were “immediately” to take office. Holding an election in 2018 in accordance with the pre-amendment Constitution is a breach of this transitory scheme and thus an “irregularity” for the purposes of ss 200 and 206 of the FWRO Act. Rule 89 does not permit, by its terms, the holding of a further election in accordance with the pre-amendment Constitution, prior to the “first triennial election ... to be conducted in accordance with the Post-Amendment Rules in 2018.” Again, I find that this irregularity is “in relation to” an election and may have affected the result of that election, if it had proceeded to completion.

32    If the “rules of an organisation” in the definition of “irregularity” refer to the version of the Constitution applicable when nominations opened in accordance with reg 132, I am also of the view that holding the Election in accordance with those rules constituted an “irregularity” for the purposes of ss 200 and 206. And that is so, even though, on this basis, there has been no breach of the “rules” for the purposes of the definition of “irregularity”. In that respect, the applicant put his case in several ways. It was first submitted that holding such an election would involve a departure from a “generally accepted principle governing the conduct of an election”, to use the words of Gibbs CJ. As the appellant submitted in writing:

Something has gone awry in the electoral process if Voter A casts a vote in support of the election of Person B to office C, yet because of a change in rules Person B cannot take up office C. Here, the transitional rule in the Post-Amendment Rules does not allow a person who did not hold office on 13 March 2018 to assume office otherwise than following an election held under the Post-Amendment Rules.

An irregularity has happened, because the outcome for which people nominated and for which people may vote can no longer come to pass. What was intended to be a meaningful process with consequences for the democratic governance of the registered organisation can no longer have those consequences. Chapter 7 of the [FW]RO Act is entitled “[d]emocratic control”; the present election cannot give effect to the concept and purpose embedded in that heading. This, returning to the meaning of irregularity set out in paragraph 30 above, is a departure from established practice or generally accepted principle governing the conduct of an election.

I respectfully agree with that submission. Even if, by reason of reg 132, the “rules” in the definition of “irregularity” comprise the pre-amendment Constitution, that could not undo the fact that the post-amendment Constitution, including r 89, was in existence and applicable as at the time of the Election. And whilst it is not entirely clear to me how one establishes what is, or is not, a “generally accepted principle governing the conduct of an election”, whether it be by admissible evidence or judicial notice or logic, here, I can be confident from statutory context and purpose that it is a generally accepted principle governing elections under the FWRO Act that voters be able to cast votes for positions of office which exist. In that respect the applicant relied upon the heading to Ch 7 of the FWRO Act which is in these terms: “Democratic Control”. A surer guide, however, is s 5(3) of that Act which provides:

The standards set out in this Act:

(a)    ensure that employer and employee organisations registered under this Act are representative of and accountable to their members, and are able to operate effectively; and

(b)    encourage members to participate in the affairs of organisations to which they belong; and

(c)    encourage the efficient management of organisations and high standards of accountability of organisations to their members; and

(d)    provide for the democratic functioning and control of organisations; and

(e)    facilitate the registration of a diverse range of employer and employee organisations.

(my emphasis)

33    An election held which does not permit votes to be cast in relation to positions which exist (such as the Practitioner Types), or which did not apply the correct rule for determining the number of representatives (here Councillors) would be inconsistent with s 5(3); such an election would not provide for the “democratic functioning and control of organisations”: s 5(3)(d). Whilst the concept of a democracy may be descriptive of a “whole spectrum of political institutions, each differing in countless respects” it nonetheless answers to a “generic description”: Attorney-General (Cth); Ex rel Mckinlay v Commonwealth (1975) 135 CLR 1 at [57] per Stephen J. Stephen J gave content to that “generic description” in these terms at [56]:

The principle of representative democracy does indeed predicate the enfranchisement of electors, the existence of an electoral system capable of giving effect to their selection of representatives and the bestowal of legislative functions upon the representatives thus selected.

34    In my view, it is a “generally accepted principle governing the conduct of an election”, both generally and for the purposes of the FWRO Act, that it be one “capable of giving effect to” the selection of representatives in accordance with an applicable constitution. The election commenced by the AEC was not “capable of giving effect to” a selection of representatives for the ASMOF in accordance with its applicable Constitution at that time, even if it could be said by reason of reg 132, that the ASMOF was not in breach of its rules of the purposes of the definition of “irregularity”. It follows that conducting an election on those terms constituted an irregularity for the purposes of ss 200 and 206. I also find that this is an irregularity “in relation to” an election and that it may have affected the result of the Election here, in the sense required by s 206(5), if it had proceeded to completion.

35    The applicant further submitted that there were irregularities because:

(1)    there was confusion arising from the existence of two potential and different Constitutions; and

(2)    unless I granted relief, two elections would coincide which could not be reconciled with each other.

36    As I have accepted the applicant’s earlier submissions it is unnecessary for me to consider these alternative contentions. I accordingly order the relief sought by the applicant.

37    I finally add that nothing I have said in my reasons for decision should be taken as a criticism of any of the parties, in particular the AEC. This inquiry was a product of events, and their timing, neither of which the parties could sufficiently control.

Associate:

Dated:    21 June 2018