FEDERAL COURT OF AUSTRALIA

INDUSTRIAL LAW - election inquiry - nomination lodged was defective under the rules - notice given of defect - defect remedied within time specified - nomination rejection based on unfinanciality at close of nominations - proper construction and application of rules - unfinanciality should be determined at the expiration of time specified in notice.

Workplace Relations Act 1996 ss 196, 197, 218, 219

Conciliation and Arbitration Regulations  reg146AE(2)

Acts Interpretation Act 1901 (Cth) s15AB

Re Election for Office in Australian Building Construction Employees and Builders Labourers Federation (1978) 30 FLR 252, considered

Re Application by Shahid Naqvi (J B Sweeney J, 26 March 1981, unreported), considered

Re Australasian Meat Industry Employees Union (Keely J, 19 July 1988, unreported), not followed

Re Hall (1994) 58 IR 19, not followed

Mills v Dunham (1891) 1 Ch 576, cited

Amalgamated Society of Engineers v Smith (1913) 16 CLR 537, cited

R v Holmes; ex parte Public Service Association of New South Wales (1977) 140 CLR 63, applied

Re An Election in the Australian Colleries’ Staff Association (NSW Branch) (1990) 26 FCR 499, applied

Re Election for Office in Transport Workers Union of Australia, Western Australian Branch (1992) 40 IR 245, applied

Re Carter; Re Federated Clerks Union of Australia, Victorian Branch (No. 1) (1989) 32 IR 1, applied

Re Kiely; ex parte Transport Workers Union (1992) 42 IR 1, applied

Lovell v Federated Liquor and Allied Industries Employees’ Union of Australia (1978) 22 ALR 704, applied

AUSTRALIAN ELECTORAL COMMISSION v DAVID HICKSON and AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION and PAUL BASTIAN

No NG 701 of 1997

NORTHROP ACJ, BRANSON and MARSHALL JJ

MELBOURNE

5 NOVEMBER 1997

REASONS FOR JUDGMENT

NORTHROP ACJ

The matter before the Court involves the proper construction and application of the Rules of the Food, Metals, Engineering, Printing and Kindred Union (“the AMWU”). The AMWU is an organisation of employees under the Workplace Relations Act 1996 (“the Act”). In conformity with Part IX of the Act, the affairs of the AMWU are conducted under Rules made by the AMWU. A reference to ss 195, 196, 197, 198 and 199 of the Act illustrates provisions which may or must be included in the rules of an organisation but it must be remembered that the rules of an organisation are made by the organisation itself. As a result, the rules of organisations are in many different forms. Section 196 is of importance. The section is set out:-

“196.   The rules of an organisation:

            (a)        shall not be contrary to, or fail to make a provision required by, this Act or an award or certified agreement, or otherwise be contrary to law;

            (b)        shall not be such as to prevent or hinder members of the organisation from:

                        (i)         observing the law or the provisions of an award, an order of the Commission or a certified agreement; or

                        (ii)        entering into written agreements under an award, an order of the Commission or a certified agreement; and

            (c)        shall not impose on applicants for membership, or members, of the organisation, conditions, obligations or restrictions that, having regard to the objects of this Act and the purposes oppressive, unreasonable or unjust.”

Under s 208 a member of an organisation may apply to the Federal Court for an order that the whole or a part of a rule of an organisation contravenes s 196 or that the rules of an organisation contravene s 196 in a particular respect. The matter before the Court does not involve an application under s 208.

In other types of proceedings before the Court, questions may arise as to whether the whole or a part of a rule of an organisation contravenes s 196 or that the rules of an organisation contravene s 196 in a particular respect.

In an application under s 196, or in another type of proceeding where the same question arises, the Court is required to consider whether there is a contravention of s 196. This involves a consideration of the relevant statutory requirement, a consideration of the relevant rules and a determination of whether the rules, as properly construed, contravene the relevant statutory requirement, as properly construed, and a determination of the question. Appropriate orders are then made.

This limited exegesis has been necessary since the appellant’s submissions were based on a misunderstanding of the nature of Part IX of the Act, the nature of Rules and the nature of the proceedings before the Court. Further, the proceeding before the Court was not commenced in conformity with the provisions of the Act, the Workplace Relations Regulations (“the Regulations”) or the Rules of Court. Reference will be made to these matters later in these reasons. At this stage it is sufficient to say that as a result difficulties and confusions arose which made difficult what is, in essence, a short and simple matter.

The matter before the Court involves an inquiry under s 218 of the Act into an election of officers within the AMWU. Sections 197, 198 and 199 specify many provisions relating to the election of officers within an organisation. It is not necessary to refer to these provisions in detail. It is sufficient to say that the provisions require that the rules provide for the election of officers, provide for the conduct of each election, including the acceptance or rejection of nominations, by a returning officer (s 197(1)(b)), and provide for the manner in which persons may become candidates for election, the duties of returning officers and the declaration of the result of an election (s 197(1)(d)). The Rules of the AMWU make provision for all of these matters. There is no suggestion that these provisions of the Rules of the AMWU contravene s 196 in any way.

The confusion and misunderstanding arise from the effect of s 197(1)(c) and (4). Those provisions are set out:-

“197    (1)        The rules of an organisation:

                        (a)        ......

                        ......

                        (c)        shall provide that, if the returning officer conducting an election finds a nomination to be defective, the returning officer shall, before rejecting the nomination, notify the person concerned of the defect and, where practicable, give the person the opportunity of remedying the defect within such period as is applicable under the rules, which shall, where practicable, be not less than 7 days after the person is notified;

                        (d)        ......

            (4)        The reference in paragraph (1)(c) to a nomination being defective does not include a reference to a nomination of a person that is defective because the person is not qualified to hold the office to which the nomination relates.”

Rule 2 of the Rules of the AMWU is headed “Elections and Voting”. Part A of Rule 2 applies to the election to specified offices within the organisation including the office of State Secretary. The inquiry in this matter relates to the election of the State Secretary NSW. At the centre of the inquiry is the proper construction and application of Sub-rules 10 and 11. They appear to have been included in the Rules of the AMWU in order that the Rules comply with the requirements of s 197(1)(c) of the Act. The two rules are set out in full:-

“10.     Where the Returning Officer finds a document purporting to be a nomination of a person as a candidate at an election under this rule is defective, the Returning Officer shall:-

            (a)        notify the person by notice in writing sent by telegram, facsimile or other means whereby the notice can be delivered to the candidate as soon as practicable of particulars of the defect or defects; and

            (b)        advise him/her that if he/she remedies the defect or defects he/she should so advise the Returning Officer by notice in writing forwarded to the Returning Officer at the place determined by him/her under this rule so as to reach him/her no later than 7 days after the date of sending the notice referred to in the previous paragraph.

11.       (a)        Where at the expiration of the closing date for lodging nominations or, in the case where the Returning Officer has under sub-rule (10) notified a person of particulars of a defect or defects in his/her nomination as a candidate, at the expiration of seven days after the sending of the notice referred to in paragraph (10)(a), only one candidate is nominated for election to the office, the Returning Officer shall declare that candidate elected unopposed to the office by issuing a statement in writing to the National Council or State Council as the case may be to this effect.

            (b)        Subject to paragraph (a), the Returning Officer shall conduct a secret postal ballot for the office in accordance with the succeeding provisions of this rule and may, subject to the rule, give such directions and take such action as he/she considers necessary for ensuring the secrecy of the ballot and for ensuring that no irregularities occur in or in connection with the ballot.”

One fact is clear. No one has suggested that either Sub-rule 10 or Sub-rule 11 is invalid.  No one has suggested that the Rules of the AMWU fail to make the provision required by s 197(1)(c) and (4) of the Act. As a result, the Court is required to consider the proper construction of Sub-rules 10 and 11. A reference to and consideration of s 197(1)(c) and (4) of the Act will not assist in the construction of the sub-rules. The sub-rules must be construed having regard to their terms and their context within the Rules of AMWU.

Before turning to the relevant facts, it is necessary to make reference to the provisions of the Act and the rules relating to elections. Division 4 of Part IX of the Act is headed “Conduct of elections for office”.  The provisions in this Division make it clear that normally elections for office in an organisation are to be conducted by the Australian Electoral Commission.  Under s 214 the Registrar of the Australian Industrial Relations Commission is required to arrange for the conduct of the election by the Australian Electoral Commission.  In the present case, on 2 January, a Deputy Industrial Registrar made a decision under s 214 of the Act directing an election to fill offices within the AMWU, including the office of State Secretary, NSW, to be conducted by the Australian Electoral Commission and directed that the Commission make the necessary arrangements. That Commission is established under s 6 of the Commonwealth Electoral Act 1918.  The Commission is not a body corporate.  One of its functions is to perform such other functions as are conferred on it by or under any law of the Commonwealth; s 7(1)(3).  One such function is conferred upon the Commission by s 210 of the Act. In conducting an election under s 210, the Commission appoints an electoral officer, as defined in s 4 of the Act, to conduct the election.  This is made clear by s 215 of the Act.  In the present case, by instrument dated 2 January 1997, the State Director for the Australian Electoral Officer for NSW appointed Lee Jones, a member of the staff of the Commission, to conduct the election.  The appointment was said to be under s 214 of the Act.  The appointment was to conduct the ballots in the election including the ballot for the office of State Secretary NSW.  Mr Jones is an electoral official under the Act.  This is important since, by reason of s 215 of the Act, when he is conducting the election he must comply with the rules of the AMWU.  In other words, by reason of this provision, in conducting the election Mr Jones was required to comply with the Rules of the AMWU.  This position is recognised by the Rules of the AMWU.  Rule 2, Part A sub-rule 2 provides that a reference in Part A to the State Returning Officer is to be read as a reference to the person appointed by the Australian Electoral Officer for the purpose of conducting a ballot in accordance with the provisions of the Rules.  As a result, in the matter before the Court, Mr Jones is the returning officer for the elections, and is under a duty to comply with the Rules.

Under Sub-rule 4(a) the State Returning Officer, once every four years, must conduct an election for a number of offices including the office of State Secretary. In conformity with Sub-rules 9 and 12, Mr Jones determined the crucial dates for the election. The dates included the time for advertisements for nominations, the date nominations opened (3 February 1997) the date nominations closed (4 March 1997 at 12 noon), the date the ballot, if necessary, opened (28 April 1997) and the date any ballot closed (20 May 1997 at 10.00 am). Under this timetable, by reason of Sub-rule 12(y) the person elected to the office of State Secretary would have taken up office on 1 July 1997.

The respondent David Hickson nominated as a candidate for the office of State Secretary, NSW.  He was qualified to hold that office in that he satisfied the requirements of Sub-rule 4(b).  Under Sub-rule 4(e), ten nominators were required for the nomination of a candidate to the office of State Secretary.  That sub-rule relates to nominations, not to the qualification of a person to hold office.

Under Sub-rule 8, a nomination had to be in writing in a form described in the Rules.  In conformity with the Rules, Mr Hickson delivered a nomination form to the Returning Office before 12 noon on 4 March 1997 in which he was named as a candidate for the office of State Secretary, NSW. The nomination was signed by ten nominators as required by Sub-rule 4(e).  One of the 10 nominators was Mr Mark A O’Brien. Sub-rule 8(d) provided that a nominator of a candidate for an office, including State Secretary, had to be a financial member of the AMWU at the closing date for lodging nominations.  In the present case this was 12 noon on 4 March 1997.  From information received, the Returning Officer, to use a neutral term, formed the opinion that Mr O’Brien, although a relevant member of the AMWU, was not a financial member on 4 March 1997, the day nominations closed. As a result, he formed the opinion that the nomination of Mr Hickson as a candidate for the office of State Secretary NSW was not in conformity with the Rules and in particular with Sub-rule 8(d).

In purported compliance with Sub-rule 10, by notice in writing dated 5 March 1997, the Returning Officer wrote to Mr Hickson as follows:-

“Your nomination for the office of State Secretary is defective as the organisation’s records show that one of your nominators, Mark O’Brien, is not a financial member of the Union as required by the rules of the organisation.

Unless you can produce evidence to the contrary by not later than 12 Noon on 12 March 1997, I will be obliged to reject your nomination.”

In the events which happened, it is not necessary to determine whether this notice complies with the obligation imposed on the Returning Officer by Sub-rule 10.  In view of the opinion of the Returning Officer, he should have advised Mr Hickson that if he remedied the defect he should so advise him within 7 days.  To adapt the provisions of the sub-rule to the facts of this case, Sub-rule 10 provides:-

“10      Where the Returning Officer finds a ...... nomination of a person as a candidate at an election under this rule is defective, the Returning Officer shall:-

(a)       notify (the candidate) by notice in writing ......... of particulars of the defect or defects; and

(b)       advise (the candidate) that if he remedies the defect or defects he should so advise the Returning Officer in writing .......... no later than 7 days after the sending of the notice .........”

On receipt of the notice, Mr Hickson did a number of things which need not be referred to in detail.  By letter dated 11 March 1997 he claimed that Mr O’Brien was a financial member on 4 March and provided material to support that claim; he forwarded a further nomination form signed by a financial member, and he enclosed a letter from Mr O’Brien in which Mr O’Brien claimed he was financial.  On 7 March 1997 Mr O’Brien paid what were claimed to be arrears in his dues.  Mr Hickson did not notify the Returning Officer that the “defect” referred to in the notice had been remedied by Mr O’Brien paying the arrears within the 7 day period. It is clear, however, that the Returning Officer knew the dues had been paid.  No issue was raised regarding the strict non-compliance by Mr Hickson with Sub-rule 10(b).

The Returning Officer rejected the nomination of Mr Hickson as a candidate for the office of State Secretary NSW.  By a letter to Mr Hickson dated 18 March 1997, he explained his reasons:-

“I have rejected your nomination for the office of State Secretary as your nominator, Mr Mark O’Brien, was not a financial member of the Union, as required by the rules of the organisation, at the time of the close of nominations.

A nomination which is defective for the above reason can only be remedied if the ‘unfinancial’ nominator is proved to have been financial at the close of nominations. It can not be remedied after the close of nominations by having the nominator becoming financial or by substituting the nominator with another member who is financial.

Although Mr O’Brien appears to have paid his outstanding dues on 7 March 1997, this does not change his financial status at 4 March 1997 which was the date of the close of nominations. Mr O’Brien’s financial status at 4 March can not be altered retrospectively.

I note that you have also supplied me with a second nomination form which has been signed by a further nominator, Robin Rahill. As advised above an unfinancial member can not be replaced by a new nominator.”

The Returning Officer had received two nominations only for the office of State Secretary NSW namely from Mr Hickson and Mr Paul Bastian. At that time Mr Bastian was the acting State Secretary NSW.  Upon rejecting the nomination of Mr Hickson, on 18 March 1997, pursuant to Sub-rule 11(a) the Returning Officer declared Mr Bastian elected unopposed to the office of State Secretary NSW by issuing a statement in writing to the State Council.

Section 218 of the Act enables a person, being a member of an organisation who claims that there has been an irregularity in relation to an election for an office in an organisation, to make an application for an inquiry by the Court into the matter.  In this section, the word “irregularity” is to be given its ordinary meaning but by definition contained in s 4 of the Act, “irregularity” includes, among other meanings, “a breach of the rules of an organisation”. In the present case, the Returning Officer is under a duty to comply with the Rules of the AMWU. If he wrongfully rejected a valid nomination, that action could constitute an irregularity within the inclusive meaning of that word in the Act.  Likewise, if he wrongfully accepted an invalid nomination, that action could constitute an irregularity. This aspect will be mentioned further later in these reasons.  Likewise, if he wrongfully declared a candidate elected unopposed, that action could constitute an irregularity.

Section 219 of the Act is of importance. The section prescribes the method by which an application for an inquiry is to be instituted.  On one view, no valid inquiry was instituted by Mr Hickson.  Section 219 is set out:-

“219    Where:

            (a)        an application for an inquiry has been lodged with the Court under section 218; and

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

            the Court shall 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 shall be taken to have been instituted.”

It is noted that an inquiry is instituted after the Court is satisfied there is reasonable ground for the application. This requirement is designed to prevent spurious applications. It is noted that the Court determines who should be given notice of the application.

At the time the application in this case was issued on 1 April 1997, O 48 of the Industrial Relations Court Rules regulated the procedures to be followed with respect to inquiries under, among other provisions, s 218 of the Act.  Order 48 r 2 provided that applications under s 218 were to be in accordance with the form prescribed by Regulation 62 of the Industrial Relations Regulations, now called the Workplace Relations Regulations.  They are in the same form. Regulation 62 imposes time limits on the commencement of applications for an inquiry under s 218 and provides that the application shall be in accordance with Form 4 of the Regulations and shall be accompanied by a statutory declaration made by the applicant verifying the facts set out in the application.  Form 4 is not a Court document. It does not specify the naming of parties.  It requires the applicant to be named and certain other information to be included.  It is a document to be put before the Court to enable the Court to determine whether an application for an inquiry under s 218 should be instituted.  In the present case, no application under Regulation 62 or Form 4 was made.  No statutory declaration or affidavit was made.  The Court did not fix a time and place for conducting the inquiry.  The Court did not give directions to ensure all persons who were or may have been justly entitled to appear at the inquiry be given notice of the inquiry.

In the present case, an application for an inquiry dated 1 April 1997 was issued on 4 April in the Industrial Relations Court of Australia, but has been transferred to the Federal Court.  This application was a Court document issued in conformity with O 4 and Form 5 of the Court Rules.  It named Mr Hickson as applicant and Mr Jones and Mr Bastian as respondents.  It gave notice that a directions hearing on the application would be heard by the Court on 10 April 1997 and that if the respondents did not appear judgment might be given in their absence.

The Court does not take any action on this matter.  It was a procedure which hindered the proper consideration of the application and to some extent led to confusion.  It is important that the proper procedures for an election inquiry should be followed.  The procedures could affect the entitlement of an application for costs to be paid by the Commonwealth.  Reference should be made to the Act for provisions relating to costs of an inquiry into an election.  Generally see s 342 and in particular s 342(1), s 342(2)(d) and (f) and s 343(1).  In addition s 346 and s 347 may be relevant.

In the event, the persons named in the application appear to be the proper persons to appear at the inquiry.  It is not clear what happened thereafter.  At the request of the parties, the Australian Electoral Commission was substituted for Mr Jones.  There was no justification for this. The Returning Officer was the proper party. He was bound by the Rules of the AMWU.  The Commission is not a corporation.  Further, the AMWU was added as a party and was represented by senior counsel. It is difficult to see any valid reason for the organisation being made a party.  Normally the organisation should not be made a party to the inquiry; generally see s 219, s 222 and s 209(6) and (7) of the Act.  In proceedings under s 208 and 209(7) the organisation should be a party.  The issue was between the two candidates for the one position.  At the inquiry Mr Bastian was represented by a solicitor who, the Full Court was informed, was a member of the firm of solicitors instructing counsel for the organisation.

The Returning Officer had to be a party to assist the Court and to be bound by any order made by the Court. The Court could not make orders against the organisation.

At the inquiry, Mr Hickson sought to establish three irregularities based on three different grounds:

1.         His nomination was valid in that at the date of the closing of nominations Mr O’Brien was in fact a financial member.

2.         If Mr O’Brien was an unfinancial member at that date, this constituted a defect or deficiency which was remedied within the 7 day period as provided in Sub-rules 10 and 11.

3.         That Sub-rules 4(e) and 8(d) offended s 196(c) of the Act and thus could not be relied upon to render the nomination invalid.

At the inquiry, the Court found the ground referred to in (2) had been established and as a result did not consider the grounds referred to in (1) and (3). The Court determined that two irregularities had occurred being the wrongful rejection of the nomination of Mr Hickson and the wrongful declaration that Mr Bastian had been elected unopposed.  There could be no doubt that these irregularities affected the election to the office of State Secretary NSW; generally see s 223 of the Act and in particular s 223(4).  As a result on 19 August 1997 the Court declared the rejection of the nomination and the declaration to office were each void.  The Court directed that the Industrial Registrar make arrangements for an election to that office at which Mr Hickson and Mr Bastian were to be the candidates and directed times for the ballot to be conducted.  The Court ordered further that Mr Bastian continue to act as State Secretary NSW until the declaration of the ballot.  On 25 August 1997, pursuant to s 421 of the Act, the Court granted leave to the Australian Electoral Commission to appeal against the orders of 19 August 1997.  The notice of appeal was filed on 1 September 1997.

On the hearing of the appeal, that Commission appeared by Counsel, Mr Hickson appeared by Counsel and the AMWU appeared by Counsel.  Mr Bastian did not appear.  The AMWU supported and added to the submissions made on behalf of the Australian Electoral Commission.  The issue before the Court was the proper construction and application of Sub-rules 10 and 11 and their application to ground 2 only.  The other grounds were not argued on the appeal.

Sub-rule 10 comes into operation where the Returning Officer “finds a ...... nomination of a person as a candidate - is defective”. This constitutes a condition precedent to the performance of the obligation imposed on the Returning Officer by Sub-rule 10.  Here the Returning Officer made such a finding but having regard to the submissions made at the hearing, this matter should be discussed further.  In the condition precedent the word “find” is not used in the sense of finding something that had been lost.  The word is used in the sense of making a determination or forming an opinion, like a jury finding an accused person guilty or not guilty, or a Court finding facts.  Here the finding is that the nomination is defective. Normally the defect which makes the nomination defective is of a kind which, in the opinion of the Returning Officer, justifies the rejection of the nomination.  In other words the Returning Officer determines that the nomination is invalid or ineffective. The words “defect” and “defective” are in common use.  In its content in Sub-rule 10 the word “defect” is to be given its normal meaning of a lack or absence of something essential or necessary to completeness.  There is no need to qualify the word “defect” by any adjective such as “serious”, “formal” or even “fundamentally flawed”.  The only requirement is that the Returning Officer would, because of the defect, reject the nomination.  Here, the Returning Officer has said he would do that.  Implicit in this is that the nomination was not rejected on 4 March 1997.

Having formed such an opinion, the Returning Officer must follow the procedure prescribed in Sub-rule 10.  The purpose of the Sub-rule is obvious.  If the defect can be remedied, the result is that nomination can no longer be treated as being defective.  The ballot should continue although in due course, the question of whether the nomination is valid or not could be determined by the Court in an election inquiry.

Here, having formed the opinion that the nomination was defective, under Sub-rule 10(a) the Returning Officer had to notify Mr Hickson in writing of the particulars of the defect or defects.  The Returning Officer did this. In addition, the Returning Officer had to advise Mr Hickson that if he remedied the defect or defects he should so advise him by notice in writing no later than 7 days after the sending of the notice referred to in Sub-rule 10(a).  The Returning Officer did not comply with this requirement.  In his notice to Mr Hickson he said that the nomination was defective “as the organisation’s records show that one of your nominator’s, Mark O’Brien, is not a financial member of the Union as required by the rules of the organisation. Unless you can produce evidence to the contrary by not later than 12 Noon on 12 March 1997, I will be obliged to reject your nomination”.

The last sentence of this notice from the Returning Officer is completely misleading.  It is not in conformity with Sub-rule 10(b).  It is not for the Returning Officer to tell the candidate what to do; cf Re Federated Liquor and Allied Industries Employers Union of Australia; ex parte Huxtable (1979) 40 FLR 418 commencing at 426.  The whole of the reasons for judgment in that case are of assistance in understanding the nature of an election inquiry.  Further, the last sentence illustrates the error made by the Returning Officer.  Mr O’Brien was a nominator, that was a fact accepted by the Returning Officer. From material given to him from another source, the Returning Officer had formed the opinion that at the close of nominations Mr O’Brien was not a financial member. The notice called upon Mr Hickson “to produce evidence to the contrary”. This notice was directed to the question of whether there was a defect in the nomination, not to remedying any defect that might or might not exist. Mr Hickson accepted the invitation to produce evidence to show that Mr O’Brien was financial at the close of nominations. The Returning Officer did not accept that evidence. As a result, he could only find that the nomination was defective at the later time when he did not accept the evidence.  In his view actions taken before that date could not go to remedying any defect.

It is for the candidate who has received a notice giving particulars of the defect or defects to seek to remedy the defect or defects.  In some cases, it may be impossible for the candidate to remedy the defect.  A defect may be capable of being remedied in a number of different ways. The Returning Officer must wait until the expiration of seven days and thereafter determine whether the remedies applied have the effect of making the nomination effective or valid at the later date. In other words, the Returning Officer must determine whether the nomination should be accepted or rejected having regard to the remedies applied.

The word remedy connotes futurity. It means to cure, to put right, to rectify, to make good; see the Shorter Oxford English Dictionary and the Macquarie Dictionary.  Of necessity to remedy is to make good that which was bad. This must apply to action taken after that which was bad has been identified.

In the present case, and for the purposes of the appeal, the Returning Officer, with knowledge that Mr O’Brien had paid his outstanding dues on 7 March 1997, rejected the nomination on the ground that Mr O’Brien was not a financial member of the AMWU “as required by the rules ...... at the time of the close of nominations”.  The Returning Officer said:-

“A nomination which is defective for the above reason can only be remedied if the “unfinancial” nominator is proved to have been financial after the close of nominations by having the nominator becoming financial ....”.

The reasons given by the Returning Officer for rejecting the nomination after the expiration of the 7 days notice illustrate the error on his part.  Sub-rule 11(a) prescribes what is to happen at the expiration of the closing date for lodging nominations or, where the Returning Officer has, under Sub-rule 10, given notice of a defect or defects, at the expiration of 7 days after the sending of the notice (emphasis added).  These are true alternatives.  On the facts of this case, the crucial date is 12 March 1997.  That is the date at which the Returning Officer must determine whether the nomination is valid or, put another way, whether the defect has been remedied. By analogy with illness, has the remedy applied to cure the illness had the result of curing that illness within the time specified.  In the present case, the remedy was to ensure Mr O’Brien became financial before 12 March 1997.  He became financial before that day.  Therefore the defect in the nomination had been cured or remedied before 12 March.  The second alternative prescribed in Sub-rule 11(a) applies.

This conclusion is consistent with the Rules of the AMWU. Rule 35(1) provides:-

“Unless otherwise specified in these Rules a member shall not be financial whilst in arrears with the payment of any contributions, fines, or levies such having to be paid by the last day of the quarter in which they fall due; once so paid the member again becomes financial.”

This rule makes it clear that when Mr O’Brien paid his outstanding dues on 7 March 1997 he became financial. There is much to be said for the view that having paid all outstanding dues, Mr O’Brien had been continuously financial for a long period including the date on which nominations closed, namely 4 March 1997; see Lovell v Federated Liquor and Allied Industries Employees Union of Australia (1978) 22 ALR 704 per Smithers J at 731. This conclusion, however, applies if, and only if, payment after 4 March 1997, but before 12 March 1997 is treated as being a remedy curing the defect of being unfinancial on 4 March.

On this construction of Sub-rules 10 and 11, it is clear that there have been at least two irregularities involved, namely the rejection of the nomination and the declaration of Mr Bastian as State Secretary NSW.

During the course of the inquiry and on the appeal much time was spent on discussing a number of authorities said to be relevant to the question before the Court. It is important to remember, that when the proper construction of a provision is an issue, the Court should  examine the provision and construe it in its context and according to the words used. When this has been done it may be useful to look at authorities of courts discussing the same or similar provisions.  It is unwise to consider other authorities first. Too much time and effort can be expended on the construction of other provisions, often in different form, as a result of which the real issue before the Court is obscured.  To some extent this happened here.  It was suggested there was a conflict of opinion between J B Sweeney J and Keely J concerning the proper construction of provisions similar to Sub-rules 10 and 11 of the Rules of the AMWU. This was a side issue which does not assist in determining the question before the Court.  For the sake of reference the authorities are: Re Election for Office in Australian Building Construction Employees and Builders Labourers Federation (1978) 30 FLR 252, J.B. Sweeney J; Re Application by Shahid Naqvi J.B. Sweeney J 26 March 1981, unreported; Re Australasian Meat Industry Employees Union Keely J 19 July 1988 unreported and Re Hall (1994) 58 IR 19, Keely J.  These authorities are discussed at length in the reasons of the Court which held the inquiry. They do not assist in the construction of Sub-rules 10 and 11 of the Rules of the AMWU.

Attention is drawn to Sub-rule 12 of the Rules of the AMWU. This sub-rule contains provisions relating to the conduct of a ballot, including a ballot held under Sub-rule 11(b). Under Sub-rule 12(a) the Returning Officer is required to determine the opening and closing dates of the ballot. Under Sub-rule 12(b) the Returning Officer is required to compile a roll of voters for the ballot. Sub-rule 12(c) is set out:-

“(c)     The roll of voters for a ballot shall be the persons, being members of the Union on the day being 28 days before the opening date of the ballot who were financial on that day and remained financial until the opening date of the ballot.”

This requires the roll of voters to include only those members who were financial on a specified day and “remained financial until the opening date of the ballot”. A prescription of this kind is an invitation to uncertainty even if it could be complied with by the Returning Officer.  This sub-rule should be considered by the appropriate officers of the AMWU.  Unless there are good arguments to the contrary, consideration should be given to amending the rule to specify a particular date on which the list of financial members should be determined.

Finally, because of the times specified for the ballot ordered by the Court conducting the inquiry, the Full Court, on 13 October 1997, ordered that the appeal be dismissed and that its reasons would be published at a later date. The reasons for judgment are now published.

Associate:

Dated:             

REASONS FOR JUDGMENT

BRANSON AND MARSHALL JJ.

This is an appeal from the judgment of Wilcox J of 19 August 1997 pursuant to leave granted by his Honour on 25 August 1997 under s 421 of the Workplace Relations Act 1996 (“the Act”).  The matter before the trial judge was an application under s 218 of the Act for an inquiry in relation to an election for an office in an organisation.  Wilcox J found that the Returning Officer in the election had wrongly rejected the nomination of David Hickson as a candidate for the office of New South Wales State Secretary of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (“the Union”).  The appellant is the Australian Electoral Commission (“the AEC”), one of whose officers, Lee Jones, conducted the election the subject of the inquiry.  The first respondent is Mr Hickson.  The second respondent is the Union and the third respondent is Paul Bastian who was declared elected unopposed when Mr Jones rejected Mr Hickson’s nomination.

There was no appearance by Mr  Bastian when this appeal was called on for hearing.  Upon the Court being satisfied that Mr Bastian had received proper notice of the appeal and the date and time fixed for its hearing, the appeal proceeded in his absence.

BACKGROUND FACTS

Pursuant to the rules of the Union, elections for the office of State Secretary of a Branch of the Union are required to be conducted every four years.  The rules also provide for candidates in an election for that office to be nominated by ten members.  See rule 2 Part A subrules 4(b) and (e).

Nominations for election to the office of State Secretary closed on 4 March 1997.  Prior to that date, by letter dated 25 February 1997, Mr Hickson lodged a nomination form with Mr Jones.  The nomination form contained the names of ten nominators and included Mr Hickson’s acceptance of his nomination.  The nomination form was as prescribed under the rules.

On 5 March 1997 Mr Jones wrote to Mr Hickson advising him that his nomination for the office of Branch Secretary was defective because one of his nominators was not a financial member of the Union.  That nominator was Mark O’Brien. Mr Jones advised Mr Hickson that unless he produced evidence to the contrary within seven days he, Mr Jones, would be “obliged” to reject the nomination.   On 7 March 1997 Mr O’Brien paid all of his outstanding contributions to the Union.

Mr Hickson responded on 11 March 1997 by letter to Mr Jones’ letter of 5 March 1997.  He alleged that Mr O’Brien was a financial member but enclosed “without prejudice” a nomination from a substitute nominator.  The second nomination form was completed by Robin Rahill.  Mr Hickson did not sign this form.

On 12 March 1997 Mr Jones inquired with Mr O’Brien’s employer, the State Rail Authority, as to whether it had made payroll deductions from his wages.  Mr Jones was not satisfied that the deductions had been made.  By letter dated 18 March 1997 Mr Jones rejected Mr Hickson’s nomination.  He advised that the nomination was rejected because Mr O’Brien was not a financial member as at the close of nominations.  The nomination, he said, was defective and only capable of being remedied if Mr O’Brien was proved to be financial as at the close of nominations.  He stated that the defective nomination was not able to be remedied by substituting an unfinancial nominator with another nominator after the close of nominations.

Also on 18 March 1997 Mr Jones declared Mr Bastian elected unopposed as State Secretary of the Union.  On 1 April 1997 the application for an inquiry pursuant to s 218 of the Act was filed.

THE UNION RULES

The rules of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (“the Rules”) contain in rule 2, provisions concerning election and voting.  The election of a State Secretary is governed by rule 2 Part A sub-rule 4 which, so far as is here relevant, is in the following terms:

“(4)     (a)        Each State Returning Officer shall, once each four years, conduct an election for each of the offices of:-

                        ...

                        State Secretary, and

                        ...

            (b)        A member may be nominated as a candidate under this sub-rule if the member:-

                        (i)         has been a member for a continuous period of not less than 3 years immediately preceding the closing date for lodging nominations and, during the period of 12 months immediately preceding the closing date for lodging nominations was not unfinancial for a period longer than 3 months;

                        (ii)        is a financial member of the Union in the State at the closing date for lodging nominations; and

                        (iii)       was, during the period of 12 months immediately preceding the closing date for lodging nominations:

                                    (1)        employed as an employee in a trade or calling or branch thereof in or in connection with which the Union is registered;

                                    (2)        unemployed on account of illness, incapacity or inability to obtain employment; or

                                    (3)        engaged in a full-time office in the Union after having been elected or temporarily appointed thereto.

            (c)        ...

            (d)        ...

            (e)        The required number of nominators for positions under this sub rule are ten.”

Sub-rule 8 is concerned with nominations.  Relevantly it provides:

“8.       (a)        A nomination under this Rule shall be in writing on the form prescribed in paragraph (b), be signed by the nominee and by the required number of nominators and be forwarded to the Returning Officer at the place determined by him/her in accordance with paragraph (b) so as to reach him/her no later than the date determined by him/her as the closing date for lodging nominations.

            (b)        The prescribed form of the nomination shall set out the name of the office, the number of nominators required and the period and place determined by the Returning Officer for lodging nominations.

            (c)        ...

            (d)        A nominator for offices under this Rule shall be a financial member of the Union and, having regard to the office in question, a member in the relevant State, Region, Zone or Division at the closing date for lodging nominations.”

Rule 2 Part A sub-rules 9 to 12 impose duties on the Returning Officer in relation to the election process.  It is necessary to set out the terms of sub-rules 10 and 11:

“10.     Where the Returning Officer finds a document purporting to be a nomination of a person as a candidate at an election under this rule is defective, the Returning Officer shall:-

            (a)        notify the person by notice in writing sent by telegram, facsimile or other means whereby the notice can be delivered to the candidate as soon as practicable of particulars of the defect or defects; and

            (b)        advise him/her that if he/she remedies the defect or defects he/she should so advise the Returning Officer by notice in writing forwarded to the Returning officer at the place determined by him/her under this rule so as to reach him/her no later than 7 days after the date of sending the notice referred to in the previous paragraph.

11.       (a)        Where at the expiration of the closing date for lodging nominations or, in the case where the Returning Officer has under sub-rule (10) notified a person of particulars of a defect or defects in his/her nomination as a candidate, at the expiration of seven days after the sending of the notice referred to in paragraph (10) (a), only one candidate is nominated for election to the office, the Returning Officer shall declare that candidate elected unopposed to the office by issuing a statement in writing to the National Council or State Council as the case may be to this effect.

            (b)        Subject to paragraph (a), the Returning Officer shall conduct a secret postal ballot for the office in accordance with the succeeding provisions of this rule and may, subject to the rule, give such directions and take such action as he/she considers necessary for ensuring the secrecy of the ballot and for ensuring that no irregularities occur in or in connection with the ballot.”

Rule 35 of the Rules is concerned with financial membership.  Sub-rule 1 of rule 35 provides as follows:

“1.       Unless otherwise specified in these Rules a member shall not be financial whilst in arrears with the payment of any contributions, fines, or levies such having to be paid by the last day of the quarter in which they fall due; once so paid the member again becomes financial.”

Sub-rule 2 of rule 35 contains special provisions, not here relevant, to cover circumstances in which a member has authorised deduction of his or her contribution to the Union from his or her salary or from an account at a financial institution.

Rule 2 Part A sub-rule 10, which is set out above, may be assumed to have been included in the Rules to ensure that such rules comply with s 197 of the Act.  Section 197, so far as is here relevant, provides as follows:

“(1)     The rules of an organisation:

            ...

            (c)        shall provide that, if the returning officer conducting an election finds a nomination to be defective, the returning officer shall, before rejecting the nomination, notify the person concerned of the defect and, where practicable, give the person the opportunity of remedying the defect within such period as is applicable under the rules, which shall, where practicable, be not less than 7 days after the person is notified;

            ...

(2)       ...

(3)       ...

(4)       The reference in paragraph (1)(c) to a nomination being defective does not include a reference to a nomination of a person that is defective because the person is not qualified to hold the office to which the nomination relates.”

It is to be noticed that s 197(4) of the Act does not in terms proscribe a rule which would give a Returning Officer the power to allow the remedying of a defect in a nomination which arises because the person nominated is not qualified to hold the relevant office.  It simply provides that the rules of an organisation need not provide that the Returning Officer shall give the person concerned an opportunity to remedy such a defect.

REASONING OF THE TRIAL JUDGE

Wilcox J at 8 described “the evident purpose” of sub-rule 10 as being:

“... to provide the nominee an opportunity to remedy the deficiency, thereby saving the nomination from rejection.  To that end, the Returning Officer must notify the nominee ‘as soon as practicable’ of particulars of the defect or defects, and allow a period of seven days for remediation.  The implication is that, if the defect is remedied within that time, the nomination is to be treated as redeemed and allowed to stand.”

His Honour noted the relationship between the relevant sub-rule and the Act and predecessor provisions.  He then examined conflicting authorities which dealt with similar provisions in other rules.  Wilcox J first examined the judgment of J B Sweeney J in Re Election for Office in Australian Building Construction Employees and Builders Labourers Federation (1978) 30 FLR 252 in which the provisions of reg 146AE(2) of the Conciliation and Arbitration Regulations were examined.  Regulation 146AE(2), at the material time, provided as follows:

“(2)     Where the Returning Officer finds that a document lodged at the place and within the period determined by the Returning Officer under regulation 146AC and purporting to be the nomination of a person as a candidate for an election for an office within an organization is not a nomination in accordance with the provisions of sub-regulation (1), the Returning Officer shall, if practicable, give notice to the person, as soon as practicable, by telegram of the reasons why the document is not a nomination in accordance with those provisions and, where the person is eligible for election for the office under the rules of the organization, the Returning Officer shall, in the telegram, notify the person that his nomination as a candidate for the election may be lodged at that place -

(a)       within a period of 7 days after the date of sending the telegram; or

(b)       where, under the rules of the organization, a defective nomination may be remedied within a period of longer than 7 days after the close of the period for lodging nominations - within that longer period.”

J B Sweeney J held that a Returning Officer had correctly rejected a nomination of a candidate for office in the Australian Building Construction Employees and Builders Labourers Federation (“the Federation”) because one of the nominators of that person was not qualified under the rules to nominate him.  The candidate was advised by the Returning Officer of the defect in his nomination.  He arranged for another nomination form to be provided to the Returning Officer.  This nomination was also rejected as one of the nominators was not a continuously financial member of the Federation for the requisite period under the rules.  No further opportunity was given to the candidate to remedy the further defective nomination.

J B Sweeney J held at 256 that:

“... the reference to documents lodged at the place and within the time under reg. 146AC is a reference to the first nomination only.  The intention of the regulation is to afford a candidate one opportunity of remedying a faulty nomination, but he is not entitled to have seven days’ notice given to him in which to remedy any subsequent nomination which may also be faulty.  If the construction were otherwise, a position could well be reached where a candidate lodged a series of faulty nominations and had to receive a period of seven days after each in which to lodge a further nomination.  The ballot could thus be extended over a very considerable period.  It is true that in this case by reason of the fact that the returning officer examined the nomination paper prior to the closure that the second nomination was lodged at the place and within the period which had been determined by the returning officer, but this was accidental.  If the returning officer followed a normal course of not examining the nomination papers until nominations had closed then a second nomination paper could not be lodged within the period fixed by the returning officer under reg. 146AC.  To interpret the regulation as asked would give it quite a capricious result, depending on the accident of when the returning officer examined the nomination.

I am satisfied no irregularity arose through the returning officer not advising of the rejection of the second nomination prior to 18th July, 1977.”

Wilcox J at 10 observed that J B Sweeney J “.. did not consider nomination by an unqualified person to be an irremediable defect falling outside the terms of reg 146AE.”  His Honour then examined the judgment of J B Sweeney J in Re Application by Shahid Naqvi (26 March 1981, unreported).  In Naqvi a predecessor provision of the rules relevant to this appeal imposed the following obligations on a Returning Officer:

“Where any defective nomination occurs, to notify the member concerned of the defect and, where practicable, afford such member the opportunity of remedying same, such to be done no later than 7 days after having so notified.”

The first issue in Naqvi was whether Mr Naqvi was a financial member of the union and thus eligible to nominate for office.  The second issue was whether, if Mr Naqvi was unfinancial, he should have been given the opportunity to become financial.  J B Sweeney J held that Mr Naqvi should have been given the opportunity to remedy any defect in his nomination. 

As Wilcox J at 12 said:

“The significance of Naqvi is simply the attitude of J B Sweeney J to the rule: his readiness to read it expansively and treat it as providing a generous opportunity to remedy a defect.”

His Honour then referred to two judgments of Keely J in which an approach at odds with that taken by J B Sweeney J was evident.  The first of those was Re Australasian Meat Industry Employees Union (19 July 1988, unreported)(“the AMIEU case”).  The relevant rule in the AMIEU case was not materially different from the sub-rule in question in this appeal.

Keely J held that a nomination which was defective by reason of the unfinanciality of a nominator was not capable of being remedied.  His Honour held that a candidate who was unfinancial was not able to pay contributions so as to remedy his unfinanciality as at the date of close of nomination and that “for essentially the same reasons, it is too late for a person to become a nominator at that time”.  In other words, Keely J held that a nominator who was not eligible to nominate a person for office could not be substituted by a new nominator after the time for the acceptance of nominations had expired.

Similarly in Re Hall (1994) 58 IR 19, Keely J held at 21 that where a “... purported nominator is a person who ... is not qualified to nominate a person for the office in question” the nomination is “fundamentally flawed” and incapable of being remedied.

As Wilcox J observed, Keely J’s judgment in the AMIEU case on this issue was based on a concession by counsel which appears to have been incorrectly made and the judgment in Re Hall applies the provisions of s 197(4) to the position of a nominator rather than the nominee which is the subject of the sub-section.

The trial judge also observed that Keely J’s approach to the relevant rules regarding remedying a defect in a nomination caused by an unqualified nominator was a restrictive one in circumstances where a liberal approach should be applied to construction of such rules.  He also identified policy reasons why the approach of J B Sweeney J should be preferred.

COMPETING CONTENTIONS

The AEC, supported by the Union, contended that the  having of ten nominators who are financial at the close of nominations is a qualification to hold the office of State Secretary.  These parties further contended that such qualification, if not held as at the close of nominations, cannot be achieved thereafter; a nominator cannot, so it was argued, by the making of a payment after the close of nominations, become a nominator who was financial at the close of nominations.  It follows, on this argument, that it would not be practicable, within the meaning of rule 2 Part A sub-rule 10, to give the person concerned the opportunity of remedying the defect.

The AEC and the Union put a similar, but alternative, contention as follows:

“The financial status at the relevant time under the rules of a registered organisation of a person nominating for office or nominating another person for office is a condition precedent to the ability to do either of those acts.  The rules of the organisation are mandatory; either a person has a legal right to perform certain acts under the rules or he or she does not.  The non-existence of the right at the relevant time is not a mere ‘defect’ that can be subsequently cured.”

The first respondent contended for a wide construction of the word “defect” in rule 2 Part A sub-rule 10 of the Rules, and further submitted that the question of whether it would be practicable within the meaning of sub-rule 10 to give the person concerned the opportunity to remedy a defect is to be answered by considering whether it is possible for action to be taken within the allowed period of seven days to make good the nomination.

The first respondent further contended that the question of whether a person is qualified to hold an office is to be decided by reference to matters personal to the nominee, and not by reference to matters relating to the formalities of the nomination process, such as the financial status of one of his or her nominators.

CONSIDERATION

The issue before the Court is the proper construction of rule 2 of the Rules and in particular sub-rules 4 and 10 of Part A of rule 2.  There was no challenge by any party to the validity of rule 2 of the Rules.  It was accepted that rule 2, on any of the constructions contended for in this case, meets the requirements of s 197 of the Act. Consequently, there has been no cause to apply the settled canon of construction “that where a clause is ambiguous a construction which will make it valid is to be preferred to one which will make it void.” (Mills v Dunham (1891) 1 Ch 576 at 590 cited by Isaac J in Amalgamated Society of Engineers v Smith (1913) 16 CLR 537 at 566). 

The proper construction of s 197 of the Act is not an issue before the Court on this appeal.  The AEC and the Union nonetheless sought to call in aid s 15AB of the Acts Interpretation Act 1901 (Cth) for the purpose of placing before the Court certain explanatory memoranda concerning the Industrial Relations Bill 1988 (Cth).  Whilst consideration could, no doubt, have been given to such material had the Court been faced with the task of ascertaining the meaning of s 197 of the Act, the Court was not faced with such a task.  The Court refused to allow such explanatory memoranda to be relied on.

Rule 2 of the Rules is to be construed having regard to its apparent purpose as disclosed by the words of the rule read in the context of the Rules as a whole.  As Gibbs J, with whom Stephen J agreed, pointed out in R v Holmes; ex parte Public Service Association of New South Wales (1977) 140 CLR 63 at 73, union rules -

“... should not be subjected to the same meticulous scrutiny as a deed carefully prepared by lawyers, and should not be restrictively construed.”

See also Re An Election in the Australian Colleries’ Staff Association (NSW Branch) (1990) 26 FCR 499 at 502 (Lockhart J); and Re Election for Office in Transport Workers Union of Australia, Western Australia Branch (1992) 40 IR 245 at 253 (French J) and Re Keily; Re Transport Workers Union of Australia (1992) 42 IR 4 at 6 - 7 (Keely J).

Where the wording of the rules of an organisation allows, such rules are to be construed in favour of eligibility for election to office, rather than against it (Re Carter; Re Federated Clerks Union of Australia, Victorian Branch (No. 1) (1989) 32 IR 1 at 27 (Gray J)).

The crucial provision of rule 2 of the Rules for present purposes is rule 2 Part A sub-rule 8(d).  It is convenient to set this paragraph out again:

            “(d)     A nominator for offices under this Rule shall be a financial member of the Union and, having regard to the office in question, a member in the relevant State, Region, Zone or Division at the closing date for lodging nominations.”

It may be observed that the punctuation of sub-rule 8(d) suggests that the phrase “at the closing date for lodging nominations” qualifies the words “a member of the relevant State, Region, Zone or Division” only; were the intention of the paragraph that such phrase should also qualify the words “a financial member of the Union”, a comma after the word “Division” would be expected.  However, as no party contended for sub-rule 8(d) to be so construed we put this, as it seems to us, preferable construction, to one side.

The question of when a member of the Union is a financial member is to be determined by reference to rule 35 of the Rules.  Rule 35 is set out above.  It provides that a member shall not be financial “whilst in arrears” with the payment of any contributions etc.  The implication of the words “whilst in arrears” is that a payment, when made, rectifies the past lack of financiality.  This implication is strengthened by the final words of rule 35.  Moreover, such a construction of rule 35 is supported by authorities in which the concept of financial membership has been analysed.

In Lovell v Federated Liquor and Allied Industries Employees’ Union of Australia (1978) 22 ALR 704 Smithers J, with whom in this regard Evatt J agreed, construed a requirement of a rule that certain persons were to be “financial members for twelve calendar months immediately prior to nomination” as directing attention to the situation which will exist at the moment before nomination.  His Honour said at 731:

“The question to be asked is: ‘Is the candidate today a financial member for twelve months immediately prior to this date?’  If he has then paid all dues payable by him and has been a member for 12 months the answer must be in the affirmative.  At that stage the candidate is financial in respect of every moment of that 12 months.  It is not to the point that during that 12 months there might have been periods when he was not financial.”

See also Leveridge v Shop Distributive and Allied Employees’ Association (1977) 17 ALR 145 and Re Stapleton (1983) 50 ALR 293.

The conclusion that rule 35 of the Rules is to be construed as providing for appropriate payments to rectify past lack of financiality is supported by the language of rule 39 of the Rules which is concerned with “Benefit Payments and Legal Aid”.  Rule 39 provides that to be eligible for benefits under the rule “... a member must be financial in accordance with Rule 35.”  However, rule 39 goes on to provide that:

“If unfinancial a member may obtain benefit from the date that he pays contributions, fines and levies to the end of the quarter in which his claim is made.  No claim shall be granted for the period prior to the date of payment.”

The plain purpose, in our view, of the above provision is to negate for the purpose of rule 39,  the usual rule that upon the payment of all outstanding dues, a member becomes financial in respect of the whole period to which those dues are attributable.

Wilcox J did not determine the issue of Mr O’Brien’s financial status on the closing date for lodging nominations.  On the approach which his Honour took it was unnecessary for him to do so.  It is convenient for the purpose of analysing the true import of the Rules to make the assumption that Mr O’Brien was not financial on that day, and we make that assumption.

On that basis it is to be concluded that, as at the closing date for lodging nominations, namely 4 March 1997, Mr O’Brien, as a nominator, did not satisfy the requirements of rule 2 Part A sub-rule 8(d) of the Rules.  However, within three days of that date, Mr O’Brien paid all of his outstanding contributions.  On 7 March 1997 Mr O’Brien became financial, to use the words of Smithers J in Lovell’s Case, “in respect of every moment” for which such contributions were paid.  That is, on 7 March 1997, Mr O’Brien was a financial member of the Union in respect of the closing day for lodging nominations.

We turn to consider rule 2 Part A sub-rule 10 of the Rules.  Sub-rule 10 has an operation “[w]here the Returning Officer finds a document purporting to be a nomination of a person as a candidate ... is defective”.  It is not disputed that the nomination form lodged by Mr Hickson  was “a document purporting to be a nomination of a person as a candidate”.  The issue to consider is whether the nomination form  was “defective” within the meaning of sub-rule 10?

The word “defective” is a word in ordinary usage.  It has not been suggested that sub-rule 10   is used in any special or technical sense in The Macquarie dictionary relevantly defines “defective” as “having a defect; faulty; imperfect”.  The same dictionary relevantly defines “defect” as follows:

“1.  a falling short; a fault or imperfection.  2. want or lack, esp. of something essential to perfection or completeness;  deficiency.”

Nothing in the above definitions, in our view, suggests that a distinction is to be drawn between something which is merely defective and something which is fundamentally flawed.  Nor do the above definitions suggest that a defect is to be confined to matters of formality as opposed to matters of substance.

We do not doubt that a document which purported to be a nomination of a person as a candidate under  rule 2 Part A sub-rule 8, but which was signed by a number of nominators less than that required by the Rules, would be a “defective” nomination within the meaning of sub-rule 10.  We  conclude that a document which purported to be such a nomination, and which was signed by the required number of nominators, albeit that one of them was, at the closing date for nominations, not financial, would also be a “defective” nomination within the meaning of sub-rule 10.

We therefore conclude that sub-rule 10 required the Returning Officer to notify Mr Hickson of the defect in his form of nomination and further to advise him that if he remedied the defect he should so advise the Returning Officer as required by sub-rule 10(b).    The use of the word “or” in the second line of sub-rule 11 reinforces the point that nominations do not necessarily have to be free of defects as at the close of nominations to be valid.

In a circumstance in which a Returning Officer has given a notification and provided advice in accordance with sub-rule 10,  in our view, sub-rule 11 has the effect that the validity of the relevant document purporting to be a nomination is to be determined at the expiration of seven days after the sending of the notice referred to in sub-rule 10(a).

On that day, in our view, Mr O’Brien was properly to be regarded as a “financial member of the Union ... at the closing date for nominations” within the meaning of rule 2 Part A sub-rule 8(d) of the Rules.

In view of the approach which we have taken to the proper construction of rule 2 of the Rules, it is not strictly necessary for us to give consideration to whether, as the AEC and the Union have contended, “having 10 nominators who are financial at the close of nominations is a qualification to hold the office of State Secretary”.  We consider it appropriate, however, to state that we reject the above contention. We accept the submission made by counsel for Mr Hickson that the qualifications to hold the office of State Secretary are those matters personal to a candidate specified in sub-rule 4(b) and (d).  Having the required number of nominations is, in our view, a matter which goes to the validity of the nomination of the candidate; it does not go to his or her qualification to hold office.   We express no view, however, on whether the practical effect of rule 2 Part A sub-rule 4(b)(ii) of the Rules is that a candidate for election must be a financial member of the Union in the State on the closing date for nominations;  that is, on whether a failure to comply with that sub-rule may be later rectified.  We draw attention, however, to significant differences in the wording of sub-rule 4(b) and sub-rule 8(d).

In our view the appeal should be dismissed.

Since writing the above, we have had the advantage of reading in draft form the reasons for judgment of Northrop ACJ.   We are in general agreement with what his Honour has said regarding the appropriate procedures to be adopted in election inquiries under the Act.  However,  we would not wish to fetter the discretion of a judge conducting such an inquiry, as to whether an organisation should be made a party. There will, in our view, be occasions on which it may be desirable that an organisation be heard not only on the question of the validity of its rules but also upon the issue of their correct interpretation.

Associate:

Dated: