FEDERAL COURT OF AUSTRALIA

Bourne v Campbell [1999] FCA 1522

INDUSTRIAL LAW – inquiry into alleged irregularities in the election of the president of the New South Wales Branch of the Australian Hotels Association – whether threat by Chief Executive Officer to resign upon re-election of applicant prevented or hindered the full and free recording of votes by certain delegates – whether actions of Chief Executive Officer to advise voting delegates of his intention to resign was without any lawful authority or excuse

Workplace Relations Act 1996 (Cth), ss 4(1), 218, 219, 222, 223, 315(2)

Smith v Oldham [1912] 15 CLR 355, referred to

Evan v Crichton-Brown [1981] 147 CLR 169, referred to

The Queen v Gray; ex parte Marsh [1985] 157 CLR 351, applied

Re Collins; ex parte Hockings [1989] 167 CLR 522, applied

Re Davidson [1990-] 22 FCR 449, referred to

Re Ivory [1993] 41 FCR 267, referred to

Re Bailey; Re Transport Workers Union of Australia (Vic Branch) [1997]79 IR 1, referred to

ROBERT JAMES THOMAS BOURNE v MICHAEL CAMPBELL & ORS

N 751 OF 1999

EINFELD J

5 NOVEMBER 1999

SYDNEY

THE COURT ORDERS THAT:

1.             the inquiry into the election of the President of the New South Wales Branch of the Australian Hotels Association on 9 February 1999 be terminated

2.             the application for an inquiry be dismissed with costs

Note:    Settlement and entry of orders are dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     By application dated 4 August 1999 Robert James Thomas Bourne, a member of the New South Wales branch (the branch) of the Australian Hotels Association, sought an inquiry into alleged irregularities in the election of President of the branch held on 9 February 1999.  In the election, Bourne, the outgoing President, was defeated by 33 votes to 23 by John  Thorpe.  The application alleged that from approximately October 1998 to the date of the election, David Charles, the branch’s Chief Executive Officer since 1995, had been advising members of the branch Council that if Bourne was re-elected president, he, Charles, would resign his position as Chief Executive.  In November and December 1998, Bourne in his capacity as branch President told Charles that he had heard that Charles was “interfering in the election process” and cautioned him against continuing to do so.  Charles denied the allegation.  As late as the morning of the ballot, Charles was re-emphasising to voting delegates his intention to resign if Bourne succeeded.  It is at the heart of Bourne’s assertions in this case that were it not for this threat, he would have won re-election. 

2                     Eight members of the branch Executive appeared to oppose the application (the respondents).  There were also appearances by the Federal body of the AHA (AHA) and by Terence Christopher Healey, the officer of the Australian Electoral Commission who conducted the ballot.  After an early hearing was ordered and directions were given for the filing of evidence, the respondents moved under section 223(5) of the Workplace Relations Act 1996 (the Act) to have the Court terminate the inquiry on the ground that on the facts alleged by the applicant the application could not succeed.  On this application, Mr Healey made some submissions of law concerning the proper interpretation of the relevant statutory provisions, but the AHA offered no submissions.

3                     Division 5 of Part IX of the Act deals with inquiries into elections.  By section 218, a member of a registered organisation who claims that there has been an “irregularity” in relation to an election for an office in the organisation, may seek an inquiry by the Court into the matter.  Section 219 provides that where such an application has been made “and the Court is satisfied that there is reasonable ground for the application”, the Court may set the inquiry down for hearing and give directions for its conduct.  The inquiry is taken to have been instituted when the hearing has been fixed.  Section 222 permits the Court to allow all persons to appear at an inquiry who are justly entitled to be heard.  Persons appearing become parties to the proceeding.  Section 223(1) requires the Court to inquire into and determine whether there has been an irregularity in relation to the election “and such further questions concerning the conduct and results of the election as the Court considers necessary”.  Sub-section (3) of that section lists the orders which the Court can make upon a finding of irregularity, including a declaration that the election in question was void, but by sub-section (4) the Court shall not declare an election to be void unless it is of the opinion that having regard to the irregularity found, and possible similar irregularities, the result of the election may have been affected by the irregularities.  Sub–section (5) states:

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 …

4                     “Irregularity” is defined in section 4(1) of the Act in this way:

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 person; or

(ii)     a correct ascertainment or declaration of the results of the voting;

                        is, or is attempted to be, prevented or hindered.

5                     Only (b)(i) is relied on.  The respondents’ contention was that the events alleged do not and cannot amount to an irregularity as so defined.  As the success of the respondents’ application would result in the end of the litigation without the need to investigate the factual disputes arising, it seemed appropriate to deal with this application at the threshold, a procedure which I did not understand any party to seriously oppose.  However, for the purposes of the application, it was necessary that the respondents accepted the facts alleged by the applicant at their highest.   To this end, the applicant submitted a statement of facts arising from the evidence filed on his behalf consisting of 64 numbered paragraphs over 12 pages.  Many of the facts alleged were irrelevant to the whole proceeding, not merely to the application to terminate the inquiry.  Some of these irrelevant facts included Charles’ possible motives in opposing Bourne’s re-election, certain allegations of financial impropriety or misuse of branch funds by Charles, the personal views held by some of the voting delegates in the propriety of Charles’ actions in threatening to resign if Bourne was re-elected, assessments of Charles’ importance to the branch, and other personal or political matters. 

6                     The application sought no specific relief other than the inquiry itself although the applicant’s written submissions sought either a fresh election or an order that Thorpe was not, and Bourne was, elected.  Neither the application, the applicant’s evidence and submissions, nor the statement of facts addresses the question as to the effect of the suggested irregularities on the election outcome.  All that was said was that if six of Thorpe’s votes had gone to Bourne, Bourne would have been elected.  The implication presumably was that Charles’ approaches had involved a sufficient number of voters to make it likely that at least that number changed their votes away from, or were influenced to vote against, Bourne when they would or would probably otherwise not have done so.  In the light of section 223(4), and the absence of evidence to this effect, this fact might itself defeat the application but the case was not argued on this basis.  Stripped of the hyperbole and personal invective, the question raised by the application for the inquiry and the application for its termination is whether Charles’ actions in informing voters for the presidency that he would resign his position if Bourne was re-elected amounted to an irregularity in relation to the election within the terms and meaning of the Act.  This matter raises questions of law based upon proper construction of the relevant statutory provisions.

7                     As the statutory definition of “irregularity” shows, three elements need to be fulfilled, of which two are not contended for here.  In this case, if an irregularity is to be established, it must be shown that there was at least one “act … by means of which … the full and free recording of votes by all persons entitled to record votes … [was, or was] attempted to be, prevented or hindered”. 

8                     When this application was first listed for directions, the Court was not invited by the respondents to determine that there was, as raised by section 219, no reasonable ground for the application.  Yet a finding of satisfaction of the matter is in truth a statutory pre-requisite to the fixing of the hearing and the institution of the inquiry.  The difficulty of reaching a preliminary view such as required by section 219, at a time when both the Court and the parties may not be in a position to consider the question, is probably at least one of the reasons for the presence in the legislation of section 223(5).  In other words, if the Court and the parties are to achieve an early hearing of an inquiry into an election, as will virtually always be desirable, the level of satisfaction required by section 219 will ordinarily be quite low.  The power to terminate under section 223(5) will then enable the Court to end an inquiry if a little later it is shown that there is no reasonable basis upon which the application can succeed.

9                     To examine whether there has been an irregularity in this case, the first port of call is section 223(1) itself.  Here the context of irregularity is whether it happened “in relation to the election” when the other questions into which the Court is bound to inquire are those “concerning the conduct and the results of the election”.  In other words, the legislation is focussing on the modalities of the election process and determination.  In The Queen v Gray; ex parte Marsh [1985] 157 CLR 351 at 366–7, Gibbs CJ said of the earlier but relevantly indistinguishable legislation:

The definition of “irregularity” in s. 4(1) of the Act expressly refers to the “recording of votes”.  Those words … describe the act of obtaining and marking a ballot paper and depositing it with or forwarding it to the officer of the union whose function it is to receive ballot papers.  They do not refer to the process of deciding for whom to vote.

10                  His Honour went on at 367:

In Evans v Crichton-Brown [1981] 147 CLR 169, the Court drew a distinction between misleading statements which were intended or likely to affect an elector when he sought to record and give effect to the judgment he had formed as to the candidate for whom he intended to vote, and misleading statements which might do no more than affect the formation of that judgment.  Examples of statements of the former kind were given in the judgement (at 205):

“For example, a statement contained in a newspaper advertisement that a ballot-paper should be marked in a way that would not conform to the requirements of the Act and which would render the vote invalid might mislead or improperly interfere with an elector in the casting of his vote.  The same might be true of a statement that a person who wished to support a particular party should vote for a particular candidate, when that candidate in fact belonged to a rival party.”

11                  In other words, the distinction that must be drawn is between, on the one hand, activities which are intended or likely to affect the due recording and giving effect to an elector’s judgment as to the preferred candidate and, on the other, activities designed to affect the formation of an elector’s judgment as to the candidate to support.  Gibbs CJ held that the Parliament intended the definition of irregularity “to be inclusive and not exclusive”, that is, “to comprehend such things as the word would ordinarily mean as well as those specifically included”.  After quoting from the Oxford Dictionary, the former Chief Justice said at 368:

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.

These views were repeated and re-inforced by the High Court in Re Collins; ex parte Hockings [1989] 167 CLR 522where it was held that electioneering did not constitute an irregularity within the meaning of the legislation then applicable (also substantially identical to the present provision).  Brennan and Deane JJ said at 525 that steps taken to affect voting intention but leaving untouched the processes of nomination, conduct and declaration of the poll is not what the legislation is addressing.  At 531, Justice Gaudron said that “bribery, intimidation and coercion aside, irregularities are directly associated with the machinery processes or formal steps involved in an election”.  See also Re Davidson [1990] 22 FCR 449 at 453–5 (Wilcox J); Re Ivory [1993] 41 FCR 267 at 273–4 (Ryan J). 

12                  The concept of bribery, intimidation and coercion appears to derive from the judgment of Isaacs J in Smith v Oldham [1912] 15 CLR 355 at 362:

The vote of every elector is a matter of concern to the whole Commonwealth, and all are interested in endeavouring to secure not merely that the vote shall be formally recorded in accordance with the opinion that the voter actually holds, free from intimidation, coercion and bribery, but that the voter shall not be led by misrepresentation or concealment of any material circumstance into forming and consequently registering a political judgment different from that which he would have formed and registered had he known the real circumstances.

So far from the latter consideration being foreign to the subject of election, it is of the first importance.  For an opinion into which a man has been tricked or misled, even innocently, is a double wrong.  It means not merely a loss to the side on which he would otherwise have cast the vote, but it also strengthens their opponents.

13                  Bribery in the context of elections was also touched on by Justice Gray in Re Bailey; Re Transport Workers Union of Australia (Vic Branch) [1997]79 IR 1where at 9 his Honour said:

The resolution lacks what must surely be at the heart of electoral bribery, namely a request that, in return for the consideration provided or offered, the voter cast his or her vote in a particular way.

14                  The irregularities identified by the applicant in his application and submissions are:

(a)     Mr D. Charles spoke to a number of delegates who were entitled to vote with the objective of inducing them not to vote for Mr R. Bourne.

(b)     In speaking to these delegates Charles knew, or should be taken to have known, that in speaking to these delegates for the purpose of inducing them not to vote for Mr Bourne, the fact of the approach from him would become widely known amongst the delegates entitled to vote.

(c)      As an employee of the AHA he [Charles] had no lawful authority to do this, nor any excuse to do so.

(d)     Mr Charles did this by threatening to resign from the AHA, or offering or suggesting that he would do so, if R. Bourne were re-elected.

(e)      By threatening, offering or suggesting that he would resign he was threatening, offering or suggesting to cause damage to the AHA which would be brought about by that resignation.

(f)       Mr Charles told a number of delegates before the election that he had a letter of resignation typed which would be tabled if Mr Bourne was re-elected.

(g)     Mr Charles showed this letter of resignation to a number of people before, and after, the election.

(h)     Mr Charles also showed a number of delegates before the election that he had a letter of resignation typed which would be tabled if Mr Bourne was re-elected.

(i)       Mr Charles showed this letter of resignation to a number of people before, and after the election.  The purpose of telling delegates of this letter, and showing it to them, was to induce them not to vote for Mr Bourne.

Not only are these assertions in substance not contested because they are not able to be challenged on the application to terminate, they are in large measure admitted by Charles in an affidavit filed in these proceedings.  The respondents’ submission is simply that, however repetitive they are, none of them either separately or cumulatively amount to an irregularity in relation to the conduct of the election within the meaning of the Act.   In context, they amount to a position that if the voters want the benefit of Charles’ professional services to the branch, they should know that the re-election of Bourne will at least put that possibility at grave risk.  As I read the authorities, this type of statement does not represent a prevention or hindering of the full and free recording of votes by these or any other delegates. 

15                  Virtually all elections produce contentions by or on behalf of candidates that the interests of the electorate will be greatly, even immeasurably, benefited by their election and greatly or immeasurably harmed by the election of their opponent(s).  This type of electoral rhetoric is, and as far as I am aware is widely accepted as, part of a robust democracy and the thrust and parry of the quest for support.  As the predicted Armageddon-like disaster rarely occurs, voters normally tend to discount the threats, sometimes entirely.  The idea, promoted by this application for an inquiry, that Charles’ activities manifested a relevant irregularity in the election of the branch President would therefore require an investigation of whether any, and if so how many, delegates were influenced to allocate or change their votes by reason of Charles’ threat to resign.  Such an inquiry would represent what Brennan and Deane JJ (at 525) and Gaudron J (at 531) described in Hockings as “a very substantial intrusion into the secrecy of the ballot”.  And although Toohey and McHugh JJ suggested (at 526–7) that such a development might perhaps be held permissible in a particular case, it does not seem to me that this case represents an appropriate factual situation for such a major conceptual advance.  Charles’ statements to these voters may well have affected, as was no doubt intended, the formation of their judgments as to whose candidature they might support.  But his activities cannot have hindered or been intended to hinder the recording of that judgment by any of them. 

16                  The assertion that Charles had no lawful authority or excuse for doing what he did is in many ways a tendentious argument.  The words “without lawful authority or excuse” derive from section 315 of the Act prescribing offences in relation to elections.  Among the offences are those provided by sub-section (2) of that section which states:

A person shall not, without lawful authority or excuse, in relation to an election for an office in, or in a branch of, an organisation threaten, offer or suggest, or use, cause, inflict or procure, any violence, injury, punishment, damage, loss or disadvantage because of, or to induce:

(a)    any candidature or withdrawal of candidature;

(b)    any vote or omission to vote;

(c)     any support or opposition to any candidate; or

(d)    any promise of any vote, omission, support or opposition.

Although the applicant did not suggest that Charles had committed an offence against section 315(2), he did argue that the section provides a context in which his actions can be viewed.  For example, it was said that it was Charles’ duty as the senior paid official of the organisation to remain strictly neutral in the election, and that his failure to do so amounted to an implied breach of his contract of employment.  In terms of section 315(2), it was contended that his threat to resign, and thereby to deny his professional services to the branch, was within the terms of that sub-section, and the fact that it induced or was intended to induce opposition to Bourne’s candidacy for the presidential election produced if not an offence under the sub-section, then an irregularity within the meaning of section 4(1). 

17                  It does not seem to me that this argument is at all open to the applicant.  Firstly, the applicant’s actual argument was that it was not possible to suggest that Charles had any lawful authority or excuse to do what he did.  This formulation reverses anything relevant to this case which could be contributed by section 315(2).  That sub-section requires that a person alleging the offence must prove that the alleged offender acted without lawful authority or excuse.  In other words, if the applicant wishes to rely upon this assertion, he must prove that Charles’ actions were unlawful or not permitted.  Although mentioning breach of the implied terms of his contract of employment in response to a question from me, no unlawfulness or absence of authority has been pointed to.  Breaching a contract of employment, if that is what Charles did, is not the same as acting without lawful authority or excuse.  Secondly, the facts upon which this application for termination is proceeding involve an acceptance that a number of members of the branch did not want to lose the services of Charles and regarded him as an effective and successful executive of the organisation.  But the threat referred to in sub-section (2) is a threat to, inter alia, inflict damage, loss or disadvantage to the person being threatened, not to the organisation in which the election is taking place.  Thirdly, Charles did not need express lawful authority to tender or offer his resignation either unconditionally in a given set of circumstances.  He was clearly entitled to resign, or offer or threaten to resign in the event of Bourne’s re-election, and he cannot be required to demonstrate specific authority to do so.  Finally, if the applicant’s construction of section 315(2) is correct, Charles has committed an offence against it.  Yet the applicant expressly disavowed any such assertion.  As Mr Healey of the Australian Electoral Commission submitted, the applicant is thus apparently asking the Court, as part of its inquiry, to make a finding on the balance of probabilities that the sub-section has been breached.  In my view there would be no warrant or justification for doing so even if the facts permitted it.  The fact is that section 315(2) is irrelevant to these proceedings and its suggested construction is not correct.  Whether or not a criminal court might find Charles’ conduct to be an offence under that sub-section is quite immaterial to whether there has been an irregularity in this presidential election.

18                  In summary, Charles’ declaration of an intention to resign if Bourne was re-elected, and his display to some voting delegates of his letter of resignation as proof, do not amount to an “irregularity” because they were at most actions taken to influence voting intention, not to interfere in the successful conduct of the poll itself.  In my opinion, none of the suggested irregularities, either separately or cumulatively, could be said to amount to bribery, coercion or intimidation of delegates into not voting for the applicant, into voting for Thorpe, or into pressurising delegates to change their votes from one candidate to the other.  No threat of damage, loss or disadvantage, or a promise of gain, to any delegate has been alleged. 

19                  Pursuant to section 223(5) of the Act, I terminate the inquiry into the election of the President of the New South Wales Branch of the AHA.  The application for the inquiry is dismissed with costs.

Associate:

Dated:              5 November 1999