FEDERAL COURT OF AUSTRALIA

Electoral Commissioner, in the matter of an inquiry relating to elections for offices in the Australian Federal Police Association Branch of the Police Federation of Australia [2016] FCA 469

ORDERS

THE COURT DECLARES THAT:

1.    All steps taken after 18 May 2015 in the elections (affected elections) for the following offices in the Australian Federal Police Association (AFPA) Branch of the Police Federation of Australia (Federation) are void:

(a)    Workplace Delegates in the ACT Policing, AFP Capability, AFP Capacity, AFP Executive, AFP National Security and AFP Operations zones; and

(b)    Branch Zone Coordinators in the AFP Capability, AFP Capacity, AFP Executive, AFP National Security and AFP Operations zones.

THE COURT ORDERS THAT:

2.    The General Manager of the Fair Work Commission make arrangements for the following steps in relation to the affected elections to be taken again:

(a)    the provision by the Australian Electoral Office (AEC) to the AFPA of a proposed timetable for the close of the rolls of voters and the nomination and voting periods;

(b)    the preparation and submission to the AEC of the rolls of voters for each of the AFPA zones;

(c)    the issuing of an election notice inviting members of the AFPA to nominate for the above-mentioned offices, in accordance with r 96(e)(i) of the Federation Rules; and

(d)    the processing of nominations, in accordance with r 96(e)(iii) of those Rules;

AND for the uncompleted steps in all the elections the subject of this inquiry to be taken.

3.    At the time the election notice is issued, the AFPA inform all members by email:

(a)    of the date the roll of voters will close;

(b)    that the roll at that time governs the eligibility of members both to vote and to nominate or be nominated for an office in a zone; and

(c)    that, after the roll closes, the only amendments that may be made are those which are necessary to ensure that it accurately reflects:

(i)    the financial status of the members; and

(ii)    the zones to which they were attached

at the time the roll closed.

4.    In conducting the elections, the requirements relating to dates in r 96(e) of the Federation Rules be dispensed with.

5.    The parties have liberty to apply on two days’ notice.

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

REASONS FOR JUDGMENT

Table of Contents

1    Where the Electoral Commissioner believes there has been an irregularity in relation to an election for an office in an organisation or branch of an organisation registered under the Fair Work (Registered Organisations) Act 2009 (Cth) (FW (RO) Act), the Commissioner may apply to this Court for an inquiry into the matter. Where the Commissioner believes that the result of an election has been affected by an irregularity of this kind, the Commissioner has an obligation to make the application. The Police Federation of Australia is such an organisation. One of its branches is the Australian Federal Police Association (AFPA).

2    On 2 September 2015 the Electoral Commissioner applied for an inquiry into the elections for the offices of Zone Coordinator and Workplace Delegates in each of the six “zones” of the AFPA. I was satisfied that there were reasonable grounds for the application and so made orders and issued the necessary directions to enable the inquiry to take place (see FW (RO) Act, s 201).

3    At the time of the application voting had not begun and the electoral process was suspended.

The parties to the inquiry

4    The Electoral Commissioner is appointed under the Commonwealth Electoral Act 1918 (Cth) and is the chief executive officer of the Australian Electoral Commission (AEC), which is established under the same legislation: see FW (RO) Act, s 6; Commonwealth Electoral Act, ss 6, 18. Generally, elections for offices in all registered organisations must be conducted by the AEC: FW (RO) Act, s 182(1).

5    In addition to the Electoral Commissioner, the following people were admitted as parties to the inquiry: Jonathan Hunt-Sharman, Angela Smith, Ian Bridle, Glen McDonald, Russell Rowell, Mark Jager and Rick Smeltink, who were the members of the National Executive of the branch at the time the election was called, and Dennis Gellatly. Mr Gellatly, the chief executive officer of the AFPA, was later removed at his own request, although two affidavits he had filed were read on behalf of the Electoral Commissioner. On 15 December 2015 Adrian Smith and Graeme Cooper were added as parties. Mr Smith was appointed to the National Executive on 8 December 2015 to fill a casual vacancy caused by the retirement of Mr Rowell. Mr Cooper was appointed on 11 November 2015 to fill the casual vacancy caused by Angela Smith’s appointment as Branch National President following Mr Hunt-Sharman’s resignation from that position. I shall refer to these parties collectively where necessary as the National Executive.

6    On 12 October 2015 a candidate in the election, Christopher Collingwood, an AFP station sergeant and existing Workplace Delegate, was granted leave to appear at the inquiry but subsequently sought and was granted leave to withdraw.

The evidence

7    In addition to the affidavits from Mr Gellatly, evidence was given on behalf of the Electoral Commissioner by Renee Damasena, a senior returning officer with the AEC. Affidavits were also read from Mr Hunt-Sharman, and Tracy Mayo, an administrative officer in the AFPA office. Ms Damasena, Mr Hunt-Sharman and Ms Mayo were each cross-examined. Mr Collingwood filed an affidavit but his affidavit was not read.

8    The evidence from Ms Damasena was concerned with the electoral process and the background to the application for the inquiry. Annexed to her first affidavit were a number of material documents, including the AFPA Rules, important correspondence with both the AFPA and the Fair Work Commission (FWC), and the election notices. Her second affidavit related to alleged irregularities affecting the nominations of two candidates.

9    The evidence of Mr Hunt-Sharman and Mr Gellatly filled out some of the background and set out in some detail the AFPA’s participation in the electoral process. Annexed to Mr Hunt-Sharman’s first affidavit was a printout of a USB data storage device containing the second of two registers of AFPA members, which was given to the AEC to enable it to correct perceived errors in the roll of voters. At my request, a USB drive containing the first register, which became the roll, was provided to the Court and admitted into evidence. Ms Mayo gave an account of her activities during and in the lead-up to the election, including her contact with AFPA members after the roll had closed which resulted in the production of the second register.

The Police Federation and the AFPA branch

10    The Federation is governed by rules, made under Ch 5 of the FW (RO) Act.

11    Under r 34 of the Federation Rules, the Federation is divided into eight branches: one for each state, one for the Northern Territory, and the AFPA. The supreme governing body of the AFPA is its Branch National Council (r 68). Between meetings of the Branch National Council, however, the governance and management of the affairs of the Branch rests with the Branch National Executive (r 76(b)), which is comprised of the Officers of the Branch (r 76(a)), who are the Branch National President, the Branch Chief Executive Officer, and six Branch Vice Presidents (r 66(a)). The Branch National Council consists of the Officers of the Branch, the Workplace Delegates and the Zone Coordinators: r 67(a).

12    The allocation of members to zones is covered by r 61, which provides as follows:

(a)    A Branch member shall be attached to a Zone, the composition, constitution and boundaries of which are to be determined from time to time by National Executive, in accordance with these Rules, in a manner determined from time to time by National Executive.

(b)    All members must be attached to the Zone that they could most conveniently belong to ensure fair and equal representation. Where possible a member will first be attached to a Zone that best represents their operational/functional role within the workforce. The Branch Chief Executive Officer shall allocate all members in accordance with National Executive Policy as determined from time to time in accordance with these Rules.

(c)    A member, once attached to a Zone, must remain a voting member of the Zone. A member may be transferred to another Zone only in accordance with National Executive policy.

(d)    The National Executive must regularly review the constitution, membership and boundaries of all Zones to ensure fair and equal geographical, skills and role base representation. Should it be necessary the National Executive will from time to time establish Zones to ensure maximum and equal representation of all members.

13    There is a tension between r 61 and the rule governing zones (r 90). Rule 90(a) provides that the Branch National Executive “shall ensure” each zone is “operationally viable” and represents “a geographical, operational or other community of interest”. Yet r 61(b) states that “where possible a member will first be attached to a Zone that best represents their operational/functional role within the workforce”. The former suggests zones may be organised geographically, but the latter requires members to be allocated according to their operational role or function. Certainly, it appears that it is the “operational … community of interest” that has been the organising principle of the AFPA zones to date, because the zones have been based on, or designed to reflect, the organisational structure of the AFP as it changes from time to time.

14    Each zone is entitled to one Branch Zone Coordinator (r 91), and one Workplace Delegate per 100 members or “majority part thereof” (r 66(b)(i)(a)). The Branch Zone Coordinators and Workplace Delegates are elected by and from the membership of the AFPA within their respective zones: rr 66(b)(i)(a), 90(b), 96(a), (e). A nominee for any office in a zone must be a financial member of the Branch at the date of his or her nomination: r 96(c).

15    Elections are conducted by secret postal ballot of all financial members of the zone: r 96(b). The successful candidates hold office for a period of two years or until a successor has been elected and taken office: r 96(b)(i). Different periods of tenure apply to successful candidates for these positions in newly-established zones: r 96(b)(ii). The conduct of elections for the positions of Zone Coordinator and Workplace Delegate is further dealt with by r 96(e). It relevantly provides as follows:

(i)    Not later than the 1st day of June in the year of an election, the Returning Officer shall call for nominations by circular to all eligible members of the Zone under this Rule, or by advertisement in a daily newspaper and/or Union Journal circulating throughout the State or Territory in which the Zone has members, and shall issue nominations forms to any financial member requesting the same.

(ii)    Nominations shall be in writing, signed by the nominee and the nominator (who shall be a financial member of the Zone) and shall be delivered to the Returning Officer at the office of the Branch not later than 5pm on the 1st day of July in the year of the election.

(iii)    The Returning Officer shall check all nominations received for compliance with the requirements of these Rules and shall reject any that do not so comply; provided that in the event of he/she finding a defect in any nomination he/she shall before rejecting the nomination notify the person concerned of the defect, and, where practicable give him/her the opportunity of remedying the defect where practicable being not less than seven days after the person is notified.

(iv)    If there be no more nominations than there are vacancies for a position, he/she shall declare the nominated person or persons elected to the position.

(v)    If more nominations are received than there are vacancies for a position, he/she shall have ballot papers printed and delivered to him/her containing the names of the candidates for each position in order determined by lot, indicating the number to be elected to each position, the manner in which votes shall be recorded, and the date and time of closing of the ballot such date being not later than the 15th day of August immediately following the closing of nominations. The roll of voters for the ballot is to be closed 7 days before the day on which nominations for the election open.

…

(xiv)    Eligible members under this Rule shall be the financial members of the Zone.

Steps required in an AFPA election

16    There are broadly eight steps in branch zone elections, prescribed by the Rules, the FW (RO) Act and the Fair Work (Registered Organisations) Regulations 2009 (Cth) (Regulations).

17    First, before the “prescribed day” or such later day as the General Manager of the Fair Work Commission (FWC) allows, the AFPA lodges with the FWC “the prescribed information” in relation to the elections: FW (RO) Act, s 189. The prescribed information is listed in reg 138(1) of the Regulations. It includes:

    (a)    the name of each office or position for which an election is required;

    (b)    the reason for the election is that:

(i)    the term of the office or position has expired or is due to expire in the normal course of events; or

(ii)    a casual vacancy in the office or position has occurred (or will occur imminently); or

        (iii)    a new office or position has been created; or

        (iv)    the office or position was not filled at the previous election;

(c)    if more than one of the offices or positions for which an election is required has the same name, and the number of offices or positions can, under the rules of the relevant organisation or branch, be determined before the prescribed day—the number of those offices or positions;

(d)    if the electorate comprises only members of a branch, section or other division of an organisation—the name of the branch, section or division;

(e)    the date and time of the beginning and end of the period in which nominations of candidates will be called for or may be made under the rules of the organisation or branch in relation to the election;

(f)    the day provided for in the rules of the organisation as the day on which the roll of voters is to be closed;

    (g)    the kind of voting system to be used in the conduct of the election is:

        (i)    a direct voting system; or

        (ii)    a collegiate electoral system.

18    The “prescribed day” is the day occurring two months before the first day when, under the rules of the branch, a person may become a candidate in an election: reg 138(3). The relevant rule in the present case is r 96(e)(i), which provides for the calling of nominations by 1 June in an election year. That makes the prescribed day 1 April.

19    Second, the FWC makes a decision under s 189(3) of the Act to arrange for the conduct of the election by the AEC.

20    Third, the AEC provides the AFPA with a proposed timetable for the close of the roll and the nomination and voting periods.

21    Fourth, the person conducting the election (the returning officer) requests that the AFPA provide a certified register of its members, “for the purpose of the ballot”: s 191(1). Armed with this information, an electoral official (a member of staff of the AEC) then directs the preparation of the roll of voters. The roll must close within the time specified in the rules of the organisation (reg 131(2)(c)). The day the roll closes must be a day no earlier than 30 days, and no later than seven days, before the day on which nominations for the election open (s 143(3)). In these elections, the Rules provide that the roll must close seven days before the day on which nominations for the election open: r 96(e)(v).

22    Fifth, the AEC issues an election notice inviting AFPA members to nominate for the vacant positions, in accordance with r 96(e)(i) of the AFPA Rules.

23    Sixth, the AEC receives and processes nominations, in accordance with rr 96(e)(ii) and (iii).

24    Seventh, if necessary, the AEC conducts a ballot, in accordance with rr 96(e)(v) and (xi). A ballot is only required for an office if there are more nominees than there are available positions: r 96(e)(iv).

25    Finally, the AEC declares the results of the election, in accordance with r 96(e)(xiii).

26    In the present case, as will be seen, the elections were suspended after the sixth, and before the seventh, step had been taken.

The conduct of these elections

Step 1: the submission of the prescribed information

27    On 23 April 2015, Mr Gellatly, who (it will be recalled) was the Chief Executive Officer of the AFPA, lodged with the FWC on the AFPA’s behalf the prescribed information in relation to elections for the officers of Branch Zone Coordinator and Branch Zone Workplace Delegates for 16 zones, reflecting the organisational structure of the AFP at that time. They were:

    ACT Policing;

    Aviation;

    Chief Information Officer;

    Chief Financial Officer;

    Counter Terrorism;

    Crime Operations;

    Executive;

    Forensic & Data Centres;

    High Tech Crime Operations Zone;

    Human Resources;

    Intelligence;

    International Deployment Group;

    Operations Support;

    Policy & Governance;

    Protection; and

    Serious Organised Crime.

28    The prescribed information also set out the following dates:

Cut off date for roll:     7 days prior to the opening date for nominations

Roll of voters closes:     Monday 25/05/2015

Nominations Open:     Monday 01/06/2015

Nominations Close:     Wednesday 01/07/2015 (closes at 5pm)

Ballot Opens:         Tuesday 14/07/2015

Ballot Close:         Friday 04/08/2015 (closes at 10am)

Step 2: the FWC’s decision under s 189(3)

29    The prescribed information was provided more than three weeks after it was due. Mr Gellatly sought an extension of time, explaining that the delay was due to “an administrative error”, but on 8 May 2013 a delegate of the Fair Work Commissioner declined the application, leaving open the possibility that the Federation could face an application by the FWC in this Court, as s 189(2) is a civil penalty provision: see FW (RO) Act, ss 305-306. Even so, as the delegate was satisfied that an election was required to be held under the rules of the Federation, he made the decision under s 189(3) of the Act to arrange for its conduct by the AEC. Arrangements were then put in place. See Police Federation of Australia [2015] FWCD 2935.

The change in the AFPA’s zones and the “correction” of the FWC’s decision

30    In either late April or early May 2015, Mr Hunt-Sharman (the then AFPA National President) and Mr Gellatly were informed by the then AFP Deputy Commissioner, Graeme Ashton, that the AFP was to undergo an organisational restructure with effect from 1 July 2015. That advice prompted Mr Hunt-Sharman to send an email to all AFPA officers on 7 May 2015 stating that the AFPA zones had to change to reflect the new AFP structure. At an extraordinary meeting held some four days later (11 May), the National Executive resolved to establish six zones in place of the previous 16. The relevant minute reads as follows (without alteration):

Agenda item 9 NOMT Report - AFPA Zone Structure for 2015 AFPA

Elections

Noting the recent restructure of the AFP functional areas and the difficulty with the current AFPA Zone structure coping with members transfering (sic) across AFP functions, the National Executive has determined under AFPA Rule 61 – Allocation and Transfer of Members and Rule 90 – Zones and Rule 116 Guarantee of Fair Representation that the following Zones are established and that members will be assigned to those Zones immediately, for the purpose of the 2015 AFPA election of Delegates:

•    ACT Policing Zone

•    AFP Capability Zone

•    AFP Capacity Zone

•    AFP Executive Zone

•    AFP National Security Zone

•    AFP Operations Zone

Further, that the AFPA CEO is to immediately allocate all members in accordance with this National Executive Policy decision and notify the AEC (and if necessary FWA), of the changes to the AFPA Zones for the purpose of the 2015 Delegate elections.

NOTE:

•    ACT Policing Zone incorporates:

Former ACT Policing Zone    744    7 Delegates

Total Delegates under new Zone:    744    7 Delegates -0

•    AFP Capability Zone incorporates:

Former Forensic & Data Centres Zone    158    2 Delegates

Former Intelligence Zone    186    2 Delegates

Total Delegates under new Zone:    344    3 Delegates -1

•    AFP Capacity Zone incorporates:

Former Chief Financial Officer Zone    044    1 Delegates

Former Chief Information Officer Zone    046    1 Delegates

Former Human Resources Zone    157    2 Delegates

Former Operations Support Zone    188    2 Delegates

Former Policy & Governance Zone    013    1 Delegate

Total Delegates under new Zone:    448    4 Delegates -3

•    AFP Executive Zone incorporates:

Former Executive Zone    148    1 Delegate

Total Delegates under new Zone:    148    1 Delegates -0

•    AFP National Security Zone incorporates:

Former Aviation Zone    526    5 Delegates

Former Counter Terrorism Zone    088    1 Delegate

Former Protection Zone    421    4 Delegates

Total Delegates under new Zone:    1,035    10 Delegates0

•    AFP Operations Zone incorporates:

Former Crime Operations Zone    543     5 Delegates

Former High Tech Crime Operations Zone    205     2 Delegates

Former International Deployment Group Zone    335      3 Delegates

Former Serious & Organised Crime Zone    217      2 Delegates

Total Delegates under new zone:    1,300     13 Delegates [+]1

31    At face value the “NOTE” (Resolution Note) illustrates the effect of the zone changes. The numbers that follow the total number of delegates in each section (-0, -1, -3 etc.) represent the difference between the number of Workplace Delegates for each new zone and the total number of Workplace Delegates in the former zones absorbed by it. Those differences arise because, as will be recalled, under r 66(b)(i)(a) a zone is entitled to one delegate per 100 members or majority part thereof.

32    There was conflicting evidence as to the significance of the Resolution Note. Mr Gellatly believed that it formed part of the resolution. This is entirely understandable but it was at odds with Mr Hunt-Sharman’s evidence as to what occurred in the meeting, set out in his second affidavit sworn on 2 November 2015. There, he stated that the Resolution Note was not part of the resolution. Rather:

Those words were an indicative translation table for allocating members from the old zones to the new ones, and estimating the number of Workplace Delegates in each of the new zones. It was included within the draft minutes because its contents contained the working numbers which the National Executive relied upon in deciding to adopt the New Zones Resolution. The calculation of the number of delegates in the various new zones pursuant to the New Zones Resolution, as contained in the memorandum to Mr Gellatly and Ms Mayo of 12 May 2015 from me (being annexure “TNM-1” to Ms Mayo’s affidavit), reflected my understanding of an earlier discussion between myself and Mr Gellatly. In that discussion we came to an estimate of the number of delegates for each of the new zones which, to the best of my recollection, was based upon the members of AFPA as at the previous election in 2013. It was only ever a preliminary estimate, as I was aware from my previous experience that actual Workplace Delegate numbers for any Workplace Delegates elections had to be identified after the membership roll closed in accordance with the AEC timetable.

(Emphasis added.)

33    Mr Hunt-Sharman expressly addressed Mr Gellatly’s concerns in his third affidavit sworn on 10 December 2015. No other person who attended the meeting gave evidence to contradict Mr Hunt-Sharman. Mr Gellatly had left the meeting by the time the resolution was put. In these circumstances I accept Mr Hunt-Sharman’s evidence that the Resolution Note was not part of the resolution. As events transpired, however, the Resolution Note took on a life far beyond its intended purpose as a preliminary estimate for the National Executive’s deliberations.

34    But what was the effect of the resolution itself? It was twofold. First, the resolution disbanded the 16 former zones and created the six new ones, under r 90(a) and (c). Second, according to Mr Hunt-Sharman, the resolution was the National Executive’s promulgation of the policy governing the transfer of members from the old to the new zones. It will be recalled that r 61(c) provides that “[a] member may be transferred to another Zone only in accordance with National Executive policy”. Importantly, however, the resolution itself did not allocate members to particular zones. Rather, the final paragraph directed the CEO (Mr Gellatly) to “immediately” undertake that task.

35    Accordingly, the day after the meeting Mr Hunt-Sharman emailed Mr Gellatly and Ms Mayo (an administrator and executive assistant at the AFPA), drawing attention to the relevant resolution and telling them that the zone changes would “have to be actioned immediately”. The email attached the minutes of the 11 May meeting, including the minute of the relevant resolution, but it said nothing about the relevance or otherwise of the Resolution Note.

36    On 18 May 2015, Ms Mayo sent a letter to the General Manager of the FWC, Bernadette O’Neill, affixing Mr Gellatly’s signature, advising Ms O’Neill of the National Executive’s resolution. The letter identified the six new zones and provided tables setting out the information contained in the Resolution Note, including how the old zones would be translated into the new zones and the effect this would have on the number of delegates in the new structure. The letter concluded with the following exhortation (without alteration):

As there is considerable changes to the Zones it is imperative that these are incorporated into the 2015 Election process to ensure the Delegates can be voted according to this newly formed structure.

37    The same day, a delegate of the General Manager of the FWC “corrected” its earlier decision by deleting the former zones and replacing them with the six new ones.

Steps 3 and 4: the timetable for the elections and the register of members

38    On 22 May 2015, the AEC returning officer for the election, Ishtiaq Ahmed, emailed a letter dated 21 May 2015 to Mr Gellatly, informing him of the timetable for the elections and other associated matters. In conformity with the prescribed information lodged by the AFPA with the FWC, it stated that nominations for the election would open on 1 June 2015 and the voter roll would close on 25 May 2015. Mr Ahmed advised that the roll of voters for the elections would consist of “those members who [were] financial and eligible to vote” on that date. Mr Ahmed also directed the AFPA to provide him with “the register” of voters for the elections by midday on 26 May 2015.

39    At an unknown time on 26 May 2015, Mr Ahmed received a letter from Mr Gellatly and a USB drive. The letter read as follows:

I certify that the accompanying listing supplied on USB drive, contains the name and full member information of every member who was financial as at 25 May 2015.

I further declare that the register of members has been maintained as required by Section 230(2) of the Fair Work (Registered Organisations) Act 2009.

The total number of eligible members listed is 3909.

40    That USB drive contained six Microsoft Excel files, corresponding to the six new AFPA zones and recording lists of the members in those zones.

41    The previous day — 25 May 2015 (the day the roll closed) — the AFPA had emailed all members a “News Update”, informing the members of the National Executive’s resolution of 11 May 2015 and providing a “translation table”, apparently based on the Resolution Note, advising them of the new zones to which they would be allocated. Members were urged to contact the AFPA if they were unsure of their zones.

Step 5: the issuing of the election notice

42    At 12.24pm on 26 May 2015, Mr Ahmed sent an email to Mr Gellatly and Ms Mayo attaching an election notice and a nomination form. The election notice called for nominations for Branch Zone Coordinator and Branch Zone Workplace Delegates in each zone. Nominations in writing were required to reach the AEC Returning Officer no later than 5.00pm on 1 July 2015. If a ballot was required, it would open on 14 July 2015 and close on 4 August 2015.

43    The election notice called for nominations in accordance with the numbers recorded in the Resolution Note.

44    At 2.42pm on 1 June 2015 (the date nominations opened), Ms Mayo emailed Mr Ahmed, confirming that the AFPA had “distributed the election notice to all Financial, AFPA Members” and that the election notice and nomination forms were available on the AFPA website.

Step 6: receiving and processing the nominations

45    Nominations for the election closed at 5.00pm on 1 July 2015. At 5.51pm Mr Ahmed emailed Mr Gellatly a letter attaching a “Nominations Report”, which set out the candidates for coordinator and delegate in each zone and the members who had nominated them. The letter noted that the eligibility of those candidates and nominators had not been checked and that Mr Ahmed would issue a final list of nominations once he had checked their eligibility. The letter continued (without alteration):

Eligibility Check

To enable me to verify the eligibility of the candidates and nominators please provide me with a certified copy of the Nominations Report plus screen prints from the membership system which contains the following information:

    Membership Name

    Member Number

    Name of Zone

    Payment method, date of payment paid and financial status as at the opening of nomination date i.e. 1 June 2015.

Also as a part of eligibility check, please confirm that candidates have complied with rule 66(c ), rule 96 ( c ) and rule 96 (e ) (ii) of the your association in relation to respective categories of offices subject to election.

The Secretary or another authorised officer or person must certify the report as a true and accurate extract of the membership records. Please provide your response by 12:00 noon on 2 July 2015.

(Original emphasis.)

46    Ms Mayo and her colleague, Karen Norman (the AFPA office manager), undertook the task of verifying the eligibility of the nominations. Ms Mayo described their methodology in her affidavit. First, they looked at the new zone in which each person had nominated or been nominated. Secondly, they looked at the AFPA’s records to see what the person’s old zone had been. Thirdly, they determined whether the person’s old zone and the zone of their nomination corresponded correctly, according to the translation table that had been published to the members (and therefore according to the Resolution Note).

47    Ms Mayo deposed that where the zone of a person’s nomination appeared incorrect, she or Ms Norman would contact that person “to check … their current work functions and then determine … their correct new zones”. As a result of this process, Ms Mayo and Ms Norman determined that a number of the nominations were defective.

Other concerns about the nomination process

48    Mmes Mayo and Norman were not the only ones with reservations about the nomination process. Concerns and complaints also emanated from AFPA members.

49    The first complaint seems to have been raised as early as 22 June 2015, while nominations were still open. Dan Smith, an existing Workplace Delegate, informed Mr Hunt-Sharman of what he perceived to be an “error” in the translation of the old zones to new zones. The former Chief Information Officer (CIO) division of the AFP had been transferred to the Capability section, yet the translation table showed that CIO members would be transferred to the AFPA’s AFP Capacity Zone. Upon receiving Mr Smith’s email, Mr Hunt-Sharman advised Ms Mayo and Mr Gellatly of the apparent error and asked Ms Mayo to ensure that the former members of the CIO Zone were transferred into the AFP Capability Zone. He also asked her to “flag” with the AEC that the change could have an impact on the number of delegate positions available in the new zone. He expressed his view that the transfer would create an additional Workplace Delegate position. There is no evidence as to what Ms Mayo did with this request, but Ms Damasena stated that the AEC was not advised of the issue regarding the CIO Zone until 7 July 2015.

50    Ten days later, on 2 July (the day after nominations closed), Mr Collingwood sent an email to Mr Gellatly, seeking “an update” on the review of the allocation of delegate positions under the new structure. The email expressed concern about possible anomalies in “the data around where [voters] are positioned within zones”. It concluded:

Subject to your advice about the results of your review [presumably the review undertaken by Ms Mayo and Ms Norman], I would consider that even if one delegate position has been incorrectly allocated (by number of members per Zone), this election should be abandoned. This will allow time for proper consultation with the current delegates to sense-check the information provided by the AFP, before proceeding with fresh elections in accordance with the Branch Rules.

51    Mr Gellatly swiftly replied, noting that there were “a few delegates who placed themselves in the incorrect zones” but stating that this was being “rectified” that very day with the AEC. He added that he had tried to obtain confirmation from the AFP on “the various portfolio changes” it had introduced, but confirmation had not been forthcoming. He continued:

At this stage the best the AFP can give us goes down to Manager level as there are still many business areas under that level who have not yet responded or made the necessary decision about where they fit.

If we were to consider abandoning the election we would have to obtain advice from Fair Work and the AEC, both of which have had their input into where things are now at. We are working to a timetable imposed on us by those agencies respectively who have both reviewed the (re)structure of the AFP and the AFPA zones.

The AEC set us a deadline of midday today (Thursday) to confirm candidates eligibility according to location etc. so Karen and Tracy have been flat out going through the nominees and checking. All nominees AND nominations had to be vetted and we have to provide the AEC evidence of such.

I will be reviewing everything in the morning to make sure we have things as accurate as we possibly can. I will let you know how that transpires.

52    On 7 July Mr Collingwood sent another email to Mr Gellatly reiterating his concerns about the legitimacy of the election. He said that “[t]he allocation of candidates to the correct zone is still only part of the issue”. He again queried whether the number of delegate positions in the Capability Zone was sufficient and whether the numbers in National Security or Operations were excessive. He asked whether an “absolute assurance” could be given that the allocations were correct. Noting that fewer than 300 members had been assigned to the new Capability Zone, he said that if this were inaccurate, then many members who should be in Capability would be voting for delegates elsewhere. Once more, he suggested that the election should be abandoned.

53    Mr Gellatly tried to reassure Mr Collingwood that the information was as accurate as possible and that there were only three positions available in Capability. He asserted that “all the nominations, nominees etc” had been validated with the AEC. He copied into his email An Li, Legal Counsel for the AFPA.

54    Mr Collingwood then asked Mr Gellatly for a list of the financial members he considered should be in the Capability Zone and on 9 July he wrote to Mr Gellatly and Ms Li reporting on the results of his initial review of the list. Mr Collingwood claimed that there were 425 financial members on the list, with the result that there should be an additional Workplace Delegate position. He added that none of his “business area” was included and expressed his suspicions that he and the other members working in those areas were still included in the Operations Zone. He observed that, not only was he not included on the list, but neither were most of the candidates who had nominated for the Capability Zone. Furthermore, he said that there were four candidates who had been nominated for delegate positions that were outside their zones (two in Capability, one in Capacity and one in Operations) because the candidates were Executive Level employees and therefore should have been in the Executive Zone. Mr Collingwood said that the absence of “entire business areas” was indicative of “wholesale problems” with the transfer process. He also criticised the new zone structure, calling for wider consultation and suggesting that its purpose was to “keep loyalists in the Council and agitators out”. If true, that would be a serious matter. Gerrymandering in the determination of zone compositions is expressly prohibited by r 116, and in any event would be an abuse of the National Executive’s powers. But no submission of that nature was advanced in this inquiry.

55    Ms Li replied to Mr Collingwood, acknowledging that 425 members should have at least four vacancies (not the three for which nominations had been called), and said that she had “the same question” that he had raised.

56    On 8 July, another AFPA member, Ken Lamb, added his concerns. Mr Lamb emailed Mr Gellatly, suggesting that the person who had nominated him for Workplace Delegate in the Capability Zone, Adam Reeve, was in the wrong zone. In his affidavit Mr Gellatly said that he was aware of a number of complaints by members to other AFPA staff arising from the Nominations Report, relating to either the number of delegates or the allocations to zones. That statement could be a reference to Mr Collingwood’s and Mr Lamb’s complaints only, but the language used rather suggests that other members had made similar complaints.

57    The next day, 9 July, Mr Gellatly received an email from Mr Ahmed, who had been contacted by another nominee in the Capability Zone, Brett Coutts, advising that his nominator was listed in the wrong zone. Later that day Ms Li emailed Mr Ahmed stating that “the numbers of vacancies in each zone provided to the AEC were inaccurate”. She added that “we understand this mistake will have a significant impact on the election” and sought his advice as to whether the election needed to be “stayed” until “accurate data” were available.

58    In a letter sent to Mr Ahmed the following day, Ms Li wrote:

As discussed [in a telephone conversation earlier that day], the [AFPA] has just identified that the vacancy numbers in four of the six zones currently open for election are inaccurate, due to an error in the correspondence to the Fair Work Commission submitted by the AFPA on 18 May 2015. Further, we discovered the roll of voters provided by this office to the AEC on 26 June (sic) 2015 was inaccurate.

As such, we are writing to request your assistance to rectify this defect and advice as to what appropriate action should be taken in relation to this election. We are concerned that if the nomination period cannot be reopened, it will affect the fair and equitable representation for our membership, taking into account that three zones now have more vacancies and one zone has less. In addition, the inaccurate roll of voters would result in some members being denied their voting rights.

Strictly speaking, the reference to “the roll” is inaccurate. Ms Li obviously means “the register” but these terms were used interchangeably by the AFPA and the AEC alike. The reference to “June” in the last sentence of the first paragraph of this letter is an obvious error, since the roll was provided on 26 May.

59    On 13 July, Ms Li advised Mr Gellatly that the numbers of vacancies in four zones were inaccurately reported to the FWC and that the roll of voters provided to the AEC on “25 June (sic)” contained “many errors, compared with the current database report figures produced … on 10 July 2015”. She said that the errors had arisen after Ms Mayo had taken the number of vacancies from the National Executive minutes of 11 May rather than calculating them based on the membership database. She advised Mr Gellatly to write to the FWC and request that it take appropriate action.

60    The next day, 14 July, Mr Gellatly wrote to Ms O’Neill, telling her that the number of financial members in each zone previously reported to her was incorrect in four of the six zones. He said that this error had “significant ramifications for the fair and equal representation of [the AFPA] membership as some zones should have more delegate vacancies while others should have less”. Mr Gellatly also reported that it had come to the AFPA’s attention that the voter roll provided to the AEC was inaccurate. In these circumstances, Mr Gellatly told Ms O’Neill that the AFPA considered that the election could not continue and asked for her assistance to prevent it from continuing “due to the significant errors in the vacancy numbers and the ramifications this has for the representation of our membership”.

61    The FWC advised the AFPA that the conduct of the election was a matter for the AEC and drew Mr Gellatly’s attention to the provisions of ss 200 and 204 of the FW (RO) Act. Consequently, on 17 July Ms Li wrote to Ms Damasena asking the AEC to take action urgently “to rectify the inaccuracies” reported to Mr Ahmed “on 13 July 2015 (sic)”, repeating the AFPA’s then position that “this election cannot proceed with the current vacancies as this would have a significantly detrimental effect on the fair and equal representation of our membership”. On 21 July Ms Damasena wrote to the Federation requesting:

    a correct “roll of” voters;

    certification of “the roll” in accordance with the procedures outlined in the letter to the AFPA of 21 May 2015;

    a statement from the AFPA stating that “the IT or data errors [it had] encountered are now fixed and that the roll is correct and accurate”;

    information about what announcement had been made to members about the new zone or structure of the AFPA; and

    delivery of “the roll” to the AEC’s Queanbeyan office.

62    The next day, 22 July, Ms Damasena received two letters from the AFPA enclosing a USB drive and a hard copy of its contents. In the first letter Mr Gellatly, as CEO of the AFPA, certified that the list on the enclosed USB drive contained “the details of the AFPA roll of voters, including the name, membership number, postal address, electorate code and email address of every AFPA member who was financial at 25 May 2015”. He also declared that the register of members had been maintained as required by s 230(2) of the FW (RO) Act and that the total number of eligible members listed was 3976. In the second letter Mr Gellatly asserted that “the errors which resulted in the inaccuracies of previous data provided to the [AEC] have been resolved” and that the “voter roll” on the USB device, reproduced in hard copy, was “correct and accurate”.

63    On the same day Ms Damasena received an email from Mr Collingwood, invoking s 200 of the FW (RO) Act and asking the Electoral Commissioner to initiate an inquiry into irregularities in relation to the elections for offices of Branch Zone Coordinators and Workplace Delegates. In that email Mr Collingwood wrote:

The branch zones have been restructured prior to the call for nominations for these current elections however, there are substantial flaws with the records of the zones in which candidates, nominators and branch members reside. From my examination of some of the zone lists I have identified anomalies in the records which may constitute as much as a 20% error in the membership data. Further this, to the zone records I have examined show that I am recorded against the wrong zone, along with numerous other delegates who have nominated for re-election.

The manner of these irregularities is such that I anticipate it will create a significant disadvantage to me in gaining re-election against candidates who have also become part of the new zone structure.

The irregularities referred to have also resulted in as much as a 50–60% error in the count of delegate positions available in one or more of the new zones. Accordingly, the irregularities will result in one zone being substantially under-represented and others over-represented.

I understand that nominations have now closed for these branch elections and voting is due to commence this Friday 24 July. However, I assert that these anomalies are significant enough to justify the current elections being abandoned to avoid a complete breakdown of democratic integrity in the AFPA branch elections.

Whilst these irregularities may be resolved prior to elections being held, it is critical to the current and future democratic integrity of our registered organisation that the irregularities are examined by the Federal Court to determine if they are the result of malicious, reckless or incompetent behaviour by one or more people.

64    Mr Ahmed suspended the election on 23 July.

Inquiries into elections

65    Applications for inquiries into elections for office are covered by Ch 7 Pt 3 of the FW RO) Act.

66    As I mentioned at the outset, the Electoral Commissioner must apply for an inquiry if he or she believes that the result of an election has been affected by an irregularity in relation to the election: FW (RO) Act, s 200(2). The Electoral Commissioner may make an application if he or she believes there has been an irregularity but is not obliged to: FW (RO) Act, s 200(3). Applications may also be made by members of the relevant organisation or recent former members who claim there has been an irregularity in relation to an election: FW (RO) Act, s 200(1).

67    At any such inquiry, amongst other things, the Court must inquire into and determine whether there has been such an irregularity: s 206(1).

68    The Act contains a non-exhaustive definition of “irregularity” for relevant purposes. An “irregularity in relation to an election or ballot” is defined in s 6 to include:

(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; and

(c)    a contravention of section 190.

69    The same definition of irregularity appeared in s 4 of the Conciliation and Arbitration Act 1904 (Cth). It was considered by the High Court in Re v Gray; Ex parte Marsh (1985) 157 CLR 351, a case involving a complaint about the distribution of allegedly misleading electioneering material. Gibbs CJ there observed at 367–8 (Mason, Wilson, Brennan, Deane and Dawson JJ agreeing):

According to the Oxford English Dictionary, “irregularity”, in its relevant sense, means “want of conformity to rule; deviation from or violation of a rule, law, or principle ... deviation from what is usual or normal”. The notion of an irregularity, in relation to an election, involves the idea of some departure from some rule, established practice or generally accepted principle governing the conduct of the election …

70    “Election” is not defined in the FW (RO) Act but it is plainly not confined to the ballot itself and would capture all the steps taken in preparation for the ballot: see Hodge v The King; Ex rel O’Sullivan (1907) 5 CLR 373.

71    There is no reason why this approach should not also apply to the meaning of “irregularity in relation to an election” in the FW (RO) Act.

72    The phrase “in relation to” is of wide import, denoting a connection of some kind between two or more things. As McHugh J explained in O’Grady v Northern Queensland Company Ltd (1990) 169 CLR 356 at 376 (followed by the Full Court of the Federal Court in Harris v Commissioner of Taxation (2002) 125 FCR 46 at [68]):

The prepositional phrase “in relation to” is indefinite. But, subject to any contrary indication derived from its context or drafting history, it requires no more than a relationship, whether direct or indirect, between two subject matters.

73    The full suite of the Court’s powers and obligations is set out in s 206, which relevantly provides as follows:

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

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

(3)    In the course of conducting an inquiry, the Court may make such orders … as the Court considers necessary.

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

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

…

(c)    an order directing the General Manager [of the Fair Work Commission — see section 6] to make arrangements:

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

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

(5)    The Court must not declare … any step taken in relation to an election … to be void … unless the Court is of the opinion that, having regard to the irregularity found, and any circumstances giving rise to a likelihood that similar irregularities may have happened or may happen, the result of the election … may be affected … by irregularities.

(6)    Without limiting the power of the Court to terminate a proceeding before it, the Court may, at any time after it begins an inquiry into an election, terminate the inquiry or the inquiry to the extent that it relates to specified matters.

74    Sub-section (5) is an important limitation on the Court’s powers. Nevertheless, the stipulation that the Court not declare a step in relation to an election to be void unless it is of the opinion that the result of the election may be affected by irregularities does not entail an assessment on the balance of probabilities. It is enough that the Court is satisfied that, by reason of the irregularity found to have occurred and any circumstances giving rise to a likelihood of similar irregularities, there is “a real or distinct possibility” that the result of the election might be affected: Kelly v Amalgamated Metal Workers’ & Shipwrights Union (1981) 56 FLR 124 at 148 (Sheppard J).

What irregularities occurred?

75    There is no doubt that there were irregularities in relation to the election. That is uncontentious. Two questions arise: what are the irregularities and what should be done about them?

76    In opening submissions the Electoral Commissioner submitted that the evidence revealed four irregularities, all of which involved breaches of the rules of the Federation. Only the first was contentious, the remaining three resulting directly from the decision to suspend the election.

77    First, the returning officer accepted two nominations (the nominations of Mr Collingwood and one Scott Henderson) when they did not comply with the requirements of the rules. Although the Electoral Commissioner originally considered that the nomination of Blaise O’Shaughnessy was also irregular, by the time of the hearing, the Commissioner’s concerns about that nomination had apparently been alleviated.

78    Second, the returning officer failed to declare elected to the positions of Branch Zone Coordinator in three of the six zones the only candidate who was nominated for those positions, contrary to r 96(e)(iv).

79    Third, the ballot did not open or close on a date not later than 15 August, contrary to r 96(e)(v).

80    Fourth, the returning officer did not forward ballot papers in accordance with r 96(e)(ix).

81    All these matters would constitute “irregularities” as they involve departures from the rules. There is also authority for the proposition that the acceptance of a nomination which was not validly made under the rules of an organisation may constitute an irregularity in the conduct of an election: Rivers, in the Matter of an Application for an Inquiry Relating to an Election for an Office in The Shop Distributive & Allied Employees’ Association, South Australian Branch [2004] FCA 711 (Mansfield J), citing Re Election for Office in Transport Workers Union of Australia, Western Australian Branch (1992) 40 IR 245 (the TWU case). In the TWU case, French J (as his Honour then was) treated as an irregularity and declared void the acceptance by the returning officer of a nomination for election to an office of a branch of the Transport Workers Union.

82    Here, it was not in dispute that, if the Electoral Commission’s position was correct, the acceptance of the nominations constituted an irregularity in relation to the election. The dispute concerned whether the nominations should have been rejected.

83    There is also the issue, raised in the July correspondence of Ms Li and Mr Gellatly, relating to the number of vacant positions in five of the six zones and therefore the capacity of members to nominate for those positions.

84    During the course of the inquiry, the Electoral Commissioner raised an additional issue about the communication of the zone changes to the members. He also raised an important question regarding the significance of the date the roll closed.

The significance of the closure of the roll

85    The Electoral Commissioner submitted that the date the roll closed determined who was eligible to vote and to nominate or be nominated. The National Executive, on the other hand, insisted that the date the roll closed was irrelevant for the purpose of determining whether a candidate was eligible to stand for election. According to the National Executive, eligibility to nominate was determined as at the date nominations closed.

86    The Electoral Commissioner submitted that the National Executive, including Messrs Hunt-Sharman and Gellatly, failed to note the significance of the date the roll closed, either when compiling the register in the first place or later when amending it. It is difficult to accept this submission at face value. Mr Gellatly, at least, was apparently aware as at 22 July 2015 when the second register was delivered to the AEC that the roll should contain those members who were financial as at 25 May 2015. But the register also listed the zones in which the members were eligible to vote and stand for election. It is not entirely clear from the evidence whether the allocation of zones in the second register reflected the position as at 25 May 2015 or at one or various dates thereafter but, for the following reasons, it seems likely that, while it contained details of financial members at that date, the second register did not accurately reflect the zones to which all those members had been allocated by 25 May, when the roll closed.

87    First, on 22 June 2015 Mr Gellatly asked Ms Mayo and her offsider, Ms Norman, to send an email to members who had not been allocated to a zone asking that their zone allocations be updated. No instruction was apparently given to either of them to check zone allocations as at 25 May 2015.

88    Second, the News Update sent to members on 23 June 2015 noted that nominations for delegate positions would close on 1 July 2015, advised them that it was essential that their profiles be accurate and urged them to immediately update their profile if they had not “recently” been updated. Once again, however, there was no indication that the profile should be accurate as at 25 May 2015.

89    The News Update sent to members on 1 June 2015 included the following warning:

It is important to note that you can only nominate or be nominated according to the Zone indicated in your AFPA Profile. To ensure your nomination counts, please verify your eligibility with the AFPA, HERE.

It did not, however, advise that it was eligibility as at 25 May 2015 that counted.

90    On 23 June 2015 a further News Update was sent, asking members to update their profiles for the purposes of the elections, by providing their “current AFP Functional Stream” (emphasis added).

91    On 1 July Dave Turner, “Coordinator People Strategies” with the AFP, emailed Mr Hunt-Sharman with the AFP organisational structure as at that day. In the covering email he pointed out:

Note it is a moving feast however, the roles are pretty set — it’s just the people in them that keep changing!!

92    Mr Hunt-Sharman was taken to this email in cross-examination (at ts 103). In the course of that cross-examination the following exchange took place:

MR MARKUS: Yes. But it does indicate, does it not, that where people might end up within that structure is not settled even as at 1 July, which is the date on which the reorganisation, in fact, is meant to take place? - - - It does imply that, but I don’t know how much needed to be changed from that point, because my – certainly, my understanding, for example, from Mr Collingwood was that he was aware of his area in early July when he wrote to the AFPA.

Yes. Well, is it not the case, Mr Hunt-Sharman, that it wasn’t until 22 June that you, for example, had been alerted to the fact that a particular work area was moved from one zone to another in its entirety? - - - Yes, that’s – that’s correct; that’s the chief information officer’s zone, yes.

Yes, that’s what I - - - Yes.

- - - was referring to. And you would accept that that change is likely to have occurred after 25 May? - - - Yes.

- - - otherwise you would have been informed of that earlier? - - - That’s correct.

93    Despite the National Executive’s protestation that none of this was relevant, any inquiry into the irregularities that attended the elections must begin with a consideration of the state of affairs at the time the roll closed and the allocation of members to zones after 11 May 2015. If nothing else, these two matters were at the root of the confusion that spawned the queries and complaints by AFPA members.

94    The 11 May resolution, it will be recalled, established six new zones reflecting the restructure of the AFP, and directed the AFPA’s CEO:

to immediately allocate all members in accordance with this National Executive Policy decision and notify the AEC (and if necessary FWA), of the changes to the AFPA Zones for the purpose of the 2015 Delegate elections.

(Emphasis added.)

95    This direction contained an inherent difficulty. On the one hand, the allocations were to take place immediately. On the other, the allocations were to be in accordance with the AFP’s new structure, which was not to take effect until 1 July 2015. Indeed, at the time the resolution was passed, the AFPA did not know precisely where different “business areas” would fit in the new structure. That was why the Resolution Note was simply a “working estimate”. Indeed, it seems that even at 25 May when the rolls closed the picture remained unclear.

96    The difficulties inherent in allocating members to zones on the basis of a structure that did not yet exist and was not yet known did not escape all of those involved in the allocation process. Mr Gellatly, for one, was concerned about the problem and raised it with Mr Hunt-Sharman, who insisted that the zone changes nevertheless had to proceed. Mr Hunt-Sharman wished them to proceed, so he said, because he thought the uncertainty attending a pre-emptive zone change was the lesser of two evils. His evidence was that the alternative (retaining the status quo) would result in Zone Coordinators and Workplace Delegates being elected in August 2015 for a period of two years in zones that would already have ceased to reflect the AFP’s organisational structure.

97    In the event, the resolution was passed and Ms Mayo proceeded to allocate members to their new zones. No evidence touched upon precisely when or how this occurred, but the best evidence of what allocations had occurred by 25 May is the contents of the USB drive that the AFPA provided to the AEC the following day. The drive contained six Microsoft Excel spreadsheets, labelled “ACT Policing”, “AFP Capability Zone”, “AFP Capacity Zone”, “AFP Executive Zone”, “AFP National Security Zone” and “AFP Operations Zone”. Inside each spreadsheet was a column headed “Zone (of Member)”, which showed that each member had been allocated to one of the six new zones. There was one exception, being a member whose name appears in the “ACT Policing” spreadsheet but whose zone is listed as “Aviation” (one of the sixteen former zones). Presumably she was allocated to the ACT Policing Zone but her entry in the “Zone (of Member)” column was not updated.

98    Of course, many of the members were allocated to zones that did not reflect their ultimate position within the new AFP structure. That would seem to have been inevitable. But the significance of that fact to the elections appears to have been misunderstood by many (perhaps most) of the people involved. The common view seems to have been that if a member’s position in the AFP structure turned out to be different from that to which he or she was allocated by 25 May, then a change could and should be made to the member’s zone allocation appearing in the roll. As the Electoral Commissioner submitted, that view is incorrect. It is incorrect because it fails to grasp the significance of the closing of the rolls. It also reflects a misunderstanding of the process of allocation to zones contemplated by the Rules.

99    In oral argument, counsel for the National Executive submitted that the close of the rolls on 25 May did not prevent members being added to or removed from the roll for a zone for the purposes of the election. He contended that there was no rule “that the roll must be promulgated on a particular date and no one can be added to the roll between when the roll settled and when the election commences”. He described the close of the rolls as “the starting point for the process” after which “people come forward”, who might say “‘Hang on a minute, I was left off the roll’ or ‘I’ve joined the – I’ve now joined’”. He submitted that the returning officer was given the power by s 193 to add people to the roll at any time until the ballot papers were distributed.

100    It is true, to a certain extent, that there is nothing in the Rules expressly providing that the close of the roll marks the point where new voters cannot be added for the purpose of the election. The only reference to the close of the roll is the sentence at the end of r 96(e)(v), which reads: “The roll of voters for the ballot is to be closed 7 days before the day on which nominations for the election open”. The Rules are silent as to the meaning, implications, or consequences of the close of the roll, perhaps because these matters were thought to be self-evident.

101    Rule 96(e)(v) appears to have been made in satisfaction of s 143 of the FW (RO) Act, which relevantly requires that:

(1)    The rules of an organisation: …

(e)    must provide that, where a ballot is required, it must be a secret ballot, and must make provision for:

(i)    in relation to a direct voting system ballot (including a direct voting system ballot that is a stage of an election under a collegiate electoral system)—the day on which the roll of voters for the ballot is to be closed

…

(3)    The day provided for in the rules of an organisation as the day on which the roll of voters is to be closed (see paragraph (1)(e)) must be a day no earlier than 30 days, and no later than 7 days, before the day on which nominations for the election open.

102    Accordingly, the meaning of the expression “roll of voters for the ballot is to be closed” in r 96(e)(v) is the same as the meaning of the expression in s 143(1)(e)(i). If the meanings were not the same, then that section would not be satisfied, and the Rules would be invalid. A construction of union rules that renders them valid is to be preferred to one that would render them invalid: Amalgamated Society of Engineers v Smith (1913) 16 CLR 537 at 566–7 (Isaacs J).

103    Like the Rules, the FW (RO) Act does not contain any explication of what is meant by the close of the roll. The meaning of the relevant words in s 143(1)(e)(i) must therefore be discerned from their text, context and purpose: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] (McHugh, Gummow, Kirby and Hayne JJ).

104    Before the enactment of the FW (RO) Act, unions and employer organisations were regulated under the Workplace Relations Act 1996 (Cth) (WR Act). Section 143 first appeared (in precisely the same terms) in a schedule to the WR Act, following the passage of the Workplace Relations Amendment (Registration and Accountability of Organisations) Act 2002 (Cth) (2002 Act). Until that time, the WR Act contained provisions for the conduct of elections by organisations, but the provisions were less detailed and did not include, at least expressly, a requirement for the close of the roll. The Explanatory Memorandum to the Bill explains (in para 5.12) that the clause that was to become s 143 “contains measures to prevent irregularities in elections, including a new requirement that the roll close at least 7 days (but no more than 30 days) before the opening of nominations for an election (subclause (3))”. It was therefore the actual or apprehended occurrence of irregularities in elections that was the mischief this new requirement was intended to combat.

105    Section 143 does not appear to have had any direct statutory predecessor. But it was not created in a vacuum. The concept of a roll for an election closing is one that has existed for as long as elections have been conducted on the basis of electoral rolls, that is, since 1832, when in England and Wales the roll-based election was first introduced by the Representation of the People Act 1832, 2 & 3 Will IV, c 45 (1832 Act). Roll-based elections replaced an apparently cumbersome procedure whereby entitlement to vote was proved at the poll itself, by the production of land tax receipts (for it was then a property-based franchise): see G Orr, The Law of Politics (Federation Press, 2010) at 83; Rowe v Electoral Commissioner (2010) 243 CLR 1 at [12] (French CJ). The creation of a cut-off point before an election at which a voter’s franchise was established was precisely the point of the roll system. It was designed to shorten the poll, prevent disorder and reduce expense: see C Seymour, Electoral Reform in England and Wales (Yale University Press, 1915) at 107. The 1832 Act referred to the list of voters as a “register”, not a “roll”, and there was no mention of it “closing”, but the mechanism was the same. Lists of county and borough voters were to be produced by 31 July in an election year. Though a procedure was available after 31 July for the removal of names incorrectly added to the roll and the insertion of names incorrectly omitted, those corrections were determined on the basis of the person’s entitlement to vote as at 31 July, not at the time of the correction: see Seymour at 109–14; 1832 Act, ss 37, 38, 41, 42, 46, 49.

106    As French CJ noted in Rowe (at [16]), at the time of Federation, elections in the Australian colonies operated on the basis of electoral rolls and the electoral laws “provided for closure of the Electoral Rolls to new enrolments or transfers prior to polling day”. The laws to which his Honour referred had a mechanism of that nature but still did not speak in terms of closure of the rolls. That terminology appears to have been introduced in Australia in 1983, by amendment to the Commonwealth Electoral Act 1918 (Cth).

107    Among other things, the Commonwealth Electoral Legislation Amendment Act 1983 (Cth) repealed s 45 of the principal Act and inserted ss 43(4) and 61A. Section 45 had read:

Notwithstanding anything contained in either of the last two preceding sections —

(a)    claims for enrolment or transfer of enrolment which are received by the Registrar after six o’clock in the afternoon of the day of the issue of the writ for an election shall not be registered until after the close of the polling at the election; and

(b)    except by direction of the Divisional Returning Officer no name shall be removed from a Roll pursuant to a notification of transfer of enrolment received by the Registrar after six o'clock in the afternoon of the day of the issue of the writ for an election and before the close of the polling at the election.

108    Sections 43(4) and 61A respectively provided:

43. …

(4)    A claim … by a person to have his name placed on the Roll for a Subdivision received during the period commencing at 6 o’clock in the afternoon of the day on which the Rolls for an election to be held in the Subdivision close and ending on the close of polling at the election shall not be considered until after the expiration of that period.

61A.    The date fixed for the close of the Rolls shall be 7 days after the date of the writ.

109    Similar provisions are contained in the current version of the Commonwealth Electoral Act: ss 102(4) and 155. Current State and Territory electoral legislation also speaks in terms of “closure of the roll”, with such closure having a similar effect: Electoral Act 1992 (ACT) s 80; Electoral Act 1985 (SA) ss 32B(2), 48; Electoral Act 2002 (Vic) ss 29, 63; Electoral Act 1907 (WA) ss 53, 69A.

110    Thus, the context in which s 143 of the WR Act was introduced was one in which the closure of an electoral roll had a clear and well established meaning in the field of electoral law. There is every reason to suppose that the words in s 143(1)(e)(i) and s 143(3) of the FW (RO) Act should be taken to have been used in that legal sense: see Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249.

111    Moreover, there is no indication in the text, context or purpose of the provisions that they should be taken in the way the National Executive contends. Such a reading would not even be consonant with the ordinary meaning of the words. A thing is “closed” if it is no longer open to alteration. That is true of a closed mind, a closed chapter in one’s life, or a numerus clausus (meaning a closed or restricted number, for example, to places in educational institutions). If the National Executive were correct, and the closing of the roll were no more than a “starting point”, then “closed” is an odd choice of word. The more natural term would be “produced”, “prepared” or “established”.

112    At one stage the National Executive sought to rely on s 143(6) of the FW (RO) Act, which states:

The rules providing for the day on which the roll of voters for a ballot is to be closed are not to be taken to prevent the correction of errors in the roll after that day.

113    But this provision is designed to correct error, for example by adding to the roll those who were entitled to vote as at 25 May but were left off the roll. Adding to the roll for a zone someone who was not allocated to that zone at the close of the roll would not be a “correction”; it would merely be an alteration. How could a roll that has closed be said to be “incorrect” because of a later change to a member’s allocation?

114    The next proposition advanced on behalf of the National Executive was that s 193 empowered the returning officer to add people to the roll at any time until the ballot papers were distributed. That argument may be disposed of shortly.

115    Section 193 relevantly provides:

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

(a)    subject to paragraph (b), must comply with the rules of the organisation or branch; and

(b)    may, in spite of anything in the rules of the organisation or branch, take such action, and give such directions, as the electoral official considers necessary:

(i)    to ensure that no irregularities occur in or in relation to the election; or

(ii)    to remedy any procedural defects that appear to the electoral official to exist in the rules; or

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

116    I have already referred to the requirement in the Rules for the closure of the rolls and to what that entails. None of the items in sub-paragraph (b) entitles the returning officer to depart from the rules to add a person to a roll after the roll has closed. For the reasons already given, that would not prevent an irregularity or remedy a procedural defect; it would create one.

117    Nonetheless, the National Executive submitted that “[d]irections under s 193 can include directions to update the roll” and that “[s]upplementary rolls are commonplace in union elections and will be prepared to ensure that members get an opportunity to vote”. In the absence of evidence to support it, a submission of this nature is unhelpful. In any case, even if I were to accept that supplementary rolls are commonplace, that does not mean that they commonly include people who were ineligible to vote at the time the rolls closed. Furthermore, even if they did, that would not prove that the directions were lawful.

118    In its written submissions on the point I was referred to three cases. None of these cases provided any support for the National Executive’s position.

119    The first was In the matter of an application by Pullen for an inquiry into elections in the Federated Liquor and Allied Industries Employees Union of Australia (NSW Branch) (1990) 98 ALR 699; [1990] FCA 471. There, Gray J mentioned the preparation of supplementary rolls to include members who were left off the first roll provided to the AEC. But the members added by the supplementary rolls demonstrated their qualifications to vote in the elections as at the same cut-off date as the members on the first roll. The supplementary rolls were therefore a true case of “correction” of the roll, not alteration of it.

120    The second was Re Application for an Inquiry into an Election for Office in the Transport Workers’ Union of Australia, Western Australian Branch [1990] FCA 113, a decision of Lee J. This case concerned a number of irregularities in relation to an election, including the submission of forged ballot papers by some members and the failure to provide other members with ballot papers at all. While a submission was made that the roll of members was inaccurate, no evidence was called to support the submission (see [23]) and the judgment makes no reference to a supplementary roll.

121    The third was Lovell v Federated Liquor and Allied Industries Employees’ Union of Australia (1978) 35 FLR 72. This was a case about the validity of union rules purporting to set qualifying periods for offices in the union. It says nothing about electoral rolls, the composition of, or alteration to them, or the production of supplementary rolls.

122    In its written submissions, the National Executive also advanced the narrower submission that the date the roll closed was simply irrelevant for the purpose of determining whether a member was eligible to be nominated for election. According to the National Executive, eligibility to nominate was determined by the member’s status at the date nominations closed. It submitted that the rules regarding nomination are silent about the “settlement” of any roll; rather, to be eligible to nominate as a workplace delegate in a particular zone it was only necessary to show that you were a financial member (r 96(c)) and a member of the relevant zone at the time of the nomination (relying on r 96(e)(ii)).

123    I accept that union rules are required to be construed “broadly and liberally”, rather than “technically or narrowly”: the TWU case at 253 (French J). Nevertheless, I do not accept that a financial member of the AFPA is entitled to nominate as a candidate in a zone election if he or she is a member of the relevant zone at the time of the nomination but was not on, or eligible to be on, the roll of voters for a ballot for elections in that zone when the roll closed.

124    Rule 96(e)(i) requires the Returning Officer to call for nominations from “eligible members of the Zone”. Rule 96(e)(ii) requires that the nominators be financial members of the same zone. While the rules do not expressly provide for the time eligibility to nominate (or be nominated) is to be determined, r 96(e)(v) stipulates that the roll of voters for the ballot must close seven days before the day on which nominations are open. The plain intention is that only those members who were members of the zone at the time the roll closed could stand as, or nominate a candidate for, election. There is no reason to suppose that, whereas the voters in a particular zone are fixed as at the date the roll closes, a different (and later) cut-off date applies to nominees and nominators for positions in that zone, who, after all, are required by the rules to be members of the same zone as the voters. Indeed, there is every reason to think otherwise.

125    The register of voters provided on 26 May, reflecting the allocation of the members to zones at the time the roll closed, was the roll on which the elections were to be conducted. The zone to which a member was allocated at that date was the zone in which he or she could vote, nominate and be nominated. If, for example, a member were transferred to a different zone after 25 May because it transpired that the allocated zone did not reflect the member’s ultimate destination in the AFP’s restructure, that transfer could have no effect on the zone in which the member could nominate, be nominated, or vote in the election. Importantly, too, the Rules required that the number of delegates’ positions be based on the number of financial members in each zone at 25 May.

Was there an irregularity in the number of positions for which nominations were called?

126    The covering letter under which the USB drive was sent from the AFPA to the AEC on 26 May stated that “[t]he total number of eligible members listed is 3909”. The six Microsoft Excel files contained on the USB drive in fact record between them a total of 3913 members. One of the “members” appears to be a duplicate entry (there are two members with the same name, membership number and zone, but different postal addresses) making 3912 members.

127    The first two columns of the following table show how the Excel files depicted the allocation of those members between the six zones. The third column indicates how the number of Workplace Delegates to which each zone was entitled under r 66(b)(i)(a) (one delegate per 100 members or majority part thereof):

128    The election notice issued by the AEC on 21 May called for nominations for the following positions:

129    Rule 67(e) provides that “[t]he Coordinator of a Zone shall ex officio be one of the Zone’s delegates to the Branch National Council and shall be counted in the number of delegates eligible to be elected”. So where, for example, six delegate positions and one coordinator position are said to be available, that represents a total of seven delegates for the zone. As Ms Li pointed out in her letter of 10 July 2015, the number of positions for which the election notice invited nominations reflected the number of delegate positions contained in the AFPA’s letter to the FWC of 18 May 2015, rather than (as it should have) the number of positions to which the zones were entitled under r 66. The difference, based on the allocations of members to zones at the time the rolls closed, is illustrated in the table below:

130    In all but the Executive Zone, the number of nominations called for was incorrect. In four instances, the result of an election held on these terms is that the zones affected would be deprived of a delegate to which they were entitled. In one instance, the zone would have two more delegates than the Rules permitted. It follows that the election notice invited or set in train a course of events which would have resulted in a departure from the Rules. For this reason the call for nominations involved irregularities.

Were there irregularities in the acceptance of the nominations of Mr Henderson and Mr Collingwood?

131    In her affidavit filed in support of the application for this inquiry, Ms Damasena said that, based on the 22 July “roll”, four of the nominations accepted by the returning officer should have been rejected. They were the nominations of Mr O’Shaughnessy as Branch Zone Coordinator and Workplace Delegate in the AFP Capacity Zone, Mr Henderson as Branch Zone Coordinator in the same zone, and Mr Collingwood as Workplace Delegate in that zone. Ms Damasena’s evidence, based on that “roll”, was that neither Mr O’Shaughnessy nor Mr Collingwood was a member of the AFP Capacity Zone, the zone in which they had both nominated, and that neither was the person who nominated Mr Henderson (Phillip Reeks).

132    After I ordered the inquiry, Ms Damasena filed a further affidavit in which she said that she had reviewed the nomination forms relating to the candidates whose nominations she considered should have been rejected. As a result of that review she said it was apparent that the defects in the nominations of Mr O’Shaughnessy were remedied in the process conducted by the returning officer under r 96(e)(iii) (by which I understood her to be saying that their nominations were not rejected because the Returning Officer had brought the apparent defects to the attention of the member and the member had alleviated the Returning Officer’s concerns). In the cases of Mr Henderson and Mr Collingwood, however, Ms Damasena said that the defects in their nominations were not remedied by that process “because at the close of nominations, based on the eligibility information provided by the AFPA, the nominations appeared to be compliant with the Federation Rules”. This explanation was somewhat opaque. Unsurprisingly, counsel for the National Executive explored the matter in cross-examination:

Shouldn’t that say that the nominations weren’t compliant in the sense that they weren’t eligible to nominate for those positions, as far as you were concerned, because they were allocated to the wrong section? - - - I suppose we rely on the information that has been given to us by - - -

Well, there it is? - - - the AFPA, so at the time of eligibility of the – eligibility checking of the election, we relied on the information that was provided by Tracy Mayo and, at that time, it was deemed to be correct. After that fact, when we were advised that the roll of voters is incorrect, it showed that they were in the incorrect zone and, therefore, the question of what was provided to us by the organisation would seem to be, for a lack of a better word, suspect.

133    As I have already observed, however, it is now apparent that neither the 22 July roll nor the information gathered by Ms Mayo and Ms Norman provides an accurate picture of the AFPA members’ zone allocations at 25 May 2015. When the 26 May roll is compared to the Nominations Report, it is apparent that some 68 nominators and nominees were not in their correct zones. They are set out in the Schedule to these reasons. These discrepancies affect the elections for every office in every zone except for that of Branch Zone Coordinator in the ACT Policing Zone, and they include the nominations of Mr Collingwood, Mr Henderson and Mr O’Shaughnessy.

Was there an irregularity in the communication of the zone changes to members?

134    In oral argument, the Electoral Commissioner submitted that there was also an irregularity to be found in the circumstance that no notice was given to the members of the significance of the close of the roll on 25 May. Indeed, there was no evidence to indicate that the members were told the date the roll was to close.

135    The National Executive was dismissive of the Electoral Commissioner’s submission, protesting that the date the roll closed was irrelevant to the nomination process and, in any event, there was no evidence that any member was actually confused about those matters.

136    It is true that the Electoral Commissioner did not offer, or point to, any direct evidence of confusion, but the evidence certainly supports the Electoral Commissioner’s submission. Ignorance, if not confusion, about the significance of the date the roll closed can be inferred from the nature of the complaints made by the AFPA members, which fixed upon the changes to members’ allocations after 25 May. It is also the most likely explanation for the large number of anomalies in the Nominations Report — approximately one third of the names listed.

137    The entire nomination process relied on the members knowing the zones to which they were attached. Yet they were never told that the information coming to light after 25 May about the AFP’s restructure would not affect their zone attachments for the purposes of these elections. There seems little doubt that this affected the result of the elections, not least by contributing to the 68 nominators and nominees being in the wrong zones. Further, the failure to notify members of the closure of the roll potentially disenfranchised members. Unless members were financial at that date, they were not entitled to vote or stand for office. Unless they knew the date, they would not appreciate the importance of paying their dues by that date.

138    The difficulty in characterising this omission as an irregularity, however, is that there does not appear to be any “rule, established practice or generally accepted principle governing the conduct of the election” from which it was a departure. Certainly, my attention was not drawn to any. Perhaps it is assumed that members will know and understand the rules of their organisation, although, if that is the assumption, in the light of the evidence in this case there is no good reason to conclude that it is a sound one. While I am unable to find that the failure to notify members of the close of the roll (or its significance) is an irregularity, I am of the view that a proper democratic system of governance requires that notice be given, both in these and future elections.

What orders should be made?

139    The Electoral Commissioner sought orders under s 206(4) of the FW (RO) Act declaring that all steps taken in relation to the election are void and directing the AFPA to lodge prescribed information for the election with the General Manager of the FWC with a view to the electoral process beginning again. The Commissioner also asked that the members of the AFPA be notified.

140    The Court’s powers to make orders with respect to an election are set out in s 206(4) of the FW (RO) Act. They are enlivened whenever “the Court finds that an irregularity has happened”. Paragraph (4)(a) provides for orders “declaring the election, or any step in relation to the election, to be void”. “The” election, in this context, is the election into which the inquiry was instituted, being “an election for an office in [an] organisation or a branch of the organisation” (s 200(1)). The language used indicates that each process for electing a candidate to an available office is a separate election. The Court’s power to declare void a step in an election is only engaged where the Court has found that an irregularity has happened in relation to that election: see Re Jarman; Ex parte Cook (No 2) (1996) 136 ALR 233; [1996] HCA 7 at [10]–[11]. The irregularity must of course also be an irregularity of the kind referred to in s 200(5).

141    It is necessary, then, to consider each election that was examined in this inquiry, and whether there has been an irregularity in relation to it. The results of the findings above may be set against each election (or group of elections) as follows:

142    The result is that the only election untainted by an irregularity is the election for Zone Coordinator in the ACT Policing Zone.

143    All the above irregularities were likely to affect the result of the elections, within the meaning of s 200(5) of the Act.

144    In the case of the election notice, there is a real or distinct possibility that a member might have decided not to nominate in the mistaken belief that there were only a certain number of positions, but might decide to nominate if there were more. Thus, the errors in the election notice might have discouraged some members from nominating in the ACT Policing, Capability, Capacity and National Security Zones, where too few positions were advertised. There is also a real or distinct possibility that the election result in the Operations Zone, where too many positions were advertised, would be affected. In that zone a member might have nominated a candidate in the mistaken belief that, by doing so, the election of another favoured candidate would not be jeopardised. If in fact there were fewer available positions, the nominator might have refrained from making the nomination. Equally, a nominee might have declined the nomination.

145    The irregularities in the acceptance of nominations could certainly affect the result of the elections. Nominees who are in fact ineligible for election to an office in a zone would very likely take votes away from eligible candidates. In this way, there is a real or distinct possibility that an eligible candidate, who would otherwise be successful, might be defeated by the dissipation of their support to ineligible rivals.

146    Thus, in all the elections bar that for Branch Zone Coordinator in the ACT Policing Zone, I am satisfied that irregularities have occurred that are likely to affect the result of the election.

147    Steps 5 and 6 of the affected elections, being the issuing of the election notice and the receipt and processing of the nominations, should therefore be declared void and be taken again. They are irretrievably tainted by the irregularities.

148    Is it permissible or desirable to go any further?

149    It is certainly permissible.

150    Once enlivened by the existence of an irregularity of the relevant kind, the power under s 200(4) is a power to declare void “any” step in relation to the election. The power is not limited to those steps that are directly affected by the irregularity.

151    It has been said of the power (as it appeared in s 223 of the old Industrial Relations Act 1988 (Cth)) that it grants the Court a “general discretion to take the course which seems most beneficial to the organisation and its members, bearing in mind any relevant statutory objects”: Re Australian Journalists Association; Ex parte Nicholson (1990) 27 FCR 75 at 83 (Wilcox J). Relevant here is the Act’s object of “provid[ing] for the democratic functioning and control of organisations”: s 5(3)(d). Even in the ordinary event, the democratic functioning of the AFPA would not be well served by conducting elections on the basis of a roll that is now almost a year old. In the present case it would be particularly inapt to proceed on the 26 May roll, because by now the AFP’s restructure has presumably been completed.

152    For these reasons, it is desirable that steps 3 and 4 of the affected elections (being the provision of a timetable for the elections and the preparation of the roll) also be declared void.

153    The AEC should provide a new timetable for the close of the roll of voters and new nomination and ballot periods. In the meantime the AFPA should take whatever steps are necessary to ensure that, in accordance with the National Executive’s resolution, all financial members are attached to the zones which conform to the operational areas of their work and that the membership is on notice that the only corrections that can be made to the roll of voters in each zone after the date the roll closes is to remedy error as at that date.

154    There will be orders accordingly.

155    Lest there be any problem with the implementation of the orders, I will grant liberty to apply.

Associate:

Dated:    5 May 2016

Schedule

* The names in the Nominations Report appear to be misspellings of the names on the roll. The names on the roll are shown in square brackets.

† Two people with the name TM appear on the roll, but neither is in the AFP Operations Zone.