FEDERAL COURT OF AUSTRALIA

Clancy, in the matter of an application for an inquiry in relation to an election for offices in the Australian Nursing and Midwifery Federation [2017] FCA 460

ORDERS

THE COURT ORDERS THAT:

1.    The application by the applicant, dated 17 June 2015, is dismissed.

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

REASONS FOR JUDGMENT

SIOPIS J:

1    Mr Michael Clancy, the applicant, is a registered nurse. Mr Clancy commenced working at the Royal Perth Hospital as a registered nurse in June 1992 and worked there until November 2009. Mr Clancy holds the degree of Bachelor of Nursing. In 2009, he became the senior industrial officer at the Australian Nursing Federation Industrial Union of Workers Perth.

2    Mr Clancy is also a member of the Australian Nursing and Midwifery Federation (the ANMF). The ANMF is a national organisation of employees registered under the Fair Work (Registered Organisations) Act 2009 (Cth) (FW(RO) Act). The rules of the ANMF provide that the ANMF shall be organised into branches in each State and Territory, so that members of the ANMF in each State and Territory are members of the branch in that State or Territory. Mr Clancy is a member of the Western Australian branch (the WA Branch) of the ANMF.

3    In addition, there are associated State registered unions in four States to which members of the ANMF within the relevant States can belong. These State unions are:

(a)    the Queensland Nurses’ Union of Employees, now called the Queensland Nurses and Midwives’ Union, (QNU), a union subject to and controlled by the Industrial Relations Act 1999 (Qld) (the Queensland State union);

(b)    the New South Wales Nurses and Midwives’ Association (NSW Association), a union subject to and controlled by the Industrial Relations Act 1996 (NSW) (the NSW State union);

(c)    the Australian Nursing and Midwifery Federation (SA Branch), a union subject to and controlled by the Fair Work Act 1994 (SA) (the SA State union); and

(d)    the Australian Nursing Federation Industrial Union of Workers Perth, a union subject to and controlled by the Industrial Relations Act 1979 (WA).

4    Thus, persons eligible for membership of these bodies may be represented by both a State and Federal body.

5    On 12 January 2015, the Australian Electoral Commission published a notice calling for nominations for an election for the following offices in the ANMF: Federal President, Federal Vice President, Federal Secretary and Assistant Federal Secretary. The notice stated that the nomination period started on 14 January 2015 and terminated at 12 noon on 28 January 2015. The notice also stated that a candidate may submit a 200 word statement and photograph in support of his or her candidature by 12 noon on 4 February 2015.

6    On 28 January 2015, Mr Clancy nominated as a candidate in the election for the office of Federal President and for the office of Federal Secretary of the ANMF. He subsequently submitted a statement in respect of his candidature for each of the two offices.

7    The position of Federal Secretary had not been contested in an election for over 20 years. That position had been filled by a succession of unopposed candidates. At the time of Mr Clancy’s nomination, the incumbent Federal Secretary of the ANMF was Ms Lee Thomas who was a member of the New South Wales branch of the ANMF. Ms Thomas nominated again for election to the position of Federal Secretary for the 2015 election.

8    Ms Sally-Anne Jones nominated for the position of Federal President. Ms Jones was a member of the Queensland Branch of the ANMF. Ms Thomas and Ms Jones campaigned as a team. Mr Clancy referred to the team as the Lee Thomas team.

9    An election for these two positions was held during the period 27 February 2015 to 13 March 2015. The results of the election were declared on 16 March 2015. Mr Clancy failed to be elected to either of the positions for which he had nominated. The results in relation to the election for Federal President and Federal Secretary, respectively, were:

10    On 17 June 2015, Mr Clancy filed a 43 page originating application in this Court seeking an order, pursuant to s 200 of the FW(RO) Act, for an inquiry into alleged irregularities in relation to the 2015 election for the offices of Federal President and Federal Secretary of the ANMF. In the originating application, Mr Clancy alleged a number of irregularities which affected not only the conduct of the ANMF, but also the conduct of the State unions from Queensland, New South Wales and South Australia referred to in [3] above, and officers of those unions.

11    I observe in passing, that in the originating application, Mr Clancy also called upon the Court to take other steps, for example, to declare certain union rules invalid, or to investigate whether persons have breached s 286 and s 287 of the FW(RO) Act. In light of these diffuse aspects of the originating application, I ordered that Mr Clancy file a document setting out the relief he sought. This document, filed on 23 December 2015, confirmed that the relief sought was confined to an order for an inquiry to be instituted under s 201 of the FW(RO) Act.

12    In light of the nature of the allegations that Mr Clancy made in the originating application, I ordered that Mr Clancy serve the originating application and supporting affidavit on each of the affected organisations and persons. At the hearing of the originating application, the affected organisations and persons were represented by counsel, with the exception of Ms Thomas.

13    The general tenor of the complaints made by Mr Clancy is that the ANMF and the State unions in South Australia, Queensland and New South Wales expended monies and used non-cash resources in the production of, and distribution of, publications before and during the election period which supported the candidacy of Ms Thomas and Ms Jones. Mr Clancy also contended that, in permitting that activity to occur, the officers of the respective unions had contravened the ANMF rules.

14    I will deal in more detail below with the allegations made by Mr Clancy which he contends should be the subject of an inquiry under s 200 of the FW(RO) Act.

statutory background

15    Section 200 of the FW(RO) Act provides as follows:

When member of organisation may apply for inquiry

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

When Electoral Commissioner must apply for an inquiry

(2)    If the Electoral Commissioner believes that the result of an election for an office has been affected by an irregularity in relation to the election, the Electoral Commissioner must make an application for an inquiry by the Federal Court into the matter.

When Electoral Commissioner may apply for an inquiry

(3)    If the Electoral Commissioner believes that there has been an irregularity in relation to an election for an office, the Electoral Commissioner may make an application for an inquiry by the Federal Court into the matter.

16    Section 201 of the FW(RO) Act provides as follows:

Where:

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

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

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

17    Section 206 of the FW(RO) Act 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 and results of the election as the Court considers necessary.

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

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

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

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

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

(c)    an order directing the General Manager to make arrangements:

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

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

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

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

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

18    Section 6 of the FW(RO) Act defines an “irregularity” as follows:

irregularity, in relation to an election or ballot, includes:

(a)    a breach of the rules of an organisation or branch of an organisation; and

(b)    an act or omission by means of which:

(i)    the full and free recording of votes by all persons entitled to record votes and by no other persons; or

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

is, or is attempted to be, prevented or hindered; and

(c)    a contravention of section 190.

19    Section 190 of the FW(RO) Act provides as follows:

An organisation or branch commits an offence if it uses, or allows to be used, its property or resources to help a candidate against another candidate in an election under this Part for an office or other position.

Maximum penalty: 100 penalty units.

20    Mr Clancy, as a member of the WA Branch of the ANMF, satisfies the standing requirement for making an application under s 200 of the FW(RO) Act.

21    In Re Post; Re Election for Offices in Transport Workers Union of Australia, Western Australian Branch [1992] 40 IR 162 (Re Post) at 166-167, French J (as his Honour then was) observed as follows:

“Reasonable ground for the application”

The question for the Court mandated by s 219(b) of the Industrial Relations Act 1988 is whether it is satisfied that there is reasonable ground for the application. It will not be so satisfied if the grounds relied upon could not, even if made out, constitute “an irregularity in relation to an election for an office in the organisation”. The question whether there is such an irregularity lies at the heart of this jurisdiction. Nor will it be so satisfied if the allegations of fact relied upon in the application do not at least offer good grounds for suspicion that there has been such an irregularity. The Court will not entertain an application of a speculative nature based upon the applicant’s opinion that there has been irregularity unless that opinion rests upon some substantial factual foundation. Necessary conditions to establish the requisite state of satisfaction can be multiplied. It is harder to state what is sufficient to satisfy the Court beyond the words of the section itself which require an evaluative judgment at this preliminary stage.

22    Although these observations were made in relation to earlier legislation, the observations are germane to the assessment to be made by this Court of the application made by Mr Clancy.

23    Further, in my view, the question of whether there are “reasonable grounds for the application” under s 201(b) of the FW(RO) Act is to be informed by the nature of the inquiry proceeding contemplated by s 206 and, in particular, the relief which may be ordered as a consequence of the inquiry.

24    It is relevant, therefore, to have regard to s 206(4) and s 206(5) of the FW(RO) Act. It is apparent that, if an irregularity is found, the Court only has power to make a limited range of orders. In effect, the Court only has power to make one or more of the three primary orders, set out in s 206(4)(a), (b) and (c) respectively, and orders incidental or supplementary to, or consequential upon, those orders.

25    Section 206(5) places a further limitation on the power of the Court to make orders under s 206(4). In relation to a completed election, this limitation is that the Court must be of the opinion that, having regard to the irregularity found and any likelihood that similar irregularities may have occurred, the result of the election may have been affected by irregularities.

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

27    In the case of Re Jacomb (2001) 180 ALR 134 (Re Jacomb), Weinberg J considered an application for an inquiry by an unsuccessful candidate in a union election. The application was brought under the Workplace Relations Act 1996 (Cth) but the provisions are similar to those which apply in this case. The applicant, who lost the election by 27 votes, complained that there had been an irregularity because the names of 61 members who were eligible to vote had not been included on the voting roll. Weinberg J rejected the applicant’s claim in relation to the occurrence of the alleged irregularity. Weinberg J went on to observe:

[54]    I should indicate that even if I had been persuaded that the 61 persons identified by Mr Jacomb as not having been on the roll had been wrongly deprived of their right to vote in this election, I would not have considered it appropriate to interfere with the result. Mr Jacomb lost to Mr Wright by a margin of 27 votes. It appears that approximately 39% of those eligible to vote in the election did so. Even assuming that a greater percentage than this of the 61 persons had voted, that would still mean that there would have been perhaps an extra 30 votes cast. There is nothing to suggest that all of those votes would have gone to Mr Jacomb. It follows that even if, contrary to my primary finding, these 61 members had been wrongly disenfranchised, the requirements of s 223(4) of the Act would not be met. The result of the election would not, as a matter of practical reality, have been affected by the irregularity: see Re Patterson; Re Association of Railway Professional Offıcers of Australia (1987) 19 IR 373 at 383 per Gray J; Re Australian Public Service Association, New South Wales Branch; Ex parte Johnston (1989) 31 IR 257 at 265–6 per Wilcox J; Re Transport Workers Union of Australia, New South Wales Branch; Ex parte Edwards (1990) 33 IR 436 at 458 per Wilcox J; Re Australian Timber and Allied Industries Union; Ex parte Black (1991) 39 IR 106 at 116–20 per Ryan J and Parker v Amalgamated Society of Carpenters and Joiners of Australia (1992) 43 IR 248 at 252–4 per Wilcox J.

28    I now deal with Mr Clancy’s complaints in relation to the publications.

the publications relating to the election

29    In his affidavit, dated 16 June 2015, Mr Clancy referred to a number of publications which he claimed supported the Lee Thomas team against him in the election, and which he alleged were published and distributed in a manner which amounted to “an irregularity in relation to an election” for the two offices in the ANMF for which he had stood as a candidate. I set out those publications below.

30    On 7 February 2015, after the nominations had closed and 20 days before the commencement of the voting period, the ANMF published Volume 22, No 7 of the Australian Nursing and Midwifery Journal (the ANMJ). The front cover of the journal contained a photograph of Ms Thomas, who was then, as I have said, the incumbent Federal Secretary. The journal also contained an editorial which was written by Ms Thomas. There was also in that edition of the journal an article headed: “ANMF priorities for 2015”.

31    On 23 February 2015, being four days before the voting period in the election was to commence, the ANMF (SA Branch), being the SA State union, published an edition of its weekly e-bulletin. The second bullet point in the table of contents stated “ANMF (SA Branch) urges a vote for Lee Thomas and Sally-Anne Jones”. The article referred to in the table of contents stated:

Earlier this month, the ANMF (SA Branch) Executive passed a resolution that unanimously supported the re-election of Lee Thomas as Federal Secretary and the election of Sally-Anne Jones as Federal President. The Executive resolution was subsequently endorsed by ANMF (SA Branch) Council unanimously.

32    There was also a hyperlink to the “how to vote” card for Ms Thomas and Ms Jones embedded in the article.

33    On 25 February 2015, Mr Clancy received a copy of the Lee Thomas team “how to vote” flyer which had been mailed to ANMF members in Western Australia, and which supported the candidacy of Ms Thomas and Ms Jones. The flyer urged readers to “contact us” at a Facebook address, and stated further that the flyer had been paid for “by private funds”.

34    On 27 February 2015, voting opened in the election for Federal President and Federal Secretary of the ANMF.

35    On 28 February 2015, QNU, the Queensland State union, published an edition of its e-newsletter. That e-newsletter contained a short article headed: “Voting for ANMF leadership opens”. The article stated:

In the next few days you should receive ballot forms for the ANMF Federal Elections.

These elections give you the opportunity to help shape our union’s leadership team in the direction of our union at a federal level.

At its February meeting QNU Council voted to support the re-election of Lee Thomas as Federal Secretary and the election of Sally-Anne Jones as Federal President.

QNU Council believe electing Sally-Anne is of particular importance, as it gives Queensland a strong voice at the national level.

Voting starts on 27 February and finishes on 13 March.

Please make sure you take the time to vote!

Click here for more information about the campaign, how to vote for Lee and Sally-Anne and to view the flyer.

36    The hyperlink referred to in the article linked the reader to the same “how to vote” card as was hyperlinked in the e-bulletin distributed by the SA State union referred to at [32] above.

37    On 2 March 2015, which was during the election period, the NSW State union published an edition of its magazine titled “The Lamp”. That edition contained an editorial by Mr Brett Holmes, the General Secretary of the NSW State union, in which he stated that as members of the NSW State union, they were also members of the ANMF and that they would have received a ballot for the positions of Federal Secretary and Federal President. Mr Holmes went on to state that:

In these particularly difficult times for unions my vote will be cast in favour of the experienced leadership of Lee Thomas for Federal Secretary and Sally-Anne Jones to take the role of Federal President.

38    On 2 March 2015, the SA State union published another edition of its e-bulletin. That edition of the e-bulletin contained in the table of contents a statement: “Voting now open in ANMF Federal Election - vote for Lee Thomas and Sally-Anne Jones!” The e-bulletin also contained an article which carried the same headline and depicted a card showing how to vote for the candidacy of Ms Thomas and Ms Jones. Beneath the “how to vote” card was the statement: “Vote for experience, integrity and determination - vote for Lee and Sally-Anne today!”

39    On 10 March 2015, which was three days before the expiry of the election period, the SA State union published a further edition of its e-bulletin which contained an article with the headline: “Last chance to vote for Lee Thomas and Sally-Anne Jones in the ANMF Federal Election!” This article also depicted a card showing how to vote in favour of Ms Thomas and Ms Jones. Beneath the “how to vote” card was the same exhortation referred to in the preceding paragraph.

The 7 February 2015 edition of the ANMJ

40    I deal first with the publication and distribution of the 7 February 2015 edition of the ANMJ.

41    Mr Clancy referred to the following aspects of the publication of the 7 February 2015 edition of the ANMJ as manifesting support for Ms Thomas in the election for Federal Secretary:

(a)    The cover of the journal which had a full-page photograph of Ms Thomas with Ms Annie Butler, the Assistant Federal Secretary of the ANMF.

(b)    The first page of the journal which comprised an editorial written by Ms Thomas. On that page, there was a photograph of Ms Thomas adjacent to the editorial.

(c)    Page 2, which contained another photograph of Ms Thomas along with photographs of other office holders in the State branches of the ANMF.

(d)    Pages 4-7, which contained an article headed “ANMF priorities for 2015”, with at least four photographs of Ms Thomas associated with that article.

(e)    Page 9, which contained a one page article entitled “National Graduate Nurse and Midwife Roundtable”; and

(f)    Pages 20-21, which contained an article entitled “Australia’s Health Cuts” with a photograph and quotation of Ms Thomas.

42    Mr Clancy said that the February 2015 edition of the ANMJ contained 11 photographs of Ms Thomas and contended that the journal was “saturated” with electoral material that was intended to support Ms Thomas’ re-election and was done intentionally to that end.

43    Ms Annie Butler gave evidence by affidavit, dated 1 October 2015, about the circumstances of the publication of the February 2015 edition of the ANMJ.

44    Ms Butler said that the ANMJ was published 11 times a year with the December/January edition being published, instead of an edition in each of those months. Ms Butler said that in January 2015, the ANMJ had a professional staff comprising a full-time editor and a part-time journalist.

45    Ms Butler said that she was responsible for the oversight of the February 2015 edition of the ANMJ. Ms Butler said that in mid-December 2014 she attended a planning meeting for the February 2015 edition of the ANMJ. At that meeting, the ANMF political director and campaign coordinator was present. Ms Thomas was not at that meeting. Ms Butler said there was no discussion of the upcoming ANMF election at that meeting. The discussion was, said Ms Butler, focused on the campaign priorities for the ANMF for the upcoming year and the best way to present these priorities to members. Ms Butler said that one of the outcomes of the meeting was that there would be an article included in the February 2015 edition about the ANMF’s priorities in 2015.

46    Ms Butler deposed that in early January 2015, Ms Thomas went on annual leave and returned in late January, or early February 2015. Ms Butler said that, to the best of her knowledge, Ms Thomas had no involvement with the general supervision of the Federal office of the ANMF or the ANMJ during her period of leave.

47    Ms Butler outlined the time frame for the publication of the 2015 edition of the ANMJ as follows:

12.    The time frame for the publication of the February 2015 edition of the ANMJ was as follows:

a.    The deadline for external copy was 9 January 2015;

b.    The deadline for internal content was 16 January 2015;

c.    Layout by the designer was undertaken in the period 16-22 January 2015;

d.    The journal went to print between 24 and 26 January 2015;

e.    The printed journal went to the mailing house for wrapping on 29 January 2015;

f.    The journal was lodged with Australia Post between 2 and 3 February 2015; and

g.    Members would have received the journal between 5 and 7 February 2015 or later for members in regional areas.

48    Ms Butler said that in early January 2015, she provided a briefing to the journal’s journalist, Ms Natalie Dragon, in relation to the 2015 priorities article proposed for the ANMJ February 2015 edition. Ms Butler said that she read and approved the proof of the February 2015 edition in the period up to 16 January 2015; and that the editor subsequently reviewed the journal following its layout. Ms Butler said that she reviewed the journal layout around 22 January 2015 and approved the editorial team’s use of photographs. She said that the photographs related to the articles; and that it was not uncommon for there to be photographs of the leaders of the ANMF in the journal.

49    Ms Butler said that at no time during the preparation of the February 2015 journal was there any discussion, of which she was aware, about the elections during February for Federal offices and the possible impact of the journal content on those elections. Ms Butler said it was only after the journal had been printed and was due for delivery to the mailing house that it was even known that there would be a ballot for any of the offices concerned.

50    Ms Butler also referred to the article about the 2015 ANMF priorities about which Mr Clancy complained. Ms Butler said that the priorities referred to in that article were matters which the ANMF executive had identified in the preceding period. Ms Butler went on to refer to a number of press statements which had been issued throughout the preceding 11 months in support of the protection of Medicare and the universal health system. Further, Ms Butler said that the Federal council had at its October 2014 meeting resolved that the ANMF was to continue its campaign against a GP co-payment. Ms Butler also referred to articles published and entries placed on Facebook, which expressed the ANMF’s concern that graduate nurses were not getting jobs; and that a round-table meeting had taken place in December 2014 in relation to that issue. Ms Butler referred to six press releases over the period 2012-2014, which were directed towards the ANMF’s concerns about staffing levels and workloads.

51    As to Mr Clancy’s observations that there were 11 photographs of Ms Thomas in the February 2015 edition of the ANMJ, Ms Butler said that it was not unusual for numerous photographs of officers of the ANMF to appear in the ANMJ. Ms Butler referred to other editions of the ANMJ where there had been many photographs of ANMF leaders.

52    Ms Butler was not cross-examined and I accept her evidence.

53    Ms Thomas deposed that she was on leave from the period 8 January 2015 to 30 January 2015 and returned to work on 2 February 2015. During this period of leave, said Ms Thomas, the Assistant Federal Secretary, Ms Butler, carried out the responsibilities of the Federal Secretary.

54    Ms Thomas said that on her return from leave the February 2015 edition of the ANMJ had already been finalised, printed and posted. Ms Thomas said that she had no involvement in determining the content of the February 2015 edition of the journal.

55    Ms Thomas said that to the best of her recollection, the first time she knew that Mr Clancy had nominated for the office of Federal Secretary and Federal President was on 28 January 2015 when she was advised by Mr Nick Blake, the senior federal industrial officer of the ANMF, that Mr Clancy had nominated for both positions.

56    Further, Ms Thomas said that after she was advised, on 28 January 2015, that there was to be a ballot for the offices of Federal Secretary and Federal President, she was “alert to the obligation” not to use the ANMF’s union resources in her election campaign. Ms Thomas deposed that for that reason she bought her own prepaid mobile phone and also paid for photographs to be taken of herself for use in her campaign material.

57    In addition, Ms Thomas also said that in preparing her candidate’s statement, she referred to the priorities which had previously been adopted by the Federal council and Federal executive. Ms Thomas also said that she had not seen the February edition of the journal at the time that she prepared her candidate’s statement. Ms Thomas said she forwarded the statement to the Australian Electoral Commission from her private email address on the evening of 3 February 2015 as it was due by 12 noon on the following day.

58    Ms Thomas also said that the ANMF priorities for 2015, referred to in the February 2015 edition of the ANMJ, were well established positions of the ANMF by February 2015. Ms Thomas referred to a number of press releases and actions by the executive of the ANMF which predated the publication of that edition of the ANMJ in support of her evidence.

59    Ms Thomas deposed that on 5 February 2015, she took a rostered day off and travelled to Sydney at her own expense to engage and confer with Praxis Media for the purpose of developing campaign material and a flyer. She said that she paid for the work in developing the campaign material on the flyer and at no time did she use the union’s resources for the production or distribution of the flyer.

60    Further, Ms Thomas referred to Mr Clancy’s suggestion at para 103 of his application, that ANMF employees were involved with Ms Thomas’ campaign Facebook site. Ms Thomas said that this was not the case, and that she had engaged Digilante Pty Ltd to design, set up and monitor a campaign Facebook page for the campaign. Ms Thomas said that no ANMF resources were used in respect of setting up or monitoring the campaign’s Facebook page.

61    Ms Thomas also said that in preparing for the election campaign she purchased a tablet computer on 31 January 2015 and on 12 February 2015 she returned the tablet computer and purchased a different computer.

62    Further, Ms Thomas also referred to Mr Clancy’s claim in his application, that her campaign mail outs were only made to Western Australian members. That was not the case, said Ms Thomas. She said that mail outs were also sent to members in the Northern Territory and the Australian Capital Territory. Ms Thomas also said that there were no agreements under s 151 and s 152 of the FW(RO) Act between the ANMF and the Queensland and SA State unions.

63    Ms Thomas was not cross-examined and I accept her evidence.

64    Mr Clancy contended that there were reasonable grounds for his application for an inquiry into whether the publication and distribution of the February 2015 edition of the ANMJ constituted an “irregularity in relation to an election” for an office in the ANMF, on the grounds that:

(a)    the impugned conduct was conduct which was in breach of the rules of the ANMF which implicitly imposed the duties of union officers referred to in Scott v Jess (1984) 3 FCR 263 (Scott v Jess); and

(b)    the impugned conduct contravened s 190 of the FW(RO) Act.

65    I observe, in passing, that Mr Clancy also claimed that there were “irregularities” comprising breaches of express rules of the ANMF, but I will deal with these claims later in these reasons for judgment.

66    I deal first with Mr Clancy’s claim that the publication and distribution of the February 2015 edition of the ANMJ was conducted by ANMF officers in breach of the duties implicitly imposed on them by the ANMF rules and, therefore, potentially an “irregularity” under subs 6(a) of the FW(RO) Act.

67    In support of this contention, Mr Clancy referred to the following observations by Evatt and Northrop JJ in Scott v Jess at 272:

Implicit in that concept of fair play is the principle that the officers exercising power within an organisation shall not exercise that power to authorise the use of the resources of the organisation to support or promote a candidate or a group of candidates or to seek to defeat a candidate or a group of candidates during the conduct of an election to offices within the organisation.

68    This contention by Mr Clancy must be rejected for the following reason.

69    In Re Collins; Ex parte Hockings (1989) 167 CLR 522 (Re Collins), the High Court rejected the contention that the term “irregularity in relation to an election or ballot” such as may found an inquiry into an election for a union office, included steps taken to affect voting intentions. In that case, Mr Hockings, an unsuccessful candidate for election to an office in the Victorian branch of the Building Workers’ Industrial Union of Australia, claimed that there had been irregularities in the conduct of the election and applied for an order that there be an inquiry into that election. One of the irregularities claimed by Mr Hockings was that the union had improperly used union resources in support of one group of candidates to the detriment of the group of candidates to which Mr Hockings belonged. Mr Hockings obtained a subpoena in support of this alleged irregularity. The subpoena was set aside by the primary judge on the grounds that the use of union resources as claimed by Mr Hockings, could not give rise to an “irregularity” under the Conciliation and Arbitration Act 1904 (Cth), such as may give rise to the holding of an election inquiry. The High Court considered an application for prerogative relief.

70    In Re Collins, the High Court applied an earlier decision in R v Gray; Ex parte Marsh (1985) 157 CLR 351, which had limited the construction of the term “irregularity in relation to an election or ballot” to “the idea of some departure from some rule, established practice or generally accepted principle governing the conduct of the election”, rather than in relation to voting intentions. In Re Collins, at 526, Toohey and McHugh JJ observed as follows:

Conduct which constitutes a breach of the rules of an organisation but which goes no further than supporting the candidature of members of a particular “team” amounts to an irregularity but it does not give rise to an irregularity in or in connexion with an election because it does not involve a departure from some rule, practice or principle governing the conduct of the election.

71    In Re Post, French J applied the decision of Re Collins. At 168, French J observed:

The second ground depends upon the contention that the alleged unlawful use of union resources to support the campaign of the incumbent Secretary and certain other candidates constitutes an irregularity in relation to the election. In my opinion this ground cannot be sustained in light of the decision of the High Court in Re Collins; Ex parte Hockings (1989) 167 CLR 522; 29 IR 154. There it was held that the expression in the former Conciliation and Arbitration Act 1904 “irregularity in or in connection with an election” did not extend to activities, whether or not involving the use of union funds, by which a particular candidate is promoted to voters. The reasoning reflected in the judgment of Gaudron J, with which the other members of the Court substantially agreed, was sufficiently broadly based that the slightly different wording of the equivalent provisions of the Industrial Relations Act 1988 could not affect its application.

72    The decision in Re Collins pre-dates the amendment to the definition of “irregularity in relation to an election or ballot” (now in s 6 of the FW(RO) Act) that occurred by the introduction of the reference to “a contravention of s 190” which is now to be found in subs 6(c). However, in the case of Becker, in the matter of an application for an inquiry in relation to an election for offices in the Australian Education Union, Queensland Branch [2004] FCA 1534 (Becker) at [13]-[15], Cooper J considered and rejected an argument that the inclusion of that reference to a contravention of s 190 into the definition, made a difference to the proper construction of the term “irregularity in relation to an election or ballot” as determined by the High Court in Re Collins. At [13]-[15], Cooper J observed:

13    The ordinary meaning of “irregularity” in the Industrial Relations Act 1988 (Cth) which uses the phrase “irregularity in relation to an election for an office” (the same phrase as used in the present Act) was no different from the meaning of the phrase in the 1904 Act which was the subject of the decision in Ex parte Marsh and the decision in Ex parte Hockings: see Re Post at 168; Re Davidson (1990) 31 IR 102.

14    The applicant submitted that the introduction of s 190 into Sch 1B of the Act had the effect that the ordinary meaning of the term “irregularity in relation to an election for an office” was extended to include conduct affecting voting intentions. In my opinion the extension of a statutory definition to include conduct which did not otherwise fall within the ordinary meaning of the phrase “irregularity in relation to an election” does not alter the ordinary meaning of the phrase; it simply gives the meaning of the phrase an extended operation it would not otherwise have had.

15    The ordinary meaning of the phrase in Pt 3 of ch 7 of Sch 1B of the Act, in my opinion, remains as stated by Gibbs CJ in Ex parte Marsh and as applied in Ex parte Hockings. The question is whether any of the conduct particularised in the application as the irregularities did depart from some rule, established practice or generally accepted principle governing the conduct of the election.

73    I now deal with Mr Clancy’s contention that there are reasonable grounds for his application based on his claim that the ANMF breached s 190 of the FW(RO) Act.

74    Mr Clancy contended that the production and distribution of the February 2015 edition of the ANMJ involved the use of ANMF resources during an election to help Ms Thomas against him because the February 2015 edition contained “electioneering material” which supported Ms Thomas against him.

75    Mr Clancy contended that Ms Thomas’ editorial amounted to electioneering. Further, said Mr Clancy, there was an overlap between the issues referred to in the ANMF’s 2015 priorities article and the other articles he identified, and the priorities identified by Ms Thomas in her candidate statement and “how to vote” flyer. These were maintaining and strengthening Medicare, making improvements in aged care, having safe staffing levels and skills mix in all areas, and defending the future of the nursing and midwifery professions.

76    Mr Clancy also said that the contents of the February 2015 edition of the journal were deliberately chosen and included for the purpose of supporting Ms Thomas’ campaign and that the union officers of the ANMF had acted in bad faith by permitting one of the union’s resources to be used for the purpose of supporting Ms Thomas’ campaign to the detriment of his campaign.

77    The ANMF accepted that the distribution of the February 2015 edition of the ANMJ involved the use of union resources during an election. However, the ANMF contended that there had not been a contravention of s 190 of the FW(RO) Act.

78    There is no dispute that the ANMF’s resources were used in the printing and distributing of the February 2015 edition of the ANMJ. The only question is whether there are reasonable grounds for an application for an inquiry on the basis that these facts potentially give rise to a contravention of s 190 of the FW(RO) Act.

79    In the case of Re McJannett; Re Construction, Forestry, Mining and Energy Union, Western Australian Branch (No 2) (2009) 188 IR 156 (McJannett), Barker J considered an application, under s 200 of the FW(RO) Act, by Mr McJannett, an unsuccessful candidate in an election for offices in the Construction, Forestry, Mining and Energy Union (CFMEU), Western Australia Branch, for an inquiry into the election.

80    One of the allegations Mr McJannett made, was that the CFMEU had potentially contravened s 190 of the FW(RO) Act because it had used union resources in the publication and distribution to members of the union magazine, Construction Worker, which contained an article comprising an address by the Secretary of the Western Australia Branch of the CFMEU, Mr Kevin Reynolds, who was also a candidate in the election at the time.

81    In determining the test to be applied as to whether the impugned publication comprised electioneering material within the ambit of s 190 of the FW(RO) Act, Barker J, at [92], referred first to the following observations of Wilcox J in Jess v Scott (1986) 14 IR 341, which, Barker J observed, had been cited, with approval, by Gray J in Tanner v Darroch (1986) 12 FCR 235 (Tanner) at 248:

If, in relation to any particular document and upon a fair reading thereof, it appears that the substantial purpose for which it was printed and distributed was either to advance or to reduce the prospects in the then elections of any candidate or candidates, the second qualification applies.

82    Barker J then referred, with approval, to the following observations of Gray J in Tanner at 249:

It is my firm view that principle (d) requires the application of an objective test. In other words, if, on a fair view of the publication in question, it amounts to electioneering, its production and distribution will be beyond the power given by the rules, whatever may have been the subjective intent of those producing and distributing the publication…In my view in searching for the “substantial purpose” of each of the documents there in question, Wilcox J in Jess v Scott was doing no more than examining each document to determine whether, on a fair view of it, it amounted to an electioneering publication, or whether any effect it may have in persuading prospective voters to form views as to how they should cast their votes was incidental to the thrust of its text.

83    Barker J then went on to observe at [93]:

In my view, guided by this authority, the question whether the use of CFMEU funds to publish in a magazine an article such as Mr Reynold’s “Secretary’s Address”, contravenes s 190, is to be resolved by reading the publication objectively and determining whether it amounts to an electioneering publication.

84    Barker J then referred to the “Secretary’s Address” in full, and at [95], concluded as follows:

In my view, on an objective view of this published document it does not amount to an electioneering document. It is a general statement that encourages members to vote in the forthcoming elections. There is no mention of any candidates, let alone any criticism of any. Nowhere does the address encourage members to vote for Mr Reynolds or his team. While it might be said in a very general way that the publication of such a document during an election period might be calculated to put the author, if a candidate for election, in a good light, in my view it simply does not pass the threshold test of being an electioneering document; or having that substantial purpose.

85    The ANMF contended before this Court, that because s 190 of the FW(RO) Act creates an offence, it is not sufficient only to apply an objective test based on a fair reading of the article in question, in order to determine whether there is a potential contravention of s 190. The ANMF contended that the question of whether the union officer responsible for the publication or distribution of the ANMJ intended to help one candidate against another candidate in an election would be an essential element of the offence. Therefore, said the ANMF, in determining whether there was a potential contravention of s 190 in these circumstances, it would be necessary to have regard to whether the responsible officer of the union, namely, in this case, Ms Butler, in approving the publication and distribution of the February 2015 edition of the ANMJ, intended, thereby, to help one candidate, namely, Ms Thomas, against another candidate, namely, Mr Clancy, in the relevant election.

86    In my view, there is much to be said for the ANMF’s contention. Tanner and the other cases referred to by Barker J, were not cases involving an allegation of a contravention of a statutory provision creating an offence. Rather, they were cases in which an application was made to direct union officers to comply with union rules.

87    However, it is unnecessary to determine the issue. This is because, when objectively read, the impugned parts of the February 2015 edition of the ANMJ do not, in my view, pass the “threshold test” of comprising electioneering material.

88    The editorial of Ms Thomas which Mr Clancy alleges comprised electioneering material, states as follows:

Feeling rested and restored after the Christmas break the ANMF is ready for the challenges and opportunities 2015 brings.

Unfortunately the beginning of the year has already seen heartbreak and tragedy around the world. Yet, from adversity, the human spirit and community comradery has truly shone through; an attribute that can only be described as awe-inspiring.

Last month in my home state of South Australia, the Adelaide hills faced devastating bushfires, destroying up to 38 homes and affecting many lives. During this time the community was quick to rally, offering acts of extreme kindness and support such as donations of food, money and shelter to those in need.

When 12 people were tragically gunned down in a terrorist attack on Parisian satirical magazine Charlie Hebdo, the community came together in solidarity to condemn the act. An estimated three million people rallied in Paris to protest against the attack and to demonstrate their right to free speech. Similar demonstrations were also held across the world.

Our inherent nature to support one another and stand up for what is right when needed is the basis of our society and shapes and protects the world we live in.

This is why I feel passionate to stand up for what I, and many of you, believe in which is an equitable healthcare system for all and a robust nursing and midwifery profession. To this end we will continue to stand up for our rights and the rights of the community throughout 2015.

In this month’s ANMJ, we have outlined our priorities for the year, which includes: improving conditions and wages for nurses working in aged care; maintaining and strengthening Medicare and our universal health system; adequate staffing levels and skills mix in all healthcare settings; ensuring secure and meaningful employment for our nurse and midwifery graduates and continuing the campaign against the proposed deregulation of university fees.

Additionally, the ANMF will fight the cuts to wages, conditions and jobs for nurses and midwives that many of our states and territories are contending with, as outlined in this month’s feature.

Before I sign off, I would like to congratulate ANMF (SA Branch) member Nat Cook who has been elected to state government in a by-election held in SA late last year. Nat’s election to the seat has in effect shifted the balance of power, allowing Labor to form a majority government. Nat is a highly experienced and well respected nurse. She also set up the Sammy D Foundation to bring awareness to young people about making safe and positive choices, after her son was tragically killed in a one punch assault at a party six years ago. Nat is a worthy example of a great leader in our community and of our professions.

Well done Nat!

89    Mr Clancy claimed that the following words in the editorial demonstrated that the editorial amounted to electioneering material:

This is why I feel passionate to stand up for what I, and many of you, believe in which is an equitable health care system for all and a robust nursing and midwifery profession. To this end we will continue to stand up for our rights and the rights of the community throughout 2015.

90    I do not agree.

91    In my view, the words in the first sentence express Ms Thomas’ commitment, along with other members of the ANMF, to an equitable healthcare system and a robust nursing and midwifery profession. The words of the second sentence reflect a position which the ANMF as a whole will take in 2015. There is no mention in the editorial of any election nor is there any mention of any other candidate, let alone any criticism of Mr Clancy. There is no exhortation to support Ms Thomas against Mr Clancy. By contrast, in McJannett, Mr Reynolds, in his “Secretary’s Address”, referred to progress that had been made in negotiating an Enterprise Bargaining Agreement and then went on to state:

I have been through major economic storms before and now is the time to steer a solid ship. The Union elections are on and I ask all members to take the time to exercise their democratic right to vote.

92    Mr Reynolds does not in that passage call for the members to vote for him. However, the juxtapositioning of Mr Reynolds’ reference to his ability to pass “through major economic storms” and to it being “the time to steer a solid ship”, to his reference to the election, in my view, place his statement closer to the “threshold” of what might be considered electioneering material, than is the case with the impugned statements in Ms Thomas’ editorial.

93    Accordingly, in my view, Ms Thomas’ editorial does not amount to electioneering material within the ambit of s 190 of the FW(RO) Act.

94    Further, I do not accept Mr Clancy’s contention that because there is an overlap between the contents of Ms Thomas’ election statement and the contents of the impugned articles in the February 2015 edition of the ANMJ, the articles are to be regarded as electioneering material. The explanation which was given by Ms Butler and Ms Thomas in their affidavits, namely, that the impugned articles referred to existing campaigns and policies of the ANMF is persuasive, and, as the ANMF contended, it is not unexceptional that these matters should be mentioned in the first edition of the ANMJ for the year 2015.

95    Further, the existence of the 11 photographs of Ms Thomas in the February 2015 edition of the ANMJ is, also, not a sufficient circumstance to conclude that the ANMJ, on an objective reading, arguably comprised electioneering material. This is because, the evidence of Ms Butler shows that numerous photographs of Ms Thomas and union leaders, have also appeared in other non-contentious editions of the ANMJ.

96    It follows, therefore, that I am of the view that Mr Clancy has not demonstrated reasonable grounds for the holding of an inquiry on the basis of an allegation that there is a potential contravention of s 190 of the FW(RO) Act, by the publication and distribution of the February 2015 edition of the ANMJ.

97    In any event, even if I am wrong in that conclusion, Mr Clancy has not adduced evidence to the effect that even if the publication and distribution of the February 2015 edition of the ANMJ did constitute an “irregularity in an election for an office”, that irregularity may have affected the outcome of the election.

98    The question of whether an irregularity may have affected the election result, is to be assessed by reference to whether the election result may, as a matter of practical reality, have been affected by the irregularity (Re Jacomb at [54]).

99    The election results at [9] above, show that a total of 35,331 votes were cast. In the election for Federal President, Mr Clancy obtained 7,057 votes, which amounted to approximately 20% of the total votes that were cast, including 356 informal votes. Ms Jones’ winning margin was 20,861 votes. In the election for Federal Secretary, Mr Clancy obtained 11,876 votes, which amounted to approximately 34% of the total votes that were cast, including 420 informal votes. Ms Thomas’ winning margin was 11,159 votes.

100    Mr Clancy has adduced no evidence upon which the Court might be in a position to conclude that the publication and distribution of the February 2015 edition of the ANMJ may, as a matter of practical reality, have affected the result of the election in circumstances where one candidate has obtained such a significantly lower proportion of the vote as Mr Clancy obtained in these elections.

101    It follows, that Mr Clancy has failed to establish that there are reasonable grounds for an application for an inquiry to be called under s 201 of the FW(RO) Act on the basis of Mr Clancy’s allegation that there was a potential contravention of s 190 of the FW(RO) Act by the ANMF.

The publications by the State unions

102    Mr Clancy also contended that there should be an investigation into the conduct of each of the State unions and their officers in relation to the publications referred to in [31]-[32] and [35]-[39] above.

103    Mr Clancy pleaded at paras 58, 61, 63 and 66 of his originating application, that the SA State union had contravened s 190 of the FW(RO) Act in making the e-bulletin publications on 23 February, 2 March and 10 March 2015 respectively, which are the e-bulletin publications referred to at [31], [38] and [39] above.

104    Further, Mr Clancy pleaded at para 86 and para 87 of his originating application that the Queensland State union had contravened s 190 of the FW(RO) Act by its council voting to support the re-election of Ms Thomas as Federal Secretary and the election of Ms Jones as Federal President, and by referring to that resolution in the publication of Q News on 28 February 2015, referred to at [35] above.

105    In support of these allegations, Mr Clancy contended that each of the SA State union and the Queensland State union was bound by s 190 of the FW(RO) Act because the office holders in each of the SA and Queensland State unions, held office as an office holder of the respective State union by reason of holding an equivalent office within the respective State branch of the ANMF pursuant to a single election for that office in the branch of the ANMF in that State. Mr Clancy contended that it followed that each of the office holders of the SA and Queensland State unions, was bound by the rules of the ANMF, and that even if he or she was purporting to act in the capacity as a member of the executive of the respective State union, he or she, in reality, acted in his or her capacity as an officer of the ANMF.

106    As to the complaint about the publication of Mr Holmes’ editorial in the 2 March 2015 edition of “The Lamp”, Mr Clancy pleaded that the NSW State union contravened s 190 of the FW(RO) Act because Mr Holmes was speaking in his capacity as the branch secretary of the New South Wales branch of the ANMF in relation to the editorial published in “The Lamp” in March 2015.

107    Each of the three State unions contended that s 190 had no application to its conduct because each was a separate legal entity and that, in making and distributing the impugned publications, each was acting in that capacity and that each of the union officers who authorised the publications was likewise acting as an officer of the State union, and so, was not, thereby, subject to the rules of the ANMF or acting in the capacity of an officer of the ANMF.

108    An officer from each of the three State unions gave evidence by affidavit describing the structure and operations of each State union.

109    Ms Elizabeth Dabars said that she held the position of secretary of the SA State union and that she held that position at the time of the impugned e-bulletin publications.

110    Ms Dabars deposed that the SA State union was not registered under the FW(RO) Act. Ms Dabars said that there was a South Australian branch of the ANMF. Its name was, the “Australian Nursing and Midwifery Federation (South Australian Branch)”. Ms Dabars said that at the time of the impugned publications, she also held office as the branch secretary of the South Australian branch of the ANMF.

111    Ms Dabars said that she had been a member of both the SA State union and the South Australian branch of the ANMF for 16 years and that she had participated in the affairs of both entities during that time. She said that the SA State union and the South Australian branch of the ANMF were treated and governed as separate entities in accordance with the rules and laws that applied to each. The SA State union was, however, affiliated to the ANMF.

112    Ms Dabars said that the SA State union and South Australian branch of the ANMF each had its own members, and that a person had to apply to become a member of the SA State union and separately (but on the same form) to apply to become a member of the South Australian branch of the ANMF. Ms Dabars referred to r 8A of the SA State union rules which provides that where a person has also made an application for membership of the South Australian branch of the ANMF, the secretary of the SA State union is to take appropriate steps to ensure that such application is duly considered by the South Australian branch of the ANMF.

113    Ms Dabars deposed that each of the entities had separate bank accounts and that these accounts are reported to the relevant respective management committees for scrutiny and approval. Further, said Ms Dabars, the SA State union’s financial accounts were managed, held and audited separately from those of the South Australian branch of the ANMF.

114    Further, said Ms Dabars, the South Australian branch of the ANMF had no employees.

115    Ms Dabars deposed that the rules of the SA State union provide for elections to be conducted for the election of officers to the SA State union between 1 September and 30 October in each alternate year. However, said Ms Dabars, the rules went on to provide that for so long as the SA State union continued to affiliate with the ANMF, no separate elections would be held for the offices in the SA State union, but the persons elected to the equivalent offices in the South Australian branch of the ANMF, would also be the persons who were elected to the equivalent offices of the SA State union.

116    Ms Dabars went on to say that the council of the SA State union and the branch council of the South Australian branch of the ANMF held separate and distinct meetings and dealt only with matters that pertained to the relevant entity. Ms Dabars said that each of these meetings had a separate agenda and was separately minuted.

117    Ms Dabars also deposed that the website on which the impugned e-bulletins were published was “ANMFSA.org.au” and the website was owned, maintained and paid for by the SA State union. The website was updated by State union employees. Ms Dabars annexed to her affidavit an extract from the domain search which showed that the registrant was the SA State union.

118    Ms Dabars said that the e-bulletin was a publication of the SA State union, was paid for by the SA State union and was produced and prepared by SA State union employees. The content of the SA State union publications was authorised by Ms Dabars or by Mr Robert Bonner, who held the position of director of operations and strategy with the SA State union. Ms Dabars said that the e-bulletin was mailed to members by employees of the SA State union using computer equipment owned by the State union.

119    Ms Dabars said that the impugned e-bulletins were not special issues. Ms Dabars went on to say that the South Australian branch of the ANMF was not asked to, nor did it, direct or approve the content of the impugned e-bulletins which supported Ms Thomas and Ms Jones in the election. The resolution to support Ms Thomas and Ms Jones was passed by the council of the SA State union.

120    Ms Dabars said that she made no statement as branch secretary of the South Australian branch of the ANMF that supported or otherwise commented upon Ms Thomas’ and Ms Jones’ candidature for the Federal positions they contested in the ANMF. Ms Dabars said that the e-bulletin was a SA State union production and was intended to be a communication by the SA State union for consumption by its members.

121    Ms Dabars was not cross-examined and I accept her evidence.

122    Ms Elizabeth Ruth Mohle gave evidence in an affidavit, dated 2 October 2015, and an affidavit, dated 11 March 2016, in relation to the publications made by the Queensland Nurses’ Union of Employees, which I have referred to as the Queensland State union. Ms Mohle deposed that she is, and was at all material times, the secretary of the Queensland State union. Ms Mohle said that she was also the branch secretary of the Queensland branch of the ANMF. The Queensland State union was registered under the Industrial Relations Act 1999 (Qld).

123    Ms Mohle deposed that each of the Queensland State union and the Queensland branch of the ANMF is managed as a separate organisation.

124    Ms Mohle said that when a person applies to join the Queensland State union, that person also applies to join the Queensland branch of the ANMF, with the practical consequence that the membership of the State union and the Queensland branch of the ANMF, is substantially the same.

125    Ms Mohle also deposed that the Queensland branch of the ANMF and the Queensland State union had entered into an agreement pursuant to which the Queensland State union would provide the Queensland branch of the ANMF with a number of services, including but not limited to, the provision of financial services, administrative services, provision of notices to members of the Queensland branch, facilities for holding of meetings of the Queensland branch council and other bodies, facilities for the safekeeping of records and the provision of accounting and auditing services. The agreement, also, recorded that the Queensland State union employed its own employees but contemplated the joint employment of staff in the future.

126    Ms Mohle also deposed that, contrary to Mr Clancy’s assertion, the Queensland State union had not entered into a membership agreement with the ANMF pursuant to s 151 of the FW(RO) Act.

127    Ms Mohle deposed that in November 2012, she applied for an exemption from holding a separate election provided for under the Queensland State union rules where the offices in the Queensland State union corresponded to the offices under the “Federal counterpart” being the ANMF. That exemption, said Ms Mohle, was granted under the Industrial Relations Act 1999 (Qld).

128    Ms Mohle said that it had been the practice for many years for the council of the Queensland State union and the branch council of the Queensland branch of the ANMF to meet on the same day. Ms Mohle said that the council of the Queensland State union and the branch council of the Queensland branch of the ANMF had met on 13 February 2015.

129    Ms Mohle deposed that on 13 February 2015, at that meeting, the council of the Queensland State union passed a motion which resolved to confirm the State union’s support for the candidacy of the State union president, Ms Jones, as the Federal President of the ANMF and of Ms Thomas as the ANMF Federal Secretary.

130    Ms Mohle deposed that the branch council of the Queensland branch of the ANMF at no time made any decisions with respect to the ANMF elections or devoted any resources to those elections. Ms Mohle has exhibited to her affidavit the minutes of each of the meetings of the council of the Queensland State union and the branch council of the Queensland branch of the ANMF.

131    The minutes of the meeting of the council of the Queensland State union record that the council passed a resolution expressing support for the candidacy of Ms Jones and Ms Thomas in the ANMF elections.

132    The minutes of the meeting of the branch council of the Queensland branch of the ANMF are much shorter. However, the minutes recorded that the branch council endorsed “Resolution ANMF No 3”, which is a resolution in identical terms to that passed by the council of the Queensland State union which endorsed the candidacy of Ms Jones and Ms Thomas in the ANMF elections. Accordingly, the content of the resolution does not refer to the branch council of the Queensland branch of the ANMF endorsing the candidacy but only refers to the council of the Queensland State union endorsing that candidacy. Ms Mohle deposed that the inclusion of “Resolution ANMF No 3” in the minutes of the branch council meeting of the Queensland branch of the ANMF was an error. Ms Merren Dickins, the personal secretary of Ms Mohle, who was responsible for the preparation of the minutes, gave evidence to similar effect.

133    Ms Mohle then deposed to the circumstances of the publication of the impugned edition of Q News published on 28 February 2015. Ms Mohle said that Q News was a monthly newsletter that was distributed to all State union members by the Queensland State union for which the State union has an email address. Ms Mohle said that the Q News publication was first published on the Queensland State union website and then emailed to State union members.

134    Ms Mohle went on to depose that the only costs associated with the publication of Q News were the wages of the staff who contribute content to Q News and the costs associated with hosting the website. Ms Mohle said that Ms Linda Brady had prepared the content of the impugned Q News publication of 28 February 2015. Ms Mohle said that another employee, Ms Melissa Campbell, had formatted the content of the publication, uploaded the publication to the website and emailed the publication to the Queensland State union members. Ms Mohle went on to say that Ms Brady and Ms Campbell were employed by the Queensland State union only and not the ANMF and had been employed by the Queensland State union prior to the entry into the agreement with the Queensland branch of the ANMF, referred to at [125] above. Ms Mohle said that Ms Brady’s and Ms Campbell’s employer did not change on entry into the agreement.

135    Ms Mohle said that she was the editor of Q News and reviewed the content of the publication before it was distributed to the members and that she had authorised the publication of the impugned newsletter in accordance with the Queensland State union delegation policy.

136    Neither Ms Mohle nor Ms Dickens was cross-examined and I accept their evidence.

137    Mr Brett Holmes gave evidence by affidavit, dated 2 October 2015.

138    Mr Holmes said that he held the office of General Secretary of the New South Wales Nurses and Midwives’ Association (which I refer to as the NSW State union) and branch secretary of the New South Wales branch of the ANMF. Mr Holmes deposed that the elections for the offices of the State union are separate from the elections for the offices of the New South Wales branch of the ANMF. Mr Holmes said that the NSW State union was registered as an industrial organisation of employees under the Industrial Relations Act 1991 (NSW).

139    Mr Holmes said that on 30 May 1988, a written agreement was made between the State union and the Federal union, then known by different names, to the effect that on joining the State union, the person would also become a member of the New South Wales branch of the Federal union. All subscription fees were to be paid to the State union and the State union would pay a capitation fee to the Federal union which was forwarded to the New South Wales branch.

140    Mr Holmes deposed that a motion endorsing the candidacy of Ms Thomas as Federal Secretary of the ANMF, and Ms Jones as Federal President of the ANMF, was carried unanimously at a meeting of the council of the State union on 3 February 2015.

141    Mr Holmes said that the State union has published a magazine for members since 1944. Mr Holmes went on to say that the State union wholly owned, funded and distributed the publication of “The Lamp”. Mr Holmes said that the trade mark, “The Lamp”, is, and was, owned by the NSW State union.

142    Mr Holmes said that his editorial which supported Ms Thomas and Ms Jones was written in his capacity as General Secretary of the State union and addressed to members of the State union who were also members of the New South Wales branch of the Federal union. I observe, in passing, that the content and tenor of the editorial corroborates Mr Holmes’ evidence.

143    Mr Holmes said that the State union website at www.nswnma.asn.au was owned and controlled by the State union. Mr Holmes said that the ANMF’s website is at www.anmf.org.au.

144    Mr Holmes also deposed that only resources of the NSW State union were used to inform members of the forthcoming election and of the motion passed by the council of the NSW State union which was conveyed with an attached “how to vote” card from Ms Thomas and Ms Jones. The resources used were the “The Lamp” publication and emails to members with an address on the State union’s membership system.

145    Mr Holmes went on to say that the New South Wales branch of the ANMF had no employees. Mr Holmes said that he received all of his remuneration from the NSW State union.

146    Mr Holmes said that the finances of the New South Wales branch of the ANMF were accounted for in a distinct separate way to the finances of the NSW State union. There were separate bank accounts and separate auditing processes.

147    Mr Holmes was not cross-examined and I accept his evidence.

148    In light of the fact that I have accepted the evidence of each of Ms Dabars, Ms Mohle and Mr Holmes, that in making the impugned publications, each acted in their respective capacity as an officer of the respective State union, and used only the resources of each of the respective State unions, I find that Mr Clancy has not demonstrated that there are reasonable grounds for his application for an inquiry into whether the impugned publications made by the State unions, comprised a contravention of s 190 of the FW(RO) Act, or a breach of the rules of the ANMF.

149    This is because, notwithstanding the very close working relationship between each State union and the branch of the ANMF in that State, as revealed by the evidence, Australian law has recognised that a body of employees registered separately as a union under each of the State and Federal statutory regime, constitutes a separate and distinct body operating under each of the two different statutory regimes.

150    In the case of Re McJannet; Ex parte Minister for Employment, Training and Industrial Relations for the State of Queensland (1995) 184 CLR 620 (McJannet), the High Court considered the relationship between the ATAEA, an organisation of employees registered under Commonwealth legislation, and the ATAUE, a related organisation of employees based in Queensland and registered under Queensland legislation. The ATAUE had its own rules and held separate accounts to those of the ATAEA. The ATAUE sought to amalgamate with a separate Queensland based workers’ union, and this proposal was opposed by the ATAEA, which asserted that the ATAUE was, in fact, a branch of the ATAEA and the assets of the ATAUE should vest in the ATAEA.

151    The High Court in McJannet rejected the ATAEA’s argument and found that on registration under the Queensland registration legislation, the ATAUE became a separate and distinct body with its own corporate personality, notwithstanding that there was an overlap of members between both bodies. At 664–665, Toohey, McHugh and Gummow JJ observed:

It follows that what was presented for registration under the 1916 State Act was an unincorporated association whose membership comprised those who then were members of the Queensland Branch. Further, the body thus endowed with separate legal personality by s 37 of the 1916 State Act never was and did not remain in any relevant legal sense “part of” the ATAEA.

There was nothing in the 1904 Federal Act which prevented a group of persons, who were members of an organisation registered under that statute and assigned to a particular branch, seeking to establish an industrial union of employees by registration under the 1916 State Act. It may have been that such persons were not empowered by the rules of the ATAEA to take such a step. However, even if that had been the case (which it is unnecessary to decide here) that would mean no more than that the ATAEA was not bound by what was done. It is not a case of the 1904 Federal Act in some way covering a field to preclude the operation of a State law which permitted persons who were also members of a federal organisation from banding together to seek registration under the 1916 State Act, with the consequences as to corporate personality which would follow. It would only mean that some persons were members of two industrial organisations. The federal organisation would co-exist with the new corporation. Section 109 of the Constitution therefore has nothing to say on the matter. (Footnote omitted.)

152    Section 190 of the FW(RO) Act refers only to the conduct of an “organisation or branch”. An “organisation” is defined in s 6 of the FW(RO) Act as “an organisation registered under this Act”. The State unions are registered under the respective Acts of their States and, therefore, do not meet this definition. It follows that s 190 of the FW(RO) Act does not address the conduct of the State unions. Accordingly, as the State unions contended, s 190 of the FW(RO) Act only applies to the conduct of the ANMF, and has no application in relation to the conduct engaged in by any of the State unions.

153    The distinction between the separate corporate personality of a union registered under Federal legislation and an associated union registered under State legislation was also recognised in Becker. In that case, Cooper J rejected an argument similar to the argument raised by Mr Clancy, namely, that, because the same persons held equivalent offices in each of the unions, the office holders were bound by the rules of the Federal registered union in respect of their conduct as officers of the State registered union.

154    In Becker, the Electoral Commissioner applied under s 201(1)(b) of Sch 1B of the Workplace Relations Act 1996 (Cth) (the Workplace Relations Act) for the holding of an inquiry into an election for Federal conference delegates from the Queensland branch of the Australian Education Union (AEU). The Electoral Commissioner formed the belief that there had been irregularities in relation to that election. The AEU was registered under the provisions of the Workplace Relations Act.

155    In the Electoral Commissioner’s particulars of the alleged irregularities, the Electoral Commissioner alleged that the Queensland Teachers Union of Employees (QTU) which was registered under State legislation, namely, the Industrial Relations Act 1999 (Qld), was a union which was associated with the AEU. Further, the particulars alleged that during the period from 3 September 2003 to 29 October 2003, the QTU and persons who were officers of each of the AEU and the QTU, used the resources of the QTU to assist particular candidates against other candidates in the AEU election. The impugned activities included the distribution of a publication containing a “how to vote” card, a newsletter recommending that members follow the “how to vote” card and a journal titled “Queensland Teachers’ Journal”, which criticised one of the candidates as being undemocratic and recommended that members follow the “how to vote” card. The particulars went on to allege that:

14.    On each of the occasions particularised in paragraphs 6 to 13 above, the use of QTU resources by the persons or bodies for the purposes referred to was in breach of the Rules of the Australian Education Union (the AEU) namely, implied rules that:

(i)    an Associated Body must not use its property or resources or allow them to be used to support any candidate against any other candidate in an election for an office or other position with the AEU;

(ii)    the AEU and each of its members and officers who are also members and/or officers of an Associated Body must not suffer that Associated Body to use its property or resources or allow them to be used to support any candidate against any other candidate in an election for an office or other position within the AEU.

156    At [23], Cooper J observed:

I reject the submission that there are to be implied into the rules of the AEU implied rules in the terms contended for by the applicant which it is alleged were breached because the conduct complained of was engaged in by the QTU and specified officeholders of that organisation.

157    Further, at [27] and [28], Cooper J observed:

27    The conduct alleged against the QTU and its named office holders amounts to discriminatory acts in favour of one group as the “endorsed ticket” against another in respect of those groups candidature as members of the AEU (Queensland Branch) another trade union, although one associated with the QTU. There is no case cited to me that holds that such conduct is “irregular” conduct if the use of the funds and resources of the State organisation for that purpose is a proper use of the power to use the funds and resources conferred by the rules of the State organisation. If the conduct is also categorised as discriminatory conduct by the QTU between its members for an improper purpose and is therefore irregular, it is an irregularity in the conduct of the affairs of the QTU which falls to be dealt with under relevant Queensland legislation. It is only when the conduct of the QTU and its named officers amounts to an irregularity in relation to an election for an office conducted under Sch 1B to the Act, that such conduct falls to be dealt with under the Act.

28    If the conduct of the QTU is to provide the reasonable ground for an inquiry then it must be shown to come within the ordinary meaning of an “irregularity in relation to an election” as determined in Ex parte Marsh and Ex parte Hockings. As the conduct alleged relates to attempts to persuade eligible voters in the AEU (Queensland Branch) election to vote for a particular “team” and does not touch the processes of nomination, conduct, and declaration of the poll, the conduct does not constitute “an irregularity in relation to an election for an office” as required by the Act.

158    As was the case in Becker, Mr Clancy did not cite any case in support of his contention that even though the officers of the State unions were acting in their capacity as such, they were in law to be treated as acting in the capacity as officers of the ANMF.

159    It is apparent, therefore, that the established case law recognises that each of the three State unions is a separate and distinct body from the ANMF, as manifest through its branch in each of the three States involved. In those circumstances, the officers of each of the State bodies, when acting in their capacity as officers of the State union, would not be subject to the rules of the ANMF, and their conduct would not be the conduct of the ANMF.

160    It follows, therefore, that Mr Clancy has not shown that there are reasonable grounds for an inquiry into whether the conduct of the State unions contravened s 190 of the FW(RO) Act, nor whether the conduct of Ms Dabars, Ms Mohle or Mr Holmes in authorising the publication and distribution of the impugned publications was a breach of the rules of the ANMF.

161    I observe, in passing, that the application of the law as it currently stands has the propensity to lead to the circumstance, such as occurred in this case, of a State union’s funds being used to support the candidature of an incumbent candidate against another candidate in a Federal union election where there is, in reality, a very close operational relationship between the State union and the State branch of the associated Federal union. In my respectful view, this is an aspect of the law which, when regard is had to the prohibition in s 190 of the FW(RO) Act, may warrant closer examination and possible reform.

CONTRAVENTIONS OF the commonwealth electoral act 1918 (cth)

162    Mr Clancy also contended that there had been contraventions of ss 328, 328A and 331 of the Commonwealth Electoral Act 1918 (Cth) which gave rise to an “irregularity in relation to an election for an office” under the FW(RO) Act and this supported his claim that the Court should order an inquiry under s 201 of the FW(RO) Act.

163    In short, s 328 of the Commonwealth Electoral Act prohibits a person from printing, publishing or distributing an electoral advertisement, handbill, pamphlet, poster or notice unless the name and address of the person who authorised the document appears at the end thereof, and, if the document is published, otherwise than in a newspaper, the name and place of business of the printer appears thereon.

164    Section 328A of the Commonwealth Electoral Act prohibits a person from publishing or causing or authorising the publication of a paid electoral advertisement on the internet which is intended to affect voting in an election, unless the name and address of the person who authorised the advertisement appears at the end of the advertisement.

165    Further, s 331 of the Commonwealth Electoral Act requires that where an advertisement in a journal contains electoral material, the proprietor of the journal must cause the word “advertisement” to be printed as a headline to the advertisement.

166    Mr Clancy submitted that the editorial and article which described the ANMF priorities for 2015 in the February 2015 edition of the ANMJ, as well as the impugned publications made by the State unions, fell within the ambit of the sections of the Commonwealth Electoral Act referred to above. Mr Clancy went on to say that those publications did not carry the information and notations required by each of the provisions. Therefore, contended Mr Clancy, each of the publications was distributed in contravention of those provisions of the Commonwealth Electoral Act, and the conduct of the ANMF and the State unions comprised “irregularities in relation to an election for an office” and comprised reasonable grounds for an application for an inquiry under s 201 of the FW(RO) Act.

167    In my view, these contentions by Mr Clancy cannot be accepted. This is because the conduct complained of is not capable of falling within the definition of an “irregularity in relation to an election or ballot” as defined by s 6 of the FW(RO) Act for the following reasons.

168    First, for the reasons given at [69]-[72] above, the conduct complained of by Mr Clancy, namely, the attempt to influence voting intentions by unlawful means, does not fall within the ambit of subs 6(b) of the definition of “irregularity” in s 6 of the FW(RO) Act.

169    Secondly, unlike the specific reference to s 190 of the FW(RO) Act, as falling within the ambit of the definition of “irregularity in relation to an election or ballot” in s 6 of the FW(RO) Act, there is no such reference to contraventions of ss 328, 328A and 331 of the Commonwealth Electoral Act.

contraventions of the anmf rules

170    Mr Clancy also contended that the Court should order an inquiry under s 201 of the FW(RO) Act on the basis that there had been potential contraventions of specific ANMF rules which potentially comprised irregularities in relation to an election. The rules referred to by Mr Clancy were rr 3.1, 3.11, 45.2 and Sch 1, Items 3 and 5.

171    Mr Clancy contended that there had been breaches of r 3.1 and r 3.11. In fact, each of these rules sets out a separate “object” of the ANMF under the general “Objects” rubric of the ANMF rules. As such, in my view, the content of each of those rules does not impose any specific obligation on any individual to perform any particular act or thing. Accordingly, an allegation that a person acted inconsistently with the objects of the ANMF cannot be, in my view, regarded as a potential breach of the ANMF rules for the purposes of subs 6(a) of the definition of “irregularity” in s 6 of the FW(RO) Act.

172    Mr Clancy also contended that there was a further potential “irregularity in relation to an election for an office” based upon a potential breach of r 45.2 of the ANMF rules by Ms Thomas. That rule provides as follows:

The Federal Secretary shall…in compliance with these Rules request the Industrial Registrar makes the necessary arrangements to conduct an election in the Federation for the Federal Offices of Federal President, Federal Vice President, Federal Secretary and Assistant Federal Secretary with a view to ensuring that no irregularity occurs in or in connection with the election.

173    Mr Clancy contended that this rule imposed an obligation on Ms Thomas to ensure that no irregularities occurred in relation to the election. Mr Clancy contended that Ms Thomas had failed to comply with the rule because in making the impugned publications referred to above, the SA State union and the Queensland State union had each engaged in irregularities by contravening s 190 of the FW(RO) Act, and it was likely that Ms Thomas had knowledge of the alleged irregularities because the impugned publications contained links to her campaign Facebook page.

174    Mr Clancy’s contention is rejected because the contention assumes the conduct engaged in by the SA and Queensland State unions arguably comprised a contravention of s 190 of the FW(RO) Act. As I have previously found, the conduct of the State unions does not fall within the purview of the FW(RO) Act.

175    Further, and in any event, the ambit of the obligation imposed upon the Federal Secretary in r 45.2 of the ANMF rules is to make the request which is contemplated in that rule. That request was, on her evidence, made by Ms Thomas.

176    Mr Clancy also contended that there were reasonable grounds for the application for an inquiry on the basis that there had been a potential breach of Item 3 and Item 5 of Sch 1 of the ANMF rules.

177    Item 3 of Sch 1 of the ANMF rules provides as follows:

3.    FEDERATION POLICIES AND PROCEDURES

(a)    The Federation shall develop and implement internal control policies and procedures:

(i)    relating to the expenditure of the Federation and to ensure that the Federation is conducted in accordance with the principles of good governance and to ensure accountability to members of the Federation;

(ii)    and to ensure that the Federation is representative of and accountable to its members;

(iii)    and will be able to operate effectively, will encourage members to participate in the affairs of the Federation and to encourage the democratic functioning and control of the Federation.

(b)    The policies and procedures pursuant to item 3(a) shall be adopted and identified by Resolution of the Federal Council and once adopted shall be binding on all officers and members of the Federation.

(c)    The Federation policies and procedures as required by item 3 of Schedule 1 must be published on the website of the Federation within fourteen (14) days of their adoption.

(d)    The Federation shall develop and maintain a risk framework and associated policies.

178    Mr Clancy contended that no policies and procedures as are referred to in Item 3(a) of Sch 1 of the ANMF rules, had been adopted and published on the ANMF website and that the ANMF may be in breach of the ANMF rules by not adopting the required policies and procedures.

179    At paras 15-24 of her 1 October 2015 affidavit, Ms Thomas gave evidence to the effect that policies relating to budgeting control, credit card use, delegation of duty and tendering and procurement had been adopted and published by the Federal office of the ANMF. Further, said Ms Thomas, the Federal office had also adopted a strategic framework which identified key objectives including the promotion and maintenance of the democratic structures of the ANMF.

180    As mentioned, Ms Thomas was not cross-examined and I accept her evidence.

181    However, in my view, there is, in any event, no substance in this contention by Mr Clancy as comprising reasonable grounds for the ordering of an inquiry. This is because even if the ANMF rules had been breached by the non-adoption or publication of policies, as contended by Mr Clancy, such breaches would not, for the reasons referred to at [69]-[72] above, amount to an “irregularity in relation to an election for an office”.

182    Item 5 of Sch 1of the ANMF rules provides as follows:

5.    DISCLOSURE OF OFFICER’S RELEVANT REMUNERATION AND NON-CASH BENEFITS

(a)    Each person holding an office in the Federation shall disclose to the Federal Council any remuneration or non-cash benefit paid or provided or agreed to be paid or provided to the officer:

(i)    because the officer is a member of, or holds a position with, a board or other organisation, if:

(A)    the officer holds such a position with the board or other organisation only because the officer is an officer of the Federation; or

(B)    the officer was nominated for the position by the Federation or a peak council; or

(ii)    by any third party, in connection with the performance of the officers’ duties as an officer.

(b)    The disclosure required by item 5(a) shall be made to the Federal Council:

(i)    as soon as practicable after the remuneration or non-cash benefit is paid or provided to the officer or is agreed to be paid or provided to the officer; and

(ii)    in writing to the Federal Secretary who shall distribute a written copy of the written disclosure to each member of the Federal Council as soon as is practicable.

(c)    The Federal Council shall disclose to members of the Federation and its Branches:

(i)    the identity of the officers who are the five highest paid in terms of relevant remuneration for the disclosure period, and

(ii)    for those officers:

(A)    the actual amount of the officer’s relevant remuneration for the disclosure period; and

(B)    either the value of the officer’s relevant non-cash benefits, or the form of the officer’s relevant non-cash benefits, for the disclosure period.

(iii)    for the purposes of sub-item (c) the disclosure should be made:

(A)    in relation to each financial year;

(B)    within six months after the end of the financial year; and

(C)    shall be published on the Federation website.

(iv)    The provisions of this sub-item (c) shall apply to each Branch with any necessary change with the exception that each Branch shall identify the top two officers of the Branch ranked by level of relevant remuneration.

183    Mr Clancy contended that Item 5 required an officer of the ANMF who received a non-cash benefit to disclose the non-cash benefit to the Federal council of the ANMF.

184    Mr Clancy contended that the distribution of the February 2015 edition of the ANMJ, and the impugned publications by the three State unions comprised a non-cash benefit for Ms Thomas and Ms Jones. Mr Clancy submitted that the use of ANMF staff to write, proof-read and publish the materials concerned involved the use of financial resources of the ANMF.

185    I have already dealt with these allegations by Mr Clancy, and at [96] and [160] above, dismissed Mr Clancy’s contention that these allegations constitute reasonable grounds upon which to make an order for an inquiry under s 201 of the FW(RO) Act.

186    Further, Mr Clancy’s contention based upon this allegation is dismissed because, even if made out, Mr Clancy’s allegation would constitute a breach of the ANMF rules which would not, for the reasons given at [69]-[72] above, constitute an “irregularity in relation to an election for an office”, and, therefore, would not constitute reasonable grounds for the application for an inquiry.

187    Mr Clancy also referred in para 84 of his originating application to “Schedule 1(8)” as being concerned with the disclosure of non-cash benefits. This appears to be an intended reference to Item 5 of Sch 1 of the ANMF rules. To the extent that it was a reference to a potential breach of Item 8 of Sch 1, Mr Clancy’s contention in respect of this alleged breach is rejected because the breach is of such a character that, even if it was made out, it did not relate to the holding or conduct of any election and so does not fall within the definition of an irregularity set out at s 6 of the FW(RO) Act.

CONTRAVENTIONS OF SS 285, 286 and 287 OF THE FW(RO) ACT

188    Mr Clancy referred in a number of paragraphs in his originating application (see paras 16, 26, 77, 78, 80, 95 and 102) to potential contraventions by one or more officers of the ANMF and the State unions of ss 285, 286 and 287 of the FW(RO) Act by reason of the misuse of the resources of the ANMF in the production and distribution of the impugned publications to assist Ms Thomas and Ms Jones in the election. I have treated these references as being allegations by Mr Clancy that by the impugned conduct, Ms Thomas potentially contravened s 285 and s 286 of the FW(RO) Act, and that each of Ms Thomas, Ms Jones, Ms Butler, Ms Dabars, Ms Mohle and Mr Holmes potentially contravened s 287 of the FW(RO) Act; and that, consequently, the impugned conduct comprised an “irregularity in relation to an election for an office” within the meaning of s 6 and s 200 of the FW(RO) Act.

189    In summary, s 285 of the FW(RO) Act is a civil penalty provision which provides that an officer of an organisation or branch must exercise his or her powers and discharge his or her duties with the degree of reasonable care and diligence that a reasonable person would exercise if he or she was an officer of an organisation or branch in the organisation’s circumstances, who held the same office and had the same responsibilities.

190    Section 286 of the FW(RO) Act is a civil penalty provision which provides that an officer of an organisation or branch must exercise his or her power and discharge his or her duties in good faith in what he or she believes to be in the best interest of the organisation, and for a proper purpose.

191    Section 287 of the FW(RO) Act, is also a civil penalty provision which proscribes the improper use by an officer or employee of an organisation of his or her position, either to gain some advantage for himself or herself or some other person, or to cause some detriment to the organisation or another person.

192    To the extent that Mr Clancy relied upon these contentions as constituting a separate basis for the conduct of an inquiry under s 201 of the FW(RO) Act, Mr Clancy has failed to demonstrate that there are reasonable grounds for such an application.

193    This is because the conduct of which Mr Clancy complains is that the officers in question, in breach of duty, misused union resources as a means of influencing voting intentions, and, for the reasons previously mentioned at [69]-[72] above, such conduct does not fall within the definition of an “irregularity in relation to an election or ballot” in subss 6(a) and (b) of the FW(RO) Act.

194    Further, in contrast to the express reference to a contravention of s 190 of the FW(RO) Act, within the definition of an “irregularity in relation to an election or ballot” in s 6 of the FW(RO) Act, there is no reference to a contravention of any of ss 285, 286 or 287 within that definition.

195    Further, and in any event, even if I am wrong in rejecting Mr Clancy’s contentions in relation to the impugned publications by the State unions, the breaches of the Commonwealth Electoral Act, the breaches of the express rules of the ANMF and the contravention of ss 285, 286 and 287 of the FW(RO) Act, Mr Clancy’s application would still fail, for the reasons set out at [97]-[101] above.

disenfranchisement of student nurses

196    Mr Clancy pleaded that the Victorian branch of the ANMF was reported as having 73,000 members, but only 65,000 voters appeared on the electoral roll for the election of the Federal Secretary and the Federal President. Mr Clancy said that he had found out that student nurses had been excluded from the electoral roll in those elections. Mr Clancy contended that “disenfranchisement” of up to 8,000 members was an irregularity with “significant affect [sic]” on the election result in Victoria.

197    Mr Paul Gilbert gave evidence by affidavit, dated 1 October 2015. Mr Gilbert is the assistant branch secretary of the Victorian branch of the ANMF. Mr Gilbert said he was responsible for preparing the electoral roll for the Victorian branch of the ANMF for the election in question at the request of the Australian Electoral Commission.

198    Mr Gilbert said that the ANMF “eligibility” for the purposes of that electoral roll is governed by r 5 of the ANMF rules, which provides by r 5.1 that eligibility is only open to “employees engaged in the nursing or midwifery industry”. Mr Gilbert went on to state that following changes to the way in which student nurses were trained, many student nurses were no longer employed in hospitals during their education and training. Mr Gilbert went on to say that even though many student nurses were no longer employees, and, therefore, not eligible to vote, student nurses may, nevertheless, take up “student membership” with the ANMF. This membership, said Mr Gilbert, provided a range of benefits, and the Victorian branch of the ANMF included student membership when it reported on the number of its members.

199    Mr Gilbert went on to depose that all members who were entitled to vote were included on the electoral roll. The only persons excluded from the roll were those that lacked eligibility to vote, namely, student nurses who did not have employment in the industry, or members who were “unfinancial”.

200    Mr Gilbert was not cross-examined and I accept his evidence.

201    In light of the evidence of Mr Gilbert, Mr Clancy has not established good grounds for suspecting that 8,000 eligible voters were excluded from the electoral roll in a manner which constituted an “irregularity in relation to an election of an office” and has not established reasonable grounds for his application for an inquiry on that basis.

202    In any event, Mr Clancy has not established that even if, as he claimed, there were 8,000 student nurses who were “disenfranchised”, that the result of the elections as a matter of practical reality, may have been different had the 8,000 student nurses been included on the roll of voters. The evidence of Mr Gilbert was that there were approximately 65,000 eligible voters in the Victorian branch. It is apparent from the voting results at [9] above, that 12,829 eligible voters from the Victorian branch of the ANMF voted in the elections. On Mr Gilbert’s evidence, this is approximately 20% of the eligible voters from that branch. Applying that proportion to the 8,000 student nurses, results in a figure of about 1,600 voters who would otherwise have been likely to have voted in the elections, had they not, on Mr Clancy’s case, been wrongfully disenfranchised. However, in Victoria, Mr Clancy lost the election for the office of Federal President by 8,041 votes and for the office of Federal Secretary by 4,779 votes. Thus, even if all student nurses, who were likely to have voted, had they not been excluded, had voted for Mr Clancy in each election, there would have been no difference to the outcome of the election results in Victoria, nor to the outcome of the election results in the country at large.

203    It follows that Mr Clancy has failed to establish reasonable grounds for his application for an inquiry on the basis of this allegation.

204    It follows also that Mr Clancy’s application for the institution of an inquiry under s 201 of the FW(RO) Act is also dismissed.

Associate:

Dated:    5 May 2017