Federal Court of Australia
Carovska, in the matter of an application for an inquiry in relation to an election for offices in the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, NSW Branch [2023] FCA 1129
ORDERS
DATE OF ORDER: | 21 September 2023 |
THE COURT ORDERS THAT:
1. There are reasonable grounds for the application seeking an inquiry.
2. The matter be listed for case management on 27 September 2023 at 9:30am in order to fix a time and place for conducting an inquiry in accordance with s 201 of the Fair Work (Registered Organisations) Act 2009 (Cth).
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
RAPER J:
1 Under s 200(1) of the Fair Work (Registered Organisations) Act 2009 (Cth) a person who, inter alia, is a member of an industrial organisation may apply to this Court for an inquiry to be undertaken where she or he claims there has been an irregularity in relation to an election for an office in the organisation or a branch of the organisation.
2 By such an application dated 28 June 2023, the applicant, Ms Carovska, seeks an inquiry by this Court into the election, held in early 2023, for various offices within the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, otherwise known as the Australian Manufacturing Workers Union, NSW Branch (AMWU or Union).
3 Four interested persons have filed a notice of appearance and been granted leave to appear in this proceeding:
(a) the AMWU;
(b) Mr Cory Wright;
(c) Ms Robyn Fortescue; and
(d) the Australian Electoral Commission.
4 Each interested person filed submissions ahead of the hearing.
5 Applying the Hardiman principle (namely, that an administrative decision-maker should avoid acting as a protagonist in matters in which their decision is under review: R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 at 35–36), the AEC’s involvement in this proceeding was limited to making submissions as to the proper construction of the Act, providing assistance to the Court in explaining why the AEC made various relevant decisions in its conduct of the election, and not taking active steps to agitate for any particular outcome on the preliminary question or in any inquiry ordered: see also Glencore Coal Assets Australia Pty Ltd v Australian Competition Tribunal [2020] FCAFC 145; 280 FCR 194 at [310]–[314].
6 The power conferred on the Court by s 201 to conduct an inquiry is constrained by the requirement that the Court be “satisfied that there are reasonable grounds for the application”. This is the question that required determination for the purposes of this judgment: Whether the Court is satisfied that there are reasonable grounds for the application.
7 For the following reasons, I am satisfied that there are reasonable grounds to institute the inquiry, but in a more limited way than that contended by Ms Carovska.
Background
8 The AMWU is an organisation of employees which is registered in accordance with provisions of the Act. The AMWU is governed by rules which have been registered with the Fair Work Commission (Rules).
9 Rule 6A of the Rules establishes that there are to be direct elections within the AMWU for positions including State Secretary, Assistant State Secretary, and Delegates to the National and State Conferences. There is one office for the position of New South Wales State Secretary and Assistant State Secretary, 10 offices for the Delegates to the National Conference, and 23 offices for the Delegates to the State Conference.
10 On 8 February 2023, the AEC published a notice calling for nominations for several positions, including those referred to immediately above (AEC Notice). The AEC Notice specified that it would receive nominations between 8 February 2023 and 12:00pm on 1 March 2023 (nomination period). The AEC Notice also specified that, if a ballot was required, the voting period would be between 29 March 2023 and 12:00pm on 26 April 2023 (voting period).
11 Following the closure of the nomination period, there were two nominations for the position of Assistant State Secretary: Ms Carovska and Ms Fortescue. A ballot was then held during the voting period. On 1 May 2023, the AEC declared that Ms Fortescue had received 890 votes for the position of Assistant Secretary, whilst Ms Carovska had received 745 votes.
12 On 14 June 2023, Ms Carovska’s solicitor wrote to the AEC and identified several purported irregularities, to which the AEC responded on 19 June 2023 (AEC Correspondence).
13 It is in context of this election that Ms Carovska seeks an inquiry by this Court into the election for the offices of NSW State Secretary, NSW Assistant State Secretary and NSW Delegates to the National and State conferences.
Legislative framework and relevant legal principles
14 Part 2 of Ch 7 of the Act concerns the conduct of elections for office and other positions in a registered organisation. Section 182 of the Act requires an election for an office in an organisation, or a branch of an organisation, to be conducted by the AEC.
15 Section 189 of the Act (at the relevant time) required an organisation lodge “prescribed information” with the then-Registered Organisations Commission by a prescribed date. If the ROC was satisfied that an election was required to be held in accordance with an organisation’s rules and the organisation had lodged the prescribed information, the ROC was required to arrange for the conduct of the election by the AEC: s 189(3) of the Act.
16 It is an offence for an organisation or branch to use its property or resources (or to allow its property or resources to be used) to help a candidate against another candidate in an election: s 190 of the Act.
17 Section 193(1) of the Act provides that an electoral official, including the returning officer, must comply with the rules of the organisation or branch, subject to the power in s 193(1)(b). Section 193(1) is extracted as follows:
193 Provisions applicable to elections conducted by AEC
(1) If an electoral official is conducting an election, or taking a step in relation to an election, for an office or other position in an organisation, or branch of an organisation, the electoral official:
(a) subject to paragraph (b), must comply with the rules of the organisation or branch; and
(b) may, in spite of anything in the rules of the organisation or branch, take such action, and give such directions, as the electoral official considers necessary:
(i) to ensure that no irregularities occur in or in relation to the election; or
(ii) to remedy any procedural defects that appear to the electoral official to exist in the rules; or
(iii) to ensure the security of ballot papers and envelopes that are for use, or used, in the election.
18 An election for an office conducted by an electoral official, or a step taken in relation to such an election, is not invalid merely because the rules of an organisation are breached or because of action taken under s 193(1) (see s 193(6) of the Act):
(6) An election for an office or other position conducted by an electoral official, or step taken in relation to such an election, is not invalid merely because of a breach of the rules of the organisation or branch because of:
(a) action taken under subsection (1); or
(b) an act done in compliance with a direction under subsection (1).
19 Part 3 of Ch 7 of the Act governs when the Court may conduct an inquiry into elections for office(s) of a registered organisation. Section 200(1) of the Act prescribes when a member of an organisation may apply for inquiry, as follows:
200 Application for inquiry
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.
Note: For the meaning of irregularity, see section 6.
20 “[I]rregularity” is defined in s 6 of the Act:
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.
21 An “irregularity” (for the purposes of (a) and (b) of the definition) in an election has been found to include a departure from some rule, established practice or generally accepted principle governing the conduct of an election: R v Gray; Ex parte Marsh (1985) 157 CLR 351 at 368 (per Gibbs CJ).
22 However, an “irregularity” in relation to an election or ballot does not include steps taken to affect voting intentions: Clancy, in the matter of an application for an inquiry in relation to an election for offices in the Australian Nursing and Midwifery Federation [2017] FCA 460 at [69]–[72], citing Re Collins; Ex parte Hockings (1989) 167 CLR 522 and Re Post; Re Election for Offices in Transport Workers Union of Australia, Western Australian Branch (1992) 40 IR 162. This limitation is justified on the basis that otherwise the inquiry would include the discernment of whether or not particular advocacy in favour of a particular candidate or particular candidates had a causative influence on the voting decisions of electors or some of them. It would also include “the question whether there was an impact or likely impact on the election result [which] could only be ascertained by a very substantial intrusion into the secrecy of the ballot”: Re Collins, per Gaudron J at 531.
23 Section 201 outlines the conditions which must be satisfied for an inquiry to be ordered:
201 Instituting of inquiry
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.
24 Section 206 prescribes the role and power of the Court if an inquiry into an election is taken, which is extracted as follows:
206 Action by Federal Court
(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.
Whether there are “reasonable grounds” for the application
25 As noted above, these reasons concern whether there are “reasonable grounds” for Ms Carovska’s application pursuant to s 201(b).
26 The relevant principles governing the determination of this question are not in dispute.
27 An applicant bears the onus of establishing that there are reasonable grounds for the application: Re McJannett; Re Construction, Forestry, Mining and Energy Union, Western Australian Branch (No 2) [2009] FCA 1015; 188 IR 156 at [102].
28 The conducting of an inquiry into an election is a “serious matter” given it “…affects confidence in the integrity of the conduct of the organisation; introduces an element of uncertainty in the tenure of the office-holders affected; distracts the attention of those office-holders, to some extent, from the pursuit of their industrial functions; consumes a great deal of time of the organisation and of public office-holders; and involves much public and private cost”: Re Jarman; Ex parte Cook (No 2) (1996) 136 ALR 233 at 241 per Kirby J.
29 However, as observed by Flick J in Re Killesteyn; Re Australian Medical Officers’ Federation, Queensland Branch [2009] FCA 1311; 193 IR 200 at [25]:
Although it may be accepted that the holding of an inquiry is “a serious matter”, it has also been said that the statutory precondition to the holding of such an inquiry has been set by the legislature at a “low” level: Bourne v Campbell (1999) 93 IR 238 at [8]. Einfeld J there observed:
[8] When this application was first listed for directions, the Court was not invited by the respondents to determine that there was, as raised by s 219, no reasonable ground for the application. Yet a finding of satisfaction of the matter is in truth a statutory pre-requisite to the fixing of the hearing and the institution of the inquiry. The difficulty of reaching a preliminary view such as required by s 219, at a time when both the Court and the parties may not be in a position to consider the question, is probably at least one of the reasons for the presence in the legislation of s 223(5). In other words, if the Court and the parties are to achieve an early hearing of an inquiry into an election, as will virtually always be desirable, the level of satisfaction required by s 219 will ordinarily be quite low. The power to terminate under s 223(5) will then enable the Court to end an inquiry if a little later it is shown that there is no reasonable basis upon which the application can succeed.
Whether it is correct to conclude that the “level of satisfaction … will ordinarily be quite low” may be left to one side. The level of satisfaction required is that prescribed by the legislature; namely, the Court must be “satisfied that there are reasonable grounds” for the application being made.
30 More recently, Flick J acknowledged that whilst the holding of an inquiry constitutes a “serious” step, the Court is attending to this question prior to the inquiry and at a point when the persons affected may not be in the best position to assist the Court. By reason of this the level of satisfaction “will ordinarily be quite low”: Application of the Electoral Commissioner [2014] FCA 588; 226 FCR 144 at [6].
31 Grounds which provide no more than a speculative basis for a suspicion are not sufficient: Killesteyn at [23] citing Re Post. Rather the Court must be satisfied that there is a reasonable ground or grounds for the application. The question of whether there is an “irregularity” lies at the heart of the application.
32 Whether there are “reasonable grounds for the application” demands a consideration of the relief proposed by the applicant to be ordered as a consequence of the inquiry. In Clancy, Siopis J observed:
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.
(Emphasis added.)
33 By reason of the emphasised portions above, the Court must consider whether the alleged irregularities were material in the sense that they may have affected the result of the election.
34 Both the AMWU and Mr Wright in their submissions contend that it is unclear what final relief is sought by Ms Carovska. The AMWU submitted that the failure to particularise the relief sought is a material deficiency, given the question of whether there are reasonable grounds for the application under s 201(b) of the Act is informed by the nature of the inquiry contemplated and the relief which may be ordered as a consequence of the inquiry: Clancy at [23].
The evidence
35 In support of her application, Ms Carovska filed the following evidence:
(a) The affidavit of Jacqueline Carovska affirmed on 28 June 2023;
(b) The affidavit of Glenn Wilcox affirmed on 26 June 2023;
(c) The affidavit of Nicholas Ross Cork affirmed on 28 June 2023; and
(d) The affidavit of Royce Coffey affirmed on 27 June 2023.
36 The AEC relied on the affidavit of Darren Wade affirmed on 31 August 2023.
37 The AMWU relied upon the following evidence:
(a) The affidavit of Abha Devasia affirmed on 1 September 2023; and
(b) The affidavit of James Rabaud affirmed on 1 September 2023.
38 Ms Fortescue and Mr Wright did not file any evidence.
39 Ms Fortescue and Mr Wright submitted that the rules of evidence applied in relation to this stage of the proceeding but not in relation to any inquiry (if ordered) by operation of s 205(3). As a consequence, criticisms and objections (by Mr Wright) were directed and made against Ms Carovska’s evidence. At hearing, I rejected this argument on the basis that such a construction is inconsistent with the text, the context (namely the historical evolution of the Part, which showed that the rules of evidence had never applied to this stage of the proceeding) and, from a purposive perspective, that it would be absurd to read the Act in this way. Parliament has expressly prescribed that the Court is not bound by the rules of evidence when conducting the inquiry, from which significant relief (including penalties) may be ordered. To suggest that the rules of evidence are required at this early stage, before the inquiry, has no logical force.
40 So much was the effect of the helpful submissions of the AEC (which I adopt), namely: First, the plain text of the provision clearly indicates that s 205(3) applies to this stage of the proceeding. The provision states it is “[f]or the purposes of this Part”, and s 201 is within the relevant part of the Act. The AEC referred me to Kelly, in the matter of an application for an inquiry in relation to an election for an office in the New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Branch of the Australian Municipal, Administrative, Clerical and Services Union (No 2) [2011] FCA 490 at [14], where Flick J stated:
If an inquiry is to be held, ss 205 and 206 direct attention to the procedure to be followed at such an inquiry and the action that may then be taken by this Court…
41 Justice Flick appears to contemplate that ss 205 and 206 of the Act only apply once an inquiry has been instituted. However, I accept the AEC’s contention that this issue was not agitated before Flick J and, unlike in McJannett v Bulloch [2012] FCA 1233, there is no indication that this particular issue was the subject of argument in Kelly. Given the same, Kelly cannot be taken as persuasive authority on the application of s 205 to the preliminary question.
42 Secondly, I historical evolution of the predecessor provisions to ss 201 and 205 supports this view. Section 201 has its origins in s 159 of the Conciliation and Arbitration Act 1904 (Cth) (CA Act). There is an important difference between the CA Act and the current provision: The power to determine whether there were reasonable grounds for conducting an inquiry into an election was vested in the Industrial Registrar: see s 160(1) of the CA Act. The Industrial Registrar, as an administrative decision-maker, was not applying the rules of evidence. The AEC then referred the Court to s 164 of the CA Act, from which s 205 originated. Section 205(3) is in substantially identical form to s 164(4). Section 164(4) was directed to the inquiry before the Court. Such a hearing only occurred if the Court if the Industrial Registrar had decided that there were reasonable grounds.
43 The legislation was then recast in the Industrial Relations Act 1988 (Cth) (IR Act), which transferred to the Court (from the Industrial Registrar) the task of determining whether there are reasonable grounds for the application: see s 219 of the IR Act. The historical antecedent to s 201 of the Act is s 219 of the IR Act.
44 There is nothing in the extrinsic materials to suggest that once the reasonable grounds inquiry was vested in the Court rather than the Industrial Registrar (by the IR Act) the rules of evidence were imposed when determining the preliminary question. This submission was supported by the Explanatory Memorandum to the Industrial Relations Bill 1988 (Cth), which relevantly stated:
Division 5 – Inquiries into elections
the provisions of this division generally reflect the rights of members of organizations under the conciliation and arbitration act to apply for inquiries into elections for office in such organizations and their branches and the powers of the federal court to deal with such applications are also along the lines of the relevant provisions of the conciliation and arbitration act.
(Emphasis added.)
45 As a consequence, it is apparent that, historically, the rules of evidence did not apply to the first part of the inquiry when the power to determine that question was vested in the Industrial Registrar. When that function was vested in the Court, the language of the predecessor of s 205 of the Act was already apt to make sure that the rules of evidence continued to not apply to the first part of the inquiry given it states expansively that the provision applies for the purposes of this Part.
46 In addition, in the context of arguing about the evidentiary standard required, both Ms Fortescue and Mr Wright submitted that this proceeding is not interlocutory. Therefore, the exception to the hearsay rule in an interlocutory context applied: s 75 of the Evidence Act 1995 (Cth). Given that s 205(3) applies, there is no need for me to determine this question.
The claimed irregularities
47 Ms Carovska’s application is premised on the following four claimed irregularities:
(a) the shortening of the nomination period (the nomination period irregularity);
(b) the early opening of the ballot (the ballot period irregularity);
(c) the sending of a text message during the voting period (the SMS irregularity); and
(d) the conduct of AMWU officers at the delegates’ meeting on 14 March 2023 (the delegates’ meeting irregularity).
The nomination period irregularity
48 Ms Carovska submitted that the Returning Officer did not comply with Rules regarding the nomination period.
49 Rule 6A(6)(b) of the Rules directs as follows:
6. Conduct of Elections
The Returning Officer shall conduct elections in the following manner.
…
(b) Nominations shall open on the 14th of January and close at a time to be determined by the Returning Officer on the 21st of February. Where either of these two dates falls on a Saturday, a Sunday, or a public holiday, the nominations will open or close on the next business day.
50 Ms Carovska submitted that the Returning Officer, in conducting the election, was required to comply with the Rules unless they validly exercise the powers afforded to them by s 193(1)(b) of the Act: s 193(1)(a) of the Act.
51 Ms Carovska submitted that the Returning Officer failed to comply with s 193(1) for the following reasons. First, nominations opened on 8 February 2023, not 14 January 2023. Secondly, nominations closed on 1 March 2023, not 21 February 2023. Thirdly, and “fatally” in the context of establishing an irregularity and the consequences that flow from that irregularity, the period in which nominations were capable of being submitted by members was significantly shortened from the required 38 days to 21 days. Ms Carovska contended that these factors constitute an “irregularity” as defined in s 6 of the Act. None of the interested persons took issue with the abovementioned dates.
52 In her written submissions, Ms Carovska further contended that the nomination period irregularity must be emphasised in the context of whether there are reasonable grounds for her application, given its consequences are “so grave and fatal” to the entire election. Ms Carovska made four submissions specifically regarding the nomination period irregularity, namely, (a) the period was reduced by 45%; (b) the giving of proper notice and the nominating of candidates is fundamental to there being a full and free recording of votes; (c) the importance of the time allocated to the nomination process is clear from the “strict” requirements associated with the submission of a valid nomination, and it should be “uncontroversial” that a member of the AMWU who desires to be a candidate for the election should be afforded all the time permitted by the Rules, rather than an arbitrary period decided by the Returning Officer in purported consultation with an unidentified officer of the AMWU; and (d) Ms Carovska contended that in Electoral Commissioner, in the matter of an inquiry relating to elections for offices in the Australian Federal Police Association Branch of the Police Federation of Australia [2016] FCA 469 (AFPA), the Court held that the closing of a ballot on a date not proscribed by the relevant rules was an irregularity: at [79]. Ms Carovska submitted that the irregularities in her case go much further than this: In the AEC Correspondence, Ms Carovska contended that the AEC admitted that the timetable for the election was “made for reasons of convenience” by agreement with an unnamed AMWU official. These reasons are not a proper basis for the exercise of power under s 193(1)(b) of the Act to shorten a nomination period.
53 Further, Ms Carovska contended that the actions of the returning officer for this election are “in stark contrast” to the actions of the returning officer in Re Carter; Re Federated Clerks Union of Australia, Victorian Branch (No 1) (1989) 32 IR 1, in which the timetable was adjusted in order to accommodate the checking of nominations of over 200 candidates for 104 positions in a strongly contested election.
54 Ms Carovska submitted that under the Act, democratic control of industrial organisations is “paramount”, with the convenience of conducting elections being a secondary consideration. Further, the fact that the AEC Correspondence refers to an agreement with an unnamed AMWU official “raises the spectre” that the nomination period was shortened in order to favour a particular group contesting the election. As such, Ms Carovska contended that the AEC’s purported exercise of power under s 193(1)(b) did not avoid an irregularity, but rather created one: AFPA at [116].
55 At hearing, almost the entirety of Ms Carovska’s oral submissions concerned the nomination period irregularity, about which she submitted:
(a) the AMWU’s late filing of the prescribed information with the ROC and the Commissioner’s delay created an irregularity such that the nomination period could not commence in accordance with the Rules;
(b) that there was a need for the election official to take steps in accordance with s 193(1)(b), but under s 193(1)(b)(i), not under s 193(1)(b)(ii);
(c) that there would have been a “gross irregularity” if the AEC had not taken steps and no election had occurred;
(d) however, the election official:
(i) should have ensured that the nomination period remained for the 38 day period not the contracted period;
(ii) contracted the period for his own convenience and not for a substantive reason; and
(iii) by the contraction, created rather than cured a defect and in effect limited the substantive right of a person to be nominated or to nominate for an election.
56 In response, the AMWU sought to explain the reason as to why nominations opened later than required by the Rules. The AMWU applied pursuant to s 189 of the Act with the ROC in relation to the holding of the election; however, this application was made after the prescribed day. Consequently, the ROC did not issue a decision by 14 January 2023, meaning nominations did not, and could not, open on that date.
57 On 17 January 2023, the ROC granted an extension of time to the AMWU and also issued a decision which requested that the AMWU make arrangements for the timetabling of the election. However, the AMWU identified a number of errors in the ROC’s decision and, after bringing those errors to the attention of the ROC, it issued a further decision on 20 January 2023. Given the election was unable to occur in accordance with the Rules, the AMWU submitted that the AEC determined to exercise its power under s 193(1)(b)(ii) of the Act to remedy procedural defects and make alternative arrangements for the conduct of the election. The AMWU submitted that the variation to the nomination period was the result of the AEC’s exercise of power pursuant to s 193(1)(b)(ii) of the Act, and as such there was no irregularity as the nomination was permissibly extended in accordance with the Act.
58 The AMWU submitted that by virtue of the above, the sole basis for varying the dates was because the Rules did not provide for alternative arrangements where the order from the ROC had been given to the AEC after the date stipulated by the Rules for the commencement of the nomination period.
59 The AEC submitted that it wrote to the AMWU on 25 January 2023 regarding the election and its arrangements. In this correspondence, the AEC proposed to open nominations between 8 February 2023 and 1 March 2023, and that the ballot open on 29 March 2023. The AMWU responded on 27 January 2023 and, following that correspondence, the returning officer made a determination under s 193(1)(b)(ii) of the Act to open nominations and the ballot in the abovementioned period.
60 Ultimately, the AMWU contended that there is no such irregularity because there was a variation to the period in which nominations were open as a result of the exercise of power by the electoral official under s 193(1)(b)(ii) of the Act. The formulation of a timetable for the election with the AEC cannot be said to be an impermissible consideration. It was plainly a matter that could be considered in determining a practical and sensible course for the conduct of the election.
61 The AMWU further submitted that Ms Carovska had not explained how the Court could entertain a collateral challenge to the exercise of power by the AEC. The AMWU contended that s 193(6) of the Act manifest a legislative intention that an exercise of power under s 193(1)(b) not be capable of being the subject of a collateral challenge: Attorney-General (Cth) v Breckler (1999) 197 CLR 83 at [36]. However, at hearing, the AMWU accepted the force of the AEC’s submission that a collateral challenge was available and endorsed the AEC’s submissions (which are summarised below at [133]–[136]) that s 193(1)(b) is premised on an official, the electoral official, having or forming a particular state of mind. In order to establish jurisdictional error, the Court would need to form the view that the subjective jurisdictional fact was not properly formed in considering one or more of the three matters in s 193(1)(b). The requisite degree of satisfaction incumbent on the electoral official is the “appearance” of a procedural defect not the actual existence of one. Accordingly, an error may not arise even if there is not in fact a procedural defect.
62 Mr Wade’s evidence identified the procedural defect as being that the Rules did not make allowance for the changing of the dates of the nomination period where the AMWU did not file the prescribed information within the requisite period, or the ROC did not make the decision under s 189 with a degree of alacrity before the date prescribed under the Rules.
63 The AMWU noted the apparent change in Ms Carovska’s oral submissions, that it was open to exercise the power under s 193(1)(b) and allow the nomination period to commence on a later date than the prescribed date under the Rules (being 14 January 2023), but that the period should have been for 38 days. In response to this changed position, the AMWU submitted that it comprised an attack on the exercise of the discretion by the electoral official, but not the formation of the opinion that the official considered it necessary to remedy a procedural defect that appeared to exist.
64 Further, the AMWU contended that there was no evidence that any member was disenfranchised by reason of the movement of the nomination period, nor was there evidence that any person was unable to lodge a nomination because of the variation to the election period.
65 Mr Wright submitted that it was prima facie difficult to see how the nomination period irregularity could have materially affected the election (presuming that the Court accepted that this constituted an irregularity). Prospective candidates had 21 days to nominate, and in 2023 a nomination could be made via email, which would not have taken long. With respect to steps that were required to be taken prior to submitting a nomination, it was known for “years” that an election would take place, and the effect of the AEC’s change was to delay the closing date of nominations, thereby giving candidates an expanded opportunity to nominate.
66 Mr Wright takes issue with Ms Carovska’s explanation that she “was not able to organise sufficient numbers to be able to run a full ticket of nominees”. Mr Wright submitted that it is not at all clear how organising a full “ticket” would have affected the outcome of the election for any specific office. Further, there is no evidence of any person who was unable to nominate because of the change to the relevant period.
The ballot period irregularity
67 Ms Carovska submitted that the Rules required the ballot to open on a date determined by the returning officer, provided such date falls between 1 April and 15 April 2023. However, the ballot did not open on a time fixed by the Rules. Instead, it opened on 29 March 2023. Rule 6A(6)(o) of the Rules is extracted as follows:
6. Conduct of Elections
The Returning Officer shall conduct elections in the following manner.
…
(o) The ballot shall open on a date to be determined by the Returning Officer provided that such date shall fall between the 1st and the 15th of April. The ballot shall close at 12pm on a date to be determined by the Returning Officer provided that such date must be no earlier than 21 days after the opening of the ballot.
68 Ms Carovska sought to deploy the holding in AFPA that the closing of a ballot on a date not proscribed by the rules of that organisation was accepted to be an irregularity: at [79]–[81]. Ms Carovska submitted that the same principle would apply with respect to opening a ballot on a date not in conformity with the Rules.
69 Mr Wright submitted that the purported ballot period irregularity added two days to the beginning of the voting period. Mr Wright contends that Ms Carovska does not attempt to demonstrate that an early opening of the ballot actually had any bearing upon the election results.
70 The AMWU echoed Mr Wright’s submission, and further contended that the variation to the voting period was done pursuant to s 193(1)(b)(ii) of the Act by the AEC. Further, there is no suggestion that the result of the election of any person may have been affected by the addition of two days during the ballot period.
The SMS irregularity
71 Ms Carovska alleges that whilst the ballot was open, a text message was received by AMWU members advocating for a vote for Ms Fortescue’s candidacy and the candidates she supported against Ms Carovska’s candidacy and the candidates she was supporting. In her affidavit, Ms Carovska suggested that this showed that access had been obtained to the AMWU’s membership database for the purposes of assisting Ms Fortescue and those she supported for the contested positions.
72 Ms Carovska submitted that the following facts were uncontroversial:
(a) The text message was sent and received;
(b) It was received during the election period and votes capable of altering the result were received in the period after its sending and the closing of the ballot; and
(c) The electoral roll provided to the candidates did not contain telephone numbers and members have complained that, other than through their membership details held with the AMWU, there was no reason for them to have received the text.
73 Ms Carovska propounds that these matters would, if found, justify the finding of an irregularity. Ms Carovska submits that this is so because the abovementioned facts would clearly have had an adverse impact on the conduct of the election given the significant influence it could have had and other serious privacy and data protection issues arising.
74 Ms Carovska further submitted that the requisite state of satisfaction for the Court, formed at this point in time, is formed prior to the holding of any inquiry. The Court has previously recognised that it is formed at a point in time when an applicant may not be in the best position to assist the Court. Inevitably, Ms Carovska submits that there are further matters that she may be able to bring to the Court if an inquiry is initiated, including obtaining evidence as to the source of the text message and the list of details used to generate it being sent. Ms Carovska contended that, at this stage, she was merely “knocking on the door” in respect of the text message issue, but there is no compulsion for it to be answered. Nonetheless, Ms Carovska submits that this should not be fatal to her claim given there are reasonable grounds, and evidence, establishing that the message was sent, received, and had an impact (either real or potential) on the conduct of the election.
75 Mr Wright submitted that it has not been explained how the accessing of the AMWU membership database by an unknown official of the AMWU involved the AMWU using or allowing its resources to be used to assist one candidate over another in breach of s 190 of the Act. Mr Wright noted that the AMWU’s instruction to its staff was that Union resources should not be used for campaign purposes. It was submitted that the mere fact that a person accessed the AMWU’s membership list would not constitute the AMWU allowing a person to use its resources in favour of one candidate over another. This is particularly so where a union’s books and names of members are freely accessible to members (see Re McJannett at [64]–[70]) and where union organisers presumably have access to complete members records. Mr Wright did not point me to any evidence to support the latter proposition.
76 Mr Wright further submitted that Ms Carovska’s allegation is speculative, with the only evidence being that the applicant herself and six others received the impugned text message. It is to be expected that Ms Fortescue had access to the mobile numbers of three officials. The AMWU echoed this submission.
77 The AMWU submitted that every official has access to members’ contact details, and that these details are accessed on a daily basis by AMWU organisers. Given the same, it was just as likely that Ms Fortescue or someone supportive of her campaign may have obtained telephone contact details of members during the course of their work over many years and retained those numbers on their phone. There is nothing, on the AMWU’s submission, to suggest that an individual at the AMWU allowed someone to access the membership register for the purposes of campaigning for the election.
78 Mr Wright and the AMWU also took issue with Mr Cork’s evidence. Mr Cork suggests that his current workplace is small; however, his previous workplace was also an AMWU site. Mr Cork does not describe what contact he had with AMWU officials in the past, nor does he suggest that he has never provided his phone number to a union organiser, or that an organiser has never called his number. As a result, Mr Wright submitted that Ms Carovska’s case with respect to accessing the membership list for the purposes of sending a text message is a speculative claim.
79 With respect to the affidavit of Mr Wilcox, the AMWU submitted that he has been a long-term member of the AMWU, and deposed to the fact that Ms Fortescue and her supporters likely already had his number. Given the same, his receipt of the impugned text message does not support Ms Carovska’s claim that his number was accessed via the AMWU’s membership register.
The delegates’ meeting irregularity
80 Finally, Ms Carovska submitted that the conduct of AMWU officers at a delegates’ meeting which was held during the nomination period has the potential to constitute an irregularity. This is so given that one candidate was permitted, either through express permission or otherwise, to campaign at the expense of others: see White, in the matter of an election for an office in Transport Workers’ Union of Australia, Queensland Branch [2019] FCA 2131.
81 Mr Wright submitted that the impugned “conduct” of the AMWU officers at a delegates’ meeting is not described and no evidence is relied upon to support Ms Carovska’s claim. This claim, on Mr Wright’s submission, is nothing more than a bald assertion that Ms Fortescue was permitted to attend “the delegates meeting and address it”. Ms Carovska fails to explain what the meeting involved, why it is said that Ms Fortescue attended the meeting and addressed it, and whether the address had anything to do with the election, what the content of the address might have been and whether the discussion with delegates occurred during or following the meeting. The AMWU echoed Mr Wright’s submission.
82 The AMWU submitted that there was no use of AMWU “property” to assist Ms Fortescue in her candidacy. Attendance at a meeting is not the use of either real or personal property, nor is it the use of property to assist Ms Fortescue against Ms Carovska. Further, Ms Fortescue’s alleged conduct at some unspecified time does not involve the use of AMWU resources.
83 Further, the AMWU submitted that there is no evidentiary basis for the notion that what occurred at or after the delegates’ meeting may have affected the result of the election.
Consideration
84 By attending to the requisite state of satisfaction, I am not to attempt to pre-empt the result of any inquiry to be held, but rather to give an evaluative judgment at this preliminary stage, that the construction of the Rules or the Act, as advanced by Ms Carovska, is reasonably open: Killesteyn at [30].
85 For the following reasons, I am satisfied that there are reasonable grounds for one aspect of the application only, namely the purported SMS irregularity.
86 I will deal with each of the claimed irregularities in turn as well as additional matters raised by the interested persons.
Breadth of the inquiry to claimed positions
87 It is necessary to first deal with the breadth of the claim. Ms Carovska relies on the following particulars of the election:
1. Organisation or branch: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union, New South Wales Branch (including ACT).
2. Office or offices: NSW State Secretary, NSW Assistant State Secretary, NSW Rank and File Delegates to State Conference, NSW Rank and File Delegates to National Conference.
3. The result of the election was declared on 1 May 2023 and in the case of the NSW State Secretary 28 March 2023.
88 An application may be made with respect to an “irregularity in relation to an election for an office in the organisation or a branch of the organisation” (emphasis added): s 200(1). As is apparent from Ms Carovska’s application, Ms Carovska identifies that the “office or offices” about which her application relate include four positions.
89 I accept the submission of the AMWU that an application for an inquiry under s 200(1) is not for an inquiry, at large, in relation to the election, but must be with respect to a specific “office” or “offices” upon which there are reasonable grounds that the purported irregularities may have affected the election to those offices. I also accept that if the purported irregularities can be found to have a wide-ranging effect then the election of all offices in the election may be the subject of the inquiry.
90 I note Ms Carovska only sought to be elected to one position – the NSW Assistant State Secretary. However, I accept that the claimed irregularities regarding the nomination period and the ballot opening date apply to the carriage of the election generally. In addition, Ms Carovska appears to claim at least with respect to the SMS irregularity that the conduct affected the election of Ms Carovska to the position which Ms Fortescue was successful, namely the position of NSW Assistant State Secretary as well as State and National Conference delegate positions.
91 However, for the following reasons, it is my view that Ms Carovska has not established that there are reasonable grounds for the claims relating to the contraction of the nomination period, the ballot opening date nor the conduct at the delegates’ meeting. To the extent that there are reasonable grounds open regarding the SMS irregularity, Ms Carovska only has reasonable grounds to argue that the election may have affected the NSW Assistant State Secretary position. As a consequence, it is my view that the breadth of the inquiry be limited to the election of the NSW Assistant State Secretary.
The claimed nomination period and ballot opening irregularities
92 The parties accept that the Rules governing the election processes were not complied with when the nomination period was shortened and the ballot opened prior to the required date under the Rules.
93 Whether there are reasonable grounds open to argue that this non-compliance constitutes an “irregularity” depends on more than there being grounds reasonably open to argue non-compliance with the Rules. The Court must be satisfied that Ms Carovska has reasonable grounds open to argue that the consequence of this non-compliance may have affected the election: Gray, in the matter of an application for an inquiry relating to an election for an office in the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing, and Allied Services Union of Australia, Electrical, Energy and Services Division [2012] FCA 1165 at [33], [39], Clancy at [23]–[26].
94 With respect to the ballot opening date, the Rules required that the ballot open on a date determined by the Returning Officer, provided such date fell between 1 April and 15 April 2023: r 6A(6)(o). It is not disputed that the ballot did not open within the period fixed by the Rules and instead opened earlier on 29 March 2023. Ms Carovska led no evidence upon which it could be open to argue that the fixing of the opening date three days earlier than as stipulated under the Rules may have affected the result of the election. When her counsel was asked about this at hearing, it was submitted that the basis for this claim was “nowhere as strong” (by comparison to the claimed nomination period irregularity). However, she claimed that it was reasonably demonstrable that, by the interactions between the AEC and the AMWU’s leadership before fixing this time, others in the Union, presumably those supportive of Ms Fortescue over Ms Carovska, had advance notice to organise themselves earlier and had the “jump on their opponents”. I do not accept that these submissions found reasonable grounds to assert that the irregularity may have affected the outcome of the election. The claim of receipt of advance notice arises from the fact of the communications with the AEC (about which no claim of irregularity arises) and, in any event, there is nothing more to found the claim.
95 I accept that the contraction of a nomination period may have significant consequences which could affect the capacity of persons to be nominated for election. In this regard, Ms Carovska submitted that the election may have been affected by reason of:
(a) her evidence at [55]–[56], which is extracted:
55. I have set out above the prescriptive Rules as it concerns the requirements for nominees and nominators. It takes time to ensure you can find the right people who are eligible to nominate and or be a nominee. It is why time is important because it takes time to get it right and coordinate potentially 23 different candidates all of whom require, in the case of the Delegates, up to 5 nominators. It is desirable in any election, given the diverse membership of the AMWU, to have nominators and nominees from different geographical areas, different backgrounds, different trades, different genders, all of which takes time to organise.
56. In the context of this election, as is apparent from the number of candidates who nominated for both the Delegates positions, I was not able to organise sufficient numbers to be able to run a full ticket of nominees. If I had the time permitted by the Rules, I believe I would have been able to do so or at least have an opportunity to do so.
(b) that another potential nominee, Mr Coffey, was inhibited from being nominated by the contracted time frame.
96 It is my view that Ms Carovska has not demonstrated that there are reasonable grounds for the holding of an inquiry on the basis of the contracted nomination period as there are not reasonable grounds for suspecting that this irregularity may have affected the result. I note that the interested persons have highlighted the lack of admissibility or absence of a sound evidentiary basis for the claims made by Ms Carovska in [55]–[56] in her evidence. As reasoned above, I do not accept that the rules of evidence apply. However, even if Ms Carovska’s evidence is accepted, the height of the evidence is that it takes time to organise nominations and, if Ms Carovska had had the full 38 days stipulated by the Rules (and not the contracted 21 day period), she “believed [she] would have been able [to organise a ticket] … or at least have an opportunity to do so”. The Rules state when the nomination period is to commence during each election year. Ms Carovska was an existing State Organiser (NSW) and it can be inferred that she had access to the Rules. There was no evidence adduced, nor was I taken to any aspect of the Rules which preclude any person from organising a ticket in anticipation of the opening of the nomination period. Accordingly, without more, it does not appear reasonably open to argue that the contraction of the nomination period may have affected the organisation of the ticket. Ms Carovska made no assertion of there being any particular person or persons who would have, with the additional time, formed part of the ticket. Furthermore, Ms Carovska put on no evidence as to how the fact of organising a ticket may have affected the outcome.
97 The height of the evidence of Mr Coffey was that on 27 February 2023, he considered himself eligible to nominate for election as a rank-and-file delegate to the NSW State Conference and spoke to Mr Wright who told him to give him a signed nomination form and that Mr Wright would get the signatures needed. Mr Coffey sent him the form before the closure of the contracted nomination period (on 1 March 2023) but Mr Wright did not get the signatures and lodge the form before the closure of the contracted period nor notify Mr Coffey of the same. Mr Coffey asserts “[i]f the nomination period was open when I found out that Mr Wright had not furthered my nomination, I would have sought support myself to submit a nomination”. However, Mr Coffey’s evidence provides no demonstrably open basis to ground a claim that his nomination may have affected the result of the election.
98 I do not accept Ms Carovska’s submission that the evidentiary foundation was sufficient for the following reasons: First, the right to self-nominate and to be nominated are substantive rights (Re Churchill [2001] FCA 469; 109 FCR 104 at [22]), but the mere assertion of the existence of a right without demonstrating how, by reason of that right having the potential to be curtailed, it may have affected the result, is not sufficient. Secondly, it is my view that I have not applied a high evidentiary burden by reference to Application of the Electoral Commissioner at [6].
99 Thirdly, I do not accept Ms Carovska’s argument that the circumstances here are analogous to that those in Sara, in the matter of an inquiry into the election for offices in the Australian Salaried Medical Officers Federation [2018] FCA 844 at [33]–[34]. In Sara, the irregularity (being the AEC’s adherence to the union’s constitution before amendment) resulted in the election not permitting votes to be cast with respect to a number of positions. Accordingly, electors were impeded from selecting and allowing for the filling of a number of positions to represent them in accordance with the amended constitution. In that case, the election did not permit votes to be cast in relation to positions and was found to not provide for the democratic functioning and control of the organisation. I do not accept that it can be a given, as it was in Sara, that the truncation of the nomination period has the same effect.
100 There was a related question raised by Ms Carovska (described a collateral attack) as to whether, by operation of s 193(1)(b)(ii), a “procedural defect” existed and, if not, whether the electoral official was able to conduct the election other than in accordance with the Rules. Given my reasons above, I do not need to determine whether there were reasonable grounds for this claim.
The claimed SMS irregularity
101 With respect to both the claimed SMS text and the delegates’ meeting irregularities, Ms Carovska claimed that they both founded a claimed “irregularity” within the meaning of the Act or by reason of a breach of s 190 of the Act.
102 Both of these claimed “irregularities”, in my view, are founded on the view that the alleged conduct affected voter intention (in favour of Ms Fortescue over Ms Carovska). Such conduct does not constitute an “irregularity” (within limbs (a) and (b) of the definition) within the meaning of the Act as reasoned at [22] above. Accordingly, the only available claimed basis is a breach of s 190 of the Act.
103 Section 190 provides:
190 Organisation or branch must not assist one candidate over another
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.
Penalty: 100 penalty units.
104 Section 190 was introduced in 2002 as part of the Workplace Relations Amendment (Registration and Accountability of Organisations) Act 2002 (Cth). During his second reading speech in support of the corresponding bill, the Minister for Employment and Workplace Relations stated that it:
… proposes mostly technical, but nonetheless important, amendments to the provisions concerning the internal administration of registered organisations in a manner that modernises them for the first time in years—particularly in relation to disclosure, democratic control and accountability (both to members and to the workplace relations system itself).
105 The purpose for its introduction appears to have been to remedy the defects arising from Re Collins, which had held that a breach of a union’s rules relating to activities involving electioneering did not constitute an irregularity as defined in the legislation. The Commonwealth of Australia Joint Standing Committee on Electoral Matters Industrial Elections in Parliamentary Report (1997) at [5.77] to [5.88] (pp 85 – 88) discussed the decision in Re Collins and recommended as follows:
5.88 Recommendation 16:
That the Government consult with the AEC [Australian Electoral Commission] and with peak union and employer organisations with a view to developing legislation prohibiting the use of union resources for electioneering purposes, except as permitted by the WR Act and Regulations or by model rules developed in accordance with Recommendation 4.
(Emphasis omitted from the original.)
106 Section 190 followed this recommendation: Re McJannett at [160].
107 In White, Collier J described s 190 as reflecting “the established principle that a union will contravene its rules if it uses its resources to promote one candidate over another” (at [55]). Her Honour quoted from Scott v Jess (1984) 3 FCR 263 at 271–2, in which Evatt and Northrop JJ found:
The reference to the objects of the Act as set out in s. 2, and the detailed provisions contained in the Act and the Conciliation and Arbitration Regulations relating to the election of officers within an organisation makes it clear that those elections must be conducted fairly, having regard to the interests of all members and of all candidates. 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. In the present case it is not necessary to determine what are the limits of the conduct of an election. For present purposes it is sufficient to say that the election commences at least at the closing of nominations for candidates for the election and continues at least until the close of the ballot for that election. If during the conduct of an election, officers of an organisation expend the resources of the organisation on conduct which tends to support or promote a candidate or a group of candidates at that election, directions may be given under s. 141(1G) of the Act that they perform and observe the rules of the organisation by refraining from so expending the resources of the organisation.
108 Ms Carovska alleges that whilst the ballot was open, a text message was received by AMWU members advocating for a vote for Ms Fortescue’s candidacy, the candidates she supported against Ms Carovska’s candidacy and the candidates she was supporting. It is Ms Carovska’s claim that it can be inferred, on reasonable grounds, that the AMWU’s membership database was “used” to assist Ms Fortescue and those she supported for the contested positions. It was uncontroversial that the text message was sent and received; it was received during the election period and votes capable of altering the result were received in the period after its sending and the closing of the ballot; and the electoral roll provided to the candidates did not contain telephone numbers.
109 However, what is controversial is the degree to which the text was broadcast (and therefore the extent to which it is reasonably demonstrable that it may have affected the election for the positions of NSW Assistant State Secretary, Rank and File Delegates to National Conference, and Rank and File Delegates to the NSW State Conference) and whether there are reasonable grounds to found a claim that the organisation or branch’s “property or resources” were used to help Ms Fortescue over Ms Carovska.
110 As to the extent to which the text was broadcast, Ms Carovska submitted that it could be inferred that it was distributed widely. By contrast, the interested persons claimed that all Ms Carovska had established was that seven people had received the text.
111 It is not my role to come to any concluded view or make any findings at this stage. Rather, I am being asked to make an evaluative judgment at this preliminary stage as to the reasonableness of the grounds asserted.
112 It appears reasonably open to argue that the text was received by a wider group than those identified by Ms Carovska and Mr Wilcox given the content of the SMS text and that it was sent by a commercial third party for the purpose of assisting Ms Fortescue’s campaign.
113 Ms Carovska deposed as to the purported content of the message (from a number she did not recognise), at [73]:
On 20 April 2023, I received a text/SMS to my phone (Message). The Message was received during the Voting Period. The Message was from a number I did not recognise being +61 480 092 747. The Message stated:
AMWU Rank&File campaign team here. This is a friendly reminder to vote for us in the election. Have you voted yet?
Reply:
1. For yes.
2. For no.
3. For didn’t get a vote
4. For more info.
(Emphasis added.)
114 It is therefore reasonably open to argue that the message identified that it was from “the AMWU Rank&File campaign team”, which Ms Carovska took to be a reference to the group supporting Ms Fortescue and the candidates she supported.
115 I note Ms Carovska contends that she telephoned the number that the SMS derived from, on numerous occasions and when the call connected a pre-recorded message played to the following effect:
Thank you for returning our call. UComms conducts research on a variety of topics, and we called you to hear your thoughts. If we did not speak with you, we may try you again soon. Your opinion is important to us. For more information about this call or to opt out 1800 870 649 and follow the prompts. You can also write to us at PO BOX 13279 Law Courts Victoria. Thank you for your time. Goodbye.
116 The mere sending of such a message cannot of itself constitute an “irregularity” under the Act. Ms Carovska’s claim is founded on the allegation that the Union used, or allowed to be used, its property or resources to help a candidate against another candidate. Accordingly, the gravamen of any claim under s 190 is the capacity to prove that, by reason of the conduct of the Union, its property or resources were used to help one candidate over another.
117 To demonstrate that such a claim was reasonably demonstrated, Ms Carovska alleges the following:
I believe I have a reasonable basis to make this allegation because:
(a) the Roll made available to the candidates did not contain telephone numbers.
(b) the sheer number of persons who received the message supports a reasonable inference that the membership database was used to send the Message given that it appears that the Message was received by all members.
(c) the features of some of those who received the Message support a conclusion that the membership database maintained by the AMWU was used to send the Message having regard to the fact that some of the members who received it were single, or isolated members, in small workplaces were contacted making it extremely unlikely that a member contact tree, or delegate tree system was used to compile the list which was provided to Ucomms to send the message.
118 According to the interested persons, the first basis appeared to be predicated on an assumption that the only way that members’ mobile phone numbers could be obtained was by use of the “membership database”. The subtext being that the Union “membership database” was the sole repository for a wide list of member contact details.
119 The AMWU relied upon evidence from Mr Rabaud (Union Officer employed by the AMWU) that the AMWU does not retain a “membership database” but rather a “membership register” which is easily accessible by AMWU officials and may be accessed by all employees, including Officers, Officials, Organisers and administrative staff. AMWU officials (being Officers, Officials and Organisers) have access to members’ details via an application known as “AS400” which include, inter alia, the member’s mobile phone number. It was also Mr Rabaud’s evidence that it is not unusual for officials to save member’s mobile phone numbers on their own phones for the purpose of contacting them if required. In addition, Mr Rabaud annexed to his affidavit a memorandum from Mr Steve Murphy, National Secretary, to all AMWU employees reminding them that it was “not appropriate for any Officer of the Union or any candidate to use their position to instruct any staff member to do anything which could be seen as supporting any candidate against another candidate” including by reference to it being an offence under s 190 of the Act for an organisation or branch to use, or allow to be used, its property or resources to help a candidate against another in an election.
120 If there were a membership registry which could only be accessed by the executives of the Union, and there was no other basis upon which a large number of members’ phone numbers could be obtained, then such a ground certainly may be reasonably open. Mr Rabaud’s evidence suggests that the circumstance is different here: First, by reason of the number of AMWU officials (including Ms Carovska) who had access to the register. Secondly, there may be other means, without using the membership registry, that members’ mobile phone details are maintained and could be shared.
121 I understood Ms Carovska’s claim to be cast more broadly than that described by the AMWU. It is Ms Carovska’s claim that, given “the sheer number of persons” who received the message, the creation of such a list must have come from the use of that the Union’s property or resources, namely the membership database or register.
122 This is not a matter about which I can profess any view about at this stage, nor would it be appropriate to, save to the extent that there are reasonable grounds to assert that the Union used its database or register, or allowed its database or register to be used, to help Ms Fortescue against Ms Carovska.
123 I accept that there is currently limited evidence regarding the number of members who received the text. If there were evidence that there were a substantial number, this may lend support for the inference that the membership registry may have been deployed. The matter that points in favour of there being more substantial numbers and that the Union used its database, or allowed its database to be used, for Ms Fortescue’s benefit, is the fact that a third-party commercial enterprise was deployed to broadcast the SMS.
124 Without more, at this stage, Ms Carovska would not be able to prove that there had been a breach of s 190. However, it is my view that it is reasonably open for her to claim that there may be a breach of the section. That is not to say that she will ultimately be able to prove it and, as I have said, on the current evidence before me, she may have great difficulty. However, it is my view that the authorities make clear that it is not incumbent on an applicant in cases of this kind to, in effect, have filed all of their evidence at this preliminary stage. Allowance should be made for the fact that this question is being attended to prior to the inquiry and at a point in time when the person or persons affected may not be in the best position to assist the Court, such that the level of satisfaction will ordinarily be quite low: Application of the Electoral Commissioner at [6].
125 Next, Ms Carovska submits that she had reasonable grounds for claiming that the election was affected by the SMS by reason of her evidence to the following effect:
The AEC Correspondence confirmed that 298 votes were received in that period. The AEC declaration of results confirmed, in the context of the vote the Assistant Secretary office, a total of 1,635 votes were counted. Therefore, on my calculations, 18% of the total votes admitted were received in this period. The difference between Ms Fortescue and I in terms of votes was 145. Given the volume of votes received, and having regard to the difference in the final ballot, I maintain that the sending of the Message, and its receipt by members, had a significant and material effect on the conduct and outcome of the election and the full and free recording of votes.
126 It is my view that, given the extent of the margin (with respect to the NSW Assistant State Secretary position only) and the number of votes received after this time, Ms Carovska has reasonable grounds to contend that the SMS may have affected the election. This is not, again, to say that I am pre-judging the matter and am of the view that, on the current evidence, Ms Carovska will be able to prove this limb of the test requiring satisfaction in order for relief to be granted.
127 Accordingly, it is my view that Ms Carovska has reasonable grounds for an inquiry to be conducted with respect to the purported irregularity arising from the SMS in relation to the election of the position of NSW Assistant State Secretary.
The delegates’ meeting irregularity
128 Ms Carovska contends that the conduct of AMWU officers at a delegates’ meeting held during the nomination period has the potential to constitute an irregularity, where one candidate is permitted, either through express permission or otherwise, to campaign at the expense of others (citing White at [80]). So much can be accepted. White was a case where it was established that there was an irregularity in like circumstances but where ultimately the applicant was not able to establish that the irregularity may have affected the election.
129 The question is whether Ms Carovska is able to demonstrate that there are reasonable grounds open to claim that there has been an irregularity. It was Ms Carovska’s evidence that she was directed by Mr Wright to not attend the delegates’ meeting on 14 March 2023, when she would ordinarily have done so, and where others were also directed to “remain away”. Both Ms Fortescue and Ms Carovska were candidates for election, but Ms Fortescue was permitted to attend and address the forum. No details of the content of her address were in evidence. Ms Carovska deposed that she was informed by persons present at the meeting that “Ms Fortescue approached members, including Mr Leeson, and spoke to them about her candidacy and handed to them a leaflet in support of her candidacy”. It was Ms Carovska’s allegation that:
… the use of the Union resources to permit Ms Fortescue to speak and advocate for her candidacy at the Union funded delegates forum (a forum I was explicitly excluded from even though I am an elected official) constitutes an irregularity. This includes handing out her leaflet. This was not simply conduct of an official speaking to members about Union matters. It went further than that and involved campaigning including by handing our [sic] campaign leaflets about her candidacy.
130 I do not accept that Ms Carovska has established that there are reasonable grounds for making this allegation on the basis that there was a breach of s 190 or otherwise given there is nothing to suggest that the organisation or the branch gave Ms Fortescue a platform to assist her candidacy. There is no specific claim made that anything Ms Fortescue said to the meeting was a form of electioneering. To the extent that the leaflet was provided by Ms Fortescue at some point during the meeting, this might go some way towards establishing a ground. However, I note there has been acceptance, in the authorities, that where a person uses an occasion to speak favourably about their own candidacy and in disparagement of another campaigning team, that in and of itself would not be sufficient: Nelson v Cameron [2000] FCA 554; 98 IR 46 at [29]; White at [79].
131 Further and in any event, there is no evidence that anything that occurred at that meeting may have had any material impact on the result of the election.
Collateral challenge
132 Lastly, I note with respect to the purported nomination period and ballot opening day irregularities, the AMWU and Mr Wright initially contended that no such claims could be brought because they in effect constituted a collateral challenge to the exercise of the power of an electoral official. By reason of my finding that Ms Carovska has not established that there are reasonable grounds to found these claims for other reasons, it is not necessary to decide this issue. However, given that the claim was made, the AEC made helpful submissions in this regard and the interested persons ultimately conceded the point, it appears beneficial to note the following.
133 I accept the AEC’s submission, which was ultimately accepted by all interested persons, that an applicant in proceedings of this kind is able to make a collateral challenge to the exercise of power by the electoral official: Re Nimmo [2011] FCA 38; 192 FCR 111 at [50]. However, the allegation that the AEC official created a procedural defect would not alone constitute invalidity pursuant to s 193(6): The applicant must be able to clearly impugn the validity of the electoral official’s actions. For example, if the electoral official acted in a manner contrary to the Rules where there was no procedural defect to be cured, this may be the subject of challenge. However, the circumstances must give rise to a ground justifying invalidity.
134 The authorities in Australia are split about which grounds will justify a conclusion of invalidity arising from collateral challenges: see, e.g., John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union [2009] FCA 1128; 189 IR 351 at [17]–[31], in which Reeves J considered, inter alia, Ousley v R (1997) 192 CLR 69 and Aronson M, Groves M, Weeks G, Judicial Review of Administrative Action and Government Liability (7th ed, Thomson Reuters, 2021) at [13.280]. The “narrow view”, as the AEC described it, is that the error has to be on the face of the record, namely the instrument itself. The AEC contended that the “record” would not include (in this case) emails sent by the electoral official, nor would the record include reasons: see Craig v South Australia (1995) 184 CLR 163 at 180–181. In accordance with this narrow view, if there was not a procedural defect and it was clear on the face of the record that an AEC official acted beyond power, then the AEC accepted that this would constitute error resulting in invalidity. The “broader view”, on the AEC’s submission, is that every ground of jurisdictional error can justify invalidity on a collateral challenge. If this view were adopted, the question for the Court would be whether the impugned circumstance correspond to a traditional ground of jurisdictional error. At hearing, the AEC did not make submissions regarding which view is the preferable one for the Court to adopt. For completeness, however, the AEC referred me to the comments made by Kyrou J in Director of Public Prosecutions v Debono [2012] VSC 350; 268 FLR 261 at [175] and [178], where his Honour appeared to express a preference for the broader view:
175 In Director of Housing v Sudi, Warren CJ stated that Ousley is open to two interpretations in relation to the scope of collateral challenge:
Ousley drew a distinction between permissible and impermissible grounds for collaterally challenging the listening device warrants. On one view, Ousley stands for the proposition that collateral review of an administrative decision in an inferior court is confined to review of the validity of the decision on its face. But Ousley can also be read as being consistent with the proposition that an administrative decision can be collaterally challenged in an inferior court on the basis that the decision is vitiated by jurisdictional error, irrespective of whether the jurisdictional error is apparent on the face of the decision.
…
178 In my respectful opinion, a close examination of the judgments in Ousley supports Warren CJ’s second interpretation of that case.
(Emphasis in original; Footnotes omitted.)
135 Regardless of whether the broad or the narrow view applies, I accept the AEC’s submission that the Court’s mere disagreement with how the AEC conducted the election cannot constitute an error such that the AMWU’s election is invalidated. The exercise of power under s 193(1) is not based on an objective jurisdictional fact, rather it is contingent on a subjective jurisdictional fact, namely, the electoral official’s state of mind. For a collateral challenge to succeed, the Court would need to be satisfied that the circumstances identified some kind of vitiating unreasonableness, for example, in the electoral official’s state of mind.
Conclusion
136 Accordingly, whilst I acknowledge that the holding of an inquiry is a “serious step”, the abovementioned apparent irregularity warrants an inquiry into the election of the NSW Assistant State Secretary.
137 I will list the matter for directions on 27 September 2023 at 9:30am to timetable the matter for hearing.
I certify that the preceding one hundred and thirty-seven (137) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Raper. |
Associate:
