Federal Court of Australia

Electoral Commissioner, in the matter of an inquiry relating to an election for an office in the Australian Education Union [2024] FCA 1485

ORDERS

THE COURT NOTES THAT:

A.    On 19 September 2024, the applicant applied under s 200(2) of the Fair Work (Registered Organisations) Act 2009 (Cth) (Registered Organisations Act) for an inquiry into the election for the office of Delegate to Branch Conference – Broadmeadows Region, Primary Sector in the Victorian Branch of the Australian Education Union, the results of which were declared on 21 June 2024 (election).

B.    On 24 September 2024, the applicant caused sealed copies of the application of 19 September 2024 and the accompanying affidavit of Ms Ann Dougan affirmed on 19 September 2024 to be served on the Australian Education Union and Ms Halimah McGlashan.

C.    The Court is satisfied, for the purposes of s 201(b) of the Registered Organisations Act, that there are reasonable grounds for the Electoral Commissioner’s application.

THE COURT ORDERS THAT:

1.    Pursuant to s 201 of the Registered Organisations Act, an inquiry into the election be conducted at the following time, date and place, on an estimate of half a day:

Time:     10.15am

Date:     4 February 2025

Place:     Federal Court of Australia

305 William Street

Melbourne VIC 3000

2.    On or before 8 November 2024, the applicant shall notify all persons and/or organisations who are or may be justly entitled to appear at the inquiry (interested persons) of the time and place fixed for the conduct of the inquiry, and of these orders.

3.    On or before 15 November 2024, any interested person wishing to appear at the inquiry shall file and serve on the applicant and all other interested persons a notice of their intention to seek leave to appear and a brief statement explaining their interest in these proceedings.

4.    The application return to Court no earlier than 18 November 2024 for the hearing of any applications for leave to appear filed in accordance with order 3 above.

5.    In the event there is no objection to any applications for leave to appear filed in accordance with order 3 above being determined in chambers, the Court may determine those applications in chambers.

6.    By 4.00pm on 13 December 2024, the applicant shall file and serve on all persons given leave to appear at the inquiry:

(a)    written submissions incorporating a statement as to the orders he seeks; and

(b)    any further evidence.

7.    By 4.00pm on 28 January 2025, any party given leave to appear at the inquiry shall file and serve on the applicant and any other persons given leave to appear at the enquiry:

(a)    any written submissions; and

(b)    any evidence.

8.    There be liberty to apply.

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

REASONS FOR JUDGMENT

HORAN J:

Introduction

1    The Electoral Commissioner has applied under s 200(2) of the Fair Work (Registered Organisations) Act 2009 (Cth) (the Act) for an inquiry by this Court into an alleged irregularity in relation to an election for an office in a branch of the Australian Education Union (AEU).

2    The alleged irregularity concerns a breach of the Rules of the Australian Education Union in relation to the Victorian Branch (Rules) in the management of a defective nomination of Ms Halima McGlashan for the uncontested office of Delegate to Branch Conference – Broadmeadows Region, Primary Sector in the Victorian Branch of the AEU (the Office).

3    Rule 57(3) of the Rules requires that, if any nomination is defective, the Returning Officer must notify the person concerned of that defect and allow him or her, if practicable, at least seven days after such notification to remedy the defect. The Commissioner contends that Ms McGlashan did not receive a notification by the Returning Officer of the defect in her nomination because it was sent to an incorrect email address, and that she was therefore not given an opportunity to remedy the defect. The Commissioner believes that the alleged irregularity affected the result of the election, because Ms McGlashan would have remedied the defect in her nomination if she had been given the opportunity to do so, upon which she would have been declared elected in circumstances where there were insufficient nominations in respect of the election.

4    The proceeding was listed before me on 1 November 2024. Mr Keith Sypott of the Australian Government Solicitor appeared on behalf of the Commissioner and made oral submissions in support of the application. The Commissioner relied on an affidavit of Ms Ann Dougan affirmed 19 September 2024 (Dougan affidavit). Ms Dougan is a Senior Project Officer with the Australian Electoral Commission (AEC) in the Industrial Elections and Ballots (IEB) team who acted as the Returning Officer in the relevant election. No other interested parties appeared on the hearing of the application.

5    At the conclusion of the hearing, based on the evidence and submissions, I was satisfied that there were reasonable grounds for the Commissioner’s application. Accordingly, I made an order under s 201 of the Act to fix a time and place for conducting an inquiry into the election for the Office, at 10.15 am on 4 February 2025 at the Federal Court of Australia in Melbourne. I also gave directions to ensure that interested persons who are or may be entitled to appear at the inquiry are notified of the time and place fixed.

6    These are my reasons for making those orders.

Inquiries into elections for office

7    Chapter 7 of the Act deals with the democratic control of registered organisations, including elections for positions in such organisations.

8    Part 2 of Ch 7 concerns the conduct of elections for office and other positions in a registered organisation, or a branch of an organisation. With certain exceptions (ss 183, 186), such elections must be conducted by the AEC, with the expenses to be borne by the Commonwealth: s 182.

9    Part 3 of Ch 7 provides for inquiries by this Court into elections for an office in an organisation or a branch of an organisation. Relevantly, s 200(2) requires the Commissioner to make an application for an inquiry if the Commissioner believes that the result of an election for an office has been affected by an irregularity in relation to the election. If the Commissioner believes that there has been an irregularity in relation to an election for an office (but does not believe that the result of the election has been affected), the Commissioner has a power (but not a duty) to make an application for an inquiry: s 200(3).

10    An “irregularity” is defined as follows 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.

11    “Organisation” is defined in s 6 to mean an organisation registered under the Act. The AEU is such a registered organisation.

12    Section 201 of the Act provides as follows:

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.

13    The function of the Court at an inquiry is to “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”: s 206(1). For such purposes, the Court must determine whether an irregularity has happened on the balance of probabilities: s 206(2).

14    If the Court finds that an irregularity has happened, s 206(4) sets out the orders that may be made by the Court:

(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.

15    However, 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 the result of the election may have been affected, or may be affected, by irregularities (having regard to the irregularity found and any likelihood that similar irregularities may have happened or may happen): s 206(5).

16    The power to institute an inquiry is conditioned by the requirement that the Court must be satisfied “that there are reasonable grounds for the application”. As Flick J stated in Re Killesteyn [2009] FCA 1311; 261 ALR 730 at [23], grounds which provide no more than a speculative basis for a suspicion will not suffice. In this context, Flick J referred to the following observations made by French J in Re Post; Re Election for Offices in Transport Workers Union of Australia, Western Australian Branch [1992] FCA 11; 40 IR 162 at 166-167 in relation to an analogous provision in predecessor legislation:

“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.

17    While it has been accepted that the institution of an inquiry into an election is a “serious matter” (see Re Jarman; Ex parte Cook (No 2) [1996] HCA 7; 136 ALR 233 at 241 (Kirby J)), the statutory precondition to the holding of such an inquiry has been set by the legislature at a “low” level: Killesteyn at [25] (Flick J), referring to Bourne v Campbell [1999] FCA 1522; 93 IR 238 at 240 (Einfeld J). The determination whether there are reasonable grounds for the application involves threshold questions of a preliminary nature, and does not attempt to “pre-empt” the outcome of any inquiry that might be conducted: Killesteyn at [30] (Flick J); 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 at [84] (Raper J).

18    The question of whether there are reasonable grounds for an application under s 200 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”: 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 [23] (Siopsis J). In other words, it may be incumbent on an applicant “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 Act]”.

19    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] (Barker J). In the case of an application made by the Commissioner, there will inevitably be evidence of the Commissioner’s belief that there has been an irregularity in relation to the election, and perhaps that the result of the election has been affected by that irregularity: s 200(2), (3). Such evidence would ordinarily set out the grounds for the Commissioner’s belief.

20    Section 202 of the Act provides that, where an application for an inquiry has been lodged under s 200, the Court can authorise the General Manager of the Fair Work Commission (FWC) to take a range of actions, including the inspection of election documents, entering any premises of the organisation for the purposes of such an inspection, giving a notice requiring the production of election documents in the possession or control of a person, taking possession of any election documents and retaining such documents for such period as is necessary for the purposes of the application or until the completion of proceedings. The powers conferred by s 202 are capable of being exercised to assist the Court in forming the requisite state of satisfaction to order an inquiry.

21    As is made clear from the terms of ss 200(2) and 206(1) of the Act, the relevant “irregularity” the subject an inquiry must be “in relation to” an election: see also Killesteyn at [21] (Flick J).

Consideration

The Rules

22    The election of the delegates to the Branch Conference of the Victorian Branch of the AEU is governed by r 51 of the Rules, which provides for the delegates to be elected by a secret postal ballot. Rule 51(1) provides that each of the delegates shall take office on the declaration of his or her election and hold office for one year or until his or her successor takes office. The Branch Returning Officer is required to determine a timetable for conducting the election of delegates to enable the election to be completed one month before the date of the Annual Branch Conference: r 51(6).

23    Rule 51(5) provides:

(5)     Nominations for the positions of delegates to Branch Conference shall:-

(a)     be in writing;

(b)     be signed by the nominee who shall at the date of nomination be a financial member of the relevant sector or sub-sector and the relevant region or group of regions;

(c)     be signed by the nominator who shall be a financial member of the relevant sector or subsector and the relevant region or group of regions; and

(d)     be delivered to the Branch Returning Officer at the registered office of the Branch on a date determined by the Branch Returning Officer for the closing of nominations being a date not less than 60 days prior to the date of the annual conference in that year.

24    Rule 57 contains “general provisions” relating to elections, including those to be conducted by a secret postal ballot. Rule 57(3) deals with “defective” nominations:

(3)     The Branch Returning Officer shall, on the close of nominations, check all nominations received for compliance with the requirements of the Rules and where the Branch Returning Officer considers that any nomination is defective, he or she shall immediately notify the person concerned of the defect by the most expeditious means and, where it is practicable to do so, give him or her the opportunity of remedying the defect, allowing, if practicable, at least 7 days after notification.

25    Rule 57(4) provides that, where there is no more than one valid nomination for a position, the Branch Returning Officer shall declare the nominated person elected. Rule 57(1)(c) provides that, in the event that there are insufficient nominations in respect of any election, any persons who have nominated shall be declared elected and nominations for any remaining unfilled positions shall be recalled by the Returning Officer.

The evidence

The election

26    On 24 November 2023 and 13 December 2023, in accordance with s 189 of the Act and reg 138 of the Fair Work (Registered Organisations) Regulations 2009 (Cth), the AEU wrote to the FWC providing the prescribed information for an election to fill the offices of “Delegates to Branch Conference 2024 (AEU Vic Branch Rule 51)”. In accordance with s 189(3) of the Act, the General Manager of the FWC arranged for the conduct of the election.

27    On 4 March 2024, Ms Dougan was appointed as the Returning Officer for the scheduled election. Ms Dougan’s role included reviewing nominations for the election to ensure that they met nomination requirements in accordance with the Rules.

28    Nominations for the scheduled election were open from 13 February 2024 until 13 March 2024 at 12.00 pm (AEDT). As there were insufficient nominations to fill the available positions, all effective candidate nominations were elected uncontested in accordance with r 57(1)(c) of the Rules. Ms Dougan declared the results of the scheduled election on 2 April 2024.

29    Ms Dougan then took steps to conduct a “recall election” for the unfilled positions. On 3 April 2024, Ms Dougan was appointed as the Returning Officer for the recall election, and nominations for the recall election were open from 26 April 2024 until 24 May 2024 at 12.00 pm (AEST).

Ms McGlashan’s defective nomination

30    On 7 May 2024, Ms Dougan received an email from Ms McGlashan to the “IEB Nominations inbox”, attaching Ms McGlashan’s nomination form signed and dated 5 May 2024 for the Office. Ms Dougan deposes that Ms McGlashan’s email was sent from an email address ending in @education.vic.gov.au, which Ms Dougan assumed to be Ms McGlashan’s work email account. However, the nomination form stated a different email address ending in @yahoo.com as Ms McGlashan’s email address (correct email address).

31    When Ms Dougan entered the details from Ms McGlashan’s nomination form into the IEB team’s electronic management system, Electoral Event Management (EEMT), she inadvertently incorrectly entered an incorrect email address containing a typographical error (incorrect email address).

32    Ms Dougan deposes that, once the candidates’ details are entered into EEMT, “the usual process is that an email auto-generated through EEMT is sent to the candidates’ email addresses entered into EEMT, acknowledging each candidate’s application”, and that copies of these auto-generated emails are sent to the “IEB Nominations inbox” and the relevant Returning Officer.

33    On 8 May 2024, upon reviewing the “IEB Nominations inbox”, Ms Dougan noticed that EEMT had not sent an auto-generated acknowledgment email in respect of Ms McGlashan, nor had Ms Dougan been blind carbon copied to such an auto-generated acknowledgment email. As a result, Ms Dougan manually sent an email to Ms McGlashan to acknowledge receipt of her nomination. This email was sent to the correct email address, and noted that acceptance of Ms McGlashan’s nomination was subject to an eligibility check after nominations had closed and that she would receive further advice once that check had been completed.

34    On 29 May 2024, the AEC sent a generic email to the AEU and to all candidates attaching a summary of nominations received for the recall election, including Ms McGlashan for the Primary Sector in the Broadmeadows region, in respect of which there were two nominated candidates for 16 vacancies. The email stated that the validity of nominations had not yet been checked, and that candidates would receive further advice once checking of nominations had been finalised. A copy of this email was sent to the incorrect email address, and the AEC’s email server sent an auto-generated notification recording that the delivery of the email to the incorrect email address had failed. Ms Dougan deposes that this auto-generated email notification was later located in the “junk email” folder within the IEB Events mailbox, which is not ordinarily monitored by the IEB team.

35    On 4 June 2024, following a review of the nominations, Ms Marisa Lovisatti of the IEB team sent an email to Ms McGlashan attaching a letter from Ms Dougan in respect of her nomination. The subject line of the email was “E2023/185 AEU Vic - Insufficient Nominations - Defective Nomination”. The letter was in the following terms:

Australian Education Union

Victorian Branch

Insufficient Nomination Election

E2023/185

I refer to your nomination dated 7/05/2024 for election to the office of Delegate to Branch Conference for Primary Sector – Broadmeadows Region within the Victorian Branch.

Following a check of the Victorian Branch’s records, it appears to me that your nomination is defective because it does not comply with the requirements of VIC Branch Rule 51.5.(c) which states (in part) as follows:

(c)    be signed by the nominator who shall be a financial member of the relevant sector or sub-sector and the relevant region or group of regions.

The records indicated that your nominators Daryl Croke and Sam Woodberry are not members of Primary Sector – Broadmeadows Region, but members of the Secondary Sector. Additionally the records indicated that Paul Kosmidis is a member of the Primary Sector Inner-City Region.

VIC Branch Rule 57. (3) requires that I give you the opportunity of remedying the defect within a period of not less than 7 days, where practicable.

If you wish to remedy the defect or provide me with any relevant information, please do so by 9am (Australian Eastern Standard Time (AEST)) on 11/06/2024. If I do not hear from you by that date, I will conclude that you are unable to provide any additional information and I will determine the status of your nomination on the information presently before me.

36    This email and attached letter were sent to the incorrect email address. The AEC’s email server again sent an auto-generated email notification dated 4 June 2024 recording that the email to the incorrect email address was undeliverable. For reasons unknown to Ms Dougan, this auto-generated email notification was contained in the “junk email” folder within the IEB Events mailbox and was not brought to her attention at that time.

37    On 21 June 2024, having not received a response from Ms McGlashan to the letter dated 4 June 2024, Ms Dougan sent a further email and letter to Ms McGlashan advising that her nomination had been rejected, stating:

I have rejected your nomination for the office of Delegate to Branch Conference – Primary Broadmeadows Region because you have not remedied the relevant defects in your nomination, as advised in my letter of 4 June 2024.

38    The email and attached letter was again sent to the incorrect email address, and the AEC’s email server again sent an auto-generated email notification dated 21 June 2024 recording that delivery of the email to the incorrect email address failed. The auto-generated email notification was contained in the “junk email” folder within the IEB Events mailbox and was not brought to Ms Dougan’s attention at that time.

Completion of the recall election

39    On 21 June 2024, Ms Dougan declared the results of the recall election. All accepted candidate nominations for the recall election were elected uncontested. In respect of the Office (that is, for the Primary Sector in the Broadmeadows Region), only one candidate was nominated and declared elected. The other 15 positions remained unfilled.

40    On 26 June 2024, the election having been completed, Ms Dougan finalised the post-election report for the AEU in accordance with s 197 of the Act.

The AEC’s investigation

41    On 5 July 2024, Ms McGlashan called the AEC to enquire about her nomination. Ms Dougan deposes that she spoke with Ms McGlashan on the phone, following which she sent an email file note to her direct supervisors. The file note relevantly stated:

Ms McGlashan advised me during the call that she had not received the defect letter emailed on 4 June 2024 by Marisa using the email address stored in EEMT. Nor had she received the rejection letter emailed to Ms McGlashan on 21 June 2024 by myself using the email address stored in EEMT. But she had received the acknowledgment email sent on the [sic] 8 May 2024.

I asked her to confirm her email address during the discussion and thought what she told me was what we had recorded in EEMT, but only after I tried to forward the emails, I discovered that I had a different email come up in outlook to the one I was coping [sic] from EEMT. I then reviewed the nomination form and found that I had missed entering one letter in the email address.

42    The file note also recorded that “Ms McGlashan [was] very unhappy about the situation and advised that she would have been able to remedy the defect if she had been given the opportunity to do so”. Ms Dougan requested her supervisors to “review this and advise if we are able to rescind the declaration and offer Ms McGlashan the opportunity to correct the defect”.

43    Immediately after her telephone call with Ms McGlashan, Ms Dougan reviewed the email address recorded in EEMT against the email address recorded in Ms McGlashan’s nomination form, and realised that she had “incorrectly inputted Ms McGlashan’s email address into EEMT on 8 May 2024”. Ms Dougan then confirmed that the emails to Ms McGlashan on 29 May 2024, 4 June 2024 and 21 June 2024 had been sent to the incorrect email address. Ms Dougan located the auto-generated undeliverable notifications for each of those emails within the “junk email” folder within the IEB Events mailbox. Ms Dougan deposes that in her experience such auto-generated email notifications are usually delivered to the “IEB Events inbox”, which is monitored by more junior staff in the IEB Team, and that she does not know why these notifications were in the “junk email” folder.

44    On 9 July 2024, in response to Ms McGlashan’s request, Ms Dougan forwarded to the correct email address a copy of the emails from the AEC dated 4 June 2024 and 21 June 2024, which respectively notified her of the defect in the nomination and the rejection of the nomination.

45    On 1 August 2024, Mr Benjamin Murray, the Acting Director of the IEB team, sent an email to Ms McGlashan in which he stated:

The AEC has reviewed the information you have provided and identified that your email address was recorded incorrectly in our system (as a result of a typographical error made by the AEC). Because of this error, you were not notified about the defect in your nomination outlined in our letter of 4 June 2024, nor provided the opportunity to remedy that defect, in breach of the AEU Rules.

As a result of the above, the Electoral Commissioner has formed the view that the result of the election for the office of Branch Conference Delegate (Broadmeadows, Primary) has been affected by an irregularity, and has directed the AEC to apply to the Federal Court of Australia for an inquiry into the irregularity under section 200(2) of the Fair Work (Registered Organisations) Act 2009.

I sincerely apologise for the AEC’s error, which meant you were unaware of the defect described and were therefore unable to take action to attempt to remedy it. Please be assured that the AEC has taken steps that will help to prevent a similar error happening in the future.

46    On the same date, Mr Murray sent an email to the AEU advising that the Commissioner would make an application to this Court for an inquiry into the alleged irregularity in relation to the election for the Office. Mr Murray relevantly stated:

In the course of its inquiry, the Federal Court may consider the utility of seeking to remedy the irregularity now. The AEC understands that the primary purpose of the office of Branch Conference Delegate within the Victorian Branch is to attend the AEU’s Annual Branch Conference, which was held on 20 July 2024, the inquiry by the Federal Court may take some months to conclude, and the office of Branch Conference Delegate is also only held for 12 months.

Accordingly, the Federal Court taking steps to remedy the irregularity at this stage may lack utility. We would be greatly assisted if the AEU could advise what other functions, duties or powers members who hold the office of Branch Conference Delegate have, and the frequency with which they exercise them.

47    On 8 August 2024, Ms Anjela Palamaras, the Leadership Executive Officer at the AEU, responded to Mr Murray’s email, relevantly stating:

In response to the AEC’s request for information about the other functions, duties or powers of members who hold the office of Branch Conference Delegate the AEU Victorian Branch can advise the following:

1.     Delegates to the Branch Conference take office on the declaration of their election and hold office for one year or until their successor takes office. Delegates to Branch Conference are entitled to attend the annual meeting of the Branch Conference and deal with all matters that appear on the Conference Agenda including any proposed alterations to the AEU Federal Rules.

2.     The annual meeting of the Branch Conference, as determined by the Branch Council, was held on Saturday, 20 July 2024 and all matters that appeared on the Conference Agenda were dealt with by the members of the Branch Conference , whilst Conference was in session, on Saturday 20 July 2024. The Conference Agenda did not include any proposed alterations to the AEU Federal Rules.

3.     At present the AEU Victorian Branch has no indication that a special meeting of the Branch Conference will be convened before the next Branch Conference. According to our electronic records, a special meeting of the Branch Conference has not occurred in the past 28 years.

4.     When Branch Conference is not in session, the Branch Council has all the powers of the Branch Conference, other than the power to alter the AEU Federal Rules (AEU Vic rule 7) and the Branch Executive (AEU Vic rule 10) as the Branch’s Committee of Management has the power to conduct and manage the affairs of the Branch between meetings of the Branch Council including the financial management of the Branch. The Branch Council meets at least eight times each year. The Branch Executive meets at least once a month with the exception of January. The Branch Council, Branch Executive or the Branch President may at any time call a meeting of the Branch Council and/or Branch Executive.

5.     The AEU Victorian Branch intends to lodge the prescribed information (PI) for the election of Delegates to Branch Conference for the next annual branch conference to be held in 2025, with the Fair Work Commission by the end of August 2024. The PI will include a recommended timeline for the AEC Returning Officer’s consideration that the nomination period (including a ballot if required) be February – May 2025. The annual meeting of the Branch Conference is historically held in term 3 of the school year. The indicative date for 2025 is 2 August.

Further to your email the AEU Victorian Branch respectfully requests that the AEC provide the union with information regarding what additional measures the AEC has taken to mitigate a similar error from happening again.

48    On 19 August 2024, Mr Murray responded to Ms Palamaras, outlining the steps that the AEC had presently taken in order to mitigate a similar error from happening again, including updating the relevant industrial election task briefs that instruct staff on how to manage the receipt of nominations and how to enter the relevant data into AEC systems; implementing an additional verification step to independently check the data entry to ensure human errors are identified during the nominations processing stage; and briefing staff on this incident so that a similar incident will not occur. Mr Murray also stated that, in considering any additional measures, the AEC would “also have regard to any comments made by the Federal Court of Australia in the course of its inquiry into this matter”.

The alleged irregularity

49    Ms Dougan deposes that, as a result of her investigations following her telephone call with Ms McGlashan on 5 July 2024, she has formed the following views:

(a)    An irregularity in the election occurred by virtue of Ms McGlashan not being afforded the opportunity to remedy the defect in her nomination form for the recall election within seven days in breach of r 57(3) of the Rules.

(b)    In order to remedy the defect, Ms McGlashan would have been required to update her nomination form to include at least one nominator who was a financial member of the AEU in the Broadmeadows Region – Primary Sector.

(c)    Ms McGlashan likely could have remedied the defect in the time available, had she taken the steps necessary to do so. Ms Dougan deposes that she has reached this view in reliance on:

(i)    information provided by members of the IEB team that, based on records provided by the AEU in advance of the election, there are approximately 750 members of the AEU in the Broadmeadows Region – Primary Sector. A large number of these members would likely have been eligible to be listed as a nominator on Ms McGlashan’s nomination form; and

(ii)    Ms McGlashan’s indication to Ms Dougan during the telephone call on 5 July 2024 that she would have remedied the defect.

(d)    Had Ms McGlashan remedied her defective nomination in the time required, Ms Dougan would have accepted Ms McGlashan’s amended nomination. Noting that only one other nomination was received for the 16 vacancies for the Office, Ms McGlashan would have been elected to the position uncontested.

50    On 19 July 2024, the Commissioner considered the evidence in relation to the identified irregularity in the recall election, and was satisfied that the results of an election for the Office had been affected by an irregularity. Accordingly, the Commissioner authorised an application to be made to this Court for an inquiry into the matter.

51    The Commissioner subsequently commenced this proceeding by originating application dated 19 September 2024.

Are there reasonable grounds for the Commissioner’s application?

52    I turn to consider whether there are reasonable grounds for the Commissioner’s application under s 200(2) of the Act for an inquiry into the alleged irregularity in relation to the election for the Office.

53    As discussed above, this is a threshold question which does not pre-empt the result of any inquiry to be held, but rather involves an evaluative judgment of a preliminary nature as to whether there is a substantial factual foundation for the alleged irregularity.

54    The irregularity in the present case arises from an alleged contravention of r 57(3) of the Rules, which relevantly required the Branch Returning Officer to notify a candidate immediately and expeditiously if his or her nomination was considered to be defective, and where practicable to give the candidate the opportunity of remedying the defect. Because of the erroneous use of the incorrect email address to send the notifications to Ms McGlashan, it is arguable that Ms Dougan as the Returning Officer for the recall election failed to notify Ms McGlashan that her nomination was considered to be defective and failed to give her an opportunity to remedy the defect. This arguably amounted to a breach of r 57(3) of the Rules, giving rise to an irregularity in relation to the election within the meaning of s 6 of the Act. Such a construction of r 57(3) is reasonably open on an ordinary reading of the rule.

55    There is evidence that, if Ms McGlashan had been notified of and given the opportunity of remedying the defect in her nomination, she would have been able to take steps necessary to remedy the defect within a seven-day period, such as by obtaining the signature of a nominator or nominators who were financial members of the Primary Sector in the Broadmeadows Region. There is also evidence that, if Ms McGlashan had done so, her amended nomination would have been accepted and she would ultimately have been elected to one of the remaining 15 unfilled vacancies for the Office.

56    In the circumstances, there is a substantial factual foundation for the alleged irregularity the subject of the Commissioner’s application. It is also open to find that any such irregularity would have occurred “in relation to an election” — as Flick J stated in Killestyn at [35]:

Whatever may be the outer boundaries of the statutory phrase “an irregularity in relation to an election”, it is certainly open to the Electoral Commissioner to form a belief that the phrase encompasses an “irregularity” which has the consequence that a nomination is rejected or not accepted.

See also Asmar, in the matter of an election for an office in the Victorian No 1 Branch of the Health Services Union [2012] FCA 1242 per Tracey J at [35].

57    In so far as it is relevant to consider the nature and utility of any relief that might ultimately be available following an inquiry into the matter, it may be noted that persons elected to the Office hold office for one year until their successors take office: r 51(1) of the Rules. The primary purpose of the Office is to attend the AEU’s Annual Branch Conference, which was held on 20 July 2024. The election of Delegates for the next Annual Branch Conference is likely to be conducted in the first half of 2025, with an indicative date for that conference of 2 August 2025.

58    If the Court ultimately finds that an irregularity has happened, the possible orders that might be made under s 206(4) of the Act include an order declaring the election or any step in relation to the election to be void, or declaring a person purporting to have been elected not to have been elected and declaring another person to have been elected. However, such orders can only be made if the Court forms an opinion that the result of the election may have been affected by an irregularity: s 206(5). While it is arguable that the result of the election was affected by the alleged breach of r 57(3) in relation to Ms McGlashan’s nomination, any such irregularity would not appear to have affected the election of the successful candidate in circumstances where there were insufficient nominations to fill the available vacancies in the Office. Nevertheless, s 206(4)(c)(ii) provides that the Court may also make an order, 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 for a new election to be held, and s 206(4)(d) confers power to make orders that are incidental or supplementary to, or consequential on, any such order.

59    It is unnecessary for present purposes to reach any concluded view about what orders might be appropriate if the Court were to find that an irregularity has happened in relation to the election. In order to establish that there are reasonable grounds for the application, it is sufficient that there are grounds on which an order or orders may be made under s 206(4) of the Act. If it appears at any time that the inquiry lacks any utility, the Court retains power under s 206(6) of the Act to terminate the inquiry.

60    For the reasons set out above, I concluded that an inquiry should be held in relation to the matter raised by the Commissioner’s application. Accordingly, I fixed the time and place for the inquiry as 10.15 am on 4 February 2024 at the Federal Court of Australia in Melbourne, and gave directions for the notification of any interested persons who may be entitled to appear at the inquiry.

Associate:

Dated:    19 December 2024