DECISION NO:  169/96

 

                         CATCHWORDS

 

 

 

INDUSTRIAL LAW - INQUIRY - evidence of electoral fraud - whether an order should be made declaring each of the elections void and that fresh elections should be held - "irregularity" - whether there were irregularities in or in connection with the election - "by means of"

 

 

 

 

Industrial Relations Act 1988: Part IV Division 5, ss 215(1), 215(2), 223(3), 223(3)(b), 223(4) and 315

Trade Practices Act 1974: s82

Conciliation and Arbitration Act 1904: s170A

 

 

 

 

Re Gray; Ex parte Marsh  (1985) 157 CLR 351

Re Collins; Ex parte Hockings (1989) 167 CLR 522

Re Carter; Re Federated Clerks Union of Australia, Victoria Branch (No. 1) (1989) 32 IR 1

Re Federated Liquor and Allied Industries Employees' Union of Australia; Ex parte Huxtable (1979) 40 FLR 418

Wardley Australia Ltd v The State of Western Australia (1992) 175 CLR 514

Re Penhallurick (Application for an Inquiry into an Election in the Transport Workers' Union of Australia) (1983) 51 ALR 589

In the matter of an Application by Pullen for an Inquiry into Elections in the Federated Liquor and Allied Industries Employees Union of Australia (NSW Branch) (1990) 98 ALR 699

Carney v Matthews & Ors, Wilcox CJ, 27 March 1995, unreported

Sheen v Fields Pty Ltd (1984) 51 ALR 345

Samuels v Flavel (1970) SASR 256

R v Jenkins: Ex parte Morrison (No. 2) (1949) Argus LR 468

Parker v Amalgamated Society of Carpenters and Joiners of Australia (1992) 43 IR 248

Re Carter; Re Federated Clerks Union of Australia (No. 2) (1989) 32 IR 30

 

 

 

 

 

No. NI594 of 1994

 

IN THE MATTER OF AN ELECTION FOR AN OFFICE IN THE COMMUNICATION WORKERS' UNION OF AUSTRALIA POSTAL AND TELECOMMUNICATIONS BRANCH, NEW SOUTH WALES

 

 

MOORE J

SYDNEY

10 MAY 1996

IN THE INDUSTRIAL RELATIONS       )

                                  )

COURT OF AUSTRALIA                )        No. NI 594 of 1994

                                  )

NEW SOUTH WALES DISTRICT REGISTRY )

 

 

 

                                                     BATTESE

 

                                                   Applicant

 

 

IN THE MATTER OF AN ELECTION

FOR AN OFFICE IN THE COMMUNICATION

WORKERS' UNION OF AUSTRALIA POSTAL

AND TELECOMMUNICATIONS BRANCH,

NEW SOUTH WALES

 

 

 

 

 

 

 

JUDGE:    Moore J

 

PLACE:    Sydney

 

DATE:     10 May 1996

 

 

                    REASONS FOR JUDGMENT

 

     The Court is presently dealing with one aspect of an inquiry conducted under Division 5 of Part IX of the Industrial Relations Act 1988 ("the Act"), into elections held in 1994 in the Communication Workers Union of Australia ("the organisation") as it was then called.  The elections were for the offices of Branch President, Branch Secretary, Branch Assistant Secretary and Branch Organiser, for which there were twelve vacancies, in the NSW Postal and Telecommunications Branch of the organisation.  More than one candidate was nominated for each office.  Ballot papers were forwarded by post on 1 July 1994 to most, but not all, members who were entitled to vote and the ballot closed on 29 July 1994.  The elections were conducted by the Australian Electoral Commission.

 

     The parties to the inquiry are the applicant, Mr Noel Battese, Mr Allan Jarman who was the successful candidate for the office of Branch Secretary and, initially, Mr Jalal Natour who was the successful candidate for the position of Branch Assistant  Secretary.  Natour died during the course of the inquiry and, as a consequence, Mr Jim Metcher successfully sought leave to be made a party to the inquiry.  The incomplete election to fill the casual vacancy arising from Natour's death is itself the subject of an inquiry, the outcome of which will depend on the outcome of this inquiry.  Other parties are Mr Quentin Cook, who was an unsuccessful candidate for the position of organiser in the Branch elections, the Australian Electoral Commission and the organisation.

 

     During the inquiry affidavit evidence from a document examiner, Mr Paul Westwood, was filed by the applicant which established that at least 879 ballot papers were or are likely to have been, filled in by a limited number of individuals.  This evidence was not put in issue.  Indeed Jarman and Metcher filed affidavit evidence from another document examiner, Mr Christopher Anderson, which corroborated the evidence of Westwood.  While there was one contentious aspect of the analysis of Westwood and Anderson, it was common ground that it disclosed widespread electoral fraud.  As will be apparent shortly, it is of some significance that a large number of the members voting in the elections were postal workers engaged in the handling of mail in New South Wales.  Members in the Branch were directly involved in the dispatch by mail of the ballot material, which included the ballot papers, to the members who were to vote.  Members were also involved in handling return mail to the returning officer.  This included both completed ballot papers and ballot papers which had not been claimed by the addressee.

 

     Thus the inquiry proceeded on the basis that there was proven and widespread electoral fraud and that irregularities had arisen in the course of the elections.  The principal issue in the inquiry, at least between the applicant and Cook on the one hand and Jarman and Metcher on the other, was whether any order should be made under s223(3) of the Act, having regard to the provisions of s223(4), declaring each of the elections void and ordering fresh elections.  It was agreed by all parties that the Court should deal with that issue and, if necessary, a further hearing could be held to determine what orders should be made.

 

     However the irregularities alleged by the applicant and Cook were not limited to those arising from or relating directly to the electoral fraud.  It is convenient to deal with specific allegations of irregularity and in the course of doing so describe the relevant evidence and to indicate what findings of fact are made.  Significant parts of the relevant evidence was uncontentious and will appear as a factual narrative.  I will indicate where there is conflicting evidence about material facts and approach the matter on that basis.  For reasons of economy, I will not identify all parties making submissions on particular matters, though all submissions have been considered.

 

     One class of irregularities concern the operation of the relevant rules of the organisation governing branch elections.  The rule central to these proceedings is rule 69 which is set out in full as a schedule to this judgment.  It can be seen that it establishes a comparatively complex procedure for the dispatch and receipt of ballot papers which may have its origins in rules adopted by the Australian Postal and Telecommunications Union ("APTU") in 1983.  The APTU is, as a result of amalgamations, a part of the organisation.  Material presently before the Court suggests that the procedures were adopted to deal with the difficulties in conducting a secret postal ballot of postal workers evident in proceedings in 1983 in the Federal Court of Australia before St John J.  I now deal with the irregularities alleged and related matters.

 

Breach of Rule 69(d)(iv)(A) - Form of forwarding envelope

 

     Rule 69(d)(iv) provides that members entitled to vote are sent their ballot paper and related material and return the ballot paper in a way that involves the use of a number of envelopes.  The ballot paper itself is in an unexceptional form which I will describe in more detail later.  When it is completed by a voter it is to be folded and inserted into an envelope.  That envelope is marked "ballot paper only": see rule 69(d)(iv)(A)(4).  That envelope is inserted in another envelope described as a security envelope which the voter should sign and record on it his or her name and address: see rule 69(d)(iv)(A)(3).  Once the voter has placed the ballot paper inside the "ballot paper only" envelope and placed that envelope in the security envelope, the security envelope and its contents is then placed into a third envelope.  The third envelope is a business reply paid envelope identifying the returning officer as the addressee and his or her address.  See rule 69(d)(iv)(A)(2).  I will refer to this third envelope as the return envelope.  The prefatory words of rule 69(d)(iv)(A) require these various envelopes, together with the ballot paper and voting instructions, to be sent to each member entitled to vote, in an "envelope (that) has as few distinctive characteristics as possible".  That envelope is to be forwarded by pre-paid post to the member.  I will refer to this envelope as the forwarding envelope.

 

     It was submitted on behalf of the applicant that the forwarding envelope in these elections failed to satisfy the criterion of having "as few distinctive characteristics as possible".  The factual foundation for this submission is twofold.  Firstly, on the envelope was printed an address used by the returning officer for the return of unclaimed mail.  That is, forwarding envelopes sent to members through the post which were returned by the recipient as not having been claimed by the member to which it was sent.  The following is a facsimile of the forwarding envelope and what is presently relevant is the address in the top left corner:

 

                      (envelope front)

 

 

     Secondly, a notice was circulated to all staff at the Southern Suburbs Mail Centre, Turella, on 27 June 1994, which was the mail centre to which the unclaimed forwarding envelopes were to be returned.  It was also the mail centre to which completed ballot papers were to be returned having regard to the address nominated by the returning officer as his address and printed on the forwarding return envelope.  The return address for return envelopes containing completed ballot papers is a matter I will consider in more detail shortly.  The notice was sent to staff of the mail centre four days before the ballot material was sent out to the membership.  It is unnecessary to set out all that appeared in the notice but, in essence, it exhorted staff at the mail centre to be particularly careful when dealing with mail addressed to both the address used by the returning officer to receive completed ballot papers and also addressed to Box 3333 Southern Suburbs Mail Centre.  The notice concluded with the following:

 

                             "Please remember:

 

          The above Temporary Changes are only for one month from

                       1 July 1994 to 29 July 1994."

 

 

     Anyone who was working at the Southern Suburbs Mail Centre who had an interest in the affairs of the organisation was likely to conclude, in my opinion, that these instructions, and the addresses identified in the notice, related in some way to the ballot due to commence within days of the notice.

 

     The applicant also relied on evidence given by the returning officer, Mr Terence Healy, during cross-examination that the address printed on the envelope was used to ensure that it would be recognisable as ballot material concerning the organisation.  Its use was intended to allow employees of Australia Post to identify the material.  However this evidence was plainly directed to the regular handling of the mail upon its receipt.  That is, the address was conceded to be distinctive but in the sense that when it was received and handled it was not, in the end result, likely to be mingled with other mail.

 

     The use of the Box 3333 address together with the notice circulated at the Southern Suburbs Mail Centre was likely to have resulted in those having a keen interest in the elections, including people not working at that mail centre but who were in contact with people who did, being aware of the significance of that return address.  However it must be remembered that on dispatch of the ballot material to the membership, each member would have known, on receipt of the ballot material, the significance of the return address.  That is a necessary consequence of placing a return address for unclaimed mail on the forwarding envelope.  The mechanism adopted by the returning officer for the return of unclaimed forwarding envelopes is, to this extent, unexceptionable.

 

     The critical issue is what, in the context of this rule, is meant by the expression "distinctive characteristics".  Plainly any address that is printed on an envelope used in the elections and forwarded to members will become known to the members relatively quickly as they receive their ballot material.  The purpose of that aspect of the rule is to minimise the opportunity for the interception of ballot material by postal workers as it moves through the postal system to and back from members who are eligible to vote.  In my view, a distinctive characteristic is, for the purposes of the rule, a characteristic that would cause the envelope to stand out from other mail in the postal system and to be readily recognisable either because of its physical characteristics or any unusual treatment it would receive when handled as it passed through the system.  An obvious example of a distinctive characteristic would be an envelope which was an unusual colour or shape or both.  While some of the membership at the Southern Suburbs Mail Centre and probably others knew before the forwarding envelopes were sent out, what the return address was, the forwarding envelope would not have been readily recognisable as it passed through the mail system on its way to members.  In my opinion no breach of this rule arose from the form of envelope used.

 

Breach of rule 69(d)(iv)(A)(2) - Address on the return envelope

 

     A similar submission was made on behalf of the applicant in relation to the markings on the return envelope.  Rule 69(d)(iv)(A)(2) provides:

 

      "(d)  The Branch Returning Officer shall:

 

            (i)   ...

            (ii)  ...

            (iii) ...

 

            (iv)  (A)   forward by pre-paid post in an envelope having as few distinctive characteristics as possible to each member entitled to vote:

 

                  (1)   ...

 

                  (2)   a pre-paid or business reply paid envelope having as few distinctive characteristics as possible addressed to the Returning Officer at a Post Office Box number designated by him/her;

 

 

 

     The postcode 1485 appearing on the envelope was not a usual postcode, was not the normal postcode for Kogarah and was used only for the purposes of these elections and one earlier ballot of members of the organisation.  The following is a facsimile of that envelope:

 

                      (envelope front)

     As with the forwarding envelope the address used by the returning officer on the return envelope, including the unusual postcode, would have been apparent to at least the vast majority of members voting who received, opened and looked at the ballot material within days of its dispatch.  Thus the composite address and indeed the form of the envelope in its entirety would have been widely known and inevitably so.  Rule 69(d)(iv)(A)(2) requires the returning officer to secure a post office box number as part of an address for the return of completed ballot papers.  The only possible basis upon which the return envelope used might be said to have a characteristic that was distinctive, and unnecessarily so, was the unusual postcode.

 

     It is probable, in my opinion, that postal workers regularly handling mail would be aware of postcodes ordinarily used in conjunction with a particular location.  Thus the identification of a location with an unusual postcode which is not its ordinary postcode, renders the address a distinctive one.  However the relevant question is whether it is distinctive in a way that would cause it to stand out in the mail system.  In some areas of New South Wales the handling of mail is highly automated.  In other areas it is not.  In circumstances where it is not automated and probably also where it was, there would be a real chance that the return envelope might be noticed by a postal worker handling it because of the unusual postcode.  That may then cause the postal worker to associate it with the envelope they were likely to have seen with their own ballot material.  While the postal worker might, for reasons of having seen the envelope before, recognise it without the unusual postcode the prospects of it being recognised are increased, though probably not greatly, by the use of that postcode.

 

     I am presently considering the form of envelope used having regard to the rule.  It is unnecessary, in my opinion, for the applicant to establish, by evidence, that envelopes were recognised by postal workers for this reason.  It is only necessary that I am satisfied that there is a real possibility that the characteristic of an unusual postcode rendered the envelope more distinctive than it needed to be.  In my opinion it did.   It would have been open to the returning officer to do what the rule implies he should do, namely obtain a post office box which would be at an address which would include a postcode which was a usual one.  Accordingly the returning officer has not complied with the requirements of rule 69(d)(iv)(A)(2) though the breach is a technical one.

 

     "Irregularity" is defined in s4 of the Act which provides:

 

      "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:"

 

 

     The definition of "irregularity", in similar terms in the Conciliation and Arbitration Act 1904, has been considered comparatively recently by the High Court in Re Gray; Ex parte Marsh (1985) 157 CLR 351 and Re Collins; Ex parte Hockings (1989) 167 CLR 522.  What emerges from these authorities is that while any breach of the rules of an organisation may constitute an irregularity as defined, an inquiry conducted under Division 5 of Part IX of the Act concerns irregularities in, or in connection with, an election.  As such the breach of the rule must be one involving a departure from some rule, practice or principle governing the conduct of the election: see Hockings (supra) at 526 per Toohey and McHugh JJ.  The breach of the rule as it relates to the form of the envelope may be of that character.

 

     However whether it was or not, is ultimately of no moment.  The Australian Electoral Commission submitted that any deviation from the requirements of the rule is justified under s215(1) of the Act which provides:

 

      "215.(1)    Where an electoral official is conducting an election, or taking a step in relation to an election, for an office in, or in a branch of, an organisation, the electoral official:

 

      (a)   subject to paragraph (b), shall 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;

 

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

 

      (2)   An election 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).

 

      (3)   ...

 

      (4)   ...

 

 

     The purpose of giving the return address an unusual postcode was to effectuate an agreement between the Australia Electoral Commission and Australia Post about the conduct of the ballot.  It had been agreed that the return envelopes would be culled from the mail stream at the Southern Suburbs Mail Centre.  The culling would ordinarily occur during the automatic sorting of mail by a machine generally described as an Optical Character Reader ("OCR").  The OCR sorts mail into bays on the machine by reading a bar code, reflecting the postcode, placed on the envelope by another OCR at an earlier point in the mail stream.  The agreement contemplated that the return envelopes would be sorted into a bay designated for that purpose which was dependent upon the use of an unusual postcode.  The agreement also required the designated bay to be cleared hourly by the shift manager on duty accompanied by a witness.  Further, the mail collected in this way was to be placed in a cage which was padlocked.  The plain purpose of using an unusual postcode was to avoid interference with the mail and thus irregularities occurring.  In my view the returning officer was clearly entitled to take the course he did having regard to the provisions of s215(1)(b)(i).

 

Breach of Rule 69(d)(iv)(A)(3) - No provision for writing name and address

 

     As I indicated earlier, one of the envelopes that is sent to each member, the security envelope, is one in which is inserted another envelope containing the marked ballot paper.  Rule 69(d)(iv)(A)(3) provides:

 

      "(d)  The Branch Returning Officer shall:

 

      (i)   ...

 

      (ii)  ...

 

      (iii) ...

 

      (iv)  (A)   forward by pre-paid post in an envelope having as few distinctive characteristics as possible to each member entitled to vote:

 

                  (1)   ...

 

                  (2)   ...

 

                  (3)   an envelope capable of insertion in the outer envelope referred to in (2) above, such envelope to have provision on the outside of the envelope for the member to fill in the member's name and address and to sign his or her signature;"

 

 

     The rule requires that the security envelope has a provision enabling the member to sign his or her signature and fill in his or her name and address.  That material added by the member is part of a security process which enables random checks to be made of the returned ballot papers: see rule 69(d)(vi)(B), by means of signature comparisons between the signature on the security envelope and the signature on the relevant member's membership card.  Further rule 69(d)(vi)(E) requires the returning officer to reject and not count a ballot paper in a security envelope which has not "been filled up or has not been filled up to the extent sufficient in the opinion of the returning officer to enable him/her to be satisfied as to the identity of the member casting such vote".  In the present case the envelope did not contain a provision for the member to fill in his or her name and address.  A facsimile of the security envelope is as follows:

 

 

                                                               (envelope back)

 

 

     In these elections the returning officer was sent a roll by the Branch of the organisation which had been produced from computerised information.  The roll was accompanied by self-adhesive labels with the name and address of each member on the roll though no check was made by the returning officer to determine whether the address on the roll corresponded with the address on the label.  The adhesive label was then affixed by the Australian Electoral Commission to a security envelope.  The ballot material, the envelopes and folded ballot paper (and another ballot paper which is not presently relevant), was arranged in such a way that when it was all inserted in the forwarding envelope, the name and address on the adhesive label appeared in the transparent window in the form of envelope I earlier set out.

 

     This was plainly a convenient course for the returning officer to follow.  However it does not result in compliance with rule 69(d)(iv)(A)(3).  The obligation imposed on the returning officer by rule 69(d)(vi)(E) to reject a ballot paper by reference to what appears on the envelope is not restricted to the signature.  The rule refers to the way in which the envelope has been "filled up" which would include both the signature and the handwritten name and address.  Indeed rule 69(d)(iv)(A)(3) speaks of the "member to fill in" the name and address.  It must be accepted that the comparison required by rule 69(d)(vi)(B) is of signatures, that is, the signature in the security envelope with the signature on the membership card.  It may also be accepted that the returning officer is likely to need to know the member's name, and possibly address, to identify the member for the purposes of the comparison.  However situations could well arise, and are evident in this inquiry, where the membership card of the member was filled out many years earlier.  Thus there could well be some discrepancies between the signature on the membership card and the signature on the envelope.  Other writing of the member, or person who made the entries on the envelope, could provide material upon which the returning officer could form the opinion upon which rule 69(d)(vi)(E) depends.

 

     In my opinion, the failure of the returning officer to allow for the inclusion of a name and address written by the member constitutes a breach of the rules and is an irregularity.  That is not to say, however, that labels cannot be used but if they are, provision must be made for the writing of the name and address on the security envelope.

 

Breach of rule 69(d)(iv)(B) - Failure to arrange for notice

 

     One of the duties of the returning officer is to send out a notice in accordance with rule 69(d)(iv)(B) which provides:

 

      "(d)  The Branch Returning Officer shall:

 

            (i)   ...

            (ii)  ...

            (iii) ...

            (iv)  ...

 

                  (B)   at the time of forwarding of ballot papers and other documents referred to in (a) above and, subject to the employer corporation's approval, prepare a Notice and arrange for the placing of such Notice on the Notice Boards at places where more than ten members work or report for work informing members of the forthcoming election, the distribution of ballot papers and a statement that any member entitled to vote who does not receive a ballot paper by a date specified by the Returning Officer in his/her discretion, being a date some date after projected posting and before counting begins, to report such non receipt to the Returning Officer;

 

 

     The only notice identified in the inquiry that was sent in possible conformity with this rule was in the following terms:

       "URGENT ELECTION NOTICE - PLEASE DISPLAY ON STAFF NOTICE BOARD

                  COMMUNICATION WORKERS UNION OF AUSTRALIA

                               1994 ELECTIONS

 

Ballot papers were posted to eligible members of the Union on 1 July 1994.  If you have not received your ballot paper by 8 July 1994 please obtain an application for Duplicate Ballot material from either myself, your shop steward or from the Union and post it or fax it to me.

 

Please ensure that you complete the ballot paper personally and that you follow the directions contained therein.

 

You are also entitled to a replacement ballot paper if you have lost, destroyed or spoilt the original.

 

The ballot material must be completed and returned to me not later than 12.00 noon on 29 July 1994.

 

UNDER NO CIRCUMSTANCES SHOULD THE BALLOT MATERIAL BE HANDED TO ANYONE PURPORTING TO REPRESENT EITHER MYSELF OR THE AUSTRALIAN ELECTORAL COMMISSION.  IF YOU ARE AWARE OF ANY INSTANCES WHERE THIS HAS OCCURRED PLEASE CONTACT ME FORTHWITH.

 

 

 

T.Healy                       Australian Electoral Commission

                              Industrial Elections Branch

Returning Officer             Roden Cutler House,

                              Level 3, 24 Campbell Street,

                              HAYMARKET  N.S.W.  2000

Phone:      (02) 289 0365     P.O. Box 21, Darlinghurst 2010

            (02) 289 0319

 

Fax:        (02) 281 9376"

 

 

     This notice was forwarded by the returning officer on 7 July 1994 to 1498 work places where members eligible to vote were employed.  The last paragraph of the notice was included by the returning office because between 1 July and 7 July 1994 he had received complaints relating to the matters referred to in that paragraph.

 

     The applicant submitted that the notice was one that did not conform with the provisions of the rule.  The rule has two significant features.  The first is that the notice is to be sent out "at the time of forwarding of ballot papers".  As a matter of fact that did not occur as the notice was sent six days after the forwarding of ballot papers.  The second feature of the rule is that the notice is to invite members to report to the returning officer non receipt of a ballot paper.  The applicant submitted that the rule is intended to provide a mechanism to alert the returning officer to any difficulties arising from the dispatch of ballot material.  Thus the notice should not be restricted, as it was in fact, to inviting applications for duplicate ballot material from members who have not received the ballot paper by the day specified in the notice.

 

     In my opinion, the notice sent out was not a notice in conformity with the rule.  Rule 69 contains an elaborate procedure designed to ensure, in so far as possible, that elections are conducted regularly.  Rule 69(d)(iv)(B) is intended to provide a mechanism resulting in the returning officer being alerted at the earliest possible time of problems associated with the dispatch of ballot material.  Thus the time at which the notice is sent and its contents are critical.  Not only was the notice sent out some days after the dispatch of the ballot material but its subject matter was limited in that it related only to applications for duplicate ballot material from members who had not received that material in the original dispatch of it.  An application for duplicate ballot material would alert the returning officer to possible difficulties.  However the notice would not attract comment from members who had not received ballot material and who were not interested in obtaining duplicate ballot material or not obtaining it with any sense of urgency.  While the number of members in  these last mentioned categories would be likely to be limited, the object of the rule is not fully met by a notice in qualified terms such as the notice used in these elections.  Accordingly there has been a breach of rule 69(d)(iv)(B) which constitutes an irregularity.

 

Breach of rule 69(a) - Failure to conduct secret postal ballot

 

     Consistent with the provisions of the Act, rule 69(a) requires that elections of Branch officers be conducted by a secret postal ballot.  Generally the elections to which this inquiry relates were conducted in that manner.  However, in relation to some members eligible to vote, the returning officer elected to send the ballot material by means other than the post.  The procedure that was followed was that either a courier or an officer of the Australian Electoral Commission delivered the ballot material to the manager of the nine mail centres involved, which were workplaces with a large number of members.  The ballot material was for the members working at the mail centre whose address on the electoral roll was the mail centre itself.  The managers were given a document setting out the names of the members so that each member could sign for the ballot material when they were given it.  The preceding description of the process is something of a gloss on what in fact happened but sufficiently describes it for present purposes.

 

     What is a "postal ballot" is defined in s4 of the Act which provides:

 

      "postal ballot means a ballot for the purpose of which:

 

      (a)   a ballot paper is sent by pre-paid post to each person entitled to vote; and

 

      (b)   facilities are provided for the return of the completed ballot paper by post by the voter without expense to the voter;"

 

 

     There is no suggestion that the second element in paragraph (b) of the definition was not met.  In issue is whether the first element in paragraph (a) was satisfied.  It is repeated in rule 69(d)(iv)(A).  The Australian Electoral Commission submitted that the delivery of the ballot material to a particular person in Australia Post on the basis that it would then be delivered to the member constitutes a sending "by pre-paid post".  Presumably, this submission involves the additional consideration that the forwarding envelopes, which I described earlier in this judgment, were pre-paid.  In my opinion both the definition in the Act and the provisions in the rule contemplate posting for delivery in the ordinary course of the post and not delivery by the means adopted by the returning officer.  Thus the means adopted constituted a breach of rule 69(a) and the prefatory words of rule 69(d)(iv)(A).

 

     However the step taken by the returning officer was plainly one intended to ensure that no irregularity occurred in the elections.  It was part of the agreement with Australia Post.  To send the ballot material to a large mail centre by ordinary post could have reasonably been apprehended as creating an opportunity for its irregular treatment.  In my opinion, there was a rational basis for believing that upon receipt at the mail centre, the ballot material might be intercepted, taken for an improper purpose and not received by the member who was the addressee.  Accordingly the general conduct of the electoral officer was authorised by s215.  However there remains the question as to whether any irregularity arose from that conduct.

 

     I earlier set out sub-sections 215(1) and (2) of the Act.  Section 170A of the Conciliation and Arbitration Act 1904 contained provisions in similar, though not identical, terms:

 

      "170A(1)  A person conducting an election, or taking a step in or in connection with an election, for an office in, or a branch of, an organisation under section 165A or under section 170, may, notwithstanding anything contained in the rules of the organisation or branch, take such action and give such directions as he considers necessary in order to ensure that no irregularities occur in or in connection with the election or to remedy any procedural defects in those rules which appear to him to exist.

 

      (2)  ...

 

      (3)  An election conducted under section 165A, a step taken under that section in or in connection with an election or an election conducted under section 170 is not invalid by reason only -

 

      (a)   of a breach of the rules of the organisation or branch involved in -

 

            (i)   an act done under this section; or

            (ii)  an act done in compliance with a direction under this section; or

 

      (b)   in the case of an election conducted under section 170, of an irregularity if the request in pursuance of which the election was conducted."

 

 

     The operation of s170A was considered by Gray J in  Re Carter; Re Federated Clerks Union of Australia, Victorian Branch (No. 1) (1989) 32 IR 1 at 4:

 

      "In determining whether a direction of a returning officer, purportedly given under s170A(1) of the former Act, has given rise to an irregularity, the Court must act with care.  It has no jurisdiction to sit on appeal from the returning officer, for the purpose of determining whether his or her decision was correct.  If faced with the task of deciding what was an appropriate direction, the Court may have taken a different view from that taken by the returning officer.  The Court is not charged with that function.  Unless the direction of a returning office is wrong in law, or such that no reasonable returning officer could have given it, or the exercise of the power to give a direction is not a bona fide exercise of that power, for the purpose of which the power is given, the Court should not interfere.  A direction given by a returning officer in the exercise of the power given by s170A(1) overrides the rules of the organisation concerned.  It follows that a failure to comply with those rules, where such a direction has resulted in the non-compliance, cannot amount to an irregularity."

 

 

     I agree with his Honour that the Court's role is not to sit on appeal from the returning officer.  However s215(2) makes plain that an "election is not invalid merely because of a breach of the rules".  The language of the sub-section is curious and what is comprehended by the notion of "validity" is not immediately apparent.  If it is a reference to the election being declared void by order of the Court made under s223(3)(a) that depends not simply on the existence of a breach of the rules but also the effect of the breach: see s223(4).  However the use of the word "merely" signifies that a breach of the rules resulting from action taken under s215 does not, of itself, render invalid an election.  However conduct of the returning officer when acting with the authority conferred by s215 may give rise to an irregularity, not because the conduct was in breach of the rules, but because it created a circumstance that was comprehended by paragraph (b) of the definition or was otherwise an irregularity.  For my part, I would not limit the circumstances in which the conduct of a returning officer might result in an irregularity to those identified by Gray J in the passage just quoted.  They involve principles of administrative law that have no necessary relevance to the matters with which Divisions 4 and 5 are concerned.

 

     In the present case the procedure adopted by the returning officer was deficient in several respects.  The first is that the means adopted of ensuring the ballot material was collected by the member and a regular vote cast was to compare the signature on the register used to distribute the ballot material with the signature on the security envelope.  It was not checked with the signature on the membership card.  The ballot material may have been collected by someone who was not the member who used the ballot paper to cast a vote and, in so doing, signed the security envelope.  The signature comparison would, in those circumstances, fail to reveal the fraud.  Healy said in evidence that part of the procedure was that the person collecting the ballot material had to produce identification.  Accepting that was so, the procedure also required a register to be signed and in possibly 62 and certainly 36 instances ballot material was handed over without a signature.  Thus whether identification was provided, in fact, cannot be assumed.  There were 154 or 150 ballot papers distributed in this way which were signed for and used to cast a vote.  A check was made of only 100 of the security envelopes during the count.  That comparison revealed 12 instances of ballot papers which had seemingly been fraudulently completed.

 

     Moreover 66 ballot papers were returned to the Australian Electoral Commission by the managers unclaimed.  No further attempts were made to distribute the ballot material.  There was no evidence concerning the means adopted at each mail centre to notify the members.  It is plain that at two centres the managers went to some trouble to ensure several members received their ballot material by forwarding it to the members at their home addresses.  However at one of these mail centres there were only three forwarding envelopes containing the ballot material returned to the Australian Electoral Commission and at the other there were none.  It was at other mail centres that the numbers returned were significantly greater.  While I am not affirmatively satisfied that these matters constitute an irregularity, the method of distributing ballot material in this way is a relevant circumstance for the purposes of s223(4).

 

Breach of rule 69(a) and 69(d)(vi)(A) - Failure to clear Kogarah mail

 

     The combined effect of rule 69(a) and other provisions of the rules, including 69(d)(vi)(A), is to require the returning officer to clear the box used for the return of ballot papers at noon on the last day of the ballot and include them in the count.  An anomaly arose as a result of the use of the Kogarah return address and the unusual postcode on the return envelope.  In fact, return envelopes would not, in the ordinary course of posting, find their way to the Kogarah Post Office.  Rather they would have been sorted at the Southern Suburbs Mail Centre and retained there in a special locked cage used only for that purpose.  To that extent, the Kogarah return address was a fiction.

 

     However it was part of the agreement with Australia Post that the Australian Electoral Commission would clear mail from the Kogarah Post Office on the final day of the ballot in case any members had, themselves, taken their ballot papers directly to that Post Office.  The evidence of Healy was that arrangements had been made with Australia Post to clear Kogarah on a daily basis and that any such mail was to be taken to the Southern Suburbs Mail Centre and placed in the cage there.  As to what happened on the final day of the ballot, Healy said:

 

      "... but we can't be certain that there was a final clearance made on 29th.  My inquiries - the Australia Post people are not sure whether that clearance was made in time to be included in the final clearance, or if in fact there was anything there to clear, anyway."

 

 

     That evidence and evidence given by a subordinate of Healy, Mr Mitchell Hronsky, is entirely equivocal and I am not satisfied there was a failure to collect, and thus include in the ballot, any completed ballot papers returned directly to the Kogarah Post Office.

 

Breach of rule 69(e) and 69(d)(iv)(A)(5)

 

     The ballot paper used in the election took the following form:

 

                  COMMUNICATION WORKERS UNION OF AUSTRALIA

            NEW SOUTH WALES POSTAL AND TELECOMMUNICATIONS BRANCH

 

                        BALLOT PAPER

 

GENERAL DIRECTIONS-

1. The ballot paper must be completed by you, the voter, personally.

2. Do not put any mark or writing on the ballot paper by which you may be identified.

 

For the election of-          TWELVE ORGANISERS   Directions: Number the boxes from 1 to 34 in the order of your choice.   (names of the four candidates as listed in a column one per line preceded by a box in which to cast vote)	For the election of-            ONE PRESIDENT Directions: Number the boxes from 1 to 4 in the order of your choice.                CANDIDATES (names of the four candidates as listed in a column one per line preceded by a box in which to cast vote)
	For the election of-            ONE SECRETARY Directions: Number the boxes from 1 to 4 in the order of your choice.                CANDIDATES (names of the four candidates as listed in a column one per line preceded by a box in which to cast vote)
	For the election of-       ONE ASSISTANT SECRETARY Directions: Number the boxes from 1 to 5 in the order of your choice.                CANDIDATES (names of the five candidates as listed in a column one per line preceded by a box in which to cast vote)
	After marking your vote:   1.    Place this ballot paper and any other ballot paper you may receive, in the "BALLOT PAPER ONLY" envelope. 2.    Place that envelope in the "SECURITY ENVELOPE" and sign your name on the back. 3.    Place the "SECURITY ENVELOPE" in the Reply Paid envelope. 4.    Post the Reply Paid envelope so that it reaches the Returning Officer not later than 12.00 noon on Friday 29 July 1994.
	TERRY HEALY, RETURNING OFFICER, AUSTRALIAN ELECTORAL COMMISSION, SYDNEY

 

 

     It can be seen that on the ballot paper there was an instruction that the member voting should number the boxes with numerals from one to a number representing the total number of candidates.  Had this instruction been complied with each candidate would have been assigned a number in descending preference by the member voting.  The relevant rules are:

 

      "69   (d)   The Branch Returning Officer shall:

 

                  (i)   ...

                  (ii)  ...

                  (iii) ...

 

                  (iv)  (A)   forward by pre-paid post in an envelope having as few distinctive characteristics as possible to each member entitled to vote:

 

                              (1)   ...

 

                              (2)   ...

 

                              (3)   ...

 

                              (4)   ...

 

                              (5)   voting instructions, printed either on the ballot paper referred to in (1) above or on a separate sheet of paper, containing such voting instructions as the Returning Officer considers necessary or desirable including an instruction that the completed ballot paper should be inserted in the envelope referred to in (4) above, the envelope sealed and inserted into the envelope referred to in (3) above, the name, address and signature to be completed on the envelope referred to in (3) above, the envelope sealed and enclosed in the outer envelope referred to in (2) above and returned by post to the Returning Officer.  Such instructions shall make clear that the process of counting by the Returning Officer shall eliminate any possibility of ascertainment of a member's identity.

 

                  (B)   ...

 

            (e)   The system of voting adopted by a Branch shall be that known as first past the post and shall allow for an order of preference to be indicated by the voter so that in the event of the elimination of a candidate or candidates an effective vote may still be cast.  In the event of the votes of two or more candidates, one of whom is sitting Officer, being equal, the sitting Officer shall be declared to be elected.  In other cases of equal voting the Returning Officer shall determine the ballot by drawing lots.  Where a member votes and his/her intention is clear, his/her vote will be included in the count.  This intention may be indicated by a cross or a tick or a number." (my emphasis)

 

 

     As a matter of fact ballot papers not completed with numbers in the way identified in the instructions were admitted to the count.  They were admitted if they were viewed as recording a preference for a candidate where there was one vacancy or a number of candidates where there was more than one vacancy, namely for the office of organiser.  This included markings by way of ticks or crosses.

 

     It was submitted on behalf of Cook that the formulation of the instruction constituted a breach of the rules.  The submission proceeded on the basis that if the rules permitted the counting of, relevantly, ballot papers completed by way of ticks and crosses, then the instructions should have made plain that such a method of voting was permitted and could be used.  An additional criticism was made that even if numbers were to be used it was unnecessary, having regard to the first past the post system, to require the identification of any candidate other than the preferred candidate in situations where there was only one vacancy, and, in relation to the organisers, the identification of no more than twelve preferred candidates.

 

     It may be accepted that a first past the post system only requires that votes be recorded in the way described in the preceding sentence.  However the critical question is whether the instruction of the returning officer constituted a breach of the rules.  Rule 69(d)(iv)(A)(5) invests the returning officer with a discretion as to what is contained in the voting instructions.  The rule speaks of "such voting instructions as the returning officer considers necessary or desirable".  In so far as the instructions required more than the minimum numbers that were strictly necessary, they were consistent with the exercise of the discretionary power conferred by the rule.

 

     However a more significant issue arises from the failure of the returning officer to instruct members voting that they might vote by  means of ticks or crosses.  That method of indicating voter preference is plainly authorised by the last sentence of rule 69(e).  However there is a measure of inconsistency within that rule.  It first describes the system of voting as first past the post.  However it goes on to say "the system shall allow for an order of preference to be indicated by the voter so that in the event of the elimination of a candidate or candidates an effective vote may still be cast."

 

     This rule is to be read in conjunction with a rule that enables a member to nominate for a number of offices which are, by election, to be filled at the one time.  Rule 63 provides a ranking of positions and requires that the votes be counted in a particular order having regard to the office.  The order is Branch Secretary first, then the Branch Assistant Secretary, Branch Organiser, Branch President, Branch Vice President and last, Committee of Management Member.  The apparent purpose of rule 69(e) is to ensure that if a candidate who is elected to a position has also nominated for another position lower in the order of elimination, the second preference recorded by voters on the relevant ballot papers for that second position will be counted in the ballot.

 

     Thus it was open to the returning officer, in order to give effect to this aspect of the rule, to direct that a sequence of numbers be used and a number recorded against each candidate.  Such an approach would result in the most effective use of a vote cast by a member in an election where, as a matter of fact, one person stood for a number of offices.  There was a potential that, had the returning officer indicated that ticks and cross could be used, it might result in members recording preferences in a way denying them the most effective use of their right to vote.  The instructions used by the returning officer did not involve a breach of the rules and their use was consistent with the authority conferred upon him by rule 69(d)(iv)(A)(5): see Re Carter (No. 1) (supra) at 4.  However the instructions have further relevance.

 

Advice given to Cook by returning officer

 

     A matter raised by Cook as an irregularity relates to the method of voting I have just discussed.  Prior to the ballot opening, Cook spoke to representatives of the Australian Electoral Commission, including Healy, on several occasions.  Described generally, his enquiry was whether ticks and crosses would constitute a valid vote.  He was informed they would.  In reliance on this advice Cook prepared a how to vote pamphlet for one of the groups of candidates with which he was jointly contesting the election, "the Liberal members" team.  The how to vote pamphlet contained a mock-up of the ballot paper.  It instructed the voter to "mark your ballot paper exactly as shown below".  It then indicated preferred candidates whose names were highlighted and in respect of whom a cross was entered in the box next to their name.

 

     As already discussed, this method of recording a vote was open under the rules but the instruction in the mock-up of the ballot paper together with the manner in which a preference was recorded on it, was entirely inconsistent with the instruction that was later to appear on the ballot paper itself.  Cook was also an endorsed candidate with two other groups of candidates.  One was called the "Challenge Team" though Cook played no part in the preparation of a how to vote pamphlet distributed by that group which indicated votes should be recorded by use of numbers.  The other group in which Cook was an endorsed candidate was the "Better Deal Team".  It issued a how to vote pamphlet which again had a mock-up ballot paper with ticks in the boxes next to the preferred candidates and above the mock-up ballot paper appeared the direction "mark your ballot paper exactly as shown below".  Cook was involved in the preparation of the "Better Deal Team" how to vote pamphlet.

 

     It was submitted on behalf of Cook that an irregularity arose from the Australian Electoral Commission by giving the advice it did in the circumstances.  The advice did not proceed on a misconstruction of the rules.  As earlier indicated, ticks or crosses could, under the rules, be used to record a valid vote.  The gravamen of the submission of Cook was that the advice he was given led him to prepare how to vote pamphlets supporting his candidature that were likely to, and did, confuse voters.  There is some evidence that voters were confused though the extent to which that had occurred was in issue.  But, in any event, it is plain from the documents themselves that the disconformity between the information on the two relevant how to vote pamphlets and the ballot paper itself, could well have caused confusion amongst those wishing to vote in accordance with the instructions in either of the two pamphlets.

 

     The Australian Electoral Commission submitted that the conduct of the returning officer could not constitute an irregularity and was no more than gratuitous advice.  In support of this submission reference was made to Re Federated Liquor and Allied Industries Employees' Union of Australia; Ex parte Huxtable (1979) 40 FLR 418.  That case concerned advice given by a returning officer about who was eligible to nominate for office where the advice was wrong.  It was acted upon by three potential candidates who did not nominate.  Northrop J approached the matter on the basis that the conduct of the returning officer could not constitute an irregularity having regard to "the statutory extended meaning of that word".  His Honour said at 425:

 

      "There has been no breach of the rules by the Union or its Tasmanian branch.  There has been no act or omission whereby the full and free recording of votes by all persons entitled to record votes, and by no other persons, or a correct ascertainment or declaration of the results of voting is, or is attempted to be, prevented or hindered."

 

 

     His Honour later noted:

    

      "A returning officer is not authorised by the Act to give advice, his duty is to conduct the elections in accordance with the rules of the organisation, complemented where necessary by the exercise of the powers conferred by s170A of the Act."

 

     His Honour went on to note that the right to nominate derives from the rules and it is for a member of the organisation to decide whether or not to nominate for office having regard to those rules.

 

     In the present case, the advice given by the returning officer was consistent with the provisions of rule 69(e).  The conversation between Healy and Cook took place about a month before the ballot opened which was 1 July 1994 and the form of the ballot paper was drafted at the direction of Healy given on 9 June 1994.  It was not in issue that Cook did not tell Healy that his advice would be relied on for the purposes of printing a how to vote pamphlet.

 

     It may be accepted that a statement concerning the manner in which a ballot paper should be marked which is wrong could constitute an irregularity.  As Gibbs CJ said in Re Gray (supra) at 366-367:

 

      "Some misleading statements may hinder the full and free recording of votes and so fall within the extended meaning of "irregularity" contained in s.4 of the Act.  In Evans v Crichton-Browne, the Court drew a distinction  between misleading statements which were intended or likely to affect an elector when he sought to record and give effect to the judgment he had formed as to the candidate for whom he intended to vote, and misleading statements which might do no more than affect the formation of that judgment.  Examples of statements of the former kind were given in the judgment (28):

 

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

 

 

     In the present case the omission of the returning officer to inform Cook, either in the conversation with him or subsequently, that the instruction to be issued would make no reference to the use of ticks and crosses, together with the issuing of the instruction requiring numbers, probably led to some voters becoming confused about how to cast the vote.  There is thus the real prospect that, as a consequence, the full and free recording of their votes was hindered.  It was a result that was unintended.

 

     The definition of "irregularity" contained in s4 of the Act is not exhaustive.  The language employed is not entirely clear as it concerns the intention of the person doing or omitting to do an act with the consequences referred to in sub-paragraph (b)(i) and (ii), or as it concerns the degree or extent to which the act or omission caused those consequences.

 

     The expression "by means of which" is, in form, linked directly to those consequences with no reference to the actor.  That is, the definition is not structured so that it identifies the means by which the act or omission brings about the specified consequences.  Rather, sub-paragraphs (b)(i) and (ii) are nominal phrases which are the subject of a clause where the verbs in the concluding part of paragraph (b) are in the passive voice.  It may be accepted that the use of the expression "is attempted" involves a reference to the intention of the person doing or omitting to do the act.  However the same cannot be said of the expression "is prevented or hindered".  That expression directs attention only to the consequences of the act or omission and not the intention of the person doing or omitting to do the act.  In my opinion, it is not decisive that the omission of the returning officer was not intended to have the consequence it did.  It is sufficient that it had those consequences or at least was likely to have those consequences.

 

     A related issue is whether the definition is concerned only with acts or omissions that directly hinder the full and free recording of votes or whether it is sufficient that the act or omission had or might have had that effect indirectly.  The question of causation has recently been considered in a different statutory context, namely s82 of the Trade Practices Act 1974, in Wardley Australia Ltd v The State of Western Australia (1992) 175 CLR 514, in which the majority comprising Mason CJ and Dawson, Gaudron and McHugh JJ, made clear at 525 that the word "by" expresses the notion of causation and s82(1):

 

      "should be understood as taking up the common law practical or common-sense concept of causation recently discussed by this Court in March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506, except in so far as that concept is modified or supplemented expressly or impliedly by the provisions of the Act."

 

 

     That approach is, in my opinion, an appropriate one to be adopted in relation to the expression "by means of" in the definition of "irregularity" in so far as that expression involves notions of causation.

 

     Moreover in Hockings (supra) Gaudron J said at 531 in relation to the legislative predecessor of s223(4):

 

      "The sub-section recognises that an act or omission constituting an irregularity may be such that, ex post facto, it can be seen that it has not or will not affect the election result.  But it impliedly recognises that an irregularity is constituted by an act or omission which has a tendency to affect an election result and the impact or likely impact of which can be ascertained in the course of the inquiry". (emphasis added)

 

 

In the present case the returning officer was not informed by Cook that the answer the returning officer gave about the use of ticks and crosses would be relied upon to prepare a how to vote pamphlet.  However the returning officer was under no obligation to advise candidates or members who might vote what the rules meant on any aspect of the election.  Indeed Northrop J in Huxtable (supra) puts it as highly as "not being authorised by the Act to give advice."

 

     Having regard to the time at which Cook spoke to Healy, the nature of Cook's enquiry and that he was a candidate, Healy should have realised that it was likely the enquiry was made by Cook for the purpose of preparing how to vote pamphlets.  It was an obvious purpose.  Healy should also have appreciated that by advising Cook ticks and crosses could be used, a how to vote pamphlet would be prepared for use in the elections referring to that as the means, or a means, of recording a vote for the preferred candidates.  It thus should have been apparent to Healy that the instructions on the ballot paper would, having regard to the likely consequences of the advise he earlier gave, confuse members as to how to actually record their vote.  It impacted not on the formation of a preference of a member voting, but on the means by which that preference was to be expressed.

 

     It is true that Healy believed experienced candidates might inspect, or have someone inspect on their behalf, the ballot paper in a draft form.  This occurred in these elections.  However no inspection was undertaken by or on behalf of Cook and the likely effect of the earlier advice was not nullified by Cook being made aware of the proposed instructions by inspection of the draft.

 

     In my opinion, there is a real and not fanciful causal link between the omission of the returning officer to tell Cook about what the instructions would say in light of the advice earlier given and the subsequent hindering of the full and free recording of votes.

 

     The omission of the returning officer to inform Cook that the instructions would make no reference to voting by means of ticks and crosses was an irregularity.

 

Breach of rule 69(a) and (b) - Inclusion during ballot of members eligible to vote

 

     It was submitted on behalf of Cook that the returning officer wrongly added names of members to the roll of voters after he was sent the initial roll.  The names included people who became financial members while the ballot was being conducted.  It can be seen from rule 69(a) that the ballot is to close at 12 noon on 30 June in the relevant year subject to qualifications which are not presently relevant.  The elections were delayed by approximately a month.  Rule 69(b) requires the returning officer to add or delete from the roll of voters persons "who on or before 30 June become or cease to be entitled to vote in the election".  Rule 69(a) identifies the electorate as "financial members of the Branch".  Thus the scheme contemplated by rule 69 is that a person who becomes a financial member before 30 June, being the date of the close of the ballot, is entitled to vote.  While the election was delayed it was, in my opinion, incumbent upon the returning officer to give effect to the scheme embodied in rule 69(a) and (b).  Thus the returning officer was entitled to add to the roll persons who became financial members before the ballot closed and in doing so did not breach rule 69.  No irregularity occurred.

 

Conduct of the returning officer more generally

 

     It was submitted on behalf of Cook that other aspects of the conduct of the returning officer were, in various respects, deficient and that several of those deficiencies constituted irregularities.  The criticisms are fourfold.

 

     The first related to the opportunity given to representatives of certain candidates to view the ballot paper in a draft form without an invitation being made to Cook or those supporting him also to view the ballot paper in a draft form.  The second concerned the failure of the returning officer either to act or act with sufficient alacrity after receiving complaints about possible unlawful conduct relating to the ballot by referring matters arising from these complaints to the Australian Federal Police for investigation.  Reference was made to the judgment of Fitzgerald J in Re Penhallurick (application for an inquiry into an election in the Transport Workers Union of Australia) (1983) 51 ALR 589 in support of a submission that these matters constituted an irregularity.

 

     The third and related matter, is that the returning officer failed to respond to complaints received during the ballot period about interference in the conduct of the elections.  It was submitted that the returning officer failed to send any notice, or adequate notice, to members eligible to vote informing them about the secrecy of the ballot and the need for them to complete their ballot papers themselves.  As a matter of fact not only was the notice of 7 July 1994, which I have earlier referred to, sent to 1498 workplaces but a further notice was sent to Australia Post with a request that it be circulated by electronic mail warning of the soliciting of ballot material and warning members not to hand their ballot papers to anyone.

 

     Reference was made to rule 69(j) which empowers the returning officer to take action and give such directions as he considers necessary in order to secure both the secrecy of the ballot and that no irregularities occur.  As to rule 69(j), the nature of the power it confers is a broad discretionary one and I do not presently view the conduct of the returning officer as constituting a breach of it.  As to the observations of Fitzgerald J in Penhallurick (supra) as to what might constitute an irregularity, they can no longer be treated as correctly stating the law having regard to the more recent decision of the High Court in Hockings (supra).

 

     Whether, in the circumstances, some of these matters constitute inappropriate conduct may be a matter I will consider at a later stage of these proceedings.  As a result of a submission made on behalf of Mr Cook, I indicated I was disposed to considering aspects of the conduct of the returning officer as "questions concerning the conduct ... of the election" as that expression appears in s223(1).  However I indicated that any such consideration would be undertaken after I had addressed the question of whether any order should be made under s223(3).  It is undesirable that I express a concluded view about these matters at this stage.  It is unnecessary for me to do so because what the returning officer did or refrained from doing is a matter within the scope of his discretionary powers and did not give rise to an irregularity.  I should make it plain, however, that the task of the returning officer in these elections was a daunting one.  The fact that some mistakes were made does not manifest indifference to the task that befell him.

 

     In relation to the fourth matter raised on behalf of Cook, it was submitted that the returning officer should have taken steps to authenticate the roll.  The roll was prepared by the Branch of the organisation and forwarded to the Australian Electoral Commission.  The roll was accompanied by a certificate from the Branch Secretary certifying that the roll contained the name and postal address of every member who was financial at the relevant times.  This issue was considered by Gray J in In the matter of an Application by Pullen for an Inquiry into Elections in the Federated Liquor and Allied Industries Employees Union of Australia (NSW Branch) (1990) 98 ALR 699.  His Honour dealt with this issue at 703:

 

      "On Ms Simpson's argument, the failure of the Australian Electoral Commission to check any roll against the primary records, being the copy receipts and the returns from employers, organisers, collectors and job delegates, amounted to an irregularity.

 

      This argument raises the question whether a returning officer is bound to make such a check of the accuracy of the roll of voters.  Ordinarily, in elections conducted in organisations registered under the Act, the returning officer requires the preparation of a list of members with a certificate of the appropriate official of the organisation as to its accuracy.  No doubt a returning officer acts wisely in carrying out a spot check against records of the organisation to ensure as far as possible the accuracy of the list supplied.  A returning officer is not bound by any provision of the Act to carry out such a check.  To hold that a new regularity occurred in the absence of such a check would be to create a positive legal requirement for such a check.  Argument would then occur as to the adequacy of any check carried out to prevent a finding of irregularity."

 

 

     His Honour goes on to make the point that checks may be made by those seeking to impeach an election and that the failure of the Australian Electoral Commission to carry out such a check was not an irregularity.  For the same reasons no irregularity arose in these elections as a result of the reliance placed on the certificate of the Branch Secretary by the returning officer.

 

Multiple voting - the expert evidence

 

     Over a period of time commencing in October 1994, the document examiner retained by the applicant, Westwood, undertook an examination of ballot material.  His task was twofold.  The first was to examine ballot papers and express a view as to whether more than one had been filled out by the same person.  The second was to compare signatures on a limited number of the security envelopes with signatures appearing on the membership cards of the member concerned.

 

     The method followed by Westwood to analyse the ballot papers may be summarised as follows.  All completed ballot papers were assembled in one large bundle.  They were then broken down into groups according to the pictorial appearance of the numeral "8" which was chosen because it is a reasonably complex structure and appears three times in most of the ballot papers.  This led to fifteen groups of ballot papers.  In an affidavit Westwood identifies a limitation on this initial process:

 

      "This classification could not fully take account of natural variation and alternative formations in the structure of the numeral "8" which can occur in the writing of an individual.  It could also not take account of the possibility of more than one person being involved in the completion of any one ballot paper.  With some ballots it was necessary to decide between conflicting possible classifications.  In these instances the ballot was classified according to the shape of what appeared to be the most naturally written "8" and the ballot paper labelled with an alternative classification/s for later cross-referencing."

 

 

     Westwood also put to one side and did not refer to again, ballot papers which exhibited inherent evidence of genuiness, such as those containing written opinions about the candidates, ballot papers marked with ticks or crosses and ballots bearing gross alterations.  A further analysis was made of the groups of ballot papers which identified some evidence of multiple voting by a number of people.  Ballot papers in this class were grouped into smaller bundles.

 

     At this point of the process Westwood was instructed by the applicant's solicitors to continue the task only in relation to ballot papers that generally followed the how to vote pamphlet of the Natour-Jarman team having regard to votes cast for the organisers.  The effect of this, as I apprehend it, was to limit the number of ballot papers examined any further to approximately 5,400 out of a total of approximately 8,000 admitted to scrutiny.

 

     The process thereafter involved the grouping and re-grouping of ballot papers with a view to identifying those that evidenced multiple voting.  That is, a ballot paper or parts of ballot papers that were filled out by a person who filled out another ballot paper in whole or in part.  This involved not only the comparison based on the numeral "8" but comparisons based on the general pictorial appearance of numerals "2", "3", "4", "5", "7", "9", "24", "29" and "33".  Westwood was assisted in this task by two colleagues, Dr Strachan and Mr McCormack, casual assistants, and at one stage a document examiner from England, Mr D Ellan.  The ultimate result of the analysis were bundles of ballot papers which, subject to various qualifications which are presently unnecessary to detail, were completed by the one person.

 

     The results of Westwood's analysis were first addressed in detail in an affidavit of 26 January 1995 which contained a schedule setting out, in a tabular form, the identity of the bundles, particular comments about findings made in relation to ballot papers in each bundle and the number of ballot papers involved.  As a result of a further analysis of the bundles after 26 January 1995, Westwood revised and modified his conclusions.  This was dealt with in an affidavit of 13 March 1995 which had annexed to it a schedule in essentially the same terms as the schedule to the earlier affidavit but modified to reflect the later reconsideration of the material.  The schedule was annexure 1.  The concluding paragraph of the affidavit of 13 March 1995 was:

 

      "22.  The opinions expressed in annexure "1" to this affidavit are I believe conservative and where any reasonable doubt existed no opinion has been expressed."

 

 

     When the hearing of the inquiry commenced in substance in November 1995 an issue arose as to what paragraph 22 of the later affidavit meant.  As a consequence a further affidavit was sworn by Westwood on 21 November 1995.  In that affidavit Westwood said:

 

      "4.   The possible existence of further evidence of multiple voting arises out of the fact that the classification system based on the numeral "8" could not take account of natural variation and alternative formations (i.e. accidental formations or extreme variants) which can occur in a person's natural writing.  Added to this there is the distinct possibility of disguise being employed on some ballots and the further complication of more than one person having completed a number of individual ballot papers as has been noted previously.  It should also be noted that the initial classification system was undertaken by several people working under supervision but was nevertheless open to subjective interpretation where the structure of the "8"s on a given ballot paper did not clearly fall into one of the 15 classes of "8"s used as the basis of the classification system.

 

      5.    Another classification system based on say the numeral "5" may well have given rise to the creation of additional bundles, exclusive of those described in Annexure 1, which incorporated writers having a wide range of variation and possible alternate formations with respect to the structure of the numeral "8".  Similarly additional ballots may have been added to the bundles described in Annexure 1 if the degree of similarity between all of the numerals except the "8" was strongly pointing towards a common writer.  In this instance, and depending on the nature of the similarities, it may be reasonable to conclude that the range of variation and/or alternate structures for the numeral "8" was greater than was initially determined with respect to the previously identified bundle.

 

      6.    I refer to paragraph 22 of my affidavit of 13 March 1995.  The basis of my statement that the opinions expressed in Annexure 1 are I believe conservative was that firstly the findings as detailed in Annexure 1 are in themselves conservative in respect of strength of qualified conclusions or numbers in existing bundles and secondly the results were not to be taken as a definitive statement as to the incidence of multiple voting in this election." (my emphasis)

 

 

     Subject to the qualifications appearing in both paragraph 22 of the affidavit of 13 May 1995 and the affidavit of 21 November 1995, Westwood's analysis disclosed 879 ballot papers evidencing common authorship. They were grouped into 88 bundles of which 41 contained two ballot papers only.  The largest number of ballot papers evidencing common authorship was 127.  There were 15 bundles containing between 20 and 61 ballot papers.  However each did not evidence common authorship of all markings on each ballot paper.  In relation to one such bundle Westwood expressed the view that certain of the numerals in the organisers' column were written by a person who had completed 46 ballot papers in another group while the remainder of the numerals on these ballot papers were written by another person.

 

     Westwood's evidence, broadly summarised, was either that the ballot papers in each bundle were completed by one person, they were probably completed by the one person or they were very probably completed by the one person.  The last two, and more qualified, formulations were used in relation to a number of the bundles containing only two ballot papers.

 

     No cross-examination was undertaken of Westwood either to challenge his methodology or his stated conclusions about multiple voting, nor to explore the qualification he made to the effect that his findings were conservative.

 

     However, an analysis was undertaken by Anderson on behalf of Jarman and Metcher to complete, it was submitted, the task left incomplete by Westwood.  The methodology adopted by Anderson broadly followed that adopted by Westwood.  However rather than commencing with the numeral "8", Anderson commenced the disaggregation of the ballot papers by using the numeral "5" referred to in paragraph 5 of Westwood's affidavit of 21 November 1995 quoted earlier.  This resulted in five groups of ballot papers of which four contained the formation of the numeral "5" that was, within that bundle, similar.  Each group was then sorted according to the formation of the numerals "8", "4", "3" and "2", with a resultant grouping of 120 groups of ballot papers.  These groups were compared with the groups identified by Westwood with the eventual result that 21 new groups were identified containing ballot papers exhibiting common authorship.  One group contained five ballot papers, one group contained four ballot papers, six groups contained three ballot papers and the remainder contained two ballot papers only.  The total number of ballot papers were 53.  A further four ballot papers were identified by Anderson which could be added to the groups identified by Westwood and in both instances the number of ballot papers added were two to each.

 

     Anderson concluded an affidavit sworn on 27 February 1996, which set out his methodology and opinions, with the following observation:

 

      "17.  It is my opinion that the majority of ballot papers involving multiple voting practices were detected by Mr Westwood."

 

 

     Again, an issue arose in the proceedings as to what this meant.  A further affidavit was sworn by Anderson on 20 March 1996 in which he said:

 

      "2.   In addition to the instructions I have referred to in my earlier Affidavit I was instructed to examine the ballot papers to determine the likelihood of finding evidence of multiple voting in addition to the findings regarding multiple voting made by Mr Westwood.

 

      3.    Having undertaken the examination outlined in my earlier Affidavit including the checks involved in that process, I formed the opinion contained in paragraph 17, by which I mean that whilst there may be a small number of ballot papers that exhibit evidence of multiple voting practice not detected by either Mr Westwood or myself I am confident that there are no large numbers of such ballot papers left." (my emphasis)

 

 

     As with Westwood, there was no cross-examination of Anderson putting in issue his methodology, challenging his conclusions or seeking any amplification of his opinion as to the conclusiveness of the examination he had undertaken.

 

     Thus the applicant and Jarman and Metcher were prepared to make submissions on the ultimate issue concerning the application of s223(4) of the Act on the basis of the unchallenged evidence of Westwood and Anderson.  Counsel appearing for each plainly made a forensic decision not to cross-examine the expert of the other party.  I should note that Mr Johnson, appearing for the Australian Electoral Commission, volunteered to explore with Anderson what he meant by the word "small number" in paragraph 3 I earlier set out.  His offer to do so was as something akin to counsel assisting.  I indicated that I did not view it as necessary for him to undertake that task given the decision the relevant parties had taken about leaving the evidence unchallenged at least by way of cross-examination.  I did so because a balance, of sorts, had been achieved in a procedural sense between the parties who called expert evidence.  It had taken a considerable time to reach that point.  Thus any cross-examination of Anderson could have resulted in an imbalance that might have legitimately been said by one side or the other to require further time.  Having regard to the considerable delays that had arisen to that point it was not a course I was prepared to promote if the parties themselves did not wish to pursue it.

 

     I should, at this stage, deal with one matter raised by senior counsel appearing for Jarman and Metcher.  He submitted that I should not proceed on the basis that evidence of two ballot papers only having been completed by the one person, was evidence of electoral fraud.  This submission was based on observations made by Wilcox CJ in an ex tempore judgment in Carney v Mathews & Ors, 27 March 1995, unreported, when ordering that an inquiry be terminated.  In that matter the applicant was seeking the termination of the inquiry though it would appear there were concerns about whether the Court would certify under s343(1) of the Act that the applicant acted reasonably in applying for the inquiry.  His Honour made plain that the observations he made were based on allegations and not found facts.  Part of the case of the applicant involved allegations of multiple voting.  On this matter his Honour said:

 

      "Many of them are cases where only two or three ballots seem to have been completed by one person.  A situation like that is not necessarily an irregularity.  A member may legitimately ask a friend or relative to fill in a ballot paper for him, that other person also being an elector."

 

 

     Further proceedings, although I do not use that expression in any technical sense, followed from that inquiry.  In the result, Wilcox CJ published further reasons on 20 December 1995 in which he repeated similar views:

 

      "Although it is a matter that excites suspicion, the fact that a single person has filled in more than one ballot paper in a Union election is not necessarily an indication of fraud.  A voter, or a number of voters, might ask a friend or workmate he was more confident about completing documents to complete the ballot for him, or all of them."

 

 

     As a very broad generalisation those remarks may be unexceptional.  However in this inquiry, there is evidence that, on any view, there was electoral fraud perpetrated by multiple voting.  The ballot paper itself contained a direction in the following unqualified terms:

 

      "1.   The ballot paper must be completed by you, the voter, personally."

 

 

     During the period members were voting, the returning officer sent out a notice, to be displayed at the workplaces of the members voting, referring to the unlawful soliciting of ballot material and saying:

 

     "DO NOT HAND YOUR BALLOT PAPERS TO ANYONE.  YOU SHOULD COMPLETE THEM AND POST THEM PERSONALLY.  IT IS AN OFFENCE FOR ANY PERSON TO SECURE A BALLOT PAPER, OBTAIN OR HAVE POSSESSION OF A BALLOT PAPER OR PERMIT ANOTHER PERSON TO HAVE ACCESS TO A BALLOT PAPER."

 

 

     It must be accepted, however, that this notice was only issued after the ballot had been open for several days and its impact must therefore have been somewhat diminished.  Nonetheless a member who wished to cast a regular vote would have had, at the very least, misgivings about asking someone else to complete the ballot paper on his or her behalf having regard to the instruction on the ballot paper.

 

     Thus it is not appropriate, in my opinion, to disregard all instances where multiple voting relates to two ballot papers only on the basis that this may have arisen for the reasons articulated by Wilcox CJ.  No evidence was called illustrating a situation of the type about which his Honour spoke.  In these circumstances evidence of two ballots being completed by one person should be treated as evidence of electoral fraud.

 

     The analysis by the document examiners leads inevitably to the conclusion that ballot papers were completed by persons other than the member entitled to vote to whom the ballot paper was sent.  Each instance constitutes an irregularity.

 

Out of course postings

 

     Evidence was led on behalf of the applicant to show that a significant number of ballot papers returned by means of the return envelope, were posted from locations that were unexpected.  The analysis on which this evidence was based proceeded on the assumption that a member who had completed his or her ballot paper would post it either at or near where they worked or at or near where they lived.  To fully consider this issue, it would be necessary to consider not only the evidence of a Mr Michael Warren and a Mr David Hampson who undertook the analysis, but also fairly extensive evidence of the procedures in Australia Post used to handle mail.

 

     For reasons which I will shortly explain, I do not detail either the methods adopted or conclusions reached by Warren and Hampson nor the related evidence concerning the operations of Australia Post.  However I describe briefly the method of analysis used though I have simplified it somewhat.  It involved scrutinising the marks on the return envelopes.  One mark, a stamp, found on many of the envelopes, appeared over the three bars in the top right hand corner of the envelope cancelling the "postage mark".  That stamp would, if entirely legible, contain the date of stamping and identify the mail centre at which the stamp was affixed.  The other markings on the envelope were two bar codes placed on it by an OCR machine.  One represents the identity of the OCR machine in the mail centre of initial sorting and, as earlier indicated, the other the postcode on the envelope.  What, for example, Hampson did was analyse these markings, where they were legible, and determine the location where the return envelope was likely to have first been processed, and compare that with the residential and work address of the member to whom it was sent.  The analysis of Hampson and Warren generally, though not always, involved reliance on the address on the electoral roll which was either a residential address or a work address.  If the comparison indicated the envelope had been marked in a way that suggested it was posted at a location distant from the home address or workplace of the member concerned then it was treated as an out of course posting.  That is, it could be inferred the ballot paper was not returned by the member to whom it was sent.  It was sent by someone else.

 

     Warren identified 128 envelopes evidencing out of course posting and Hampson identified 881.  The relevance of this evidence is twofold.  It provides evidence corroborative of the conclusions reached by the document examiners.  It may be inferred that the people who committed the electoral fraud did not post the fraudulently completed ballot paper at a place that the member to whom it was sent might have done.  Secondly, it may tend to establish that the number of irregularly completed ballot papers exceeded the number identified by the document examiners.

 

     Senior counsel for Jarman and Metcher illustrated how a number of specific instances of out of course postings might be readily explained.  He also, more generally, pointed to situations that were themselves quite unexceptional but may have given rise to markings that would have led Warren and Hampson to conclude the envelope was posted out of course.  Reference was made to situations where; the member lived and worked in different Australia Post areas and posted the return envelope from the location that was not the one recorded on the roll; the member might have worked at a location different to their normal workplace during the ballot period; the return envelope might have been posted by someone else on behalf of the member and had been posted, for example, on the way to the workplace of that other person;  the member might have changed address and lived in a different address to the one on the roll; the member might have posted the return envelope while on holidays; and the member might have posted the return envelope at work at a point in the mail processing stream where markings might be made at the mail centre of destination inconsistent with the markings Hampson and Warren assumed would be on the envelope.

 

     Each of these matters could well explain at least some of the incidents of out of course posting.  While I do not accept that the possibility of innocent explanation diminishes entirely the worth of the analysis undertaken by Hampson and Warren, it limits its probative effect in so far as it is relied upon to establish a number of irregular votes exceeding the number emerging from the analysis of the document examiners.  It does, on the other hand, provide evidence corroborative of the evidence of the document examiners.  Because of the somewhat limited reliance that can be placed on this analysis it is unnecessary to consider the fairly detailed, somewhat confused and ultimately inconclusive evidence concerning the way in which mail is handled by Australia Post and upon which the analysis depends.

 

Evidence concerning specific instances of irregular conduct

 

     Evidence was led on behalf of both the applicant and other parties concerning the conduct of particular individuals that generally fall into six groups.  I will now consider each in turn.

 

(1)  Events at the Eastern Suburbs Mail Centre

     Evidence was called on behalf of the applicant from five witnesses concerning events at the Eastern Suburbs Mail Centre.  Three were women  employed by Australia Post at the centre who said they were approached and asked to hand over their ballot papers.

 

     Ms Mary Buenaflor said in an affidavit of 26 October 1994 she was approached before the ballot opened by Mr Paul Michel who asked her to give him her ballot paper when she received it.  He indicated she would have to sign a piece of paper before she handed the ballot paper over.  She was told by Michel that he wanted the ballot paper so that it could be filled in for the Natour group.  She said she would give it over.  A few days later she was approached by Mr Chamrod Ratnavirawatana who made a request similar to that made by Michel.  Again, she said she would give it over.   A short time later there was a further contact by Ratnavirawatana about whether she had received her ballot paper.  Shortly before receiving her ballot paper, she saw a notice on a bulletin board at work indicating that vote buying was a crime.  She then went and saw Michel and said she felt she should not give her ballot paper to him to which he said it was up to her to decide.  Upon receipt of her ballot paper she completed and posted it herself.

 

     She was cross-examined about these events.  It did not appear English was her first language though she was well able to answer questions put to her.  She did not retreat generally from the account in her affidavit.  However some of the answers she gave, if read literally, evidenced a confusion as to whether she had been asked by Michel to provide him with a ballot paper that had not been completed rather than completed.  She also said, seemingly contradicting what she had said in her affidavit, that Michel did not say that he would fill in the ballot paper.

 

     However a fair analysis of her evidence, in my opinion, discloses that she believed, when she gave evidence, that the ballot paper had to be signed and that what she was asked by Michel was to hand over the incomplete ballot paper that she had signed.  That the ballot paper needed to be signed was wrong though plainly the security envelope needed to be.  However this confusion does not, in my view, lessen the import of her evidence.  It was that she was asked to hand over a ballot paper when it had not been completed by her.  In relation to Michel's comments about filling out her ballot paper, her evidence in chief was that Michel had said it can be filled in for the Natour group.  Thus her acceptance in cross-examination of the proposition that Michel did not say he would fill it in is readily explicable.  Nothing was put to Buenaflor that suggested she had any partisan interest in giving the evidence she did, indeed no attack was made on her credit more generally.  I found her a credible witness who sought to give an honest account of the events in question.

 

     Evidence to similar general effect was given by Ms Tatiana Morris.  She said in her affidavit of 27 October 1994 she was approached by Ratnavirawatana who said to her that she was soon to get her ballot papers and that she should then sign the envelope and give everything to him.  She replied in non-committal terms.  When she received the ballot paper she had to see Ratnavirawatana about a work related matter.  He asked her for her ballot paper.  She tried to change the subject and he reproached her for doing so.  She then said to him that she first had to read the how to vote pamphlets and the information about the candidates.  She was later spoken to by Ratnavirawatana during a tea break in the presence of a Ms Susana Patricia Yanten.  He asked both of them when they were going to give him the ballot papers.  Yanten said she had mailed hers and Morris said she was going to do the same thing.  Morris thereafter completed and posted her own ballot paper.

 

     She was cross-examined about these events.  She said that when first approached by Ratnavirawatana she was working with Yanten on an OCR machine and this was three weeks to a month before she got her ballot paper.  She said this was the only approach before receiving the ballot paper.  The time at which Morris said she and Yanten were approached by Ratnavirawatana differed from the time nominated by Yanten.  However Yanten's evidence, which I refer to shortly, was quite equivocal on this question of time and her cross-examination on the matter arose from an ambiguity in her affidavit.  Morris's account of what was said in the last conversation with Ratnavirawatana differed from Yanten's account.  Morris's evidence in chief was not, in my opinion, compromised in cross-examination.  She also was not shown to have any partisan interest in giving the evidence she did and again no attack was made on her credit more generally.  She also was a credible witness who appeared to give an honest account of events.

 

     Yanten gave evidence in an affidavit of 27 October 1994 about the contact with Ratnavirawatana.  She said he approached her and asked that when she received her ballot paper, sign it and give it to him.  She asked why and was told that it was not anything important, it was an election for some positions outside the centre and did not involve her.  She then recounted the incident with Morris in a tea break.  She said Ratnavirawatana approached her  and asked her whether she had signed her paper to which she replied she had already sent it.  After confirming this was so, he asked Morris what about her ballot paper to which she replied she was going to do the same.  Ratnavirawatana then said it was up to her in a tone that was perceived by Yanten as threatening.

 

     Yanten's first language, like Morris's, was Spanish.  Her English was not very good and while her cross-examination commenced without an interpreter, it concluded with the assistance of one.  I would approach her evidence, in isolation, with reservations because of her apparent lack of fluency in English.  The affidavit was in English and an interpreter was not used in its compilation.  However, her evidence must be considered together with that of Morris.  Yanten, like Morris and Buenaflor, appeared to be giving an honest account of the events in question and it was not suggested she had a partisan interest in doing so.  Her credit was not challenged more generally.  There is no reason apparent from her evidence to doubt her account of the approaches by Ratnavirawatana even if her account of what was said by him needs to be treated with some caution.

 

     Michel and Ratnavirawatana gave evidence.  Michel denied asking Buenaflor for her ballot paper and said he could not recall a conversation in which she said she would not give him her ballot paper.  He said that as far as he could recall he only spoke to Buenaflor about her shift changes.  Michel was a shift changer which is a position of indeterminate status within a mail centre entitling the occupant to intercede on behalf of a defined group of employees in their dealings with management about the shifts they work.  It was a position conferring power on the shift changer, and thus an element of influence, in relation to the employees in the group.  Michel did not say he had a conversation with Buenaflor some time before the ballot opened that she may have misunderstood or was not accurately recalling in her evidence.

 

     Michel was a supporter of the Natour-Jarman team in the elections and his name appeared on that team's how to vote pamphlet in a list of supporters.  He plainly had an interest in the outcome of the election and thus had an interest in doing what he was alleged to have done.  He also had an interest in denying the conduct alleged given that it involves participation in electoral fraud.  While I do not place great weight on his demeanour, he nonetheless had an air of self assurance bordering on arrogance as he gave his evidence.  He gave evidence about other matters which I turn to shortly.

 

     The evidence of Buenaflor constitutes an allegation of serious misconduct against Michel which he denied.  In an inquiry the Court is not bound by the rules of evidence: see s222(3)(b).  That, however, is not a licence to determine a matter in the absence of probative material: see R v Deputy Industrial Injuries Commissioner (1965) 1 QB 456, Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666 at 685 and Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 especially at 368 and 356-357. Having regard to the nature of the allegation it appears to me appropriate to require cogent evidence that clearly establishes that Michel did as alleged by Buenaflor before making a finding to that effect consistent with the principles discussed in Briginshaw v Briginshaw (1938) 60 CLR 336.  I adopt the same approach in relation to other allegations that individuals engaged in reprehensible or unlawful conduct.

 

     I accept Buenaflor's account of what she was told by Michel.  Her evidence is cogent evidence of sufficient weight to justify an adverse finding against Michel.  I do not accept Michel's denial of the conversation.  I also accept Buenaflor's account of her conversation with Ratnavirawatana.  Ratnavirawatana denied not only the conversation alleged by Buenaflor but also the conversations alleged by Morris and Yanten.  Unlike Michel, there is no evidence to suggest he was an active supporter of the Natour-Jarman team and thus there is no ready explanation as to why he might solicit ballot papers.  However, like Michel he has an interest in denying the allegations of involvement in electoral fraud.  The allegations are made by three witnesses.  I accept their evidence that he approached them.  While, as I earlier indicated, I have reservations about the evidence of Yanten about what was said by Ratnavirawatana, I do not have any reservations about the evidence that was given by Buenaflor and Morris.  Ratnavirawatana did not accept that some conversations took place but that the three women involved misunderstood what was said or their recollection of what was said was faulty.  He simply denied any conversation at all.  I do not accept this denial.  I accept that he had conversations with Morris and Buenaflor as they recounted them and it is probable that he made a request of Yanten, at the time he first spoke to Morris, in the same vein as the request of Morris.

 

     Mr Shane Armstrong also gave evidence of conversations with Ratnavirawatana and Michel.  That these conversations occurred was denied by Michel and Ratnavirawatana.  Armstrong said in an affidavit of 11 October 1995 that after receiving a duplicate ballot paper, having lost the first he was sent, he was approached by Ratnavirawatana.  He was asked by Ratnavirawatana whether Michel had seen him about his ballot paper.  Armstrong volunteered he would see Michel which he did.  Michel said they were supporting the Natour-Jarman team and were going to stab another employee, Lee HH, in the back.  Michel then asked Armstrong to give him his ballot paper.  Armstrong was stunned and walked away without saying anything.

 

     During cross-examination several things emerged.  The first that at the time of the incident Armstrong viewed Michel as a friend.  The second is that in November 1994 an incident occurred which resulted in a complaint being made against Armstrong by another employee which resulted in Armstrong undergoing disciplinary counselling.  Michel provided Australia Post with an account of the incident giving rise to the complaint confirming the account of the complainant.  It was thus an account against Armstrong's interests.  Armstrong agreed he was angered by Michel having supported the other employee.

 

     Another employee, Mr Thien-Chi Tran, gave evidence in an affidavit of 27 October 1995 that in March 1995 he spoke to Armstrong, who Tran then regarded as a friend.  Armstrong said he was going to testify to put Michel in jail because he was a "dickhead" and a witness against him in the matter to which I have just referred.  Tran said that was no good as they were all workmates to which Armstrong replied that he was going to tell the Court that Michel asked him for his ballot paper.  This conversation was not put to Armstrong in cross-examination in order to enable him to respond to the evidence even though the affidavit of Tran was sworn before that cross-examination.  No evidence was led from Armstrong that he had read Tran's affidavit nor was I informed by counsel who called Armstrong that he had.  Even if Tran's evidence is accepted, and I have no reason to doubt it, it does not establish that Armstrong was saying he intended to fabricate a story.  It does however make clear that Armstrong was motivated to give evidence because of his antipathy towards Michel for what he had done.  However that, in any event, could be inferred from the evidence Armstrong gave in cross-examination.

 

     The critical question is whether Armstrong's evidence should be accepted.  The credible evidence of Buenaflor that Michel engaged in similar conduct for the same purpose at about the same time, renders it more likely the events described in Armstrong's evidence occurred notwithstanding his motive for coming forward to give it.  While Michel and Ratnavirawatana denied that the conversations referred to by Armstrong occurred at all, I place little reliance on that denial as I do not accept them as truthful witnesses.  I accept that the conversations between Armstrong and Ratnavirawatana and Armstrong and Michel occurred and were in the terms or to the effect deposed to by Armstrong.

 

     This evidence establishes not only a further instance of soliciting ballot papers but also, in my opinion, that Michel and Ratnavirawatana were working together for that purpose.  Had they succeeded in obtaining the ballot papers of Buenaflor, Yanten, Morris and Armstrong, the plain inference is that they would have been filled in to record a vote for the Natour-Jarman team.  The conduct of Michel and Ratnavirawatana was, to adopt the language of the definition of "irregularity", an act by means of which a free recording of votes by persons entitled to vote is attempted to be prevented.  It thus constitutes an irregularity.

 

     Two other incidents at the Eastern Suburbs Mail Centre were dealt with in the evidence.  Mr Patrick Fielding gave evidence in an affidavit of 16 November 1994 that during the ballot period he saw Michel place something in a pigeon hole used for mail directed to Australia Post employees at the mail centre.  It was one in a bank of pigeon holes.  Fielding later looked in the pigeon hole.  He saw an envelope addressed to a Ms T N Law which he handled in a way which revealed in it ballot material, namely a signed security envelope, other envelopes and an incomplete ballot paper.  He also gave evidence of a conversation with another employee Mr Melvin Gomez in which Gomez said Michel had asked him for his blank ballot paper which Gomez handed over.  Gomez gave evidence and denied having this conversation.  Michel denied having handled ballot material of Law.

 

     I found the evidence of Fielding about the manner in which he handled the envelope and what he saw as a consequence not entirely plausible.  He said he touched the material inside the envelope.  He had earlier given evidence that he did not recall touching anything in the envelope.  He said the ballot papers were blank.  He said he could not remember whether they were folded.  He summised that they were not because he could see "the bit that you would fill in clearly".  This is unlikely and it is more likely, in my opinion, that had there been ballot papers in an envelope it would have been folded given the comparative size of the ballot papers and the envelope.  It is likely Fielding saw something that aroused his suspicion.  He was a scrutineer for a candidate in the election not supported by the Natour-Jarman team and would probably have had a particular interest in any events he perceived as irregular at the mail centre.  The critical part of this evidence is what he saw in the envelope he inspected.  His evidence on that question is not reliable and I do not accept it.  Fielding's evidence concerning Gomez is hearsay evidence.  Putting to one side Gomez's denial, it is, in any event, not evidence upon which I would make an adverse finding against Michel.

 

(2)  Events at the South Western Mail Centre

     Evidence was given by Mr Matthew Threadgold in an affidavit of 8 November 1994 of an incident he observed at the South Western Mail Centre involving Mr So Han Quang and Mr Mohamed Saadeldine.  It was just after midnight and Threadgold was driving a forklift in the dock area of the mail centre.  He saw Quang beckon Saadeldine.  When they met, Quang took from his pocket inside his jacket a printed envelope.  He flicked through the contents of the envelope and took a second envelope out of the first.  He placed both envelopes on a post bag rack.  Saadeldine signed the envelope and Quang then put the envelopes together and put them back in his jacket.  In re-examination he said he was 12 to 15 feet away from them when he made these observations.

 

     Saadeldine, in an affidavit of 18 October 1995, denied the events and, in particular, denied signing an envelope.  He said he filled in his ballot paper at home where it had been sent, and posted the return envelope himself.  He did not take the ballot papers to work.  Quang also gave evidence and denied this and other allegations concerning him which I refer to shortly.  Saadeldine was not an impressive witness and several matters were put to him in cross-examination suggesting why he might have given the evidence he did but nothing conclusive was established.  However there is no real basis apparent from his evidence  that his denial and the evidence he gave about how and where he filled in the ballot paper should not be accepted.

 

     Moreover Threadgold's evidence must be approached with caution for three reasons.  The first is that he was a candidate in an election for the position of Assistant National Secretary and he accepted he was on "the Battese ticket".  He was, in fact, endorsed on the "Better Deal Team" how to vote pamphlet along with the applicant.  He is a friend of the applicant's son, Mr Michael Battese who I will generally refer to as Battese.  The second reason is that he signed a statutory declaration dated 26 July 1994, in which he described the incident.  In cross-examination he said, though with no certainty, that he completed the statutory declaration within 2 to 3 days and up to a week after the incident.  He doubted whether it was 2 to 3 weeks after the incident.  However the statutory declaration commenced with the words:  "Whilst working on the dock approximately two weeks ago".  His capacity to recall events with any accuracy when he gave evidence orally must, in my opinion, be doubted.

 

     The third reason is that the statutory declaration speaks of Quang pulling from his pocket "an opened ballot paper" and that Saadeldine signed "the paper".  No mention was made of envelopes.  While a statutory declaration prepared in the way his was would be unlikely to be drafted with the precision of an affidavit drawn with the assistance of a lawyer, the language of the statutory declaration nonetheless leaves room for real doubt as to what Threadgold saw.  In my opinion, it is likely he saw something that he viewed as suspicious when he saw it.  With the passage of time his recollection of events was influenced, possibly quite unwittingly, by a desire to paint a picture most damning of Quang and, incidentally, Saadeldine.  I am not satisfied, to the requisite degree given that electoral fraud is involved, that the event Threadgold gave evidence about actually occurred.

 

     Another incident involving Quang was the subject of evidence of Ms Melissa Tandingan in an affidavit of 25 January 1995.  She said Quang approached her and said that he would help her no matter what was her problem, but she must vote for him.  He went on to say that if she did not, he would not do anything for her.  He later asked to see her completed ballot paper but she refused.  Both matters were denied by Quang.  He was, at the time of the incident, an authorised union representative at the mail centre.

 

     Quang was not fluent in English.  Tandingan accepted that during her cross-examination.  Quang was not a candidate so any request that Tandingan vote for him could not have been literally true.  This was accepted by Tandingan who said she understood it to mean, vote for "his side of the Union".  Evidence was given by Battese which was not subsequently put in issue when Quang gave evidence some months later, that Quang was an active supporter of Natour, Jarman and Metcher.  He thus had an interest in the outcome of the election.  At one stage in her cross-examination, Tandingan indicated the affidavit did not, in a material respect, reflect the entire conversation.  Tandingan plainly did not like Quang.  While it is likely that some conversation took place between them about the election I am not satisfied to the requisite degree, that Quang said the words attributed to him by Tandingan.

 

     The next incident is a conversation about which Battese gave evidence in an affidavit of 8 November 1994.  He said he was approached by Quang who made a comment that after the election Battese would feel the heat and that his father wouldn't be there to help him.  Battese said "(Quang) you're kissing Jalal's (Natour) arse today, you'll be kissing mine tomorrow".  There was a comment by Quang about how do you, Battese, think you are going to win.  Then the following was said by Quang:

 

      "We have already got to the big 200 in the East.  How could you possibly win the Union election when all the people on the back of our ticket will vote and collect for us."

 

 

     There was some further discussion about voting in the election and the conversation continued.  It resumed a few minutes later at the initiative of Battese and according to him the following was said:

 

      "I then approached So Han Q 5 to 10 minutes later at the indexing desk where he was working and said "Well if you got 200 in the East how much did you get in the North?".  He replied "70%".

 

      I then said "And in the North West?".  He replied "70%".

      I then said "And in the South?".  He replied 80%".

      I then said "And in the South West?".  He replied "70%".

      I then said "You haven't got 180".  He replied "I'm not telling you how much we collected."

      I then said "And the City?".  He replied "50%"."

 

 

     That these conversations occurred was denied by Quang.

 

     Battese's evidence does not concern the conduct of Quang unless the "we" in the penultimate line is a reference to him and others collecting.  Viewed in context it appears more likely to be a reference to his political group as a collective.  Thus, if accepted, it would evidence knowledge on Quang's part of conduct by others involving electoral fraud, the evidence does not implicate Quang in that fraud at least in any direct way.  In so far as the alleged conversation concerns the Eastern Suburbs Mail Centre, what is said by Quang is consistent with findings I have made about the conduct of Michel and Ratnavirawatana.

 

     An attack was made on Battese's credit based on an incident which occurred in early 1994.  Battese accused Quang of assaulting him.  As a result the police were called in though no charges were laid.  Counsel for Jarman and Metcher pointed to the fact that Battese was much larger than Quang, and, at least by implication, it was unlikely Quang assaulted Battese.  However it was never put to Battese directly that the assault did not occur.

 

     Of more immediate relevance is the submission that the relationship between Battese and Quang was not a good one and it is thus unlikely that any conversation occurred of the type Battese gave evidence about.  However the conversation, as recounted by Battese, is between two people who plainly dislike each other.  The words attributed to Quang have the appearance of someone who is gloating about the probable loss of any influence of Battese and the consequential ability of Quang to assert power over him.  That they were said is entirely credible.  As an active supporter of the Natour-Jarman team, Quang had an obvious interest in denying evidence that suggested widespread electoral fraud.  Equally, however Battese, as the son of candidate and as someone who had an active involvement in the election, had an interest in giving evidence damning supporters of his father's political opponents.  Nonetheless I am satisfied, on balance, that the conversation as alleged by Battese took place.

 

     Battese also gave evidence of a conversation he had with a Mr Tan Huu Duong.  Duong was a shift changer in the centre.  Battese said to Duong that he was very chirpy for someone who was collecting ballot papers, to which Duong said "Oh yeah, but I didn't collect many."  Duong was not called and the conversation was not denied.  I accept Battese's evidence.  The statement by Duong constitutes an admission of having collected ballot papers.  If a benevolent view was taken of what was said it would leave open the possibility that the ballot papers were completed.  Even if so, that would be likely to be an irregularity.  However having regard to other evidence in the inquiry which I have accepted, the reference to collecting was, in my opinion, a reference to collecting incomplete ballot papers from other members at the mail centre for the purpose of being fraudulently completed.  This evidences an irregularity.

 

(3)  Events at the Seven Hills Mail Centre

     Hampson was also called on behalf of the applicant to give evidence about certain events at the Seven Hills Mail Centre.  He described several incidents involving discussions with members working at the centre who said they had been approached and asked to hand over their ballot paper.  The affidavit identifies the person who made each request.  None of the individuals Hampson spoke to were called and, with two exceptions, the person said to have asked for the ballot paper was called and denied having done so.  The evidence of Hampson is, relevantly, hearsay involving serious allegations that are denied.  In those circumstances it is not appropriate, in my opinion, to give any real weight to Hampson's evidence or to embark upon a detailed consideration of it:  see Re Pullen (supra) at 708.

 

(4)  Conversation between Jarman and Teuma

     Evidence was called on behalf of Cook from Mr Raymond Teuma in an interlocutory application made during the course of the inquiry.  I later ruled that his evidence should be treated as evidence in the inquiry itself.  Teuma's evidence concerned two telephone conversations with Jarman.  The first occurred shortly before the ballot opened.  The critical part of the conversation is that after Teuma discussed with Jarman the possibility of Teuma being offered a redundancy package and a general discussion about the number of votes Teuma would get in the election, Jarman said words to the effect that: "If you can collect 600 votes you will get in", and shortly after that: "If you can get me 600 votes we can do something about your voluntary redundancy".  Had Jarman spoken those words it might be inferred he was inviting Teuma to physically collect 600 ballot papers.  Teuma said there was another phone conversation with Jarman about a week later in which Jarman again said words to the effect that if Teuma could collect the votes he, Jarman, would do something about a voluntary redundancy.  Teuma was a candidate in the election and was aligned to interests in opposition to the Natour-Jarman team.

 

     Jarman accepted that a redundancy had been discussed with Teuma on several occasions.  Jarman did not deny that he had telephone conversations with Teuma but did deny that he asked Teuma to collect ballot papers on his behalf.  Jarman did not, in his evidence in chief, say whether he discussed the election with Teuma on the phone nor was he cross-examined about that matter.  It is likely that Jarman and Teuma did have a conversation about the election in the context of a conversation about a redundancy package.  It is thus possible that during a discussion about the election there was a discussion about the number of votes Teuma might attract in his own right as a candidate.  It is also possible that Teuma misunderstood something that Jarman said.

 

     However Teuma's account of what was said that could have been improper conduct on Jarman's part was not a consistent one.  Various formulations were used by Teuma to describe what was said by Jarman in the critical part of the conversation.  Moreover it is inherently unlikely, in my opinion, that Jarman would have invited an opponent in an election to undertake the task of collecting ballot papers in a conversation such as this.  It may be accepted that Teuma was extremely anxious to obtain a redundancy payment and that was known to Jarman.  Even so, I find it implausible that Jarman would have sought to exploit that by asking Teuma to collect ballot papers.  I do not accept that he did.

 

(5)  Conversation between Holden, Albanese and Applicant

     Evidence was called on behalf of Cook about a conversation that was alleged to have taken place in June or July 1994 between Mr Michael Holden, the applicant and Mr Anthony Albanese in the street in Liverpool Street, Sydney.  Holden was called on behalf of Cook and his account of what was said is as follows:

 

      "Battese:   "We're in with a good chance in this election."

 

      Albanese:   "Well, Natour told Jarman that he was going to collect 2,000 ballot papers and this would be hard to beat.  I see the Liberals have a ticket out.  Whoever thought of that, it was a brilliant idea."

 

 

     Holden was a credible witness.  His account of what was said was corroborated by evidence of the applicant who was called on behalf of Cook.  However two qualifications need to be made about the applicant's evidence.  The first is that he was present in court when Holden gave his evidence and was cross-examined.  The second was that his account of the critical part of the conversation was: "Mr Anthony Albanese said to me, well I was told by Mr Jarman that Jalal Natour was gathering 2,000 ballot papers, it would be a hard election to win."  In the present context "gathering" and "collect" may be viewed as describing the same matter.  Nonetheless, having regard to the way in which and the circumstances in which the applicant gave evidence, I was not entirely confident that he had a reliable independent recollection of precisely what was said.  I am inclined to think that he did not.

 

     Evidence was given by Albanese who was called on behalf of Cook.  In his evidence in chief he said he knew both Jarman and Natour but could not recall any conversation with either of them about elections in the organisation.  He had no independent recollection of the elections to which this inquiry relates.  His cross-examination by senior counsel for Jarman and Metcher was limited.  He was shown the affidavit of Holden and asked to read it.  He was then asked did he say those words to Battese.  He answered no.  Both the question and answer were precise. 

 

     There was then a brief adjournment before Albanese was re-examined.  During his re-examination he indicated he could recall having conversations with the applicant about elections in the organisation.  He also indicated he could recall running into the applicant in the street in the vicinity of Liverpool and Sussex Street.  He accepted that he may have run into the applicant when the applicant was with Holden.  The evidence of Albanese permits of the possibility that he had a conversation with the applicant and Holden in which Albanese did not use the actual words attributed to him by Holden but used words to similar effect.  Indeed senior counsel for Jarman and Metcher successfully resisted a question being put to Albanese in re-examination that might have revealed that this was so.

 

     In cross-examination Jarman said he did not have any discussions with Albanese about the elections to which this inquiry relates.  Save for the qualification I earlier made about the evidence of the applicant, there was nothing about his evidence, or the way in which it was given, or the evidence of Holden, Albanese or Jarman that suggested it should not be accepted.  The evidence of each may be reconciled.  Albanese may have said things to Holden and Battese but, at the time he gave evidence, his recollection was that they were not in the terms referred to in Holden's affidavit.  It is also possible that had he done so he mistakenly referred to Jarman rather than, for example, Natour as the source of the information, though what is alleged by Holden to have been said by Albanese does not make plain, in any event, that it was Jarman who spoke to Albanese.

 

     It is far from clear where the truth lies.  In so far as anything Albanese may have said might have constituted evidence of an admission by Jarman of participation in electoral fraud, it is being sought to be proved by hearsay evidence.  That is, it is being sought to be proved by Holden's account of what Albanese, on one view, implied Jarman had told him.  The only witness who could give direct evidence of any such admission having been made was Albanese.  He did not give that evidence.  I am not satisfied that any such admission was made by Jarman. The evidence might also be relevant in so far as it identifies a number of ballot papers and that it was intended that they would be improperly and irregularly obtained by Natour or those acting on his behalf.  However even if the figure of 2,000 ballot papers was mentioned in any conversation Albanese might have had about the election it is, having regard to the circumstances in which the figure came to be mentioned and what was said, evidence of little weight.  Accordingly, I do not view it as establishing that a total of 2,000 ballot papers were or were going to be collected on behalf of the Natour-Jarman team.

 

(6)  Events in Dubbo

     I briefly refer to one other matter.  Mr Paul Hocking gave evidence of having invited members in the Dubbo area who had voted to forward to him their completed ballot papers in the return envelope so that he could then forward them to the returning officer.  Many did.  He was a cable assigner working for Telstra at its Dubbo office and was the President of the Dubbo Sub-Branch of the Branch of the organisation in which the elections occurred.  It appeared he was a person of some influence, though I do not use this description in any critical way.  Nonetheless what he did was naive, stupid and possibly unlawful.  However he appeared an entirely credible witness and I accept that he was not motivated by any improper purpose in doing what he did.

 

The conduct of the count of the ballot

 

     During the counting of the ballot the returning officer rejected a number of ballot papers for a variety of reasons.  It was submitted on behalf of the applicant that a number of the rejected ballot papers should be treated as evidencing electoral fraud of the type established by the document examiners.  As they were not included in the count and thus not scrutinised by Westwood and Anderson, the number involved should be added to the number they identified.

 

     The first group of ballot papers were contained in a security envelope on which there was no signature.  They numbered 131.  It is assumed these envelopes and other envelopes in these groups contained ballot papers as they were not opened.  The submission made on behalf of the applicant proceeded on the basis that if a ballot paper and security envelope had been irregularly obtained then the person unlawfully completing the ballot paper may have thought the risk of detection of the fraud would be increased by signing the security envelope.  The signature was not likely to correspond with the signature of the member to whom the vote was sent.  The explanation proffered on behalf of Jarman and Metcher was that the system of voting was a complex one and the tasks to be undertaken by a member when casting his vote were numerous.

 

     That this is so may be accepted.  However if it is assumed that a member had gone to the trouble of returning the security envelope for the purposes of casting a valid vote then the member would also ordinarily have both filled out the ballot paper, placed it in the "ballot paper only" envelope and placed that envelope in turn into the security envelope.   That would all then have been placed in the return envelope.  This would all have been done by following instructions appearing on the ballot paper which included the instruction to "sign your name on the back" of the security envelope.  It is of some significance that not only did that instruction appear on the ballot paper it was repeated on the back of the security envelope itself in bold and clear type.  On the flap used to close and seal the envelope there was printed in bold: "SIGN BELOW OR YOUR VOTE WILL NOT BE COUNTED".  It was a plain, direct and unambiguous instruction.  This was on a part of the envelope that must have almost certainly have been seen by the voter when the envelope was sealed.

 

     While it might be possible to discount a limited number of the security envelopes which were not signed on the basis advanced on behalf of Jarman and Metcher, it is likely, in my opinion, that the majority of them have been returned by those involved in electoral fraud.  It is also possible that unsigned security envelopes were returned by members not involved in electoral fraud who were indifferent as to whether a valid vote was cast.  However it is unlikely that this occurred given the effort that would have been required of inserting the security envelope in the return envelope and posting it.

 

     The next group of ballot papers not admitted to the count were those where the "ballot paper only" envelope was not used.  They numbered 195.  It was submitted on behalf of the applicant that in the context of proven fraud a suspicion arose in relation to this group.  However in this instance I find the argument about electoral complexity more compelling.  It is true that the instructions on the ballot paper directed that the "ballot paper only" envelope be used.  Moreover the flap used to seal the security envelope noted that "YOUR VOTE IS SECRET - THE "BALLOT PAPER ONLY" ENVELOPE WILL NOT BE OPENED UNTIL IT HAS BEEN SEPARATED FROM THIS ENVELOPE".  However it was not plain from the instructions on both the ballot paper and the security envelope that the ballot paper would not be admitted to the count if the "ballot paper only" envelope was not used.  Thus, to that extent, the instructions were not entirely clear.  Moreover it is not difficult to imagine situations where that envelope was misplaced.  I am not satisfied that this group of ballot papers should be treated as evidencing electoral fraud.

 

     The next group were ballot papers where a security envelope was not used.   They numbered 55.  Again the instructions on the ballot paper indicated this envelope should be used.  For the reasons just discussed in relation to the "ballot paper only" envelope the failure to use the security envelope at all may have arisen from confusion or inadvertence in some instances.  However it is possible that there could well have been instances where a person who had fraudulently completed a ballot paper elected not to include it in a security envelope so as to avoid having to sign it and thus expose the false signature to scrutiny.  In my opinion, it is likely, having regard to the proven electoral fraud, that many of these envelopes contained ballot papers that were irregularly obtained and fraudulently completed.

 

     The next group were 6 security envelopes which were signed but the address label had been detached.  No innocent explanation for this is readily apparent unless a member decided that the label, but not the signature, might result in the linking of the vote cast with his or her name.  However this is unlikely and it is more likely that this was another device used by those participating in the fraud to avoid an effective signature comparison that might expose the fraud.

 

     The next group were 15 security envelopes which were not the security envelope issued in these elections.  Rather they were security envelopes issued in an earlier election.  An amalgamation ballot had been conducted of the entire membership of the organisation a month or so before the elections to which this inquiry relates.  It is possible that a member did not vote in that ballot and retained the ballot material and somehow the ballot material was mingled with the ballot material for these elections.  It is also possible that the use of another security envelope may have been thought by those involved in the fraud as lessening the chance of detection though it is not readily apparent why.  However it would be unsafe in my opinion to proceed on the basis that the use of these envelopes were as a result of electoral fraud.

 

     There were several other groups of rejected ballot papers where there can be no real basis for suggesting that they were not completed in suspicious circumstances.  There was one ballot paper rejected as a result of the random check of signatures on the security envelope with the signatures on the membership cards.  There were 12 ballot papers rejected when a comparison was made between the signature on the security envelope and the signature used when the ballot material was collected from the manager of the mail centre.  These 12 were part of the 414 ballot papers taken directly to mail centres to be distributed by the manager.  In addition to the 12 rejected one other discrepancy in the signatures emerged from a later analysis.  There were also 9 unexplained instances where more than one security envelope was returned by the same member.

 

     The returning officer conceded that there were 8 instances where a security envelope had been incorrectly rejected by the returning officer.  Their rejection constituted an irregularity.

 

     It is convenient, at this stage, to mention one related matter.  It concerns the 414  forwarding envelopes delivered to the managers of the nine mail centres for distribution.  There were 62 ballot papers that were unaccounted for in the sense that they were neither collected and signed for, posted or otherwise forwarded by the manager to the member or returned by the manager to the Australian Electoral Commission.  Of the members to whom ballot papers were distributed in this way, 150 (or 154) who signed for their ballot papers cast a vote (though this includes the 13 rejected after a signature comparison) and 39 voted who did not sign the register.  Thus 39 of the 62 ballot papers can be accounted for in the sense that a vote was cast, or apparently cast, by the member to whom the ballot paper had been sent.  However the fate of the remaining 23 unaccounted ballot papers is unknown.  It is quite likely that some or even all of the 23 ballot papers which were not accounted for were ultimately fraudulently completed and formed part of the material the document examiners viewed as disclosing multiple voting or were in one of the groups of material rejected by the returning officer.

 

Whether orders should be made declaring elections void

 

(1)  Generally

     Irregularities arose in these elections in six areas namely, the fraudulent completion of ballot papers, the soliciting of ballot papers, the breach of the rules concerning the form of the security envelope, the breach of the rules in relation to the notice that should have been given, the consequences of the advice given to Cook and the wrong rejection of ballot papers by the returning officer.

 

     When irregularities are found to have occurred, it is necessary for the Court to consider what orders, if any, should be made and, in particular, whether an order should be made declaring an election void.  The basis upon which the Court should approach whether an election should be declared void is identified in s223(4) which provides:

 

      "The Court shall 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 the 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."

 

 

     It can be seen that this sub-section is structured in a way that denies the power to declare an election void, which is a power conferred by s223(3)(a), unless the Court forms the opinion referred to in the sub-section.  The Court must be of the opinion that the result of the election may have been affected.  Whether the result may have been affected is determined by considering two matters.  They are the irregularities found and any circumstances giving rise to a likelihood that similar irregularities may have happened.

 

(2)  Circumstances giving rise to a likelihood of other irregularities

     The irregularities have already been identified and as far as possible, the number of ballot papers involved ascertained.  I will return to this matter shortly.  However it is convenient now to consider the expression "any circumstances giving rise to a likelihood that similar irregularities may have happened" in the context of the irregularities found in this inquiry.  What is meant by "likelihood", was considered by Gibbs CJ, in a different statutory context, in Sheen v Fields (1984) 51 ALR 345 at 348:

 

      "In the Full Court it was held that "likelihood" in cl 21 means "something less than probability but more than a remote possibility".  I would accept that view.  In other words, a likelihood is "a real or not remote chance or possibility regardless of whether it is less or more than 50 per cent": Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 27 ALR 367 at 380; 42 FLR 331 at 346, per Deane J."

 

 

     The reasons of the Chief Justice were adopted by other members of the Court.  His Honour's observations are, in my opinion, an apt description of the meaning of "likelihood" in s223(4). 

 

     In so far as the irregularities were constituted by breaches of the rules, related to the advice given to Cook about the method of voting or arose from the rejection of ballot papers, there can be no suggestion, on the evidence, that similar irregularities may have happened.  They were discrete and isolated incidents.  Evidence of their occurrence does not suggest the occurrence of similar events.  However the same cannot be said of the other irregularities.   That is, the irregularities evident from the analysis of the document examiners, the attempts to solicit ballot papers by Michel and Ratnavirawatana and the remarks of Quang to Battese.

 

     Westwood and Anderson identified 936 ballot papers that, somewhat simplified, were or may have been fraudulently completed by a limited number of people.  To the extent that this involved the fraudulent completion of a ballot paper other than by the member entitled to vote, the completion constituted an irregularity.  Both Anderson and Westwood expressed an opinion about the extent to which they may not have detected other ballot papers evidencing multiple voting.  The established incidents of multiple voting and the method of their detection together with both direct and inferential evidence of the soliciting of ballot papers constitute relevant "circumstances" as that expression appears in  s223(4).  Other undetected incidents of multiple voting would be "similar irregularities" as that expression appears in the sub-section.

 

     Do these circumstances give rise to a likelihood that similar irregularities may have happened?  Perhaps somewhat unusually, this is a matter that Westwood and Anderson address, in a sense, when they express an opinion about the incompleteness of their analysis.  That is a matter I now consider.  Plainly the acceptance of the number they positively identify as evidencing multiple voting involves an acceptance of the capacity of both, as experts, to detect multiple voting.  However there is, in my opinion, a material difference between the view expressed by Westwood and the view expressed by Anderson about the incompleteness of their analysis.  Westwood's view on this matter was based on the opinion he gave about the incidence of multiple voting having been a conservative opinion.  He said that where any reasonable doubt existed no opinion was expressed.  He also referred to three matters that allowed for the possible existence of further evidence of multiple voting, namely natural variations in the formation of the numeral "8" and alternative formulations, the possibility of disguise, and the subjective nature of assessments made by a number of people.  In the course of making these qualifications, he postulates another method of analysis based on, as he puts it, "say the numeral "5", could well have given rise to the creation of additional bundles."

 

     It was this suggestion that was taken up by Anderson who initially simply said that in his opinion the majority of ballot papers involving multiple voting practices were detected by Westwood.  It is unlikely he then meant "majority" as some number greater than half and, in any event, his views were clarified later.  He subsequently said there may be a "small number" of ballot papers exhibiting multiple voting that were not detected and that "he was confident that there are no large numbers of such ballot papers left".  Of significance, in my opinion, is that he does not explain why that was so unless it is to be assumed that by adopting an approach for further analysis referred to by Westwood, he was thereby adopting an approach that would remove any real doubt as to the numbers involved.  Anderson does not say, and explain why, that by commencing the analysis by reference to the numeral "5" and having regard to Westwood's method of analysis, the process was likely to identify virtually all instances of multiple voting. Nor was it said by Westwood who, in my opinion, referred to that approach to further analysis by way of illustration only.

 

     It is open to an expert to say, having regard to the method used, the skills applied and the manner of their application, that, in their opinion, the conclusion reached is conservative.  It would also be open to an expert to say, having regard to the same matters, that in their opinion, the conclusion reached is definitive.  In either case the reliance that may be placed on that opinion may well depend upon the standing of the expert and the acceptance of the reasons given.  However, I approach with some caution an opinion, which is not explained, that a conclusion is neither definitive nor conservative but somehow, almost definitive.  Thus, I do not accept without reservations Anderson's statements about the likelihood of further undetected instances of multiple voting.  This approach is consistent with the general principle referred to by Bray CJ in Samuels v Flavel (1970) SASR 256 at 260 when his Honour adopted the following observations of Fullager J in R v Jenkins: Ex parte Morrison (No. 2) (1949) Argus L.R. 468 at 475:

 

      "The only comment to which I think it (i.e. the evidence) is open is one which affects the lawyers and not the scientists, and it is that counsel did not ask any expert witness to explain the basis of theory or experience upon which rest the scientific conclusions.  ... Dixon J observed, in an address delivered to the Medico-Legal Society of Victoria in 1933 and reported in the Proceedings of the Society, Vol. II, p. 1 (at p. 11) that 'Courts cannot be expected to act upon opinions the basis of which is unexplained."

 

 

     It is nonetheless necessary to consider what each might have meant by their conclusions.  Given the magnitude of the incidence of the multiple voting, it is reasonable to treat Westwood's conclusion as comprehending other instances of multiple voting in excess of one hundred and even in the hundreds.  While the language of Anderson does not readily accord with such numbers, what he had in mind by "small number" and "large numbers" is unclear but may well have been a reference to numbers less than one hundred.

 

     Ballot papers which were fraudulently completed had to have been procured from somewhere.  The two most obvious and likely means were by their soliciting from members or their unlawful removal from the mail.  As to the latter there was one instance concerning ballot papers sent to employees of Telstra who were eligible to vote in the elections.  Their address on the electoral roll was an office of Telstra at Raw Square, Strathfield.  It is unnecessary to describe in detail evidence given about these ballot papers.  However an inference may reasonably be drawn that at some point envelopes containing ballot papers sent to members at the Raw Square address were intercepted though it is not clear whether that was in the Australia Post mail system or a mail system internal to Telstra.

 

     In relation to Australia Post's mail system more generally, evidence was given about the security arrangements in place at mail centres and evidence was given about the various points in the mail system where items of mail might be removed unlawfully.  That items of mail are removed was not in issue as evidence was given that periodically employees of Australia Post are prosecuted for interfering with the mail.  However the extent to which a large number of items of mail might be removed from the mail stream at the one point at the one time is more problematic.  It would depend, for relevant purposes, on two matters.  The first is the existence of a concentration of ballot material that could be removed in the one operation.  The second is the effectiveness of security cameras used by Australia Post to periodically monitor the activities of postal workers working in mail centres and, to a lesser extent, the security measures arising from the agreement between the Australian Electoral Commission and Australia Post.  In many respects the evidence as to what may have happened to the ballot material in the mail during these elections was left in an unsatisfactory state.  There was no detailed evidence as to the manner in which the ballot material was originally dispatched in the forwarding envelopes.  That is an obvious point of unlawful interference in the sense that there would then have been a concentration of ballot material including uncompleted ballot papers.  However I gained the impression from the evidence as a whole and the view I undertook of operations at the Southern Suburbs Mail Centre that a postal worker wanting to remove ballot material, would have been able to remove a limited number of the envelopes used to send out the ballot material either on its way out to the member or on its way back to the Southern Suburbs Mail Centre if it had not been claimed by the member.

 

     Returning to the matters identified in s223(4), even if evidence of soliciting and any inference that might be drawn that there had been interference with the mail, are to be treated as part of the circumstances that might give rise to a likelihood of similar irregularities having occurred, one is led back to the question of what further multiple voting may have taken place beyond that identified by the document examiners.  There is no evidentiary foundation for the suggestion made on behalf of the applicant that ballot papers irregularly obtained were used for purposes other than fraudulent completion such as their destruction if completed.

 

     I am satisfied that there was a likelihood that irregularities involving the fraudulent completion of ballot papers, in addition to the actual numbers identified by Westwood and Anderson, may have happened and some evidence of the extent of those similar irregularities was the evidence of Westwood in so far as it concerned the ballot papers that were scrutinised by him.

 

     Also to be considered are the ballot papers rejected by the returning officer which I earlier discussed.  The circumstances involving the soliciting and detected fraud are relevant also in relation to this rejected material.  I have dealt in detail with whether the rejected material might evidence fraud.  To the extent that it might indicate a likelihood of similar irregularities having happened and is a matter to be taken into account in the application of the provisions of s223(4).

 

     Other circumstances to be considered in this context, arise from the manner in which the ballot material was, in relation to 414 members, distributed at the nine mail centres.  Any ballot papers that might have been obtained and fraudulently completed as a result of the adoption of this procedure are, in substance, already dealt with in the discussion of the incompleteness of the examination by Westwood and Anderson or the discussion of those that were or might have been, in the ballot papers rejected by the returning officer.  However 66 ballot papers were returned to the Australian Electoral Commission and it is more than a remote possibility that at least some members were thereby deprived of a ballot paper, at least immediately.  However there was, of course, the opportunity to obtain a duplicate.  I do not view this matter as giving rise to a likelihood that significant numbers of members were deprived of an opportunity to vote.

 

(3)  The effect of the circumstances and the irregularities

     This leads to a consideration of whether "the result of the election may have been affected".  This expression has been considered, in the context of the exercise of the power now found in s223(3)(a) to declare an election void, on a  number of occasions.  It has been treated as requiring consideration of real not theoretical possibilities: see Pullen (supra) at 715-716 and the authorities cited by Gray J and also Parker v Amalgamated Society of Carpenters and Joiners of Australia (1992) 43 IR 248 at 252-253.  As earlier noted, s223(4) requires consideration of both the irregularities found and any relevant circumstances and their effect in the way I have just discussed.

 

     The focus of much of the submissions on this issue were the margins in the elections which, in a tabular form, were:

POSITION	SUCCESSFUL CANDIDATE(S)	NEXT MOST SUCCESSFUL CANDIDATE	MARGIN
Branch President	Cornish 5239	Sant 2356	2883
Branch Secretary	Jarman 5252	Tout 2231	3021
Branch Assistant Secretary	Natour 5052	Holden 2378	2674
Organisers	Metcher 5481 Caughlan 5422 Rayner 5410 Irwin 5345 McCartney 5285 Heiler 5273 Cosgrove 5222 Chalker 5218 Richards 5165 Airs 5155	Harris 2702	2359 (Margin between successful candidate with lowest number of votes and unsuccessful candidate with highest number of votes)   2779 (Margin between successful candidate with highest number of votes and unsuccessful
	Brittain 5126 Le 5061		candidate with highest number of votes)

 

     It must immediately be stated, however, that the task of determining whether the result may have been affected is not simply a mathematical one.  I will nonetheless presently consider the material by reference to the numbers of ballot papers involved.  There were a total of 936 ballot papers identified in the analysis of Westwood and Anderson as having, with varying degrees of probability, been completed fraudulently.  Some may be ballot papers of the perpetrators of the fraud who might themselves have been members eligible to vote and they may thus represent legitimate votes.  At one extreme the total of 936 may represent ballot papers that, had they been completed by the member for whom they were intended, been cast in favour of the unsuccessful candidates who received the highest number of votes.  The successful candidates were all members of the Natour-Jarman team.  If so and for the purposes of comparing margins, 936 votes should be deducted from those cast for the Natour-Jarman team and 936 votes added to the vote of the defeated candidate with the highest vote.  The effect would be to reduce the margin by approximately 1870 votes.

 

     However plainly the assumption cannot be made that all ballot papers fraudulently filled out would have been used by the members to whom they were sent to cast a vote or used to cast a vote in the way I have just described.  Firstly 227 duplicate ballot papers were issued and some may have been to members whose ballot papers were appropriated by those who fraudulently completed them.  Thus those members would have voted and, in the ordinary course, their vote counted.  However one would doubt that many members whose ballot paper was solicited from them would then seek a duplicate ballot paper and the number of fraudulently completed ballot papers exceeds the duplicates issued by a large margin.  Senior counsel for Jarman and Metcher submitted not only is the assumption about voting against the Natour-Jarman Team wrong, but it may reasonably be assumed that the members whose ballot papers were appropriated would have, as a sub-electorate, voted in the same pattern as the electorate as a whole.  That is, the votes cast would have been in favour of the Natour-Jarman Team in the same ratio as the legitimate votes cast and counted.

 

     I find this submission difficult to accept.  Had the ballot papers used for fraudulent purposes been randomly selected from all ballot papers issued, it may have some substance.  However there is no evidence to suggest there was any randomness in their selection and indeed the evidence tends to point the other way.  To the extent that they were solicited it would be likely to have been by supporters of the Natour-Jarman Team.  They would have had an interest in soliciting ballot papers from people who would not or might not vote for that group and not have had as great an interest in doing so from those who plainly would.  To the extent that the selection of ballot papers was as a result of removal from the mail stream there is simply no way of knowing whether, if at all, the selection was random.

 

     The only ballot papers that might be treated as containing votes cast in the same proportion as the election generally are the 8 which were incorrectly rejected by the returning officer.  The number involved, however, is not significant and renders assumptions about voting patterns of limited use.

 

     Returning to the theoretical maximum effect of the identified fraud, that is the reduction of the margin by approximately 1870 votes, one has to consider the possible effect of the ballot papers rejected by the returning officer that may have been fraudulently completed.  They total 214.  However, I have already indicated that not all of those might reasonably be treated as having been fraudulently completed.  Moreover, as they were not counted their maximum effect was, at most and assuming no duplicate ballot papers were issued, to deprive the defeated candidates of a further 214 votes and thus reduce the margin by the same number.  While for the reasons I have just given and earlier given in this judgment, it is not a figure that is entirely reliable, the maximum by which the margin might be reduced on what I have dealt with to this point is 2,200 in circumstances where the lowest margin was 2,359 and the highest 3,021.

 

     To this figure must be notionally added fraudulently completed ballot papers undetected by Westwood and Anderson.  The number is unknown.  On Westwood's evidence it might be one hundred, it might be four hundred, it might be more.  If so then this would reduce the margin, subject to the qualifications earlier expressed about this process, by a further maximum of two hundred or eight hundred votes or more.  The maximum by which the margins would be reduced would thus be 2,400 or 3,000 or a greater figure.

 

     In addition it is necessary to consider the number of votes that may not have been cast or validly cast, as a result of the discord between the two how to vote pamphlets with which Cook was associated and the instructions on the ballot paper.  The identity of the candidate who received the highest vote of defeated candidates appears in the table I earlier set out containing the margins.  In relation to the offices of Branch President, Branch Secretary and Branch Assistant Secretary, that candidate was, in the "Better Deal team" how to vote pamphlet, the preferred candidate.   That is, their names were highlighted in the mock ballot paper and a ticket appeared in the box next to their name.  Similarly they were the preferred candidate in the "Liberal Team" how to vote pamphlet.  That is their names were highlighted in the mock ballot paper and a cross appeared in the box next to their name.  Thus, to the extent that members did not cast a vote or a valid vote because of the discord between the how to vote pamphlets and the voting instructions on the ballot, but would have voted for the preferred candidates of either of those teams, the defeated candidates with the highest votes was denied a vote.  The margin was thus inflated by the instances where this occurred.  The difficulty is determining the extent to which this occurred.  I will return to this matter shortly.  I should note each was also the preferred candidate in the Challenge Team.

 

     The position of the candidates for the office of organisers is more complex.  Firstly there was not symmetry as to the preferred candidates for this office between the "Better Deal Team" and the "Liberal Team".  The first nine defeated candidates with the highest votes were, in descending order, Harris, Anderson, Jacques, the applicant, Broadbridge, Reeves, Cook, Hilton and Duong and each was a preferred candidate of both teams.  The margins for these candidates and the successful candidate with the least votes ranged between 2359 and 2930 votes.  There was one other preferred candidate Awdry whose votes were near that of these nine.  His margin was 3136.  He was endorsed only by the "Better Deal Team".

 

     Cook gave evidence that he lost approximately twenty five percent of his vote as a result of the confusion concerning the voting method.  He received 2190 votes and the margin with the last elected successful candidate was 2871.  Had he received twenty five per cent more votes, 547, the margin would have been 2324.  However the figure of twenty five per cent is one I approach with consideration caution.  The basis upon which it is assessed is not disclosed.  In his evidence, Cook stated he spoke to many of his supporters and former supporters and he said he "was informed by approximately one quarter of them" of their confusion and some criticised him for the discrepancy between the pamphlet and the instructions on the ballot paper.  Cook goes on to estimate that "not less than one quarter of his vote was lost as a result of the wrongful instruction on the ballot paper."  The basis on which this opinion was formed was not elaborated upon orally.  All that was said was the opinion was expressed "in view of (his) experience in union elections".

 

     I accept that given the plain discord between the pamphlet and the voting instruction on the ballot and the evidence, albeit limited, of confusion, there were likely to have been some members who cast a vote that was informal.  However it is unlikely that the numbers were great.  Indeed the area where the confusion was likely to have the greatest impact, the elections for the twelve vacancies for the office of organiser, the informal vote was 77.  For the other positions the informal vote ranged between 97 and 103.

 

     The other irregularities involving breaches of the rules would only have affected the result of the election by creating the environment in which fraud could occur.

 

     I should mention two other matters referred to by the applicant.  Firstly, during the period the ballot was open there was a consistently high rate of return of completed ballot papers particularly during the last few days.  This, when compared with the rate of returns in earlier elections, appeared anomalous.  The second matter concerns voter participation.  The total number of ballot papers issued was 17,228 the number returned for scrutiny was 8,412.  This, as a percentage of the number issued, was higher than in earlier elections in the organisation.  However these matters, while arousing suspicion, only point, in this inquiry, to what is otherwise obvious.  There was electoral fraud.

 

     Having regard to these various matters, am I satisfied that the result of the election may have been affected?  The election of a person to each office must be considered separately: see Re Carter; Re Federated Clerks Union of Australia (No. 2) (1989) 32 IR 30 at 32.  Parliament's intention, reflected in s233(4), is that if there was sufficient electoral support for the person elected, apart from the effect of irregularities, then that manifestation of the will of the electorate should not be disturbed.  I do not accept that the observations of Toohey and McHugh JJ in Hockings (supra) at 526, where reference is made to bribery and coercion on a large scale, or that the reference to "having regard to the irregularity found" in s223(4),  should result in a colourable approach being taken to the duty of the Court imposed by the sub-section.  The character of the irregularity does not alter the nature of the opinion that must be formed.

 

     There is plainly room for doubt that the result of each election was affected.  However in relation to several offices to which this inquiry relates, but not all, I fairly readily form the opinion that there is a real and not theoretical possibility that the electoral fraud, compounded by the other matters I have just referred to, affected the result of the elections.  I am referring to the elections to the office of Branch Assistant Secretary and most elections to the office of organiser.  The margins for these offices amongst the organisers range between 2,359 and, up to Irwin, 2,643 votes and for the Branch Assistant Secretary, 2,674 votes.  A significant number of these votes were the result of fraud and underpin these margins.  That, as earlier discussed, is likely to have impacted on the vote of the defeated candidates.  While there can be no certainty about the total number of fraudulently completed ballot papers, the fraud was on a large scale.  Its impact on the result was significant and its magnitude takes the contention that the result was affected from the realm of the theoretical into the realm of the real.  As the margins increase, as with the other organisers and the offices of Branch Secretary and Branch President where they range up to 3,021 votes, the confidence with which any opinion can be formed that the results may have been affected, diminishes.  However that they may have been affected is not theoretical, it remains real.  I am of the opinion that having regard to the irregularities found and the circumstances which give rise to a likelihood that similar irregularities may have happened, the results of all the elections to which this inquiry relates may have been affected.  Accordingly, consequential orders should be made in relation to the elections for all positions.  Having regard to a procedure agreed to by the parties and adopted by the Court, I will hear submissions from the parties on which form those orders should take.

 

                          SCHEDULE

 

                    69 - BRANCH ELECTIONS

 

 

(a)  The election of Officers of the Branch Committee of Management and of other Officers required to be elected under this Rule shall be conducted by the Branch Returning Officer by secret postal ballot of financial members of the Branch.  Except in the case of the TOA Branch Committee of Management Members, the positions referred to in 68 (b) the election shall be by secret postal ballot of financial members of the relevant Division.  The ballot shall close at 12 noon on the thirtieth day of June in the year of the election or on the first working week day following should the thirtieth day of June fall on a holiday or weekend and shall commence on the first day of June or the first working weekday following the date in the year of the election.

 

(b)  The Branch Returning Officer shall prepare a roll of voters who on the fourteenth day before the date determined under sub-rule (a) for the issuing of ballot papers are entitled to vote in the election.  The Branch Returning Officer shall add to or delete from the roll of voters so prepared the names and addresses of persons who on or before 30 June become or cease to be entitled to vote in the election respectively.  He/she shall at the place where he/she carries out his/her function as Returning Officer make the roll of voters available for inspection by members or persons authorised by him/her during the ordinary hours of business in the period between the commencement of the election and declaration of the result.

 

(c)  The official designation of any candidate an/or the section in which he/she is employed shall not be permitted to appear on any ballot paper issued by the Branch Returning Officer.

 

(d)  The Branch Returning Officer shall:

 

     (i)  be responsible for the safe custody of the ballot papers;

 

     (ii) obtain from the printer a certificate of the number of ballot papers printed;

 

     (iii)     initial every ballot paper prior to its distribution;

 

     (iv) (A)  forward by pre-paid post in an envelope having as few distinctive characteristics as possible to each member entitled to vote:

 

              (1)  such ballot paper or ballot papers as is or are appropriate for the purpose of the election;

 

              (2)  a pre-paid or business reply paid envelope having as few distinctive characteristics as possible addressed to the Returning Officer as a Post Office Box number designated by him/her;

 

              (3)  an envelope capable of insertion in the outer envelope referred to in (2) above, such envelope to have provision on the outside of the envelope for the member to fill in the member's name and address and to sign his or her signature;

 

              (4)  an envelope marked 'ballot paper only' capable of insertion in the envelope referred to in (3) above;

 

              (5)  voting instructions, printed either on the ballot paper referred to in (1) above or on a separate sheet of paper, containing such voting instructions as the Returning Officer considers necessary or desirable including an instruction that the completed ballot paper should be inserted in the envelope referred to in (4) above, the envelope sealed and inserted into the envelope referred to in (3) above, the name, address and signature to be completed on the envelope referred to in (3) above, the envelope sealed and enclosed in the outer envelope referred to in (2) above and returned by post to the Returning Officer.  Such instructions shall make clear that the process of counting by the Returning Officer shall eliminate any possibility of ascertainment of a member's identity.

 

          (B)  at the time of forwarding of ballot papers and other documents referred to in (a) above and, subject to the employer corporations approval, prepare a Notice and arrange for the placing of such Notice on the Notice Boards at places where more than ten members work or report for work informing members of the forthcoming election, the distribution of ballot papers and a statement that any member entitled to vote who does not receive a ballot paper by a date specified by the Returning Officer in his/her discretion, being a date some date after projected posting and before counting begins, to report such non-receipt to the Returning Officer;

 

     (v)  control a ballot box provided for the receipt of ballot papers and in the presence of the scrutineers if they desire to be present to see that the box is empty immediately prior to the opening of the ballot and thereupon seal the said box and to ensure that it remains sealed, until the time fixed for the closing of the ballot;

 

     (vi) (A)  after the closing date of the ballot in the presence of scrutineers appointed pursuant to Rule 72(c) to open each envelope referred to in (d)(iv)(A)(2) above which has been returned to him/her, examine the section of the envelope referred to in (d)(iv)(A)(3) above, strike the name of the member appearing thereon off the roll as having voted in the election, and subject to (B) below, admit the inner envelope marked 'ballot paper only' containing the ballot paper to the count after removing it from the outer envelope;

 

          (B)  conduct prior to the removal of the inner envelope marked 'ballot paper only', in the presence of scrutineers, a random check of the signatures appearing on the outer envelope by comparing approximately one signature in every one hundred votes of the signature appearing in the organisation's records, provided the Returning Officer shall have a complete discretion to check any additional signatures as he/she thinks fit;

 

          (C)  engage, if he/she thinks fit, the services of a Bank Officer, or such other person skilled in the comparison of signatures, to assist him/her in decisions relating to signatures, providing that the Returning Officer shall be the final judge of whether the envelope has been signed by the member named therein;

 

          (D)  after processing each of the envelopes referred in (A) above, to remove the ballot papers admitted to the count from the envelopes market 'ballot paper only' and proceed to count the ballot;

 

          (E)  no envelope referred to in (d)(iv)(A)(3) above shall be admitted to the count if the envelope has not been filled up or has not been filled up to an extent sufficient in the opinion of the Returning Officer to enable him/her to be satisfied as to the identity of the member casting such vote;

 

          (F)  to retain for a period of twelve months after completion of an election the roll of voters, and each envelope and the ballot paper referred to above;

 

          (G)  the Returning Officer for the purposes of carrying out the matters set out in (A), (B), (C) and (E) above may require the relevant Branch Secretary to provide him/her with reasonable access to the Branch Membership Records at such and for such period or periods of time as he/she might reasonably require.  Such access shall not be or deemed to be possession for the purposes of (F) or the provisions of the Industrial Relations Act though any copies of such membership records, or parts thereof, made by or on behalf of the Returning Officer and coming into his/her possession shall be retained for a period of twelve months in accordance with the provisions of the Industrial Relations Act or pursuant to (F) above as the case may be.

 

          (H)  wherever in this Rule there is reference to the Returning Officer such expression shall include any of his/her staff or any person duly authorised by him/her or on his/her behalf to conduct or assist in the conduct of any of the said elections or any part thereof.

 

     (vii)     following the close of nominations in the year of election the Returning Officer shall declare the results of the ballot as a whole or as far as it has progressed and submit a report to the Branch Secretary.  On completion of the ballot for the remaining positions, the Returning Officer shall declare the result of the ballot and submit a full report to the National Secretary indicating the number of ballot papers printed, the number distributed, the number on hand, and any other relevant matters.

 

(e)  The system of voting adopted by a Branch shall be that known as first past the post and shall allow for an order of preference to be indicated by the voter so that in the event of the elimination of a candidate or candidates an effective vote may still be cast.  In the event of the votes of two or more candidates, one of whom is sitting Officer, being equal, the sitting Officer shall be declared to be elected.  In other cases of equal voting the Returning Officer shall determine the ballot by drawing lots.  Where a member votes and his/her intention is clear, his/her vote will be included in the count.  This intention may be indicated by a cross or a tick or a number.

 

(f)  Except in the case of the TOA Branch, the election of Branch Committee of Management Members shall be conducted by the Branch Returning Officer in a similar manner to the election of other Officers of the Branch; provided that in the election of these Members the voting shall be confined to members attached to the respective Divisions, a list of whose names shall be supplied by the Branch Secretary.

 

(g)  One member from each Division, elected by a General Meeting, shall be present as scrutineers during the counting of the ballot.

 

(h)  Branches shall provide, by resolution of the Branch Committee of Management for the election of Delegates and/or Alternate Delegates to any body, having a state-wide character and with which a Branch is affiliated.  Alternate Delegates so elected shall be entitled to act in the unavoidable absence of Delegates.  Delegates and/or Alternate Delegates to these bodies shall be elected at such time and place as may be determined by the Branch from time to time.  Nominations of alternate Delegates shall be called for and made as an office and be elected in a separate ballot from that of Delegates and the ballots for these positions shall be conducted by the Branch Returning Officer by a secret ballot of the Branch Committee of Management in the same manner as provided for in this sub-rule.  Nominations for all such positions shall be called for as provided in these Rules.

 

(i)  Any candidate for election to a position on the Branch Committee of Management or any other position which is included in the ballot at the Biennial Election of Officers may, on payment of a sum of $10 and within seven days of the declaration of the poll or ballot, lodge with the Secretary of the Branch to which he/she is attached a demand for a recount, with the right to appoint his/her own scrutineer, and upon receipt of such demand the Secretary shall arrange within seven days for a recount to take place.  In the even of the recount result being in favour of the person seeking the recount, the sum of $10 shall be refunded to the person concerned.

 

(j)  The Branch Returning Officer may take action and give such directions as he/she considers necessary in order to ensure the secrecy of the ballot and that no irregularities occur in or in connection with the election or to remedy any inconsistency or inadequacy that arises in the application of the Rules in the conduct of the election.

 

(k)  Circulars on behalf of candidates shall not bear the word "Official" and shall be authorised by at least one member of the Union.

 

 

 

I certify that this and the preceding one hundred and nine (109) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Moore.

 

Associate:                            ......................

 

Dated:                                10 May 1996

 

 

                         APPEARANCES

 

 

Counsel for the Applicant:        Mr R Kenzie QC and

                                  Mr S Rothman SC

 

Solicitor for the Applicant:      Maurice May & Co

 

Counsel for Mr Cook:              Mr P King and

                                  Mr M Cohen

 

Solicitor for Mr Cook:            Paul Etherington &

                                  Associates

 

Counsel for the Respondents:      Mr L Wright QC and

                                  Mr B Hodgkinson

 

Solicitor for the Respondents:    McClellands

 

Counsel for the Organisation:         Mr W Haylen QC

 

Solicitor for the Organisation:   R L Whyburn & Associates

 

Counsel for the

Australian Electoral Commission:  Mr G T Johnson

 

Solicitor for the

Australian Electoral Commission:  Australian Government

                                  Solicitor

 

Dates of Hearing:                 9, 10, 13, 14, 15, 16 and 17 November 1995, 6, 7, 8, 19, 20 and 26 March 1996, 15, 16 and 18 April 1996

 

Written Submissions Complete:         23 April 1996

 

Date of Judgment:                 10 May 1996