Communication Workers Union of Australia Postal and Telecommunications Branch, in the matter of an election for an office in the Communication Workers Union of Australia Postal and Telecommunications Branch, New South Wales [1996] IRCA 236

DECISION NO: 236/96

CATCHWORDS

INDUSTRIAL LAW - INQUIRY - elections declared to be void - whether ballot other than secret postal ballot can be ordered - whether attendance ballot should be ordered - nature of power to order interim occupation of office pending new elections - exercise of discretion to make orders concerning interim occupation of office.

Industrial Relations Act 1988 - Division 5 of Part IV, ss 198, 221(1)(a)(b) and (c), 221(3), 223(3), (a), (b) and (d).

Conciliation and Arbitration Act 1904, s133AA.

Re Mellor's Application (1986) 13 FCR 331

R v The Commonwealth Court of Conciliation and Arbitration; Ex parte Grant (1950) 81 CLR 27 at 62

Saraswati v The Queen (1991) 172 CLR 1

McLure v Mitchell (1973) 24 FLR 115

Re Morris; Re the Construction, Forestry, Mining and Energy Union, Building Unions Division, Victorian Divisional Branch

1 December 1994, Keely J, unreported

Re Pattersen; Re Association of Railway Professional Officers of Australia (1987) 19 IR 373

Re Birch; Re Australian Workers Union (SA Branch) (No. 2) (1991) 37 IR 420

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

3 JUNE 1996

IN THE INDUSTRIAL RELATIONS )

)

COURT OF AUSTRALIA ) 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: 3 June 1996

ORDER OF THE COURT

THE COURT ORDERS THAT:

1. The inquiry is adjourned to 10.15am, 26 June 1996 to enable the parties to bring in short minutes to give effect to this judgment or such other time as the Court orders.

2. Draft orders are to be prepared by each party other than the Australian Postal Corporation and Tesltra Corporation, and filed and served on other parties on or before 19 June 1996.

3. Liberty to apply.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS )

)

COURT OF AUSTRALIA ) 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: 3 June 1996

REASONS FOR JUDGMENT

Introduction

The Court is conducting an inquiry under Division 5 of Part IX of the Industrial Relations Act 1988 ("the Act"). In a judgment published on 10 May 1996, I concluded that irregularities had occurred in New South Wales Branch elections held in 1994 in the Communication Workers Union of Australia ("the organisation"), as it was then known, and that they may have affected the results of the elections: see s233(4). The parties to the inquiry are the applicant, Mr Noel Battese who was an unsuccessful candidate for the position of organiser, Mr Allan Jarman who was the successful candidate for the position of Branch Secretary together with Mr Jim Metcher who was a successful candidate for the position of organiser, Mr Quentin Cook who was an unsuccessful candidate for the position of organiser, the Australian Electoral Commission ("AEC") and the organisation. After 10 May 1996 I ordered that Telstra Corporation Limited ("Telstra") and the Australian Postal Corporation ("Australia Post") be joined as parties. These corporations employ virtually all the members eligible to vote and did not oppose an order joining them. I took this step to facilitate, if necessary, making orders binding them and I did so with their consent.

It has been accepted by the original parties to the inquiry that, having regard to the findings made in the judgment of 10 May 1996, the 1994 elections should be declared to be void: see s223(3)(a), and new elections ordered. However the applicant submitted that the new elections should not be conducted by a secret postal ballot of all the members entitled to vote. It was submitted that at seven workplaces in metropolitan Sydney, at which a significant numbers of members work, the ballot should be an attendance ballot. That is, members voting should be required to do so by placing a completed ballot paper in a ballot box. It was proposed that this would occur under the supervision of officers of the AEC who would attend each workplace on a number of occasions during the ballot period. It was submitted on behalf of Cook that the elections generally should be conducted by way of an attendance ballot possibly involving the use of AEC offices throughout the State and police stations at which members eligible to vote could attend to cast their vote. It was the preference of the AEC that the elections be by secret postal ballot with increased security. It was submitted on behalf of both Jarman and Metcher and the organisation that the new elections should be by a secret postal ballot and that the Court had no power to order an attendance ballot. It is to that question that I now turn.

Power to order attendance ballot

The organisation's rules require that the ballot be a secret postal ballot. The possible source of power to order a ballot other than a secret postal ballot is s223(3)(d). Given the conclusion I reach it is unnecessary to consider the wide power conferred by s223(2). Section 223(3) provides:

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

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

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

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

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

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

The contention that the Court's power is limited to ordering another secret postal ballot has its foundation in both the language of s223(3)(d) and the provisions of s198 which reads:

"198.(1) Where the rules of an organisation provide for election for an office to be by a direct voting system, the rules shall also provide that, where a ballot is required for such an election, it shall be a secret postal ballot.

(2) An organisation may lodge in the Industrial Registry an application for an exemption from subsection (1), accompanied by particulars of proposed alterations of the rules of the organisation, to provide for the conduct of elections of the kind referred to in subsection (1) by a secret ballot other than a postal ballot.

(3) If the Industrial Registrar is satisfied, on application by an organisation under subsection (2):

(a) that the proposed alterations of the rules:

(i) comply with and are not contrary to this Act (other than subsection (1)) and awards;

(ii) are not otherwise contrary to law; and

(iii) have been decided on under the rules of the organisation; and

(b) that the conduct of a ballot under the rules of the organisation as proposed to be altered:

(i) is likely to result in a fuller participation by members of the organisation in the ballot than would result from a postal ballot; and

(ii) will afford to members entitled to vote an adequate opportunity of voting without intimidation;

the Industrial Registrar may grant to the organisation an exemption from subsection (1)."

Sub-sections 198(4), (5), (6), (7) and (8) deal with the time at and for which an exemption operates and the mechanism for the revocation of an exemption by the Industrial Registrar. Relevantly, s198(10) renders s198 applicable to Branch elections. It was submitted that the purpose of s198 is to require all elections in organisations to be conducted by means of a secret postal ballot subject to any exemption granted under the section. The power conferred by s223(3)(d) does not enable the Court to nullify the effect of rules made by the organisation in compliance with the statutory requirement found in s198(1).

Reference was made to the judgment of Gray J in Re Mellor's Application (1986) 13 FCR 331 at 334:

"A second major issue raised by Mr Jerrard on behalf of Messrs Elton and Hardie was whether ballot papers directed to members who do not provide private addresses should be sent to their work-place addresses or should be available for collection by them from electoral offices. In this connection, it is sufficient for me to say that an examination of the provisions of the Act shows that such an order could not be made. Section 133AA of the Act requires that every election by a direct voting system for an office within an organisation, being an office that is included in pars (a), (aa), (b) or (c) of the definition of "office" in s 4(1) shall be by secret postal ballot. The elections for the positions of State Secretary-Treasurer and Assistant State Secretary fall within that provision. Section 4(1) of the Act contains a definition of postal ballot in the following terms:

"Postal ballot' means a ballot for the purposes of which a ballot paper is to be sent by prepaid post to each person entitled to vote and facilities are to be provided for the return of the completed ballot paper by post by the voter without expense to him."

The Act therefore requires that a ballot paper be sent by prepaid post to each voter and it would not be possible to make an order that persons collect their ballot papers from the Electoral Office."

However the language and structure of s133AA of the Conciliation and Arbitration Act 1904 is materially different from the language and structure of s198. Section 133AA required, by direct operation of the Act, that an election be by secret postal ballot. Indeed s133AA(5) made plain that the section operated notwithstanding anything contained in the rules of the organisation. Moreover s133AA provided for the making of regulations detailing the manner in which a secret postal ballot would be conducted if the matter was not addressed by the rules of the organisation. At the time of the repeal of the Conciliation and Arbitration Act 1904, Part VAA of the Conciliation and Arbitration Regulations contained detailed procedures for the conduct of an election by secret postal ballot. It may be accepted that s133AA(3) enabled the Industrial Registrar to exempt an organisation from the requirement of the section and the terms upon which such an exemption could have been granted were substantially the same as those now found in s198(3). However the conclusion of Gray J simply reflects the requirements found in the relevant legislation at the time of his Honour's judgment.

The obligation imposed on an organisation by s198 does no more than require it to have rules providing for a secret postal ballot in any election for an office by a direct voting system. An exemption can be granted if the adoption of rules providing for a method of voting other than by secret postal ballot is likely to result in a fuller participation by members in the ballot and would afford them the opportunity to vote without intimidation: see s198(3)(b)(i) and (ii). The identification of those grounds as a pre-condition for the grant of an exemption makes plain the purpose or objectives of requiring secret postal ballots generally. That is, a secret postal ballot is viewed by the legislature as the means of conducting an election that will ordinarily result in full participation by members and an opportunity to vote without intimidation.

The question that immediately arises is whether Parliament intended that if in an inquiry conducted under Division 5 of Part IX of the Act, it emerges that there has not been full participation and/or there has been intimidation, the Court would not have power to order a new election so as to avoid those results. In my opinion, it is unlikely that Parliament intended to limit the Court's powers in this way. The width of the language adopted in s223(3)(d) does not suggest that this was what was intended. A narrow construction of s223(3)(d) would have the result that while Parliament has required, at least in the ordinary course, that rules of organisations contain a method of voting to meet identified objectives it would not have provided a mechanism for the adoption of other methods of voting if those objectives had not been met and that became apparent in an inquiry. It may be possible for an order to be made by the Court under s223 ordering a new election in terms that would also permit the organisation thereafter to make application under s198(3) for an exemption. However the terms of s223(3)(c) do not suggest that this course was contemplated by the legislature.

The language of s223(3)(d) where it speaks of "... an order modifying the operation of the rules of an organisation to the extent necessary to enable a new election to be held ..." is sufficiently broad to comprehend an order modifying rules which have been adopted to comply with s198. The provisions of s223(3)(d) should not be narrowly construed: see R v The Commonwealth Court of Conciliation and Arbitration; Ex parte Grant (1950) 81 CLR 27 at 62 per Fullagher J. The expression "to enable a new election to be held" has to be considered in context. The context is a legislative scheme conferring on the Court powers to investigate and determine whether an irregularity has occurred in an election and, if so, whether the irregularity and any similar irregularity may have affected the result of the election. The word "necessary" would, in context, include matters necessary to ensure that the irregularity was not repeated. What is meant by the word "necessary" as it qualifies the exercise of the power conferred by s223(3)(d), is to be ascertained having regard to the point the Court would then have reached. That is, it would have determined there had been an irregularity and it may have affected the result of the election. While s223(3)(d) speaks of incidental, supplementary or consequential orders, the means by which the ballot is to be conducted is plainly consequential upon an order being made for a new election to be held: see 223(3)(c)(ii).

It was submitted that the Court's powers under s223 have to be construed bearing in mind the principle that a statutory power, expressed in general form, is not to be construed so as to avoid any conditional limitation placed on the exercise of a specific power: see Saraswati v The Queen (1991) 172 CLR 1 at 24 per McHugh J and the cases cited. However, the power of the Court under s223 and the power of the Industrial Registrar under s198 arise in different circumstances though they may be exercised for the same purpose or to meet the same objectives. The Registrar's power to grant an exemption may be exercised in circumstances where it is expected those objectives will be met. The Court's power would be exercised where it may have been demonstrated that those objectives have not been met. To that extent, the powers are quite different. In my opinion, the Court has power to order that a new election be held, in whole or in part, by means other than a secret postal ballot at least in circumstances where, to do so, is likely to avoid a repetition of the irregularity apparent in the inquiry and that irregularity concerned an absence of full participation by the members or an absence of an opportunity of voting without intimidation.

Form of new elections

I now consider what form the new elections should take and my consideration is limited to issues of principle. Orders will be formulated after these reasons for judgment are published.

The proposal advanced on Cook's behalf that there be an attendance ballot for all members eligible to vote and no provision for a secret postal ballot is, in my opinion, plainly impracticable. Evidence was given by Mr David Kerslake who is the Assistant Commissioner, Industrial Elections Branch of the AEC. He provided estimates of the logistical implications of a number of proposals and the costs associated with implementing them. I accept it involved a bona fide attempt to estimate the cost of various alternatives. However the estimates plainly have to be treated with some caution and I gained the impression from Kerslake's evidence that he accepted that this was so. Nonetheless the estimated cost of an attendance ballot of the type proposed on behalf of Cook is considerable as would be the logistical difficulties. More importantly, however, is that the use of personnel other than officers of the AEC increase the prospect that the integrity of the ballot might be compromised however well intentioned other participants might be who were involved in conducting the ballot.

The proposal finally pursued by the applicant was an attendance ballot at seven workplaces including six mail centres in metropolitan Sydney and, in relation to the remainder of the members eligible to vote, a secret postal ballot. It is a proposal that has some features to commend it. Significantly it might, at least in part, deal with what I perceive to be the likely reason for the lodgment of many if not most of the fraudulently completed ballot papers. That is, uncompleted ballot papers were handed over, by members who received them, to other employees in the mail centres who then completed them fraudulently. While it is only a matter of general impression, the large mail centres in metropolitan Sydney seem to be workplaces in which individuals or groups of individuals assume positions of power and influence in relation to other employees.

Any electoral process that lessened the opportunity for intimidation, and in particular, intimidation resulting in the casting of an illegitimate vote by the procuring of uncompleted ballot papers, should be considered. However the point is made by both counsel for Jarman and Metcher and counsel for the organisation that any attendance ballot is likely to increase voter participation because of the ease with which a vote can be cast. It is submitted that while in a theoretical sense the opportunity to vote in an attendance ballot and in a postal ballot are the same, in practice an attendance ballot would afford a greater opportunity to vote to those who are able to participate in it. This would have the effect of favouring those candidates whose support was found principally in the metropolitan mail centres and correspondingly disadvantage candidates whose support may be in the more remote areas of New South Wales.

Evidence was given on behalf of the organisation by Mr Brian Baulk, Divisional Assistant Secretary of the organisation, that an attendance ballot at the mail centres would have this effect. A similar opinion was expressed by Kerslake based on experience of other attendance ballots held for other organisations. While the evidence of Kerslake and Baulk is, in a sense, speculative it is nonetheless material to be given due weight. The point was also made by Kerslake that an attendance ballot would not remove the opportunity for intimidation as members proposing to vote could be intimidated before they actually cast their vote even if it was by filling out a ballot paper and lodging it in a ballot box. Even accepting that this is so, that type of intimidation and its likely impact differs from that which was apparent in the evidence in the inquiry more generally. In a polling booth a member may feel emboldened to vote the way they truly wish irrespective of what they may have been told beforehand. Intimidation that results in the handing over of an uncompleted ballot paper deprives the member of that opportunity altogether.

The proposal advanced on behalf of Jarman and Metcher and the organisation for a secret postal ballot only of all members was founded both on alleged deficiencies in other proposals, the scheme in the rules that the organisation has adopted and the need to ensure equality of treatment of the membership. This last mentioned matter, in particular, provides considerable support for this proposal. However the submissions in support of a postal ballot only, and in particular the submission of the organisation, do not give sufficient recognition to the evidence in the inquiry and the findings I made in my judgment of 10 May 1996. Indeed the organisation submitted the Court had decided that the irregularities have by and large arisen because of the failure to comply with a very strict regime designed to bring about security of a secret postal ballot in the organisation. This submission does not allow for the real possibility that some members of the organisation treated with contempt the electoral process, whether conducted in accordance with the rules or not, and were prepared to act unlawfully and probably to engage in criminal conduct.

I raised with the parties an approach which might deal, at least in part, with the issue of intimidation and might markedly lessen if not eliminate any beneficial consequence of an attendance ballot at the mail centres which would flow to any candidate whose support is predominantly to be found in them. It is a proposal that I am presently satisfied is to be preferred to any of the proposals advanced by the parties. The proposal I prefer would proceed on the following basis though the sequence in which these events would occur may have to be reviewed:

(i) The AEC would identify a nominal date for the preparation of the roll and prepare it. It has been suggested that the 30 June 1996 is an appropriate date being the concluding date of a period in which members might make themselves financial. I presently see no reason why that would not be an appropriate date.

(ii) The AEC would obtain the home addresses of members appearing on the roll for whom a home address was not recorded on the roll. Whether this is to be through Australia Post and Telstra on the one hand or the organisation on the other or both is a matter I will consider when orders are settled. Australia Post would identify all persons employed at the seven workplaces nominated by the applicant.

(iii) The organisation would be required to obtain the home address of any person who applied for membership of the organisation and who would be eligible to vote in the new elections if the application for membership, say, was made after 30 June 1996.

(iv) The AEC would send a letter (enclosing a reply paid envelope) to all members on the roll employed at the seven workplaces. The letter would indicate that they could, at their option, cast their vote in the new elections by attending the office of the AEC nearest their workplace. The letter would be sent to the home address of the member. The addresses of the AEC offices and their opening hours would be set out in the letter. The members would be informed that unless they returned, by a specified date to the AEC, the form enclosed with the letter electing to vote in this way, they would be sent a ballot paper by post in the same way it will be sent to the membership generally. The letter would also say that having decided to opt to vote that way, the member would be bound by that decision. That is not to say, however, a member would not be able to obtain an absentee vote in the event of some unforseen circumstance arising. Whether rule 18 adequately deals with that matter for present purposes is another question I can give consideration to when settling the orders.

(v) Ballot papers would be sent by mail to all members eligible to vote except those who opted to attend an AEC office to vote. Those who opted to vote that way would be identified on the roll, a copy of which would be sent to each of the relevant AEC offices. A vote could be cast by the member attending at the AEC office by completing a ballot paper. The member would also have to fill in a security envelope and place the ballot paper into the inner envelope and then into the security envelope and deposit that envelope into a ballot box. The result would be a ballot paper which would be received by the returning officer in the same form as other ballot papers considered for admission to the court.

The purpose of giving a member employed at one of the seven workplaces the option of voting in this way, that is by post or at an AEC office, is to enable them, at their option, to remove themselves from a situation where they might be intimidated into providing to someone else an uncompleted ballot paper. While there is, of course, the possibility that the member will be asked by a person in a position of power or influence to elect to receive a ballot by post, this scheme simply provides some further measure of protection for such members. If, in practice, no members or only a few take up the option of voting at an AEC office, the ballot will then, in substance, be a secret postal ballot.

Accordingly, I propose to make orders giving effect to this last mentioned scheme. However it may be that there is some material deficiency in it that I have not recognised and if that is so, I would consider abandoning its implementation.

There were several other matters raised in this part of the inquiry concerning how the secret postal ballot of the membership generally should be conducted. I have concluded:

(i) Labels should not be affixed to the security envelope and members should be required to both sign the security envelope and fill in their name and address. A clear instruction to that effect should appear both on the ballot paper and the security envelope. When settling the orders to give effect to this judgment I will consider whether, and to what extent, the operation of Rule 69(d)(vi)(E) should be modified.

(ii) Those ballot papers which are to be sent out by mail should be sent from the one location and there should be the one address for the return of completed ballot papers by post and unclaimed ballot material.

(iii) The security cameras at the mail centre from which the ballot papers will be sent and to which they and unclaimed electoral material will be returned should be in operation over the entire ballot period and, as appears to be possible, a video recording made of what is observed. This can be effected by an order of the Court binding Australia Post.

(iv) Consideration will have to be given to the form of identity necessary to obtain a duplicate ballot paper. I presently have no concluded view as to what it should be. Again this can be addressed when orders are settled.

(v) A suggestion was made by the applicant that ballot papers should be sent out by certified mail, though this proposal was not pressed. It is one I do not, in any event, accept as appropriate as it could well result in a concentration of uncompleted ballot papers at post offices while the certified mail awaited collection.

(vi) A number of suggestions were made by Kerslake concerning the proposal to conduct a secret postal ballot. A number are now not contentious and appear to be appropriate and worthwhile steps that can be taken to minimise further electoral fraud. One possibly contentious issue, however, was a proposal that the organisation be required to obtain from each member eligible to vote a new membership card with a signature. It is plainly desirable that, if at all possible, current signatures be available to the AEC but whether they should be obtained this way, by the AEC itself, or by reference to recent union dues deduction forms is a matter I can give further consideration to when settling the orders.

In indicating my views on these various matters I am not intending to preclude any further submission being made that might result in a more secure and effective ballot.

Occupation of offices pending the completion of the elections

An issue has arisen as to what orders, if any, should be made in relation to the occupation of the offices filled by the 1994 elections. Two matters arise. The first is what is the scope of the Court's power and second, how it should be exercised.

(i) Power to appoint a person to an office pending the conclusion of a new election

I first consider the scope of the power to order that a person occupy an office pending the completion of a new election. The relevant provisions are s223(3), which I have already set out, and s221 which provides:

"221.(1) Where an inquiry into an election has been instituted, the Court may make one or more of the following orders:

(a) an order that no further steps shall be taken in the conduct of the election or in carrying into effect the result of the election;

(b) an order that a person who has assumed an office, has continued to act in an office, or claims to occupy an office, to which the inquiry relates shall not act in the office;

(c) an order that a person who holds, or last held before the election, an office to which the inquiry relates may act or continue to act in the office;

(d) where it considers that an order under paragraph (c) would not be practicable, would be prejudicial to the efficient conduct of the affairs of the organisation or would be inappropriate having regard to the nature of the inquiry, an order that a member of the organisation or another person specified in the order may act in an office to which the inquiry relates;

(e) an order incidental or supplementary to an order under this subsection;

(f) an order varying or discharging an order under this subsection.

(2) Where the court orders that a person may act, or continue to act, in an office, the person shall, while the order remains in force and in spite of anything in the rules of the organisation or a branch of the organisation, be taken to hold the office.

(3) An order under this section shall continue in force, unless expressed to operate for a shorter period or sooner discharged, until the completion of:

(a) the proceeding concerned in the Court in relation to the election; and

(b) all matters ordered by the Court (otherwise than under this section) in the proceeding."

Again, given the conclusion I have reached, it is unnecessary to consider the wide power conferred by s223(2). Counsel for the applicant submitted that if an order is made under s223(3)(a) declaring an election void, then the order nullifies the legal effect of the election and reinstates to the office the person who held office prior to the election: see McLure v Mitchell (1973) 24 FLR 115 at 126-127 per Joske J. It was accepted that two situations might arise where an order declaring an election void would not have this effect. The first is if the prior occupant of the office was unable or unwilling to continue to occupy the office. The second is where the rules of the organisation were framed so that the earlier occupation of the office came to an end. This might occur, for example, upon the declaration of the poll in the impugned election or with the effluction of time. However it is not readily apparent why the unwillingness of the earlier occupant would impact on the occupation of the office, as a matter of law, if the construction of s223(3)(a) contended for by the applicant is correct unless it also involved some notion of abandonment. The applicant submitted that in either of these situations an order could be made under s223(3)(d) as an incidental, supplementary or consequential order necessary to fill the lacuna created by the order declaring the election void.

The submission made on behalf of Jarman and Metcher was that s223 conferred on the Court a discretionary power to make an order disturbing the status quo if an order was made declaring an election to be void. It was first submitted that an order declaring an election void operated in futuro only, that is, it did not have the legal effect of avoiding the legal consequence of a person having been elected to office. It was further submitted that the Court had a discretionary power conferred by s223(3)(b) to declare a person not elected who had been elected. If such an order was made a further order could be made under s223(3)(d) ordering some other person to occupy the office till any new election had been completed. The submission made on behalf of King was that the source of power to order a person to occupy an office pending the completion of any new election was s221.

In my opinion the resolution of this issue lies in ascertaining the scope of s221. Plainly when the efficacy of an election is under review in an inquiry, an issue will often arise about the occupation of any office arising from that election during the period of review and during any period prior to the completion of a new election. In any inquiry conducted under Division 5 of Part IX it is, potentially, an important issue. It might be expected that the legislature would have addressed the issue directly and not addressed it indirectly and by means of compendious references to incidental, supplementary or consequential orders such as those found in s223(3)(d).

It is to be remembered that an inquiry may be held into an election that is complete and into an election that is not complete where the poll has not been declared. It is thus likely that this dichotomy is accommodated in the provisions of s221. It is plainly reflected in s221(1)(a) where the distinction is drawn between further steps in the conduct of an election, a reference to an incomplete election, and carrying into effect the results of an election, a reference to a complete election.

Section 221(1)(b) deals with three situations. The first is where a person has assumed an office, the second is where a person has continued to act in an office and the third is where a person claims to occupy an office. The language used to describe the second situation where "a person ... has continued to act in an office" could comprehend circumstances where the election was not complete but the incumbent continued to act in the office. An order of effectively removing from office a person who occupies an office might be appropriate if the evidence led during the inquiry, and perhaps at an early stage, pointed clearly to the involvement of the incumbent in conduct that might constitute an irregularity, such as fraud, and the involvement was to advance the incumbent's electoral prospects. The second situation described in s221(1)(b) could also comprehend circumstances where the election was complete and the incumbent had been re-elected to the office. There is no apparent reason why this part of the paragraph should be construed so as to apply to one but not the other of these situations. If so, an order could be made requiring a person occupying an office in either circumstance not to act in the office.

This is to be contrasted with the first situation where s223(3)(b) speaks of "a person who has assumed an office". Having regard to the language of the remainder of the paragraph this is plainly a reference to circumstances where an election is complete and the person elected assumed office. The use of the word "assumed" suggests that this provision relates only to a person who was not, prior to the election, the incumbent. It is in those circumstances that the Court could order that the person not act in the office for the time being. The need to exercise such a power might arise for example, if the person elected to office was, prima facie, not eligible to stand for election to the office and the case against eligibility was a strongly arguable one. Thus an order might be made under s221(1)(b) altering the status quo arising from the impugned election, assuming its validity. Such an order would operate in one of the ways contemplated in s221(3). It could thus operate, unless varied: see 221(1)(f), till any new election was complete if it was ultimately ordered because, in the example I just gave, there were a number of unsuccessful candidates who were eligible to stand and would stand again.

The reference in s221(1)(b) to a situation where a person claims to occupy an office is more obscure. However it is likely to be a reference to circumstances when there was controversy about the occupation of an office which would ordinarily arise when an election was complete. It would be part of the more general controversy about the impugned election. Thus it would comprehend situations where, when an election was complete, there were several contenders for the office but there was no general acceptance of the right of one to occupy it because, for example, the result was uncertain. One candidate might wish to deny, by order of the Court, another candidate the opportunity to assert a right to occupy the office till, for example, the inquiry was complete and any new election, if ordered, had concluded.

Section 221(1)(c) deals with two situations. The first is where a person holds office and the second is where a person last held office before the election. A person may hold office either because they are the incumbent and the election is not complete or the election is complete and they were the successful candidate. The latter comprehends circumstances where a person either had or had not been the occupant of the office prior to the election. There is nothing in the language or structure of s221(1)(c) or s221 more generally to suggest it does not cover both circumstances and an order may be made that they "act or continue to act in the office". The second situation is where "a person (who) ... last held before the election ... an office". This would comprehend circumstances where an incumbent was defeated or had not contested the election in an election that was complete. An order could be made that they "act in the office" notwithstanding that they had vacated the office. Again there is no reason apparent from the subject matter of s221 or its text to construe it to give it limited operation. Unless narrowly construed, the Court would be empowered to order that the person act in the office in any of the circumstances just described. Such an order could compliment an order made under s221(1)(b).

It is to be remembered that the power conferred by s221(1) arise only after an application has been lodged and the Court is satisfied that there is a reasonable ground for the application: see s219(b). It is then that the inquiry in taken to have been instituted: see the concluding words of s219. Thus, if s221 is not read narrowly, the Court is invested with a power to order that a person not hold an office in a range of possible circumstances or to order that a person hold an office in a range of possible circumstances. That power may be exercised whether the election is complete or not. It is likely, in my opinion, that Parliament intended to confer a wide, and not narrow, discretionary power to meet the range of situations the Court might encounter in an inquiry.

Further support for a broad construction of s221 is found in s221(3). Any order made under s221(1) may operate until any new election ordered by the Court is complete: see s221(3)(b), and it may be varied or discharged during its period of operation: see s221(1)(f). Thus s221 contemplates that orders might be made concerning the interim occupation of an office before any order is made under s223(3)(a) declaring an election void. Moreover, such an order may be made on the basis that it will continue to operate after any order might be made under s223(3)(a). Thus an order made under s221(1)(c) could confirm in office a person elected to the office in the impugned election. It could be framed in terms that would result in it continuing in force till any new election, if ordered, had been completed. It could be varied and supplementary orders made: see s221(1)(e), while it was in force which would include the period after an order was made declaring the election void.

A submission was made on behalf of Jarman and Metcher that s223(3)(b) is the source of a power to make an order altering the status quo pending the completion of any new election. On one view of s223(3)(b), it is intended to confer a power to make a final order which does two things which are complementary. The first is to install into an office a person who should have assumed office in the election and the second is to displace the person purportedly elected. That might arise if a recount: see s223(2), disclosed that a person, other than the person declared to have been elected, should have been elected. It might also arise in an election where two candidates nominated and one was subsequently determined not to have been eligible. However a comma appears after the word "elected" when second appearing in s223(3)(b). The comma may indicate that the two matters referred to in that paragraph upon which the power operates, are not interdependent. If so an order may be made concerning one but not the other. Nonetheless the use of the expression "...and declaring another person..." suggests that at least the second aspect of the power is dependent on the first. That is, an order concerning the second matter also involves declaring the person purporting to have been elected not to have been elected.

It may be accepted that it would be consistent with the language and structure of s223(3)(b), and in particular recognising the effect of the comma, to view the paragraph as conferring a power to make an order in relation to the first matter only. That is, simply making an order that a person purporting to have been elected, was not elected. It is not readily apparent, however, the circumstances in which a final order would be made declaring someone not to be elected without declaring someone to be elected given the existence of the express power to declare an election void. But assuming s223(3)(b) confers such a power, it would enable an order to be made that would have a similar immediate legal effect as an order under s221(1)(c) that a person who has assumed an office or has continued to act in the office, shall not act in the office. But the powers would exist for different purposes. Section 221 concerns the performance of the duties associated with an office on an interim basis. It speaks of "acting in" an office. The section relates, at least in part, to the management of the organisation during a period of uncertainty arising from the conduct of an inquiry into an election and provides a mechanism to determine who should participate in the organisation's management for a limited period. As to people who may do so, it directs attention initially in s221(1)(b) and (c) to a person who holds or has held office, ordinarily as a result of the electoral process. Section 221(1)(d) identifies circumstances where a person may be drawn from a wider class. Section 223 is concerned with giving final legal effect to the conclusion that an irregularity may have affected or may effect the result of an election. A order under s223(3)(b) is not to operate for a limited period. Thus, the possible existence of a power in s223(3) to declare a person not to have been elected, does not deny the power to make an order under s221(1)(c) even if the immediate practical effect is the same or similar.

Counsel for the applicant referred to an unreported judgment of Keely J of 1 December 1994 in Re Morris; Re the Construction, Forestry, Mining and Energy Union, Building Unions Division, Victorian Divisional Branch. That matter was also an inquiry under Division 5 of Part IX. On 14 November 1994: see (1994) 57 IR 204, his Honour made orders declaring certain elections to be void and declaring persons purporting to have been elected, not to have been elected. An application was subsequently made for orders under s221(1)(c) and (d) that certain persons hold office. His Honour said:

"The respondents' counsel submitted that each of the persons who were declared elected in June 1993, in the election which was "declared void" by the court on 14 November 1994 (order 3), being persons whom the court then "declared not to have been elected" (order 4), was "a person who holds ... an office to which the inquiry relates" within the meaning of those words in s.221(1)(c). In response to questions counsel said the word "hold" means "de facto, not de jure". I reject that argument."

His Honour gave no detailed reasons for reaching this conclusion and later said:

"Even if, contrary to the opinion already expressed, there is power under s.221(1)(c) to make the order sought by the respondents, I would not make that order."

In my opinion and with respect to his Honour, this construction of s221(1) fails to give effect to its intended scope. The power conferred by s221 may be exercised at any time after an inquiry has been instituted and orders may be made that will operate till any new election is complete: see s221(3)(b). Section 221(1)(f) confers a power to vary or discharge an order and self evidently that power may be exercised during the period the order operates. Thus it is possible that the power to vary or discharge an order may be exercised after an order is made under s223(3)(a) declaring an election void but before the new election is complete. If one order was discharged another order might be made. It is unlikely, in my opinion, that it was intended that powers that might be exercised under any part of s221 could not be exercised as a direct consequence of an order made under s223(3)(b).

The construction of s221 I prefer is that the attribute a person must have to enliven any of the powers conferred by s221(1), must exist when the inquiry has been instituted, which is the time the powers may first be exercised. The power is not affected by any order subsequently made under s223. Such a construction of s221 does no real violence to the language of s221 and is consistent with what I view as the role of s221 in the general scheme created by Division 5.

Support for a broad construction of s221 is found in Re Pattersen; Re Association of Railway Professional Officers of Australia (1987) 19 IR 373 at 384-385 in which Gray J proceeded on the basis that s163(1) of the Conciliation and Arbitration Act 1904, which was, in terms, similar to s221 of the Act, was the source of power to make orders on discretionary grounds concerning the occupation of an office pending the holding of a fresh election. In my opinion s221 is the source of power to make orders concerning the occupation of an office pending the completion of a new election.

(ii) The exercise of the discretion to make orders

The competing contentions are, on behalf of the applicant, that the persons who held office immediately before the 1994 elections should occupy the offices pending the completion of new elections and, on behalf of Jarman and Metcher, that persons elected in the 1994 elections should remain in office. The practical effect of these competing contentions is that a decision has to be made about three organiser positions. That is so because most officers in the Branch who held office before the 1994 elections were re-elected to the positions they occupied. The submission made on behalf of Cook is that he should be appointed to one of the organiser positions as a "caretaker". I have found this issue generally a difficult one to resolve. In so far as Cook is concerned, his claim is based on s221(1)(d). However consideration of s221(1)(d) only arises if an order under s221(1)(c) should not be made for the reasons identified in s221(1)(d).

It is thus necessary to first consider what orders might be made under s221(1)(c). A touchstone in considering what order might be made is the will of the electorate manifest in elections: see Re Patterson: Re Association of Railway Professional Officers of Australia (supra) at 384-385 per Gray J and Re Birch; Re Australian Workers Union (SA Branch) (No. 2) (1991) 37 IR 420 at 436 per Keely J. However the expression of electoral will in the 1994 elections was perverted by widespread electoral fraud perpetrated for the benefit of those who were elected. Given the possible effect of the fraud on the vote, the results of the 1994 elections do not, in my opinion, provide a sufficiently sound foundation to make orders under s221. Moreover the simple fact that electoral fraud was perpetrated to benefit those elected is a relevant consideration, in my opinion, in exercising a discretionary power concerning the interim occupation of office. That is so even though there is no finding that the elected officers were involved in it or even knew of it.

The most recent reliable and untainted expression of the will of the electorate was in the elections preceding the 1994 elections. Those elections resulted in the election of the present office holders, save in relation to three organiser positions. The three organisers who held office immediately before the 1994 elections, but were not re-elected, were Messrs Battese, Hilton and Holden. There is evidence that each is willing and able to occupy the office of organiser till the new elections are complete. In the 1994 elections Holden sought election to the office of Branch Assistant Secretary and not organiser, unlike Battese and Hilton who did. In my opinion, it is appropriate to base any order concerning the interim occupation of office on the results of the elections preceding the 1994 elections. It may be accepted that it represents an electoral will expressed some time ago. It provides, however, a more reliable guide than that manifest in the 1994 elections. Accordingly the results of the earlier elections provide a rationale basis for making orders under s221(1)(c). I am acutely conscious that a consequence of doing so would be to displace three organisers who were elected to office in the 1994 elections. However their election was facilitated by the electoral fraud though I should make it plain that there is no finding made that those three organisers were involved in the fraud or even knew of it.

It is thus necessary, in order to consider the submission made on behalf of Cook, to ask whether if all those who held office immediately before the 1994 elections were ordered to act in or continue to act in an office pending the completion of the new elections, would such an order be not practicable, be prejudicial to the efficient conduct of the affairs of the organisation or inappropriate having regard to the nature of the inquiry. These are the criteria established by s221(1)(d). I am not satisfied that any of these criteria is met. Were the Court's discretionary power unconstrained there would be a case of substance that Cook should be appointed to hold office as an organiser along with Battese and one other so as to reflect a balance of sorts between, as best the Court can discern, the competing political groups within the organisation pending the holding of the new elections. It might have been, in those circumstances, appropriate to make no order in relation to Holden as he did not seek election to the position of organiser. However this aspect of the discretionary power conferred by s221(1) is not unconstrained and is, relevantly, limited by the provisions of s221(1)(d).

I propose to order that persons who held office before the 1994 elections may act in the office pending the completion of the elections that will be held as a result of the order of the Court and, if necessary, any subsisting orders to be revoked or varied. I will also order that the 1994 elections be declared to be void.

I adjourn the inquiry to enable the parties to bring in short minutes. They can then take the opportunity to make submissions on some of the matters of detail which are still outstanding.

I certify that this and the preceding thirty-three (33) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Moore.

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

Dated: 3 June 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: Mr R L Whyburn &

Associates

Counsel for the

Australian Electoral Commission: Mr G T Johnson

Solicitor for the

Australian Electoral Commission: Australian Government

Solicitor

Solicitor for the

Australia Postal Corporation: Mr Forbes, Australia Postal Corporation

Solicitor for Telstra Corporation: Mallesons Stephen Jaques

Dates of Hearing: 22, 23 and 24 May 1996

Written Submissions Complete: 3 June 1996

Date of Judgment: 3 June 1996

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