yee Ycth the Compliments of Ma Justice Northropp ' (Ao overs) JUDGES' CHAMBERS FEDERAL COURT OF AUSTRALIA 450 LITTLE BOURKE SIREET, MELBOURNE 3000 IN THE FEDERAL COURT OF AUSTRALIA Y % NEW SOUTH WALES DISTRICT REGISTRY N.S.W. No. 8 of 1980 INDUSTRIAL DIVISION JUDGE MAKING ORDER: DATE OF ORDER: WHERE MADE: 1. The Court makes IN THE MATTER of the TRANSPORT N_OF AUSTRALTA an Organization of employees under the Conciliation and Arbitration Act 1904 AND IN THE MATTER of an application by ROY LESLIE LINCOLN for an inquiry into allegations in the QUEENSLAND BRANCH of othe Organization. ORDER Northrop J. 4 July 1980 Brisbane no order under s.165 of the Conciliation and Arbitration Act 1904, as amended. 2. The Court certifies under s.168 of the Conciliation and Arbitration Act 1904, as amended, that the applicant Roy Leslie Lincoln acted reasonably in applying for the inquiry. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N.5.W. No. 8 of 1980 INDUSTRIAL DIVISION SORES oe MATTER of the TRANSPORT WORKERS' UNION OF AUSTRALTA an Org a isation of employees under the Conciliation and Arbitration Act 1904 AND IN THE MATTER of an Vv LESLIE LINCOLN Bappiication by ROY for an inquiry Into allegations in the QUEENSLAND BRANCH of the Organization. NORTHROP J. REASONS FOR JUDGMENT 4 July 1980. The Transport Workers' Union of Australia, hereinafter called the T.W.U., is registered as an organization of employees under the Conciliation and Arbitration Act 1904, as amended, hereinafter called The Act. The Transport Workers! Union of Australia (Queensland Branch) hereinafter called the Queensland Branch, is a branch of the T.W.U. In November 1979 Brian John Davis, hereinafter called the Returning Officer, in his capacity as the Branch Returning Officer of the Queensland Branch, commenced to conduct an election to positions within the Queensland Branch. The election was to be conducted pursuant to Rule 33 of the Rules of the T.W.U. Some of the positions for which the election was to be conducted were - Queensland Branch President Queensland Branch Vice President Queensland Federal Councillors Queensland Branch Organizers based in Brisbane Queensland Branch Organizer based in Toowoomba Branch Committee of Management Delegates elected to Brisbane Sub-Branch Chairman, Brisbane Sub-Branch Brisbane Sub-Branch Committeemen Branch Committee of Management Delegate elected by Toowoomba, Warwick, Roma Sub-Branch. The election was concluded and the declaration of poll was made by the Returning Officer on 4 February 1980. On 11 February 1980 Roy Leslie Lincoln, a member of the Queensland Branch, made application under s.159 of the Act for an inquiry by the Federal Court of Australia into alleged irregularities in the election to the positions set out above. Following receipt of the application, the Industrial Registrar, pursuant to s.160(3) of the Act referred the application to the Industrial Relations Bureau for inquiry and report. Following receipt of that report, the Industrial Registrar, in the exercise of the powers conferred by s.160 of the Act, granted the application insofar as it related to the positions of Queensland Branch Organizers based in Brisbane and Brisbane Sub-Branch Committeemen respectively and refused the application insofar as it related to the cther positions. In the result, under s.161 of the Act, the only matters referred to the Federal Court for inquiry into alleged irregularities related to the election for Queensland Branch Organizers based in Brisbane and for Brisbane Sub-Branch Committeemen. At the inquiry Mr. Hanger of counsel appeared on behalf of Mr. Lincoln. Mr. Lincoln was an unsuccessful candidate in each of the elections. Mr. Bolton of counsel appeared on behalf of the Returning Officer. Mr. Moynihan of counsel appeared for five of the successful candidates in the election for Branch Organizer and for one of the successful candidates in the election for Sub-Branch Committeemen. Mr. Hodgson, the Federal Secretary of the T.W.U. represented the T.W.U., see s.117A of the Act. Under Rule 33 of the Rules of the T.W.U., all members of the Queensland Branch who were financial at the closing time for nominations were eligible to vote in the election for Branch Organizers pased in Brisbane, while only the members attached to the Brisbane Sub-Branch were entitled to vote in the election for Brisbane Sub- Branch Committeemen., All members of the Queensland Branch were eligible to vote in some of the other elections, while in others eligibility to vote was limited to members attached to specified oeJee Sub-Branches. In the event, any one member of the Queensland Branch could at the one time receive eight different ballot papers. To help to avoid confusion, different coloured ballot papers were used for each of the nine different ballots. The ballot papers for the election to the positions of Branch Organizer based in Brisbane were coloured white. The ballot papers for the election to the positions of Brisbane Sub-Branch Committeemen were coloured buff. The white ballot papers were headed - "TRANSPORT WORKERS' UNION OF AUSTRALIA QUEENSLAND BRANCH 1979-1980 ELECTION BALLOT QUEENSLAND BRANCH Members are required to note carefull that they must place SEVEN CROSSES (xy in the squares opposite the names of the candidates for whom they desire to vote leaving the other squares blank. QUEENSLAND BRANCH ORGANISERS BRISBANE SUB-BRANCH AREA" The buff ballot papers were headed - "TRANSPORT WORKERS! UNION OF AUSTRALIA QUEENSLAND BRANCH 1979-1980 ELECTION BALLOT BRISBANE SUB-BRANCH Members are required to note carefully that they must place SIX CROSSES (X) in the squares opposite the names of the candidates for whom they desire to vote leaving the other squares blank. COMMITTEEMEN" There were twelve candidates for the position of Queensland Branch Organizer based in Brisbane and seven to be elected, and there were eight candidates for the six positions of wottes Brisbane Sub-Branch Committeemen and so a ballot was required for their election. On each of the ballot papers including the white and buff coloured ballot papers, as well as the other ballot papers, an asterisk appeared against the name of the candidate presently holding a position for which he was standing as a candidate. The Rules of the T.W.U. make no provision for such an indication. The Returning Officer complied with the requirements of Rule 33 with respect to the calling of nominations in the election. A ballot was required with respect to the nine elections being the nine already referred to. In accordance with Rule 33, the Returning Officer compiled the list of all members of the Queensland Branch who were financial at the closing time for nominations and used that list in the conduct of the election. This list of members, herein- after called the list of members entitled to vote, was prepared so as to list the members according to their respective sub-branches. Rule 33(k)-(p) provides as follows ~- "(k) (1) the election shall be conducted under the 'first past the post! voting system. (ii) the position of all candidates! names for each office on the ballot paper shall be drawn for. (iii) the names of all candidates on the ballot paper shall be identical with those on their nomination forms. (iv) the occupation and place of employment of all candidates shall be clearly stated on the ballot paper. (vi) members shall be instructed on the ballot paper to place a cross (x) opposite the name of the candidate (or names, where more than one is required) that he desires to have elected. (1) The Branch Returning Officer shall cause to be prepared sufficient ballot papers which shall not be numbered or otherwise marked except with the Branch Returning Officers! initials, together with pre-paid envelopes addressed to the box number at the G.P.O. The ballot paper shall contain in a prominent position the date and time of the closing of the ballot and ballot papers received after that date shall not be included in the ballot, "(m) The Branch Returning Officer shall post by pre-paid post the ballot papers and pre-paid envelopes in the presence of such scrutineers as wish to be present (on a date to be determined by the Branch Returning Officer, which date shall be at least twenty-one days prior to the close of the ballot) to each voter entitled to vote within the Branch in accordance with the voters! list. (n) <A candidate may authorise a scrutineer to watch his interests at any stage of the conduct of a ballot but such scrutineer shall not in any way obstruct the Branch Returning Officer in the performance of his duties nor shall he in any way interfere with the conduct of "the ballot. (o) A scrutineer shall be subject to the control of the Branch Returning Officer but subject thereto shall have the right to be present when the ballot papers are opened and counted and to watch the interests of the candidate whom he represents. He shall have the right to examine any ballot paper after it has been opened but shall not be entitled to handle the same without the express authority of the Branch Returning Officer. He shall have the right to object to the inclusion of any vote in the count but the decision of the Branch Returning Officer on any objection shali, subject to the provisions of the Conciliation and Arbitration Act be final. (p) At the close of the ballot, the Branch Returning Officer in the presence of the scrutineers of all candidates (if available) shall count all pallot papers and shall within twenty one days of the close of the ballot count the votes recorded and communicate to the Branch Secretary concerned in writing the result of the ballot in each instance and in such communication declare the candidate (or candidates where more than one is required) receiving the greatest number of votes elected." The Returning Officer compiled the list of members entitled to vote from the membership cards kept by the Queensland Branch. At the inquiry, no suggestion was made that the list so prepared did not accord with the membership cards. There were 13,699 names on the list, including 9,219 names of persons being attached to the Brisbane Sub-Branch. The Returning Officer caused to be printed and delivered to him a total of 101,300 ballot papers, 0G. including 14,000 white ballot papers and 10,000 buff ballot papers. Each ballot paper had printed on its face a facsimile of the initials of the Returning Officer and at the bottom of the front of each ballot paper the following instructions appeared - "The Ballot Paper, after being voted upon, must be placed in the addressed envelope supplied herewith and posted without delay. No stamp is required, ALL BALLOT PAPERS MUST BE IN THE HANDS OF THE RETURNING OFFICER, at or before 8 a.m. on TUESDAY, 29th JANUARY, 1980." In preparing the list of members entitled to vote and in placing the ballot papers and reply envelopes in the envelopes to be posted to the voters, the Returning Officer was assisted by employees of the Queensland Branch and by other outside contractors who were paid by the Queensland Branch. Some 100,000 ballot papers and 28,000 envelopes were required to be handled, This work was done in the week commencing 17 December 1979. Some discrepancies were discovered and as a result the envelopes were opened and the contents re-checked. A rubber stamp bearing a facsimile of the initials of the Returning Officer was prepared and was used by those assisting the Returning Officer to stamp the ballot papers before being placed in the envelopeson the second occasion. The initials of the Returning Officer thus appear twice on the ballot papers. In opening the envelopes some ballot papers had been damaged and these were replaced by undamaged ones. As before, the Returning Officer was helped in doing this by employees of the Queensland Branch and by outside contractors. The envelopes were ready for posting and the names on the envelopes were checked against the list of members entitled to vote and a tick was placed against each name on the list indicating that an envelope addressed to that person at the address appearing on the list was ready for posting. No tick was placed against the name "Blank, J.D. 12 Prenter Crescent, Kippa-Ring, Q. 4020". As will be seen later, this assumes some importance in the light of subsequent events. Of the 14,000 ballot papers 13,698 were placed in envelopes and 302 retained. Of the 10,000 buff ballot papers, 9,218 were placed in envelopes and 782 retained, There were some discrepancies in relation to the ballots but none with respect to the two ballots the subject of this inquiry. 1+ Tee At about 2.30 p.m. on Friday, 4 January 1980 the Returning Officer, accompanied by three candidates, including Mr, Lincoln who was then a Branch Organizer based in Brisbane, and a scrutineer for another candidate took the envelopes to the bulk posting section of the Roma Street Mail Exchange of the Australian Postal Commission and posted 13,698 envelopes. On Tuesday, 29 January 1980, the Returning Officer, accompanied by three candidates, including Mr. Lincoln and a scrutineer for another candidate, went to the Mail Exchange of the Australian Postal Commission at Elizabeth Street to collect the envelopes posted back to the Returning Officer. The total number of envelopes so returned before 8 a.m. on that day was 5,018. There had been some difficulties concerning safe custody of the envelopes posted out to voters but returned to sender, but no suggestion has been made that the ballot papers contained in those envelopes were put to any improper use and no allegation of irregularity has been made with respect to them. Subsequently, other envelopes addressed to the Returning Officer were received at the Mail Exchange, but the ballot papers contained in them have not been used in the ballot. It will be seen that of the 13,698 envelopes posted to voters, 5,018 envelopes were posted back to the Returning Officer, a 36.6% return. The envelopes addressed to the Returning Officer were taken to the offices of the Brisbane Branch, opened and the ballot papers extracted. The ballot papers were sorted into their different colours and the votes recorded on them counted. A summary of the number of ballot papers posted to voters and the number returned with respect to each of the nine ballots is set out. These numbers are taken from the report of the Returning Officer. -8.. No. of balTot No. of apers ballot papers % return posted returned to In- of ballot Position to voters Ret. Orricer Officer Formal formal papers Queensland Branch President (1) 13,698 4,903 4,809 94 35.8% Queensland Branch Vice President (1) 13,698 4,963 4,898 65 36.2% Queensland Federal Councillors (3) 13,698 4,887 4,818 69 35.7% Queensland Branch Organizers based in Brisbane (7) " 13,698 4,920 4,847 73 35.9% Queensland Branch Organizer based in Toowoomba (1) 13,698 4,740 4,616 124 34.6% Branch Committee of Management Delegates elected by Brisbane Sub-Branch (4) 9,218 3,496 3,464 32 37.9% Chairman, Brisbane Sub-Branch (1) 9,218 3,579 3,520 59 38.8% Brisbane Sub-Branch Committeemen (6) 9,218 3,553 3,521 32 38.5% Branch Committee of Management Delegate elected by Toowoomba, Warwick, Roma Sub-Branch (1) 1,295 451 446 5 34.8% A reference to the number of ballot papers returned to the Returning Officer in respect to each ballot shows that not each voter returned each ballot paper he was entitled to complete. In particular, of the 5,018 envelopes returned, 98 did not contain white ballot papers, but no figures can be given with respect to the buff ballot papers since not all members of the Queensland Branch were entitled to cast a vote in that ballot. The percentage return of ballot papers compared with the percentage return of envelopes, 36.6% illustrates that a higher percentage of members of the Brisbane Sub- Branch voted than the percentage of members of the other sub-branches. The result of the ballot for Queensland Branch Organizers based in Brisbane, as contained in the report of the Returning Officer, is set out - "LEE, Ronald L. 1,632 MacKENZIE, David K. 1,169 WILLIAMS, Hughie J. 3,802 ELECTED RAY, Greg 2,765 ELECTED NEWTON, Trevor R. 2,697 ELECTED GOOLD, George A. 3,484 ELECTED WARD, Leonard E. 3,694 ELECTED HUGHES, Edward W. 1,523 MASTERS, Allen R. 2,505 McPAUL, Allen D. 3,693 ELECTED LINCOLN, Roy L. 2,656 BURGARTY, Charles D, 3,462 ELECTED" The difference between the number of votes for the successful candidate with the lowest number of votes, viz. Mr. Newton, 2,697, and the number of votes for the unsuccessful candidate with the highest number of votes, viz. Mr. Lincoln, 2,656, is 41. During the submissions it was contended that since the total number of votes cast in the ballot being the sum of all votes recorded, viz. 33,082, was less than the possible total number of votes that could have been cast if each voter had cast seven votes on each of the 4,847 formal ballot papers, viz. 33,929, irregularities must have occurred in the ballot. The contention depends upon the assumption that each voter who completed a white ballot paper voted for seven candidates. There was evidence, which is accepted, that the Returning Officer admitted as formal, ballot papers on which the voter had not voted for seven candidates, but there was no evidence of the number of such ballot papers. In my opinion the calculation cannot be used to support an inference that irregularities occurred. The Industrial Relations Bureau conducted a full examination and partial count of the ballot papers for the ballot for Queensland Branch Organizers based in Brisbane. The result of the partial count is as follows, the Returning Officer's numbers being ..10.. -10- set out in brackets - Total ballot papers 4,915 (4,920) Formal ballot papers 4,832 (4,847) Informal ballot papers 83 (73) Mr. Newton 2,700 (2,697) Mr. Lincoln 2,645 (2,656) Margin of votes for Mr. Newton over Mr, Lincoln 55 (41) The Industrial Relations Bureau made the following comments - "The mumber of ballot papers that bore more than 7 crosses, and had been admitted to the count as formal by the Returning Officer, was NINE, Of these 9 ballot-papers, all contained votes which had been credited to candidate Lincoln, Ballot-papers which had been 'altered or corrected' by use of 'Liquid-Paper' totalled 23 (votes for Lincoln - 1). Ballot-papers which had been 'altered or corrected! by biro totalled 51 (votes for Lincoln - 24)." An examination of an example of the most common type of biro alteration shows that the voter clearly expressed his intention and that there could be no doubt as to the candidates to whom he gave his votes. The result of the ballot for Brisbane Sub-Branch Committeemen as contained in the report of the Returning Officer, is set out - "LINCOLN, Roy L. 2,070 FLOYD, John V. 2,499 ELECTED LEWIS, Robert J. 1,826 BURGARTY, Charles D. 2,680 ELECTED MASTERS, Allen R. 2,123 ELECTED WARD, Leondard E, 2,970 ELECTED HUGHES, Edward W. 2,838 ELECTED MURPHY, John R. 3,065 ELECTED" eoil.. -ill- The difference between the number of votes for the successful candidate with the least number of votes, viz. Mr. Masters, 2,123, and the number of votes for the unsuccessful candidate with the highest number of votes, viz. Mr. Lincoln, 2,070, is 53. Ona similar calculation to that referred to earlier, the total number of votes cast in this ballot was 20,071 which was less than the total number of votes that could have been cast if each voter had cast six votes on each of the 3,521 formal ballot papers, viz. 21,126. For reasons similar to those already expressed, this fact does not support an inference that irregularities had occurred. The Industrial Relations Bureau conducted a full examination and partial count of the ballot papers for the ballot for Brisbane Sub-Branch Committeemen. The result of the partial count is as follows, the Returning Officer's numbers being set out in brackets - "Total ballot papers 3,581 (34333 Formal ballot papers 3,542 3,521 Informal ballot papers 39 (32 Mr. Masters 2,108 2,123 Mr. Lincoln 2,048 (2,070 Margin of votes for Mr. Masters over Mr. Lincoln 60 (53)" The Industrial Relations Bureau made the following comments - "Ballot papers altered by use of "Liquid Paper' Total 9 Ballot papers altered by biro Total 17" At the inquiry evidence was given by Mr. Davis, the Returning Officer, Mr. Lincoln, the applicant, Mr. Blank, all of whom have been referred to earlier in these reasons, Archibald Bevis, the Secretary of the Queensland Branch, Walter McGrath, the Industrial Research Officer of the Queensland Branch, Graham Wright, a member of the Queensland Branch who did not receive ballot papers, and the following candidates for office, namely Allen Masters, David MacKenzie, Trevor Newton, Gregory Ray, George Goold, Hughie Williams and Allen McPaul, In addition, those parts of the report o.12.. -12- by the Industrial Relations Bureau to the Industrial Registrar relating to the two ballots, the subject of the inquiry, were placed before the Court and the parties, by agreement, accepted the matters of fact therein as being correct. The evidence given by the various witnesses was remarkably consistent and where there was a conflict, the facts as found are hereinafter set out and were so found after considering all the evidence, the likelihood of what happened and the general demeanour of the witnesses. The election was keenly contested. During the course of the ballot and after the declaration of the results, complaints were made by a number of members of the Queensland Branch that they did not receive ballot papers. Mr. Blank complained that he had received ballot papers that had been completed. Two main 'thow-to~vote' tickets were available to members, the first being authorised by the Branch Secretary and the Federal Secretary, and the second by Pat. McGrath, the Vice Chairman of the Brisbane Sub-Branch, The first ticket supported the retiring officers seeking re-election in the two ballots, the subject of this inquiry, while the second ticket did not support Mr. Lincoln or Mr, Masters in either of those ballots. Mr. Lincoln was unsuccessful in each ballot, while Mr. Masters was successful in one only. In final submissions, Mr. Hanger for the applicant contended that there had been a number of irregularities in or in connection with the election and sought an Order - 1. That there should be a fresh ballot in the two elections, the subject of the inquiry. Alternatively - 2. That there should be a re-count in the ballot held in the two elections, the subject of the inquiry. The Court proposes to consider the contentions made by Mr. Hanger, and in the course of that consideration make any additional findings of fact necessary for the purpose of applying the relevant legal principles to those contentions. -eL5.. -13- Section 165 of the Act provides - "165. (1) At an inquiry the Court shall inquire into and determine the question whether any irregularity has occurred in or in connexion with the election, and such further questions concerning the conduct and results of the election as the Court thinks necessary. (2) In the course of conducting an inquiry the Court may make such orders (including an order for the recounting of votes) as the Court thinks necessary for the purposes of the inquiry. (3) If the Court finds that an irregularity has occurred, the Court may, subject to the next succeeding sub-section, make one or more of the following orders:- (a) an order declaring the election, or any step in or in connexion with 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; (ec) an order directing the Industrial Registrar to make arrangements - (i) in the case of an uncompleted election - for any step in or in connexion with the election (including the submission of 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 any step in or in connexion with the election (including the submission of nominations) to be taken again or for a new election to be held; (d) an order (including an order modifying the operation of the rules of the organization to the extent necessary to enable a new election to be held, a step in or in connexion with an election to be taken again or an uncompleted step in an election to be taken) incidental or supplementary to, or consequential upon, any order under this section, 4. -14- "(4) The Court shall not declare an election, or any step taken in or in connexion with an election, to be void, or declare that a person was not elected, unless the Court is of opinion that, having regard to the irregularity found, and any circumstances giving rise to a likelihood that similar irregularities may have occurred or may occur, the result of the election may have been affected, or may be affected, by irregularities." Particular attention is directed to s.165(4). The word "irregularity" has an extended meaning under s.4, namely - "4. (1) In this Act, except where otherwise clearly intended ... 'Irr€gularity', in relation to an election or ballot, includes a breach of the rules of an organization or of a branch of an organization, and any act, omission or other means 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 the voting is, or is attempted to be, prevented or hindered;" The first contention was that a number of members entitled to vote did not receive ballot papers. On the material before the Court, it is accepted that the list of members entitled to vote correctly records the names and addresses of members entitled to vote. The Court finds that with the exception of Mr. Blank, ballot papers were posted out to each member whose name appears on the list of members and were posted to them at their addresses appearing on the list of members. No tick appears alongside the name of Mr. Blank, and the Court finds that no ballot papers were posted to him by the Returning Officer. By an unstamped letter contained in an envelope which had a fold mark across it and which had the post date 8 January 1980, Mr. Blank received the completed copies of the ballot papers. Each of these recorded a vote in favour of Mr. Lincoln and Mr. Masters, and on the white ballot paper did not record a vote for Mr. Newton. The envelope was marked "If not claimed within 7 days return to Box 1198 G.P.O. Brisbane 4001" and was identical, apart from the name and address of Mr. Blank, to the envelopes in which the ballo- papers were posted out to members entitled to vote. To add insult to injury Mr. Blank was required to pay 36 cents in order to receive the letter. In all probability, the envelope addressed to Mr. Blank was -15.. -15- folded and, in lieu of the pre-paid envelope addressed to the Returning Officer, was placed, together with the ballot papers into an envelope addressed to another member entitled to vote, which latter envelope was posted on 4 January 1980. That unknown member received the ballot papers, marked the ballot papers with his votes, and in accordance with the instructions on the ballot paper, placed them "in the addressed envelope supplied herewith" and posted the envelope without delay. He noted the direction "No stamp required", and so placed no stamp on the envelope. That envelope containing the completed ballot papers was posted on 8 January 1980 but instead of being addressed to the Returning Officer, that envelope was addressed to Mr. Blank. These facts constitute an irregularity within the meaning of s.I65 of the Act. On the assumption that Mr. Blank would have voted for Mr. Lincoln and Mr. Masters in each of the two pallots, Mr. Lincoln was thus deprived of two additional votes, those of Mr. Blank and the unknown member. Mr. Newton did not receive the penefit of an additional vote. As between Mr. Lincoln and Mr. Masters the difference in votes recorded would have remained the same. In my opinion, this irregularity does not satisfy the requirements of s.165(4) of the Act. Mr. Wright gave evidence that he did not receive ballot papers, but his address appearing on the list of members entitled to vote was different from his address in January 1980. In addition, a number of members sought information from other members on whether they had received ballot papers, a number of members wrote to the Secretary of the Queensland Branch complaining that they had not received ballot papers, and a number of members, as part of a planned campaign, wrote to the Industrial Registrar complaining that they did not receive ballot papers. One of the documents so forwarded was in the nature of a petition signed by a number of members. Despite objection, the Court admitted as evidence the letters and sheets containing the names and addresses of persons who claimed they had not received ballot papers, even though the members concerned did not give evidence. Altogether a total of 55 names, including the name of Mr. Wright, was included in this category. Ina list of these names prepared by counsel one name was included, namely Mr. Briggs, who wrote to the Industrial Registrar complaining about the conduct of the election but did not complain about non-receipt by him of the -16.. -~16- ballot papers. His name has not been included in the total of 55 names. At the request of the Court, counsel for the parties checked the names and addresses of these 55 persons against the names and addresses appearing on the list of members entitled to vote. A number of names were not included on that list, while in other instances the addresses given on that list differed from the addresses appearing on the list of 55 names. In the result, of the 55 names, only 30 appeared on the list of members entitled to vote with addresses corresponding to the addresses on that list. For the purposes of these reasons only, and notwithstanding the absence of direct evidence of non-receipt of the ballot papers, I am prepared to assume that those 30 members entitled to vote did not receive ballot papers. . On the findings made, ballot papers were posted to them in accordance with the Rules of the T.W.U. The question then is whether the non-receipt of the ballot papers constitutes irregularitie occurring in or in connection with the elections. There has been no breach of the Rules of the T.W.U., and so the question can be expressed in the form of whether the non-receipt of the ballot papers constitutes "any act, omission or other means whereby the full and free recording of votes by all persons entitled to record votes and by no other persons ... is ... prevented or hindered". Section 133 of the Act provides for conditions to be complied with by organizations. These include conditions that the rules of the organization shall provide for the election of the holder of each office, as defined in s.4 of the Act, within the organization by secret ballot and under s.133AA, the election for certain of those offices must be by secret postal ballot. The expression "postal ballot" as defined in s.4 means "a ballot for the purpose of which a ballot paper 1s to be sent by pre-paid post to each person entitled to vote and facilities are to be provided for the return of the completed ballot paper by post by a voter without expense to him", Rule 33 of the Rules of the T.W.U. complies in this respect with the provisions of the Act. The provisions of the Act are based on the assumption that a postal ballot will be effective and that the postal system is reliable. I express no opinion on whether some identifiable act or omission which prevents or hinders the delivery of mail within the Australian Postal Commission system eel7.. -17- is capable of constituting an irregularity within the meaning of s.165 of the Act. In the present case there is no evidence or suggestion of any such identifiable act or omission. The reasons for the non-receipt of the ballot papers could be many, and it is idle to speculate on what might have occurred. The only facts relevant for present purposes are that some of the letters posted by the Returning Officer on 4 January 1980 were not received even though the procedure specified in the Rules and approved by the Act had been followed. In my opinion that evidence does not establish that any irregularities occurred in or in connection with these allegations. In any event I cannot draw the inference that other members did not receive ballot papers. Even on the assumption that each of the 30 members would have, voted for Mr, Lincoln and Mr. Masters and not for Mr. Newton, the requirements of s.165(4) would not be satisfied as even with an additional 30 votes Mr. Lincoln would not have been elected as Queensland Branch Organizer based in Brisbane. The placing of an asterisk on the ballot papers against the name of the existing holders of office does constitute an irregularity in that it constitutes a breach of the Rules of the T.W.U. The ticket authorised by the two Secretaries contained the asterisks against the holders of office, It was designed to favour those persons. Mr. Lincoln had the benefit of an asterisk. In my opinion this irregularity does not satisfy the requirements of s.165(4) of the Act. It was further contended by Mr. Hanger that under Rule 33 of the Rules of the T.W.U. the Returning Officer personally had to compile the list of members entitled to vote, to address the envelopes to be posted out to the members entitled to vote, to place the ballot papers and the pre-paid return envelopes in the first envelopes, to open all envelopes returned and to count the votes recorded on the ballot papers. It was argued that since Rule 33 made reference to the Returning Officer only, he could not engage other persons to do the physical tasks involved in conducting an election. The evidence shows that the Returning Officer supervised all those tasks but engaged other persons to do them. I reject the contention. A reference to the other Rules of the T.W.U. discloses that they are in a form that specific officers have duties imposed 18... -18- upon them in a manner similar to the form in which the duties are imposed upon the Returning Officer, see for example Rule 27 Federal Secretary, and Rule 32(a) Branch Secretaries. Reference is made also to Rule 35 which makes provision for the appointment of the Branch Returning Officer. In my opinion, on the proper construction of Rule 33, the Returning Officer, while assuming responsibility for the performance of the duties imposed upon him, is entitled to engage other persons to perform the physical tasks by which those duties are performed. Any other interpretation would make the rules impractical. These facts do not establish a breach of the Rules of the T.W.U. and do not constitute irregularities under 8.165 of the Act. It was further contended that the Returning Officer should have rejected those ballot papers which had been altered by biro or by "Liquid Paper" and that he should have rejected ballot papers which to some extent had been mutiliated. The Returning Officer accepted as formal all ballot papers which in his opinion disclosed the intention of the voter. He was quite entitled to do this. An alteration to a ballot paper, if done in a way which shows the intentiton of the voter, can constitute a formal vote. The Court was not referred to any ballot paper which was admitted as formal by the Returning Officer, but which did not disclose the intention of the voter. The partial count by the Industrial Relations Bureau in the ballot for Queensland Branch Organizer pased in Brisbane disclosed that nine ballot papers had been admitted as formal by the Returning Officer, even though they contained eight votes. The acceptance by the Returning Officer of those ballot papers as formal constitutes an irregularity, but the report of the Industrial Relations Bureau shows that Mr. Lincoln received a vote on each of those nine ballot papers. Thus, that irregularity does not come within s.165(4) of the Act. It was further contended that the count of the ballot, particularly of the votes on the white ballot paper, was conducted in breach of Rule 33(p). That Rule provides that at the close of the ballot the Returning Officer "in the presence of the scrutineers of all candidates (if available) shall count all ballot papers", In -19- the present case there were some fifteen to eighteen people present during the count of the white ballot papers. These persons included some of the candidates, including Mr. Lincoln, as well as scrutineers The Returning Officer was present during the count, but on odd occasions left the meeting for short periods. Before the envelopes were opened the Returning Officer stated that he proposed that if all present were in agreement they could assist in the count. No one objected to that course, and no complaint was made during the conduct of the count. The white ballot papers were the first to be counted. Those present operated in pairs, but the same two persons did not always comprise the same pair, The first count was for Mr. Lee, the candidate first listed on the white ballot paper. Ballot papers which did not contain a vote for him were separated out and placed in one box. These ballot papers were double-checked by the other member of the pair before being placed in that box. The ballot papers which did contain a vote for Mr. Lee were placed in groups of ten and checked by the other person in the pair. They were then placed before the Returning Officer who grouped them in groups of five before placing them in second boxes. The Returning Officer was assisted by two other persons in that task. The Returning Officer kept a tally of the votes cast in favour of a candidate. If there was any query as to whether a ballot paper was formal or not, it was referred to the Returning Officer who ruled on whether it should be considered formal or not. When the first count was completed a count was made by a similar method with respect to each subsequent candidate. During the course of the count efficiency increased, and about half way through the series of counts some of the pairs were left with nothing to do so, with the permission of the Returning Officer, they removed ballot papers from the boxes before one count was completed and commenced the count for the next candidate. There was some confusion but I find that the Returning Officer remained in control of the count and that there was no unlawful interference with the ballot papers or any of them or any of the votes recorded on them. The presence of a large number of persons supporting candidates on each of the two "how-to-vote" tickets had the effect of lessening the opportunity for any unlawful interference with any of the ballot papers. I have already held that the Returning Officer was entitled to engage persons to count the votes on the ballot papers. --20.. - 20 + Rule 39(p) confers a privilege on candidates whereby their scrutineers have a right to be present while a count is made. This privilege does not detract from the powers of the Returning Officer. There is nothing to prevent a candidate from being a scrutineer, see Rule 33(n). It may have been unwise for the Returning Officer to request candidates and scrutineers to assist in the count, but in my opinion that participation does not constitute an irregularity under s.165 of the Act, particularly when this was done with the approval of all those present and where no objection was taken during the course of the count. In any event, even if the procedure adopted did constitute an irregularity, in my opinion it does not come within s.165(4) of the Act. In the present case the election has been completed. Some irregularities occurred in or in connection with the election of Branch Organizers based in Brisbane and Brisbane Sub-Branch Committeemen respectively. Those irregularities have been referred to earlier in these reasons. The Court is not of opinion that, having regard to the irregularities found, either individually or cumulatively, and having regard to the absence of any circumstances giving rise to a likelihood that similar irregularities may have occurred, the result of the election may have been affected by irregularities. Accordingly, the Court does not make any order under s.165 of the Act. The Court has found that some irregularities occurred. Insofar as irregularities were alleged, but have not been found to have occurred, the Court, pursuant to s.168 of the Act, certifies that the applicant, Mr. Lincoln, acted reasonably in applying for the inquiry. I certyfy that ths and the/? preceding pages are a true copy of the Reasons for Judgment herein of the Honourable iar. Justice iL wate ie