IN THE FEDERAL COURT OF AUSTRALIA } NEW SOUTH WALES REGISTRY No, 1 of 1981 INDUSTRIAL DIVISION ) IN THE MATTER of the Conciliation and Arbitration Act 1904 AND IN THE MATTER of an Application by Prank Maguire for an Inquiry into an Election in THE LIVESTOCK AND GRAIN PRODUCERS' (INDUSTRIAL) ASSOCIATION F NEW SOUTH WALES AND IN THE MATTER of a Reference of such Application by the Industrial Registrar to the Federal Court of Australia CORAM: SHEPPARD J 12 June, 1981 REASONS FOR JUDGMENT This is an application made pursuant to the provisions of s.168(2) of the Conciliation and Arbitration Act 1904. The sub-section provides: "Where upon an inquiry the court does not find that any 1urregularity has occurred but certifies that the person who applied for the inguiry acted reasonably in so applying, the Attorney-General may authorise payment by the Commonwealth to that person of the whole og any part of his costs and expenses, including expenses of witnesses." The inquiry referred to includes an inquiry into the holding of an election in a registered organisation pursuant to s.159 of the Act. The applicant in this matter applied for such an inquiry an application which was filed on 30 December, 1980. The matter was mentioned on two or three occasions for directions and on 1 June last 1t was withdrawn by consent. The respondent to the application was the Livestock and Grain Producers! (Industrial) Association of New South Wales. It is a registered organisation of employers under the Act. It 1s associated with another corporate body, namely, the Livestock and Grain Producers! Association of New South Wales. That body is a company incorporated under the Companies Act 1961 of the State of New South Wales, limited by guarantee. It has been the practice apparently for some time for the company to hold an annual conference of its members in Sydney. At the time that this conference is held, the usual practice 1s for there to be a meeting also of the industrial organisation. In 1980 there was prepared a set of agenda papers entitled "Annual Conference Agenda", These contained on the opening page an agenda which indicated that, amongst other things, there would be held an annual general meeting of the company and a general meeting of the industrial organisation. It was scheduled to take place at 4 p.m. on 10 July, 1980. The agenda for the meeting of the industrial organisation showed that 1t was intended to conduct elections for various positions, including the election of seven members of the executive committee, The rules of the industrial organisation provided in rule 36 for elections including elections for these positions. Sub-rule (xii) provided, inter alia, that every count should be "by a preferential system". Although the rules have been amended in various respects since the meeting was held, the provisions of rule 36 in that regard remain unaltered. Included amongst the agenda papers to which I have referred was a statement appearing before any of the notices of meeting which was headed "Procedure for counting of votes under the system of preferential voting (old Senate System)". The note then described what the author believed to be the method of counting votes for members of the Senate prior to the amendments to the Commonwealth Electoral Act 1918, which were effected by Act No.17 of 1948, I am anformed by counsel for the applicant, and the affidavit evidence would bear this out, that the applicant believed that the, old Senate system of preferential voting would be followed in relation not only to elections held for various positions in the company but also for positions in the andustrial organisation as well. The election for office bearers in the industrial organisation was conducted pursuant to s.170 of the Act by an officer of the Australian Electoral Office. He is Mr. Cain who has filed an affidavit as to the procedure 3. which he adopted. The procedure which he followed was not in accordance with the old Senate system of preferen- tial counting of votes, but in accordance with what Mr. Cain described in his affidavit as the multiple preferential system. One of the matters upon which the applicant relied in the proceedings which he instituted was that he was misled by the notice which appeared in the agenda as to the proposed use of the old Senate preferential voting system. He expected it to be followed. He said that when it was not, he was adversely affected. More importantly, he complained that, within the meaning of s.159 of the Act, the fact that the Senate system was not used revealed that there had been an irregularity in or in connection with the election. He also relied in his points of claim and through his solicitor at the directions hearings on another matter. He proposed to submit eventually, if the matter had proceeded, that the method of counting votes adopted by Mr. Cain was not, within the meaning of rule 36(x11) of the rules, a count by a preferential system. The matter did not procged to a hearing because of any loss of faith on the part of the applicant in the points upon which he relied. It did not go on because his solicitor conducted a count of the votes in accordance with the old Senate system of preferential votang and concluded that if, in accordance with the applicant's submissions, 1t were applied, the result of the election would nevertheless have been the same, It was for that reason and for that reason only that the applicant withdrew his application, It 1s in those circumstances that I am now asked to certify pursuant to the provisions of s.168(2) of the Act. An 1unitial question not discussed in argument arises as to whether it is appropriate for an application to be made in these circumstances, the matter not having proceeded to a hearing. A possible construction of the sub-section would involve the conclusion that it was directed only to cases where there had been a hearing but the hearing had resulted in the dismissal of an application. It would only be in those circumstances that the court could come to a conclusion upon the question of whether, notwithstanding the dismissal, the application had nevertheless been brought by an applicant who had acted reasonably in applying. Al though the matter has not been argued and 1 am therefore without assistance on the point, I do not take that narrow view of the sub- section. I think 1t is designed to apply to cases of the kind I have mentioned but also to cases which, for various reasons, do not proceed to a hearing, I think one should give the section a beneficial construction. i am in agreement with the view of the underlying policy and purpose of the legislation expressed in a brochure recently published by the Attorney-General. The brochure, amongst other things, says that in adminis- tering these provisions the Attorney-General has regard to the underlying legislative policy which is that the institution of such proceedings (I interpolate to say proceedings include proceedings under s.159) fosters the democratic control and management of organisations and organisation members generally. I would add that they are also very often in the public interest. State- ments by the Attorney-General cannot, of course, control the construction of the Act, but I think that the statement which the Attorney-General has made is an accurate state- ment of the underlying policy and purpose of provisions of this kind. it is on the basis of that underlying policy and purpose that I say that this provision should be given a beneficial construction. Notwithstanding those views, I do not consider that the applicant has made out a case for a certificate upon the basis of his being misled by the notice as to the adoption of the old Senate system of preferential voting in the agenda papers. I agcept that he may have been misled at the time he read the agenda and for a time thereafter, but I would have thought that the critical question was what the rules of the organisation provided and that once these had been considered, as they should have been before the institution of the proceedings, 1t would have been clear that 1t did not necessarily follow that such a system was the one which the rules had selected. However, I am satisfied that I should accede to the application because of the other ground upon which the applicant relied. In my opinion the rules are regrettably unclear about what the situation 1s to be. I have not made an exhaustive study of preferential voting systems but there are clearly available at least two, one being the old Senate system and the other being the system referred to by Mr. Cain in his affidavit. The old Senate system was used, of course, before 1949 in the election of senators for the Federal Parliament and 1t is used by a number of other organisations including a number of the colleges of advanced education of this State, Il instance clause 40(b) of the by-law of the Kuring-gai College of Advanced Education. On the other hand, inquiries made by me of the State' Parliamentary Librarian indicate that other organisations use the method selected by Mr. Cain. I was referred by the Librarian to rule 2 of the Australian Labor Party Rules (1979) for the New South Wales Brangh, I think there is a real question, firstly, as to whether rule 36(x11) 1s capable of being given a meaning, and secondly, if it is, whether 1t 1s open either to the governing body of the industrial organisation or an electoral officer charged with the conduct of an election to seleot themselves the preferential voting method which he will apply or, thirdly, whether if one were to hear evidence about the various methods that are available of counting votes, one would not come to the conclusion that the draftsman of the rule had selected a particular method. In my opinion this application has had some value in drawing the attention of the organisation and 1%ts members to the problem and it is on that basis that I am prepared to grant the certificate which is here sought. Before I conclude, I would say that I think it highly desirable that the association look at the provisions of the rule in question with a view to providing precisely the method of counting votes which it wishes to adopt. Most organisations, and I instance the Labor Party and the colleges of advanced education to which I have referred, who wish to adopt a preferential system of voting spell out precisely the method of counting which 1s to be adopted. I would think it desirable that this association amend its rules to do likewise. " In the result, as 1 say, I propose to accede to the application, The formal order I make is: Pursuant to s.168(2) of the Act I certify that Frank Maguire, the applicant for an inquiry into-an election for office bearers in the Livestock and Grain Producers! (Industrial) Association of New South Wales pursuant to s.159 of the Act, acted reasonably 1n so applying. f certify (ral This @ tLe $ preceding pages a cu eg copy of tae reasons jor judgment heren of The Huncurable | << Mr Justice Sheppard. al Dated [2 oo 38 SEAIE