Se the Hae AEE 6 ne Uh ele team eae = He wee | tere cee RACER aN So nkd SAPO AIT CATCHWORDS Industrial law - Commonwealth Conciliation and Arbitration Act - organization under Act - rules imposing restrictions on power to nominate persons as candidates for office - whether in contravention of s.140 of the Act - meaning of "direct voting system" and "collegiate electoral system", Conciliation and Arbitration Act, 1904 ss.2, 4, 133, 140. MUNICIPAL OFFICERS' ASSOCIATION OF AUSTRALIA v, KENNETH LAWRENCE LANCASTER and MICHAEL JAMES CANNY Federal Court of Australia V. No. 27 of 1980 V. No. 9 of 1981 Coram: Evatt, Northrop and Deane JJ. Melbourne 6 October 1981. oie nals GE ae Pak cnt ee eee IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY INDUSTRIAL DIVISION BETWEEN: JUDGES: DATE OF ORDER: WHERE MADE: ) ) ) Vv. No. ) ) MUNICIPAL OFFICERS' ASSOCIATION OF AUSTRALIA and KENNETH LAWRENCE LANCASTER and MICHAEL JAMES CANNY ORDER Evatt, Northrop and Deane JJ. 6 October 1981 Melbourne THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The orders made on 4 December 1980 be set aside. 27 of 1980 Appellant (Respondent) Respondents (Applicants) 3. In lieu thereof the rules nisi made on 1 October 1980 in Matters V.15 and V.16 of 1980 respectively, be discharged, IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V. No. 9 of 1981 wwe www INDUSTRIAL DIVISION BETWEEN: KENNETH LAWRENCE LANCASTER and MICHAEL JAMES CANNY Applicants and MUNICIPAL OFFICERS' ASSOCIATION OF AUSTRALIA Respondents ORDER JUDGES: Evatt, Northrop and Deane JJ. DATE OF ORDER: 6 October 1981 WHERE MADE: Melbourne. THE COURT ORDERS THAT the rule nisi herein made on 12 June 1981 be discharged. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY ) V. No. 27 of 1980 ) V. No. 9 of 1981 ) INDUSTRIAL DIVISION BETWEEN: MUNICIPAL OFFICERS' ASSOCIATION OF AUSTRALIA Appellant (Respondent) and KENNETH LAWRENCE LANCASTER and MICHAEL JAMES CANNY Respondents (Applicants) AND: KENNETH LAWRENCE LANCASTER and MICHAEL JAMES CANNY Applicants and MUNICIPAL OFFICERS' ASSOCIATION . OF AUSTRALIA Respondent EVATT J. and NORTHROP J. REASONS FOR JUDGMENT 6 OCTOBER 1981. Two separate but related matters are before the court. In Matter V. No. 27 of 1980, the Municipal Officers' Association of Australia (hereinafter called "the Association"), an organization under the Conciliation and Arbitration Act 1904 ("the Act") is the appellant from a judgment of the court constituted by a single judge. That appeal was heard on 19 and 20 March 1981 by a full court constituted by J. B. Sweeney, Evatt and Northrop JJ. and judgment was reserved. The appeal was listed for mention on 11 May 1981 and at that hearing the court was constituted by Evatt and Northrop JJ. On behalf of the court, Evatt J. said: "This appeal was heard by a Full Court consisting of Mr. Justice J. B. Sweeney, Mr. Justice Northrop and myself. On 20 March 1981 the Full Court reserved its decision. In considering the matter it became apparent to the members of the court that although the proceedings related to a claim that a specified rule of the Association contravened s.140(1)(c) of the Cor.ciliation and Arbitration Act 1904, the essence of the arguments raised an issue of whether the rules of the Association failed to make a provision required by the Act, see s.140(1)(a) of the Act. Section 133(1)(a) of that Act requires that the rules of an organization: 'Shall provide for the election of the holder of each office within the organization either by - (i) a direct voting system; or (ii) a collegiate electoral system being, in the case of an office the duties of which are of a full-time nature, a one-tier collegiate electoral system.' The appeal affects directly the offices of Branch Secretaries and Assistant Branch Secretaries only and questions arise - 1. Whether the rules of the Association provide for the election of the holder of those offices either by a direct voting system or a collegiate electoral system. 2. Whether the rules of an organization which provide for the election of the holder of offices by a system which incorporates aspects of both a direct voting system and a collegiate electoral system comply with the requirements of s.133(1)(a) of the Conciliation and Arbitration Act. During the hearing of the appeal, the court drew attention to these problems but counsel did not direct submissions on them because they claimed they did not come within the terms of the rule nisi, the subject of the appeal. The court does not wish to express any opinion on those problems in the absence of submissions from counsel, particularly since it is possible those opinions could affect other rules of the Association, particularly those rules making provision for the election of persons to the offices of Federal President, Senior Federal Vice-President, Junior Federal Vice-President, Federal Treasurer, Federal Secretary and Assistant Federal Secretary respectively. The court was aware that any reasons for judgment given in this appeal could affect the holders of those other six offices as well as the effect of orders made under s.140(5D), see sub-section (5G) and sub-section (7). The court is aware of the provisions of s.22 Federal Court of Australia Act 1976, the views expressed in McLeish v. Faure (1979) 40 F.L.R. 462 at p.471-2 and the unique effect an order made by the court has on persons not necessarily before the court. In all these circumstances the court constituted by the three Judges decided to have the appeal re-listed for mention on Monday, 11 May 1981 and the parties to the appeal were informed of that listing for mention and it was requested that counsel appear. The court proposed to mention the matters already referred to and to suggest that the parties may see fit to have the essential issues raised for determination by the Full Court. It had been proposed that the court should suggest to the parties that the respondents apply to a Judge of the court for a rule nisi under s.140(1)(a) of the Conciliation and Arbitration Act raising the issues that the Rules of the Association failed to make a provision required by the Act in that they failed to provide for the election of the holder of each of the offices of Federal President, Senior Federal Vice-President, Junior Federal Vice-President, Federal Treasurer, Federal Secretary, Assistant Federal Secretary, Branch Secretaries and Assistant Branch Secretaries respectively. The application for such a rule nisi would be simplified by incorporating material already before the court. If thought appropriate, the application could include the issues of whether the relevant rules providing for the election of the Federal officers already referred to contravened s.140(1)(c) of the Act. It was then proposed that a Judge of the court could order that that proceeding be heard and determined by the same Full Court which heard the present appeal, see s.118(C) Conciliation and Arbitration Act. For the sake of convenience it was proposed that the existing appeal be listed for further hearing and be heard concurrently with the proposed new hearing, thus resolving the essential legal issues raised by the appeal and the legal problems facing the organization in this respect. On Thursday, 7 May, Mr. Justice J. B. Sweeney died. Section 14 Federal Court of Australia Act provides that a Full Court shall consist of three or more Judges sitting together, or, to the extent permitted by sub-section 3, of two Judges sitting together. Sub-section 3 provides that where, after a Full Court has commenced the hearing of a proceeding and before the proceeding has been determined, one of the Judges constituting the Full Court dies, the hearing and determination or the determination of the proceeding may be completed by a Full Court constituted by the remaining Judges if, where the remaining Judges are two in number and the parties consent, by a Full Court constituted by those two Judges. In the special circumstances of this appeal, the court does not, at this time, request the parties to indicate whether they consent to the determination of this appeal by the Full Court constituted by Mr. Justice Northrop and myself. We draw your attention to what has been said and propose to adjourn the hearing of this appeal to a date to be fixed to enable the parties to consider the matter. We request that within seven days the parties notify the District Registrar at Melbourne of what course they propose should be followed and thereupon the necessary administrative arrangements can be made." Thereafter on 12 June 1981, Kenneth Lawrence Lancaster and Michael James Canny (hereinafter called "the claimants"), being members of the Association and the respondents to the appeal, commenced Matter V. No. 9 of 1981 raising the issues referred to on 11 May 1981. On 19 June 1981 the court, constituted by a single judge, in the exercise of powers conferred by s.118C of the Act, ordered that Matter V. No. 9 of 1981 be heard and determined by a full court. On 14 July 1981 the two matters came on for hearing before a full court constituted by Evatt, Northrop and Deane JJ. and with the consent of all parties were heard together. The facts giving rise to these proceedings constitute but one of many illustrations of the confusion being caused to organizations thereby involving them in great expenditure by frequent amendments to the Act relating to the internal structures of organizations. In the present case, the relevant amendments were made by Act No. 138 of 1973, Act No. 64 of 1976 and Act No. 117 of 1976. Each matter comprises proceedings taken under s.140 of the Act. The proceedings affect the six federal offices, namely the four part-time unpaid offices of federal president, senior federal vice president, junior federal vice president and federal treasurer respectively and the two full-time paid offices of federal secretary and assistant federal secretary respectively. They affect also the two full-time paid offices of branch secretary and assistant branch secretary respectively in each of the seven branches of the Association. At this stage, a brief summary of the facts will assist in an understanding of the issues raised by these proceedings. Under the rules of the Association, the branch secretaries and assistant branch secretaries, not being members of the branch committee of management, are elected at a ballot in which all members of the respective branch are entitled to vote, but the candidates for those offices are limited to persons nominated by any two members of the respective branch committee of management. Each branch committee of management elects by and from its own members councillors to the federal council of the Association. The holders of the four part-time unpaid federal offices and the two full-time paid federal offices are elected at a ballot at which all members of the Association are entitled to vote, but candidates for those offices are limited to persons nominated by any two councillors. The issues raised by the claimants are whether: The rules of the Association contravene s.140(1)(a) of the Act in a specified respect in that they fail to provide for the election of the holder of each of the eight offices mentioned either by a direct voting system or by a collegiate electoral system, see s.133(1)(a) of the Act. The rules of the Association contravene s.140(1)(a) of the Act in a specified respect in that they fail to provide for the manner in which persons may become candidates at an election for each of the eight offices mentioned, see s.133(1)(d)(ii) of the Act. Parts of r.73 being paragraphs (iv) and (v) of sub-rule (b) of r.73 of the rules of the Association contravene s.140(1)(c) of the Act insofar as those paragraphs require a candidate at an election for each of the offices of federal president, senior federal vice president, junior federal vice president, federal treasurer, federal secretary and assistant federal secretary to be nominated by two councillors; and Part of r.73 being paragraph (x) of sub-rule (b) of r.73 of the rules of the Association contravenes s$.140(1)(c) of the Act insofar as it requires a candidate for each of the offices of branch secretary and assistant branch secretary of each branch of the Association to be nominated by two members of the relevant branch committee of management. In order to understand the issue raised, it is necessary to refer in some detail to the internal structures of the Association as set out in its rules. The one set of rules, which came into operation on and from ] January 1978, r.78, applies to the Association as an organization and to each of its branches. The rules are divided into Parts as follows: PART 1 - CONSTITUTION AND OBJECTS PART 11 - MEMBERSHIP PART 111 - FEDERAL COUNCIL PART lV - FEDERAL EXECUTIVE PART V - BRANCHES PART V1 - SUB-BRANCHES PART Vll - FUNDS PART Vill - GENERAL PART 1X - ELECTIONS. In addition, the rules contain a schedule of prescribed forms. Under Part 1 and Part 11, r.3 specifies the industry in connection with which the Association is formed. Rule 5 specifies the conditions of eligibility for membership of the Association. It is a federal organization and is composed of the seven branches enumerated in r.6. There is power to form additional branches. Under r.13 unfinancial members are not entitled to any of the rights and privileges of membership of the Association, nor to the right to hold or continue to hold office or to participate in any ballot of members nor to vote or speak at any meeting of the Association or branch, r.13(b). Provisions for ballots of members are contained in r.19. Under Part 111, the supreme governing body of the Association is the federal council, consisting of the executive councillors and the federal councillors, together with the federal president, a senior vice president, a junior vice president and a federal treasurer who are the federal officers of the Association, r.20(a) and (b). The committee of management of each branch of the Association elects biennially from its members in accordance with Part 1X one executive councillor and in addition federal councillors, the number of whom varies according to the membership of the branch, r.20(c). At the present time there are seven executive councillors and twelve federal councillors making a total of nineteen councillors on the federal council. An executive councillor or a federal councillor who ceases to be a member of the branch committee of management from which he was elected forthwith ceases to hold the federal office and provision is made for the filling of casual vacancies, r.20(a@) and (e). The federal officers of the Association are elected biennially by the members of the Association in ~ 10 - accordance with Part 1X and a federal officer who ceases to be employed in the industry in or in connection with which the Association is registered forthwith ceases to hold that office and provision is made for the filling of casual vacancies, r.20(f), (g) and (h). As will be seen, some difficulty may be caused by a possible defect in the rules. Prima facie, the federal council should comprise twenty three persons being the nineteen councillors plus the four federal officers. There appears to be nothing to prevent a councillor being nominated as a candidate for any of the four part-time unpaid federal offices. If elected, the rules make no provision for a councillor to be elected to fill a vacancy thus arising. In theory, therefore, it is possible that at any time the federal council could comprise as few as nineteen persons. The federal council is the supreme governing body of the Association and has all powers, authorities and discretions necessary for the carrying out of the objects of the Association, and a number of those are specified, r.21(a). All its decisions are final and remain in force unless and until varied or amended by a subsequent federal council or by ballot of all members of the Association, r.21(c). The federal council meets at least biennially and provision is made for decisions to be taken between meetings by post, lettergram or telegram, but any matter under consideration may be such as to call for a meeting of federal council, r.22({a), (b) and (c). Special meetings may be called in the manner prescribed in r.22(e). -ll- Provision is made for a number of other matters and there is a weighted voting pattern, r.22(1}). Minutes of meetings are forwarded to each branch committee of management and are available for inspection by members of the branch during office hours and at branch meetings, r.22(n). Members of federal council may be removed from office by procedures specified under r.23. Under Part lV the federal executive, subject to the rules and to the decisions of federal council, conducts and manages (emphasis added) the affairs of the Association, r.24(a). It consists of the federal officers and the executive councillors, r.24(b). It has express powers to appoint persons to act in an office, including the office of federal secretary and assistant federal secretary, for short periods, r.24(c) and (4d). Between meetings of federal council, the federal executive has all the powers, authorities and discretions vested by the rules in the federal council except certain specified powers and those Matters that federal council may reserve to itself, r.25. The federal executive meets at least once each three months and at such other time or times as its members may determine or by other procedures specified in r.26(a). There is provision for weighted voting, r.26(g) and minutes of meetings are forwarded to each branch committee of management and are available for inspection in the same way as minutes of federal council, r.26(h). Members of federal executive -12- may be removed from office in the same way as members of federal council, r.27. Rules 28, 29 and 30 specify the duties and powers of the federal president, federal vice presidents and federal treasurer respectively. Rule 31 contains provisions relating to the federal secretary who is to be elected each four years by the members of the Association in accordance with Part 1X, sub-rule (a). Provision is made for the filling of a casual vacancy in the office, sub-rule (b), and sub-rule (c) specifies the powers and functions of the holder of that office. Extracts from sub-rule (c) are set out: "(c) The Federal Secretary shall be the chief executive officer of the Association. Between meetings of the Federal Council and Federal Executive he shall conduct and manage the affairs of the Association. He shall consult on matters of policy with the Federal President, or in his absence, a Federal Vice-President as to the course to be pursued in any matter pending the next sitting of the Federal Council or Federal Executive. He shall be empowered to attend or be represented and to be heard on any matter at any meeting within the Association and, subject to approval of Federal Executive, to inspect and examine or cause to be inspected and examined all registers, books, papers, deeds, documents and accounts in or in connection with the conduct of the affairs of the Assocation or of any Brancn or Sub-Branch of the Association." (Emphasis added.) Rule 32 contains provisions relating to the assistant federal secretary who is elected each four years by the members of the Association in accordance with Part 1X. Provision is made for the filling of a casual vacancy in the office, sub-rule (b). The assistant federal secretary assists the federal secretary in the performance of his duties and carries out the directions and instructions of the federal secretary while in the absence of the federal secretary, or when that office is vacant, he assumes all the powers and functions of the federal secretary, sub-rules (c) and (4d). Under r.33, the federal executive annually appoints a federal auditor whose powers and functions are specifed in that rule. It is important to note that neither the federal secetary nor the assistant federal secretary is a member of the federal council or the federal executive and has no right to vote at meetings of those committees. . Under Part V each branch of the Association has a committee of management which, subject to the rules and any resolution of federal council or federal executive, shall "control and manage the affairs of the Branch" (emphasis added), r.34(a). Subject to certain specified conditions a branch committee of management has power to adopt rules for its own guidance and government, r.34(b). Each branch committee of management consists of a branch president, a senior vice president, a junior vice president and a branch treasurer, all of whom are the officers of the branch, and -14- not less than six nor more than twenty other members as the branch annual general meeting may from time to time determine, r.35{a). The officers and the other members of the branch committee of management are elected biennially by the members of the branch in accordance with Part 1X, r.35(b). A member of the branch committee of management who ceases to be employed in the industry in or in connection with which the Association is registered or ceases to be a member of that branch forthwith ceases to be a member of the branch committee of management, and provision is made for the filling of casual vacancies, r.35(d) and (e). It is noted that if that person had been elected by the branch committee of management as federal councillor or executive councillor, his ceasing to be a member of the branch committee of Management results in him ceasing to hold the federal position, r.20(d). Rule 36 specifies the powers and duties of a branch committee of management. It is required to "do all such things as are necessary for the control and Management of the affairs of the Branch" (emphasis added), r.36(a). A number of specific powers and duties are set out in r.36. The branch committee of management has power to delegate to an executive committee comprising the branch president, branch vice presidents and branch treasurer such of its powers as it thinks necessary, sub-rule (c), and has power to delegate such of its powers to a sub-branch committee of management as it thinks fit, sub-rule (d). It presents, through its president, a full report of the -~ 15 = business of the preceding year to the annual general meeting of the branch, sub-rule (f), has power to make appointments during periods of absence of specified persons, sub-rules (g) and (h), and has power to instruct its councillors how to vote on federal council or federal executive, sub-rule (i). Under xr.37 the branch committee of management meets as least once each three months and at such other times as its members may determine. Upon the request of the branch president or at least one quarter of the members of the branch committee of management, the branch secretary is required to convene a meeting of the branch committee of management, sub-rule (a) (i). Minutes of meetings are to be forwarded to the federal secretary and to each other branch secretary and a copy is available for the inspection of members of the branch during ordinary office hours and at branch meetings, r.37(a)(vii). The annual general meeting of the members of the branch is held in August each year, r.37(b)(i), and other meetings are held as requested and in accordance with the provisions of r.37(b)(ii). The branch secretary may call a meeting of members of the branch or of a part thereof to consider matters affecting members or that part, as the case may be, to obtain the views of the members on the matters considered, r.37(b)(iii). Members of a branch committee of management, a branch secretary or a branch assistant secretary may be removed from office in the manner prescibed by r.38. Rules 39, 40 and 41 specify the duties and powers of the branch president, the branch vice presidents and the -16- branch treasurer respectively. Rule 42 contains provisions relating to the branch secretary who is to be elected each four years by the members of the branch in accordance with Part 1X, sub-rule (a). Provision is made for the filling of a casual vacancy in the office, sub-rule (b), and sub-rule (c) specifies the powers and functions of the holder of that office. Extracts from sub-rule (c) are set out: ""(c) The Branch Secretary shall be the chief executive officer of the Branch. Between meetings of the Branch Committee of Management he shall conduct and manage the affairs of the Branch. He shall consult on matters of policy with the Branch President or in his absence the Senior Branch Vice-President or in his absence the Junior Branch Vice-President as to the course to be pursued in any matter pending the next sitting of the Branch Committee of Management. He shall be empowered to attend or be represented and to be heard on any : matter at any meeting within the Branch and subject to approval of the Branch Committee of Management to inspect and examine or cause to be inspected and examined all registers, books, papers, deeds, documents and accounts in or in connection with the conduct of the affairs of the Branch or of any Sub-Branch of the Branch." (Emphasis added.) Rule 43 contains provisions relating to the assistant branch secretary who is to be elected each four years by the members of the branch in accordance with Part 1X. Provision is made -17- for the filling of a casual vacancy in the office, sub-rule (b). The assistant branch secretary assists the branch secretary in the performance of his duties and carries out the directions and instructions of the branch secretary, while in the absence of the branch secretary or where that office is vacant the assistant branch secretary assumes all the powers and functions of the branch secretary, sub-rules (c) and (d). Under r.44 the branch committee of management appoints a branch auditor whose powers and functions are prescribed by that rule. It is important to note that neither the branch secretary nor the assistant branch secretary is a member of the branch committee of management or its executive committee, if any, or has rights to vote at meetings of those committees. Part Vl makes provision for sub-branches and in each sub-branch there is to be a sub-branch committee of management which, subject to the rules and the control of the branch committee of management shall "control and manage the affairs of the Sub-Branch" (emphasis added), r.45. Rule 46 provides as follows: "46. COMMITTEE OF MANAGEMENT Membership of each Sub-Branch Committee of Management unless otherwise determined by the Branch Committee of Management shall be and shall be elected, removed or replaced in accordance mutatis mutandis with Rule 35 Branch Committee of Management. Provided that - 18 - a Sub-Branch Secretary who shall be a member of the Sub-Branch Committee of Management shall be elected biennially in the same manner as other members of the Sub-Branch Committee of Management." For present purposes, it is not necessary to refer to the other rules contained in Part Vl. It is important to note that a sub-branch secretary is a.member of the sub-branch committee of management, but he is not a paid officer of the Association. The federal secretary, the assistant federal secretary, the branch secretaries and the assistant branch secretaries are all full-time paid officers of the Association. For present purposes it is not necessary to refer to the rules contained in Part V1ll and Part Vllil. Part 1X makes provision for the conduct of elections to the various offices already mentioned. Rule 72 provides for the appointment of returning officers and prescribes their duties and powers. Rule 73 is headed "Nominations" and provides for the conditions of eligibility for nomination as a candidate for office and the method by which nominations are to be made. It will be remembered that the earlier rules specified the various members entitled to vote for candidates for various offices. Sub-rule (a) provides for the form of nomination which is contained in the schedule and requires the nominee to sign the form on accepting nomination. Sub-rule (b) is headed "Eligibility for Nomination". Paragraph (i) provides that only those members who were financial (see r.13) as at the last day of the month immediately preceding the month in which nominations for an election close are entitled to nominate and to be nominated for any office a prerequisite for which is membership at that election. Paragraph (1i) places restrictions on the eligibility to be nominated as a candidate for the office of branch or sub-branch president to members who have been members of a branch or sub-branch committee of management for at least six months and for the office of federal president to members who have, for at least six months, held branch or federal office. Paragraph (iii) is consistent with earlier rules and is as follows: "(iii) No member shall be a candidate for nor continue to hold any office a prerequisite for which is membership if he is not employed in or in connection within the industry with which the Association is registered." Paragraphs (iv) to (xii) inclusive contain provisions with respect to elections to specified offices at the federal, branch and sub-branch level respectively. For present purposes it is necessary to quote some of those paragraphs only, namely: - 20 — "(iv) As to elections for the office of: Federal President Senior Federal Vice-President Junior Federal Vice-President Federal Treasurer ¢ any two Councillors may nominate any eligible member of the Association. (v) As to elections for the office of: Federal Secretary Assistant Federal Secretary : any two councillors may nominate any person. (vi) As to elections for the office of Executive Councillor: : any two members of a Branch Committee of Management may nominate any other member thereof. (vii) As to elections for the office of Federal Councillor: : any two members of a Branch Committee of Management may nominate any other member thereof. (viii) As to elections for the office of: Branch President Senior Branch Vice-President Junior Branch Vice-President Branch Treasurer : any two members of the Branch may nominate any eligible member of the Branch. (ix) As to elections for the office of Branch Committee of Management member: (i) where the member represents a Sub-Branch any 2 members of the Sub-Branch may nominate any other member thereof. "= 21 - (ii) Where a divisional representation system is used any 2 members within a division may nominate any other eligible member within that division. (iii) In other cases any two members of the Branch except members of a Sub-Branch with representation on the Branch Committee of Management may nominate any eligible member of the Branch. (x) As to elections for the offices of: Branch Secretary Assistant Branch Secretary $ any two members of the Branch Committee of Management may nominate any person." The effect of these paragraphs can be summarized. A restriction is placed on the right of members of the Association to nominate candidates for the federal offices specified in paragraph (iv), councillors only having that right. Presumably the federal president, the federal vice presidents and the federal treasurer do not have the right to nominate candidates for any of these offices. To be eligible to be a candidate for one of those four offices a member of the Association must comply with the requirements of paragraphs (i), (ii), and (iii), but otherwise all members of the Association are eligible to be nominated as a candidate. Of necessity the members having the right to nominate a candidate comply with the requirements of paragraph (i). There is a similar restriction with respect to the right of members to nominate candidates for the offices of federal - 22 ~ secretary and assistant federal secretary, paragraph (v). Persons nominated as candidates need not be members of the Association and need not comply with the requirements of paragraphs (i) and (iii). A candidate who did comply with the requirements of paragraph (iii) would, if elected, have to resign his existing employment in order to take up his new full-time paid office. Of necessity, the members having the right to nominate a candidate comply with the requirements of paragraph (i). The provisions of paragraphs (vi) and (vii) are typical of a collegiate electoral system where the nominators and the candidates are limited to members of the college and of necessity nominators and candidates comply with the requirements of paragraphs (i) and (iii). Under the provisions of paragraphs (viii) and (ix) all members who have the right to vote have the right to nominate eligible candidates and the provisions of paragraphs (i), (ii) and (iii) apply accordingly. Paragraph (ix) contains special provisions applying to special circumstances, but these do not affect the general structures within the Association, nor the principles to be applied in determining this appeal. A restriction is placed on the right of members of a branch to nominate candidates for the offices of branch secretaries and assistant branch secretaries, paragraph (x), the members of the relevant branch committee of management only having that right. Of necessity the members of the committee of management comply with the requirement of paragraph (i). Persons nominated as candidates need not be members of the - 23 - Association and need not comply with the requirements of paragraphs (i) and (iii). A candidate who did comply with the requirements of paragraph (iii) would, if elected, have to resign his existing employment in order to take up his new full-time paid office. All branch members who comply with the requirements of paragraph (i) have the right to vote at an election under paragraph (x). Rule 74 is headed "Election Procedure" and contains provisions for the conduct of elections. For present purposes the relevant provisions can be summarized. The branch returning officer is required to call for nominations for the biennial elections for the offices of member of a branch committee of management on a day between 1] and 15 June of every second year, sub-rule (a)(ii). The newly elected members of the branch committee of management take office at the declaration of the poll at the annual general meeting of the branch held in August of the year in which the elections take place, see r.37(b) (i), r.74(7) and r.75. The year 1980 was such a year, r.76(ii). The branch returning officer is required to call for nominations for the biennial elections to the offices of federal councillor and executive councillor on a day between the day after the holding of the branch annual general meeting in August and 1 September in the year in which there are biennial elections for branch committee of management members, sub-rule (a)(iii) and (iv). The year 1980 was such a year, r.76(iii). The branch returning - 24 - officer is required to call for nominations for the quadrennial elections to the office of branch secretary and, where appropriate, assistant branch secretary on a day between the day after the holding of the branch annual general meeting in August and 1 September, the nominations to be received during the first meeting of the committee to be held after twenty-one days after the calling for nominations, sub-rule (b)(v). The year 1980 was such a year, r.76(iv). The federal returning officer is required to call for nominations for the biennial elections to the four part-time unpaid federal offices not less than twenty-one days prior to the commencement of each biennial meeting of federal council, the nominations to be received during the meeting and close at noon on the final day of the meeting, sub-rule (vi). The year 1979 was such a year, r.76(v). The federal returning officer is required to call for nominations for the quadrennial elections to the offices of federal secretary and assistant federal secretary not less than twenty-one days prior to the commencement of each alternate biennial meeting of federal council, the nominations to be received during the meeting and to close at noon on the final day of the meeting, sub-rule (vii). The year 1979 was such a year, r.76(vi). Under sub-rule (b) the returning officer is required to forward by post to each person entitled to nominate a candidate at the election a nomination form containing provisions appropriate to the particular election. This requirement applies to each election where there is a - 25 - restriction placed on the right to nominate persons as candidates for office, i.e. to the offices of councillor, the six federal offices and the two full-time paid branch offices in each branch. A proviso to sub-rule (b) relieves the returning officer of that requirement for elections to positions on the branch and sub-branch committees of management, in which case notices calling for nominations are to be published in appropriate newspapers. Rule 74 contains provisions for any elections to be conducted by secret postal ballot. The returning officer declares the result of the biennial poll for membership of the branch committees of management immediately prior to the commencement of general business at the branch annual general meeting in August and, as to the poll for the other offices, at the conclusion of the count, r.74(c) (vii). From these summaries, it will be seen that each newly elected branch committee of management elects councillors any two of whom in the following year are authorized to nominate eligible members of the Association as candidates for the four federal offices, while in every alternate second year any two of whom are authorized to nominate persons as candidates for the offices of federal secretary and assistant federal secretary. Likewise, in every alternate second year, any two members of the newly - 26 - elected branch committees of management are authorized to nominate persons as candidates to the offices of branch secretary and assistant branch secretary. The claimants commenced proceedings in the Federal Court seeking orders that r.73(b)(x) of the rules of the Association contravened s.140(1)(c) of the Act insofar as it purports to require a nomination of a candidate for election to the office of branch secretary and assistant branch secretary to be signed by two members of the branch committee of management, see r.73(a) and form of nomination. The Federal Court constituted by a single Judge, in reasons for judgment published on 4 December 1980 expressed the opinion that r.73(b)(x) contravened s.140(1)(c) of the Act. The court then exercised the powers conferred by s.140(6) of the "Act and adjourned the hearing of the proceedings for the purpose of giving the Association the opportunity to alter its rules. The Association appealed against the judgment of 4 December 1980. The first issue to be considered is whether the rules of the Association contravene s.140(1)(a) of the Act in a specified respect in that they fail to provide for the election of the holder of each of the eight offices mentioned either by a direct voting system or by a collegiate electoral system, see s.133(1)(a} of the Act. - 27 = For present purposes, the relevant parts of s.140(1)(a) are: "140.(1) The rules of an organization - (a) shall not ... fail to make a provision required by, a provision of this Act " Such a provision of the Act is contained in s.133(1)(a), the relevant parts of which are: "133.(1) e.. the conditions to be complied with ... by organizations include a condition that the rules of the ... organizations - (a) shall provide for the election of the holder of each office within the ... organization either by - (i) a Girect voting system; or (ii) a collegiate electoral system being, in the case of an office the duties of which are of a full-time nature, a one-tier collegiate electoral system;" Each of the eight offices under consideration constitutes an office within the meaning of that sub-section. To understand the sub-section, reference must be made to the following definitions and provisions contained in s.4 of the Act: - 28 ~- "4.(1) ... 'Collegiate electoral system', in relation to an election for an office in an organization, means a method of election comprising a first stage, at which persons are elected to a number of offices by a direct voting system, and a subsequent stage or subsequent stages at which persons are elected by and from the persons elected at the next preceding stage; eee 'Direct voting system', in relation to an election for an office in an organization, means a method of election at which all financial members, or all financial members included in such branch, section or other division, or in such class, as is appropriate, having regard to the nature of the office, are, subject to reasonable provisions with respect to enrolment, eligible to vote; eee 'One-tier collegiate electoral system' means a collegiate electoral system comprising only one stage after the first stage;" "4.(5) For the purposes of the application of the definition of 'collegiate electoral system' in sub-section (1) in relation to an election for an office in an organization, an electoral system that otherwise complies with that definition shall be deemed to comply with that definition notwithstanding that the persons comprising a body of persons by and from whom persons are elected at any stage subsequent to the first stage include persons (not exceeding in number 15 per centum of the total number of the body) who are the holders of offices entitling the holders to membership of that body (which may include the office to which the election relates) but are not members of that body by virtue of an election in accordance with that definition, being persons each of whom has held such an office (whether the one office or not) at all times _since being elected to such an office under a collegiate electoral system, or a direct voting system, as defined in sub-section (1)." - 29 — A reference to s.133(1)(a) highlights' the difference in wording between the phrases "a direct voting system" and "a collegiate electoral system" (emphasis added). The difference is maintained in the definitions of those two phrases. In substance, the essential feature of a collegiate electoral system is the method of election at which at a second or subsequent stage of the system "persons are elected by and from the persons elected at the next preceding stage" (emphasis added). In substance, a direct voting system is a method of election at which all financial members, subject to reasonable provisions with respect to enrolment, are "eligible to vote" (emphasis added). There is nothing contained in either definition concerning the right or necessity to nominate persons as candidates for election to an office. . Under the rules of the Association, all financial members of the Association or, where appropriate, the relevant branch, are eligible to vote at an election held to elect a person to each of the eight offices under consideration. No suggestion was made that the rules made provision for enrolment which was not reasonable. Prima facie, therefore, the rules of the Association provide for the election of the holder to each of the eight offices under consideration by a direct voting system. - 30 - Counsel for the claimants contended that the rules, by restricting the persons empowered to nominate persons as candidates for those offices, do not provide for a direct voting system. It was contended that in a direct voting system, persons eligible to vote should have the right to nominate eligible persons to be candidates. He referred to what was said by Northrop J. in Lovell v. Federated Liquor and Allied Industries Employees' Union of Australia (1978) 35 F.L.R. 72 at p.99: "The democratic control of organizations includes the right of all financial members constituting the electorate to vote when a ballot is taken for the purpose of electing candidates to an office within the organization as well as when a ballot is taken for other purposes. A basic principle of democratic control is that if a person has the right to vote in elections, then subject to special provisions which may apply to a collegiate system and to sectional representation, he has the right to nominate as a candidate for the office for which he is entitled to vote. Democracy has not been reduced to the stage where the right to nominate for election to an office can be made conditional upon the candidate satisfying standards of eligibility, fitness or experience let alone dependent upon a period of inactive membership of the electorate. Of necessity, democracy permits the electorate to elect to office persons who may not be the most suited to perform the duties of that office. Any candidate for the office must face the electorate and that electorate has the democratic right to choose between candidates. The use of the words 'to encourage ... the full participation by members of ... an organization in the affairs of the organization' in object (f) together with the provisions of s.133 of the Act implementing that object, support strongly the view that subject to what was said earlzer in this paragraph, all financial members of an ae - 31 - organization should have the right to vote at any ballot for the purpose of electing a person to an office within the organization and that any financial member of that organization who has the right to vote in that ballot should be eligible to nominate as a candidate for that office. The other financial members must then make a choice, be it wise or unwise." , Those remarks related to an application based upon 8.140(1)(c) of the Act where the rules of an organization imposed restrictions upon the right of a member to nominate as a candidate for election to an office. No case was based upon s.140(1)(a) of the Act. In any event, those opinions constitute a minority of a full court and were not accepted by the majority, see Smithers and Evatt JJ. at p.80. The fact that a candidate must be nominated is conceded as being valid. This requirement is inherent in the provisions of s.133(1)(da)(ii). Whether rules making provision for such nomination contravene s.140(1)(c) is another question. The Commonwealth Electoral Act 1918 contains provisions for nomination of candidates to the Senate or the House of Representatives, see Part (X1). The qualifications required by a candidate and the qualifications necessary for a person to nominate a candidate need not be identical, see s.69 and s.7l. The Federal Court and the Australian Industrial Court have, on many occasions, upheld rules of an -~ 32 - organization imposing restrictions upon the right of a member to nominate as a candidate in an election to an office within the organization. Lovell's case is but one of many such cases. It is true that all those cases were based upon applications under s.140(1)(c) of the Act, but they all proceeded on the basis that rules did not fail to make a provision required by a provision of the Act. Prior to Act No. 138 of 1973 coming into operation on 13 November 1973, the relevant provisions of s.133 were that the rules of an organization relating to an election to an office of the kind under consideration "shall provide that the election shall be by secret ballot", s.133(1)(a) of the Act as then in operation. Section 52 of the 1973 Act substituted a new s.133(1). For present purposes, the relevant part of the new provision, s.133(1)(a), was that the rules of an organization relating to an election to an office under consideration: "(a) shall provide for the election of the holder of each office within the association or organization at an election at which all financial members, or all financial members included an such branch, section or other division, or in such class, as is appropriate, having regard to the nature of the office, are, subject to reasonable provisions with respect to enrolment, eligible to vote;" The phrase "direct voting system" was not used , but the current definition of that phrase is identical with the description of the voting system required by the then - 33 - s.133(1)(a). From a perusal of the amendments made by s.52 of the 1973 Act, it is clear that the legislature was concerned with the right to vote and not with a system of election. Prior decisions of the Australian Industrial Court had made it clear that rules of an organization making provision for a collegiate electoral system of a kind similar to the system currently defined in the Act, complied with the requirements of an election by secret ballot. The amendments made by the 1973 Act were designed, to a major extent, to abolish that type of electoral system within organizations. An exception was made with respect to an office the holder of which was a member of a committee of management of the organization but the duties of which were of a part-time nature, see s.133(1A) as inserted by s.52 of the 1973 Act. Likewise, provision was made that where the rules of an Organization provided for the election of an office "otherwise than directly by the members of the organization who would be entitled to vote if the rules were in accordance with paragraph (a) of sub-section (1), but by a procedure in which those members indirectly take part" (emphasis added), the organization had time within which to amend its rules to bring them into conformity with the new provisions. Further amendments to s.133 were made in 1976. Act No. 64 of 1976, the relevant provisions of which came into operation on 9 June 1976, provided for a definition of the phrase "direct voting system" to be inserted into s.4 of the - 34 - Act, see s.3 of the Act. That phrase was defined as meaning "a method of election of the kind referred to in paragraph (a) of sub-section (1) of section 133". At the same time s.133AA was inserted into the Act to make provisions relating to elections "by a direct voting system", s.13 of Act No. 64 of 1976. Further amendments were made to the Act by Act No. 117 of 1976 which came into operation on 12 November 1976. Under s.3 of that Act, the then existing definition of the phrase "direct voting system" was deleted and the following definitions in their current form were inserted in s.4(1) of the Act, namely "collegiate electoral system", "direct voting system" and "one-tier collegiate electoral system", and s.4(5) in its current form was inserted. The same Act repealed the then existing s.133(1)(a) and inserted a new s.133(1)(a) in its current form, while s.133(1A) was deleted, see s.4 of the 1976 Act. In the light of the authorities of the Federal Court and in the light of these legislative amendments, we are of opinion that provisions contained in the rules of an organization imposing restrictions on the right of a member to nominate a candidate for office or to be nominated a person for office do not of themselves prevent the rules, if they otherwise make provision for a direct voting system, from being a provision providing for the election of officers by a direct voting system in s.133(1)(a) of the Act. - 35 - In the present case, the rules of the Association do not make provision for a collegiate electoral system for the election of persons to the eight offices in question. The officers are not elected by and from the persons elected at the next preceding stage. The rules make provision for a direct voting system, but at the same time impose a restriction upon the right of members to nominate persons as candidates to those offices. Accordingly, in our opinion, the claimants' contentions on the first issue fail. The second issue to be considered is whether the rules of the Association contravene s.140(1)(a) of the Act in a specified respect in that they fail to provide for the manner in which persons may become candidates at an election for each of the eight offices mentioned, see s.133(1)(d) (ii) of the Act. Section 133(1)(d)(ii) of the Act provides: "§.133.(1) ... conditions to be complied with «e+» by organizations include a condition that the rules of the ... organization - (d) shall provide that every such election shall be by secret ballot, with provision for - (ii) the manner in which persons may become candidates for election;" There is no suggestion that the rules of the Association fail - 36 - to provide that the election to the eight offices under consideration are not by secret ballot. There can be no doubt that the rules do provide for the manner in which persons become candidates at an election for each of the offices under consideration. The substance of the complaint made is that nomination forms are forwarded by post to those persons entitled to nominate but to no other person. The rules do not require that a public announcement be made calling for nomination of candidates to those offices. If for any reason those parts of r.73 imposing restrictions on the right to nominate candidates are altered, it may be necessary to make consequential alterations to r.74(b), but the contraventions of r.74(b), if any, are with respect to r.73 and not r.74. In our opinion the claimants' contentions on the second issue fail. The third issue to be considered is whether parts of r.73 being sub-sections (iv) and (v) of paragraph (b) of r.73 of the rules of the Association contravene s.140(1)(c) of the Act insofar as those paragraphs require a candidate at an election for each of the offices of federal president, senior federal vice president, junior federal vice president, federal treasurer, federal secretary and assistant federal secretary to be nominated by two councillors. This issue can be considered together with the fourth issue which is whether part of r.73 being sub-paragraph (x) paragraph (b) of r.73 of the rules of the Association contravenes s.140(1)(c) \ - 37 + of the Act insofar as it requires a candidate for each of the offices of branch secretary and assistant branch secretary of each branch of the Association to be nominated by two members of the relevant branch committee of management. For present purposes, the relevant parts of s.140(1)(c) are: "140.(1) The rules of an organization - {c) shall not impose ... members, of the organization, conditions, obligations or restrictions which, having regard to the objects of this Act and the purposes of the registration of organizations under this Act, are oppressive, unreasonable or unjust ..." The only object of the Act relied upon by the claimants is that referred to in s.2(f) of the Act. That paragraph is as follows: "2. The chief objects of this Act are - (£) to encourage the democratic control of organizations so registered and the full participation by members of such an organization in the affairs of the Organization." The nature of the power conferred upon the court by s.140(1)(c) has been referred to in a number of recent cases, and in this respect reference is made to Allen v. Townsend -~ 38 - (1977) 31 F.L.R. 431, Wiseman v. Professional Radio and Electronics Institute of Australasia (1977) 35 F.L.R. 24, and Lovell v. Federated Liquor and Allied Industries Employees' Union of Australia (1978) 35 F.L.R. 72. The history of the provisions contained in s.2, s.133 and s.140(1)(c) of the Act is referred to in Lovell's case by Northrop J. at pp.90-92, and in Wiseman's case per Evatt and Northrop JJ. at pp.32-34. In the latter case they said at pp.41-42: "Prior to 1958, the power conferred by s.140 was of an administrative nature whereby the Court of Conciliation and Arbitration and the Commonwealth Industrial Court, by the exercise of the power of disallowance, was able to mould and re-fashion the rules of an organization to give effect to (in the phrase used by Kitto J. in The Queen v. Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty. Ltd. ((i970) 123 C.L.R. 361, at p-.376)) 'its own idiosyncratic conceptions and modes of thought'. The position was changed by the amendments made in 1958 and, although the stated criteria may be vague and difficult to apply, nevertheless 'a duty is cast upon the court to determine, as a mixed question of law and fact, whether the challenged rule does or does not possess one of those qualities' specified: Shearer's case per Fullagar J. ((1960) 103 cC.L.R., at p.376). This, essentially, is the basis of a judicial power. See also The Queen v. Joske; Ex parte Australian Building Construction Employees' and Builders' Labourers' Federation 1974) 130 C.L.R. 87) and The Queen v. Joske; Ex parte Shop Distributive and Allied Employees" Association ((1977) 135 C.L.R. 194). It must be remembered that the court is exercising a judicial power. The court is not at liberty to substitute its modes of thought for those of an organization. Subject to the provisions of the Act, an organization is free to determine its own internal structures; it is free to determine its own policies; it as free to pursue objects which it considers to - 39 — be desirable; and it is free to decide what it considers to be in the best interests of its members or potential members. The court, in the exercise of the judicial powers conferred by s.140 of the Act, is not permitted to substitute what it considers to be desirable internal structures of an organization; what ait considers to be desirable policies; what it considers to be desirable objects; and what it considers to be in the best interests of the members of the organization; by determining that what is being pursued by the organization imposes on members of the organization conditions, obligations or restrictions which, having regard to the objects of the Act and the purposes of the registration of organizations under the Act, are oppressive, unreasonable or unjust." It is important to stress that, subject to the provisions of the Act, an organization is free to determine its own internal structures. In the present case the Court is required to « exercise its discretion under s.140(1)(c) of the Act "having regard to the objects of the Act". In Wiseman's case, Evatt and Northrop JJ. said at p.34: "In deciding whether r.15 contravenes s.140(1)(c) of the Act, it is necessary for the court to have regard to the objects of the Act. This means that the court must take those objects into account: see Cassidy v. Amalgamated Postal Workers' Union of Australia (1967) Il F.L.R. 124, at pp.126-127), per Dunphy and Kerr JJ. The objects are to be used as a guide by which the challenged rule is to be tested and the court must ascertain, ~ 40 - on the existing state of affairs and in the light of the objects of the Act, whether its operation is or is not of one of the described kinds." Since then the High Court has had to consider the words "have regard to" when used in the phrase "the Permanent Head shall, in determining the scale of fees, in relation to a nursing home ... have regard to costs necessarily incurred in providing nursing home care in the nursing home", see R. v. Hunt; Ex parte Sean Investments Pty. Ltd. (1979) 25 A.L.R. 497. That case did not involve the exercise of a discretion pursuant to the exercise of judicial power, but it is useful to refer to what was said concerning the words "have regard to". In a judgment agreed to by Gibbs J., Mason J. said at p.504: "When sub-s (7) directs the Permanent Head to 'have regard to' the costs, it requires him to take those costs into account and to give weight to them as a fundamental element in making his determination. There are two reasons for saying that the costs are a fundamental element in the making of the determination. First, they are the only matter explicitly mentioned as a matter to be taken into account. Secondly, the scheme of the provisions is that, once the premises of the proprietor are approved as a nursing home, he is bound by the conditions of approval not to exceed the scale of fees fixed by the Permanent Head in relation to the nursing home. In many cases it is to be expected that the scale of fees will be fixed by ascertaining the costs necessarily incurred and adding to them a profit factor. In the very nature of things, the costs necessarily incurred by the proprietor in providing nursing home care in the nursing home are a fundamental matter for consideration. However, the sub-section does not direct the Permanent Head to fix the scale of fees exclusively by reference to costs necessarily incurred and profit. The sub-section is so generally expressed that it is not possible to say that he is confined to these two considerations." Murphy J. said at p.508: "The requirement that the Permanent Head (and on review, the Minister) shall have regard to the costs necessarily incurred, tends in itself to show that his duty in respect of those costs is limited to having regard to them. He must take them into account and consider them and give due weight to them, but he has an ultimate discretion." A similar approach should be taken by the court in the exercise of the power conferred by s.140(1)(c) of the Act. It is necessary also to make reference to what is meant by the words "objects of this Act" appearing in sub-section 140((1)(c) of the Act. It is not sufficient to take those words as referring only to the paragraphs appearing in s.2 of the Act. It is true that those paragraphs are said to be "the chief objects of the Act", but it is necessary to consider the method by which the - 42 — legislature has implemented those objects. In Lovell's case, Northrop J. said at p.92: "In 1973, object (f) was inserted in s.2 of the Act, s.3 of Act No. 138 of 1973. The same Act substantially amended s.133 of the 1904-1972 Act, s.52 of Act No. 138 of 1973. As a result of those amendments, thereafter the rules of organizations had to include provisions which ensured that all financial members of an organization were enabled to participate in the effective control of the organization. Putting the matter another way, the amendments to s.133 of the 1904-1973 Act were designed to give effect to the new object inserted in s.2 of the Act namely: "to encourage the democratic control of organizations so registered and the full participation by members of such an organization in the affairs of the organization.' Since 1973, s.133 of the 1904-1973 Act has been amended further, but those amendments do not detract from the object first inserted into the Act in 1973." (Emphasis added.) In many cases, an Act does not contain provisions setting out in express words the policy and purpose of the legislation, but this does not prevent the court from determining the policy or purpose of the legislation by a consideration of the legislation itself, or in other words determining the object of the legislation from a consideration of the provisions of the legislation. A recent illustration of that process can be seen in Bowling v. General Motors Holdens Ltd. (1980) 33 A.L.R. 297 per J. B. Sweeney, Evatt and Northrop JJ. at p.304, where in relation to s.5(5) of the Act the court said: - 43 - "We are of the opinion that the sub-section confers a power in the nature of a discretion upon the court which has convicted the employer of an offence against s5 of the Conciliation and Arbitration Act but, as we said earlier, it is a power with peculiar attributes. As in all cases, the discretion must be exercised bona fide having regard to the policy and purpose of the Act conferring the power, in this case s5 of the Conciliation and Arbitration Act. That policy and purpose is clear, see Heidt v. Chrysler Australia Ltd (1976) 13 ALR 365; 26 FLR 257, per Northrop J at 266-9, especially at 266; Hyde v. Chrysler (Aust) Ltd (1977) 23 ALR 97; 30 FLR 318, per Northrop J at 328-330; and General Motors-Holden's Pty Ltd v. Bowling (1976) 12 ALR 605; 51 ALJR 235, per Barwick CJ at 237 and Mason J at 240-1. As Mason J said at (12 ALR at 616; 51 ALJR at 240): 'The two sub~sections [s5(1) and (4)] are, broadly speaking, designed to protect an officer, delegate or member of an organization against discrimination by his employer.' The policy and purpose of sub-sections (1) and (4) of s5 is to protect organizations of employees and their representatives from discrimination and victimization by employers. Sub-section (5) gives effect to an essential feature of that policy and purpose of s5." The present case illustrates the necessity to consider the method by which the legislature has implemented object (f). Act No. 138 of 1973 by s.3 first inserted paragraph (f) in s.2 of the Act. As stated earlier, the same Act inserted a new s.133(1)(a) into the Act to require organizations by their rules to provide for the election of the holder of each office by a method that can be described as a direct voting system within the meaning now given to that phrase by s.4 of the Act. Elections by a direct voting system is the normal method by which citizens in Australia - 44 - exercise their right of democratic control over governments. The collegiate electoral system within the meaning now given to that phrase by s.4 of the Act is not a normal method by which citizens in Australia exercise their right of democratic control. It follows, therefore, that much could be said for the view that following the coming into operation of Act No. 138 of 1973, and subject to the transitional provisions contained therein, insofar as the Yrules of an organization provided for the election of officers by a collegiate electoral system they contravened s.140(1)(c) of the Act in that the rules imposed upon members conditions or restrictions which, having regard to object (f), were oppressive, unreasonable or unjust in that they placed restrictions on members eligible to nominate persons as candidates for office, on members eligible to be candidates for office and on members entitled to vote at elections for office. In the form of the then legislation much could have been said for the view that the rules of the Association providing for the election of executive councillors and federal councillors contravened s.140(1)(c) of the Act in that those elections were pursuant to a true collegiate electoral system, see r.20(c) and r.73(b)(vi) and (vii). Act No. 64 of 1976 inserted a definition of "direct voting system" into s.4 of the Act. The definition was based upon the wording of s.133(1)(a) of the Act as then in force. Act No. 117 of 1976 substituted a new definition of "direct - 45 - voting system", inserted a definition of "collegiate electoral system" into s.4 of the Act and substituted a new s.133(1)(a) into the Act, see s.4 and s.4(a) of Act No. 117 of 1976. Under the new sub-section the election of officers may be pursuant to a direct voting system or a collegiate electoral system. The section imposes certain restrictions on the operation of the collegiate electoral system, but for present purposes it is sufficient to say that the system permitted was one at which, as a first stage persons were elected to a number of offices by a direct voting system and that those persons constituted a college, and a subsequent stage at which persons were elected "by and from the persons" constituting that college. There is a restriction applicable with respect to full-time officers. It follows, therefore, that following the coming into operation of Act No. 117 of 1976 it is difficult to see how the rules of an organization that provided for the election of officers by a collegiate electoral system could contravene s.140(1)(c) of the Act, notwithstanding that the rules imposed upon members conditions or restrictions which aid not apply in elections by which Australian citizens exercised their right of democratic control over governments and that notwithstanding that there had been no change in the wording of object (f). The rules providing for a collegiate electoral system impose restrictions on members who can be nominated as candidates for certain offices, on members who - 46 - can nominate persons as candidates and on members entitled to vote for those candidates. In the form of the legislation now in operation much could be said for the view that the rules of the Association providing for the election of executive councillors and federal councillors do not contravene s.140(1)(c) of the Act in that those elections are conducted pursuant to a collegiate electoral system as defined. Those office holders are elected by and from the persons constituting the membership of the various branch committees of management, the first stage colleges, see r.20(c) and r.73(b)(vi) and (vii). The Act contains many other provisions illustrating the method by which the legislature has implemented object (£), but for present purposes these need not be considered. The definition of the word "office" in relation to an organization as appearing in s.4 of the Act has its own difficulties and has been varied on many occasions, see for example the Airline Hostesses' Association case (Full Court, Federal Court of Australia, N.S.W. No.19 of 1980, 1 October 1980, unreported, per J. B. Sweeney J.). For present purposes the relevant paragraphs of the definition are: "(a) the office of a member of the committee of management of the organization or branch; (aa) the office of president, vice- president, . secretary, assistant-— ~ 47 - secretary or other executive officer, by whatever name called, of the organization or branch;" The phrase "committee of management" is defined in s.4 of the Act. The federal secretary, the assistant federal secretary, a branch secretary and an assistant branch secretary are not and cannot be members of a committee of management of the Association, nor can they be made a member of the federal council or the federal executive, nor a member of an executive committee of a branch committee of management, nor a member of a sub-branch committee of management, but under paragraph (aa) of the definition those offices come within the requirements of s.133(1)(a). Under the rules of the Association the members of the branch committee of management are elected pursuant to a direct voting system, but the holders of the eight offices under consideration are elected by a direct voting system which incorporates aspects of a collegiate electoral system. Candidates for those offices need not be members of the college, the members of which have power to nominate persons as candidates. In other words, the candidates for those offices need not be persons forming part of the college. The persons entitled to vote at any election are not limited to members of the college but all financial members of the Association or branch are entitled to vote. Put another way, the group from which candidates can be nominated and the ~ 48 - group who are entitled to vote at the election are each greater than the group specified in a true collegiate electoral system. In addition, the right to nominate persons as candidates is restricted to any two members of the relevant college. The members having the right to nominate persons as candidates in elections for the six federal offices constitute the equivalent of a subsequent stage of a collegiate electoral system, the branch committees of management constituting the equivalent of a first stage. The substance of the attack is that r.73(b)(1v), (v) and (x) impose restrictions on members empowered to nominate persons as candidates for the relevant offices and that those restrictions constitute a condition or restriction which, having regard to object (f) of the Act is oppressive, unreasonable or unjust. By way of comment it should be remembered that if the candidates for those offices and the voters at the election were limited to members of the appropriate college, it is difficult to see how the application could succeed, except with respect to the federal secretary and assistant federal secretary where a second tier college is involved, a method which is not permitted by s.133(1)(a)(ii) of the Act in respect of an office the duties of which are of a full-time nature. Counsel for the claimants did not contend for the view that every restriction on the right of members to be - 49 - eligible to become candidates for office within an organization of necessity contravene s.140(1)(c) of the Act. He contended that the authorities show that restrictions held to be valid all related to qualities affecting the member seeking tc be a candidate and not to qualities affecting the member's right to nominate persons as candidates. Lovell's case is an illustration of the former type of restriction. In that case the relevant rules of the organization required that a member should have been a member of the organization for specified periods before becoming eligible to nominate as a candidate for certain offices. Smithers and Evatt JJ. held that a requirement of two years' membership for eligibility to nominate as a candidate for certain offices was, having regard to the facts of the case, contrary to s.140(1)(c) of the Act, but that one year's membership for eligibility to nominate as a candidate for another office was not, having regard to the facts of the case, contrary to s.140(1)(c) of the Act. Northrop J. held that each restriction contravened s.140(1)(c) of the Act, since, having regard to the facts of the case, the qualifying period for membership did not have the effect of ensuring that the member became acquainted with the affairs of the Association. A direct voting system only was under consideration in that case and no question arose concerning any restrictions on the right of members to nominate persons as candidates for office. Northrop J. at p.99 expressly excluded from consideration special provisions which might apply to a collegiate electoral system or to sectional representation. - 50 - Apart from the general principles discussed, a number of other matters call for consideration. Each branch committee of management of the Association has at least ten members and not more than twenty four members, each of whom is elected pursuant to a direct voting system. That method ensures representation on the committee of a wide range of interests of members within the branch. Each committee, subject to the rules and to resolutions of federal council and federal executive, is required to control and manage the affairs of the branch. One of the powers so imposed on individual members of the committees is the power for any two of them to nominate persons as candidates for election to the offices of branch secretary and assistant branch secretary. Those officers do not become members of the committee of management. Another power imposed upon individual members of the committees is the power to nominate persons as candidates for the office of councillor, but that is pursuant to a true collegiate electoral system. These powers are to be exercised by the members of an incoming committee and thus the current interests within the branch should be reflected in the membership of the committee. The power to nominate is not to be exercised on the basis of a majority of the members of the committee, but each member has a separate and individual right to nominate arising from his office. Any two members of the committee may nominate a person as a candidate. The rules are clear and members of the branch should know of those provisions. When voting in an election for membership of the branch committee of management, members of the branch should know that the successful candidates have the individual power to nominate persons as candidates for the offices of branch secretary and assistant branch secretary. Likewise, the members of the branch should know that the successful candidates have the power to nominate and to elect from among their membership persons to be federal councillors and executive councillor. Likewise, the members of the branch and the Association should know that any two of the councillors on the federal council have the power to nominate candidates for election to the four part-time federal offices, a power to be exercised in the year following their own election. Likewise, in every alternative second year any two of those councillors have the power to nominate persons for election to the' offices of federal secretary and assistant federal secretary. In the Airline Hostesses' Association case, J. B. Sweeney J. said: "Once it is accepted that the Act intends the organization to choose its own structure, subject to requirements spelt out in the Act and regulations, and once it is accepted that members have easy access to the rules of the organization, it seems to me fair to assume that at times of election they will certainly know the consequences of voting for a particular candidate for particular office. Section 188 of the Act provides that a member must be supplied with a copy of the rules on demand and payment of a small fee. They will know then that aif they cast a vote which results in the election of a particular ~ 52 - candidate to the office of general secretary, the rules provide that she will also be a member of certain bodies." That statement applies with equal force to the facts of this appeal. The position of the two branch officers in question is considered. They are not members of the committee of management but are paid employees of the Association. The branch committees of management have "the control and management" of the affairs of the branches, r.34(a). The branch secretary is empowered, between meetings of the branch committee of management "to conduct and manage the affairs of the branch". He acts at the direction of the branch committee of management and the direction of any executive committee thereto. True it is that the branch secretary is the executive officer of the branch, but in the Australian democratic system the chief executive officers of government are not elected, they are persons appointed to office, and reference to the democratic process in Australia does not assist the contentions of the claimants. Counsel for the claimants contended further that r.73(b)(x) imposed a condition or restriction which, having regard to object (f), was oppressive, unreasonable or unjust in that it prevented a member who was usually employed in or in connection with the industry with which the Association is - 53 - registered but who currently was not so employed from ensuring nomination as a candidate for the office of branch secretary or assistant branch secretary. Such a person, although having the right to vote, would not be eligible to be a candidate for a position on the branch committee of management. It was contended that in order to be a candidate for any of the paid offices in question such a person would nee@ to persuade two members of the newly elected committee to nominate him and that this constituted an unreasonable restriction. Allegations of improper conduct by elected members of a committee in refusing to nominate a person as a candidate are not relevant to a consideration of this appeal. The members of the committee are elected and have powers, including the power to nominate a candidate or candidates for specified offices. Individual members cannot be compelled to exercise such a power given to them individually as members of the committee at the request of a particular person. This, however, is a restriction inherent in a collegiate electoral system. Having regard to the views already expressed, in our opinion r.73(b)(x) is not contrary to s.140(1)(c) of the Act. For similar reasons we are of the same opinion with respect to the four part-time federal offices. Any two councillors have the power to nominate any member of the ~ 54 - Association a candidate for any of those offices. Unless holding an office of councillor, our doubts on this matter having been expressed earlier, a part-time federal officer does not have the power to nominate a member of the Association a candidate. The councillors are elected pursuant to a collegiate electoral system and if the election of the four part-time federal offices was held pursuant to a collegiate electoral system, the councillors would constitute a subsequent stage in that collegiate electoral system. The rules providing for such an election would conform with 8.133(1)(a)(ii) of the Act and it is difficult to see how those rules would be contrary to s.140(1)(c) of the Act. Under the rules of the Association, the persons eligible to be nominated as candidates for any of the four part-time federal offices of necessity come from a wider group than the members of the second tier. The part-time federal office holders are elected pursuant to a direct voting system. The nominations are made by the councillors about the mid-point of their term of office as councillors. The councillors are sufficiently close to their previous election and the election of the previous branch committees of management to reflect the various interests of the members at branch level. Likewise, they are sufficiently close to the next series of elections to membership of branch committees of management and elections of councillors to ensure recognition of those interests of members at branch level. The part-time federal officers do not have the power to nominate candidates. - 55 - Having regard to the principles to be applied, and by parity of reasoning already expressed, in our opinion r.73(b)(iv) is not contrary to s.140/1)(c) of the Act. Different considerations may apply, however, with respect to the offices of federal secretary and assistant federal secretary. As has been said, if the election were pursuant to a collegiate electoral system, the power to nominate persons as candidates for those offices is limited to members of a subsequent stage in that system. Parliament has considered that in an electoral system of that type, such a limitation is not permitted. In other words, Parliament has considered that such limitation is undesirable. Having regard to the objects of the Act and to the methods by which Parliament has given effect to those objects, it is necessary to consider whether the restrictions contained in r.73(b)(v) do constitute restrictions which, having regard to the objects of the Act, impose restrictions on members which are oppressive, unreasonable or unjust. They impose restrictions which are not permitted under a collegiate electoral system, but under the rules of the Association the class of persons eligible to be nominated is far wider than under a true collegiate electoral system and any election is pursuant to a direct voting system. Further, the two office holders are not members of a committee of management or of a council of the Association and are to be equated to paid officers in the public service rather than as members of the controlling —~ 56 - body, but nevertheless they are subject to the direction of the controlling body. In this regard the rules of the Association avoid implementing the undesirable features of self-perpetuation which are sought to be avoided by the limitations imposed by the Act in relation to elections pursuant to a collegiate electoral system. The effect of the provisions contained in r.73(b)(v) is to limit the class of persons having the power to nominate candidates for the two full-time paid federal offices. That power is restricted to councillors. At the time that power to nominate is exercised, each councillor, in the normal course of events has held office for at least one year and has one year of office still remaining. Each councillor will have had experience as a member of the controlling body of the Association. He should know the qualities required of a person performing the duties of the chief executive officer and the assistant chief executive officer of the Association. At the same time, having regard to practicalities, it is accepted that those officers are able to exercise influence over the councillors. Likewise, it must be accepted that members of the Association may have difficulty in persuading councillors, or rather two councillors, either from their own branch or other branches, that they have the qualities desirable to be found in chief executive officers. If more than one candidate is nominated for either of the offices, all members of the Association are - 57 - entitled to vote in the subsequent election and thus to participate in the affairs of the Association in exercising democratic control of the Association. The election is pursuant to a direct voting system. The development of participation in the control of trade unions is illustrated in Boland v. Munro, 23 May 1980, unreported, Federal Court of Australia per Evatt and Northrop JJ. at pp.20-21: "From its very nature, an organization, being an artificial person, must act through agents. The members of an organization are separate and distinct from the organization itself. Having regard to the fact that normally a large number of persons residing in different States constitute the members of an organization, it is impractical for decisions of members of an organization to be taken at a general meeting. The history of the affairs of trade guilds shows that the '''control' of guilds developed from the position where all decisions were taken by members in general meeting to the position where decisions were taken by committees elected by members of the guild. That history is an illustration of the concept of organizations and their 'control' by the members of the organizations. The Act and regulations make provision for the election of committees by the members of an Organization to manage the affairs of the organization. Parliament in enacting detailed provisions relating to those elections has indicated its intention of the manner in which the members of an organization are to exercise 'control' over the committees of the organization. An organization 1s required to have a committee of management and the powers and duties of the committee must be provided for in the rules of the organization." Limitation on the power to nominate candidates consitutes a restriction within s.140(1)(c) of the Act, but can it be said that "having regard to the objects of this Act - 58 - and the purposes of the registration of organizations under this Act" that restriction is oppressive, unreasonable or unjust in the present case? This is not an easy question to answer, but after full consideration we would answer the question in the negative. In coming to this conclusion we have had regard not only to the objects of the Act as set out in s.2(f), but also to the substantive provisions of the Act which give effect to those objects. In addition, we have had regard to the very special nature of the structures within the Association and as prescribed by the rules of the Association. In particular we have had regard to the following features: 1. The holders of the two offices are elected pursuant to a direct voting system which, by definition, is . More limited than what might be described as a direct electoral system which contained specific provisions relating to nomination of candidates seeking to be elected to office. 2. The inter-relationship and checks prescribed by the rules for the election to the office of member of the branch committees of management and to the office of councillor. 8 tare enemas ie ene ee ee a ene ee ee re mer ed - 59 - 3. The overlapping of the terms of office of the holders of the offices referred to in 2. hereof. € 4. The method of nomination by any two councillors as distinct from a majority of the councillors. 5. That the holders of the two full-time federal offices cannot be members of the federal council or of any committee of management of the Association » but are subject to the control of the federal council and federal executive. 6. The similarity between the position of the full-time paid branch offices as discussed earlier and the full-time paid federal offices. Accordingly, we would allow the appeal in Matter V. No. 27 of 1980 and discharge the rules nisi referred to therein. We would discharge the rule nisi in Matter V. No. 9 of 1981. I certify that this and the Bifty ~ exght (53) preceding pages are a true copy of the Reasons for Judgment herein of the ; Honourable Mr. Justice Evatt and the Honovmable Mr, Justice Nerthrep. Miah tf dhecd Associate Dated: @ OCTESER 198), IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) NO. V27 of 1980 and V9 of 1981 INDUSTRIAL DIVISION ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA BETWEEN: MUNICIPAL OFFICERS' ASSOCIATION OF AUSTRALIA Appellant (Respondent) i KENNETH LAWRENCE LANCASTER and MICHAEL JAMES CANNY Respondent (Applicants) CORAM: Evatt, Northrop and Deane JJ. 6 October, 1981 REASONS FOR JUDGMENT DEANE J: These proceedings raise for consideration two related issues. The first is whether the nomination requirements specified in the Rules of the Municipal Officers' Association of Australia ("the Organization") for election to a number of federal and branch offices prevent the Rules from complying with s.133(1)(a) of the Conciliation and Arbitration Act, 1904 ("the Act") which requires that the Rules of a registered organization provide for the election of the holder of each office within the Organization either by a direct voting system or by a collegiate electoral system. The second issue is whether the effect of those nomination requirements is that the Rules of the Organization impose upon applicants for membership or members of the Organization, conditions, obligations or restrictions which, having regard to the objects of the Act and the purposes of the registration of organizations under the Act, are oppressive, unreasonable, or unjust within the meaning of s.140(1)(c) of the Act. The second issue, in so far as the relevant branch offices are concerned, is raised by an appeal from the judgment of Keely J. on the hearing of the return of two related orders to show cause. The second issue, in so far as the relevant federal offices are concerned, and the first issue are raised by an order to show cause, between the same parties, returnable before this Court. The federal offices concerned in the proceedings are those of President, Senior Vice President, Junior Vice President, Treasurer, Secretary and Assistant Secretary. The branch offices involved are those of a Branch Secretary and an Assistant Branch Secretary. The nomination requirements, in the case of the federal offices involved, are that the candidate for the relevant office be nominated by two Councillors. In the case of the branch offices, the impugned nomination requirements are that a candidate be nominated by two members of the relevant Branch Committee of Management. The detailed context in, which the abovementioned issues arise and the relevant provisions of the Act and of the Rules of the Organization ("the Rules") are set out in the joint judgment of Evatt and Northrop JJ. which I have had the benefit of reading. It is unnecessary that I repeat them. The Rules provide for the election of Executive and Federal Councillors ("Councillors") by an electoral college system and for election of the members of a Branch Committee of Management by a direct voting system. No attack is made' on the validity of the provisions of the Rules relating to the election of Councillors or members of Branch Committees of Management. . The requirement of s.133(1)(a) of the Act that the Rules provide for election of the holder of each office either by a direct voting system or a collegiate electoral system is plainly a requirement that one or other of the alternative methods be adopted in relation to the election for each office. The provisions of the clause will not be satisfied, as regards the election of a holder of a particular office, if the Rules provide that the election for that office be by a system which is neither a direct voting system nor a collegiate electoral system but is a hybrid mixture of both those systems. In the present case, it is apparent that the system of election provided by the Rules for each of the offices in question is not a collegiate electoral system within the definition contained in s.4 of the Act. The question which arises is whether the system which the Rules prescribe for election to those offices is, for relevant purposes, a direct voting system. "Direct voting system" is defined, by s.4 of the Act, as meaning "a method of election at which all financial members, or all financial members included in such branch, section or other division, or in such class, as 15 appropriate, having regard to the nature of the office, are, subject to reasonable provisions with respect to enrolment, eligible to vote". The definition of "direct voting system" does not specify any particular requirement as to who should be eligible to nominate a candidate or to stand as a candidate and I am unable to find any warrant for reading into the definition any implied requirement in that regard. Indeed, one can only speculate as to what provision the Parliament would have made as to eligibility to nominate a candidate or as to eligibility to stand as a candidate if it had thought it appropriate to insert, in the definition of "direct voting system", requirements relating to either of those matters. aed The effect of the definition of "direct voting system" is, in so far as the federal offices are concerned, that the method of election will be a "direct voting system" if all financial members are, subject to reasonable provisions with respect to enrolment, eligible to vote. The effect of the definition, in so far as the branch offices are concerned, is that the method of election will be a "direct voting system" if all financial members of the Branch are, subject to such provisions as to enrolment, eligible to vote. Examination of the Rules discloses that all financial members of the Organization are eligible to vote in the election for the relevant federal offices and that all financial members of the relevant branch are eligible to vote in the election of a Branch Secretary and an Assistant Branch Secretary. Thet being so, the Rules provide for the election of the holder of each of the relevant offices by a "direct voting system" within the definition of the phrase contained in s.4 of the Act. The phrase is plainly used in the defined sense in s.133(1){a). It follows that the provisions of the Rules relating to the election of the holder of each of the relevant federal and branch offices do not fail to satisfy the requirements of s.133(1)(a). There remains for consideration the question whether, by reason of the restrictions on nomination, the Rules can properly be said to impose conditions, obligations or restrictions which, having ee ets haan nls UR A Na et rene Aenea Sine het pe regard to the objects of the Act and the purposes of the registration of organizations, are oppressive, unreasonable or unjust. The constraints and restrictions imposed, by positive and negative requirements of the Act and regulations, upon the freedom of the members of an organization to select, for themselves, the rules which they consider appropriate for their particular organization, are real and significant. It cannot, however, be too strongly stressed that, subject to those constraints and restrictions, the content of the rules of a registered organization is primarily a matter for the members (Watson v. Australian Workers Union (1967) 10 F.L.R. 347 at p. 361; Cassidy v. Amalgamated Postal Workers Union (1967) 11 F.L.R. 124 at pp. 126-127; Wiseman v. Professional Radio and Electronics Institute of Australasia & Ors. (1978) 20 A.L.R. 545 at p. 561; Airline Hostesses' Association Case, lst October, 1980, unreported, per J.B. Sweeney J., at p. 17). This Court has no authority generally to supervise the content of the rules or to require that the rules comply with what those constituting the Court might see as preferable, desirable or ideal. To put the matter differently, it is for the members, or those entrusted by the members in that regard, to decide the content of the rules. The function of this Court is to determine, in accordance with ordinary judicial procedure, whether some provision or provisions of the rules adopted by, nb he LarihSece sacs msn aaa ng nace aA Ne Sn a ae RA Ree ne me ae nee mee set Site EVI SOS Lt Swett or on behalf of, the members can properly be described not merely as undesirable but as oppressive, unreasonable or unjust. In this regard, it seems to me that if any of the comments of members of the Commonwealth Industrial Court in Cameron v. Australian Workers Union ((1959) 2 F.L.R. 45) would support the view that the Court was exercising a primary, rather than a restricted supervisory, function in determining whether the rules of an organization conflicted with the requirements of s.140(1)(c) of the Act, those comments should not be followed by this Court. Nor am I, with respect, able to agree with the comment of Dunphy J. in the last-mentioned case (ibid, at p. 68) to the effect that it would appear that, in selecting the words "oppressive, unreasonable or unjust", the "Legislature has endeavoured to cast its net as widely as possible". There is nothing in the context of s.140(1)(c) which would justify giving an expansive construction of the requirement that the conditions, obligations or restrictions imposed by the rules of an organization upon applicants for membership or members not be "oppressive, unreasonable or unjust". Those three words are used objectively in the clause and each of them is to be given its ordinary strong meaning. Plainly, their meanings overlap and definition is liable to adulterate the strength which the words possess. Nonetheless, it seems desirable that I indicate the meaning which I ascribe to them. To be oppressive, a condition, fet Alanna ee ee Rh LT ane eect A pte anna Nn emacs obligation cr restriction must be burdensome, harsh and wrongful (see, for example, Scottish Co-Operative Wholesale Society v. Meyer [1959] A.c. 324 at p. 342; Re Germyn Street Turkish Baths Ltd. [1971] 3 All E.R. 184 at p. 199; Allien v. Townsend (1977) 16 A.L.R. 301 at p. 337). To be unreasonable, it must be immoderate and inappropriate. To be unjust, it must be contrary to right and justice and to ordinary standards of fair play (see, for example, Re Kempthorne Prosser & Co's New Zealand Drug Co. Ltd. [1964] N.Z.L.R. 49). Section 140(1)(c) provides that the question whether a condition, obligation or restriction is oppressive, unreasonable or unjust is to be determined "having regard to" the objects of the Act and the purposes of the registration of organizations under the Act. This does not, however, impose a requirement that every provision in the rules of an organization should either serve or be consistent with those objects or purposes. Nor does it alter the fact that the operative test is whether, having regard to those objects and purposes, the relevant condition, obligation or restriction can properly be described as "oppressive, unreasonable or unjust". It does, however, mean that in answering that question it is necessary to take into account relevant taal eee canceled lnk ini 3 EAlla te dnAinaienrin tenn neces untetee a eaten eeee seem whee! RTAREE 8 nme DO Fy objects of the Act and relevant purposes of the registration of organizations under the Act (see generally, Wiseman v. Professional Radio and Electronics Institute of Australasia & Ors., supra, at p. 574; Lovell v. Federated Liquor and Allied Industries Employees' Union of Australia (1978) 35 F.L.R. 72 at p. 84). In the present matter, the applicants placed particular reliance upon the fact that among the "chief objects" of the Act specified in s.2 is the object of encouraging "the democratic control" of registered organizations and the "full participation" by members of such an organization in its affairs. These, are, of course, ideals. If it were possible fully to attain them, it would be unnecessary to have any Committee of Management or Council in an organization. The members, fully participating, would decide all questions by democratic decision. In practice, one must be satisfied with less than perfect democracy and less than full participation of members. Much must be left to office holders and to council or committee. Here, one encounters different levels at which the nominated objects of democratic control and full participation may be relevant. At one level, democratic control and full participation could be said to be best served by allowing the members to decide for themselves the manner of election of members of council (or committee) and of holders of office to which or to whom authority to make decisions or to perform acts is delegated. -10- At another level, democratic control and full participation are most likely to be served by provisions which maximize the participation of members of the organization or of the relevant branch or section in the election process. The provisions of the Rules relating to entitlement to vote in the election of the holders of the offices involved in the present proceedings comply fully with the ebject of democratic control and full participation: all financial members of the Organization or of the relevant branch are eligible to vote. On the other hand, the requirements that a candidate for any of the relevant federal offices be nominated by two Councillors and that a candidate for any of the relevant branch offices be nominated by two members of the relevant branch committee of management impose restrictions on the direct participation of financial members in the electoral process. Against this, it is to be remembered that all financial members of a branch are eligible to vote in the election of the branch committee of management and that the members of the federal council are, in turn, elected by the various branch committees of management. There was considerable discussion, in the course of agrument before us, as to the relevance of whether the nomination requirements in respect of a particular office would or would not be appropriate to the type of collegiate u -1ll- electoral system which would satisfy the requirements of s.133(1)(a) as a method of election for that office. Section 133(1)(a) requires that the rules of an organization provide for the election of office holders by either a direct voting system or "a collegiate electoral system being, in the case of an office the duties of which are of a full-time nature, a one-tier collegiate electoral system". The nomination requirements under the Rules in the case of the relevant branch offices (nomination by two members of the relevant branch Committee of Management) are of a type which would be appropriate to a "one-tier" collegiate electoral system. The nomination requirements in relation to the relevant federal offices (nomination by two Councillors) would be appropriate to a two-tier collegiate electoral system. The offices of Secretary and Assistant Secretary, at both branch and federal level, are full-time offices. The other offices involved are not full-time offices. It follows that the nomination requirements as regards the offices of Federal Secretary and Assistant Federal Secretary are appropriate to a collegiate electoral system of a type which would not satisfy the requirements of s.133(1)(a) in respect of those two offices while the nomination requirements in respect of the other offices in question are appropriate to a collegiate electoral system of a type which would satisfy the requirements of s.133(1)(a) in respect of those other offices. In fact, as has been seen, the requirements of s.133(1)(a) are satisfied in respect of 211 of th2 offices in question by reason of the -i12- fact that election to each of them is, under the Rules, not by a collegiate electoral system but by a direct voting system. In these circumstances, I consider that little assistance on the question whether any of the provisions in the Rules relating to nomination requirements is oppressive, unreasonable or unjust is to be obtained from the consideration that that provision either would or would not be appropriate if it were necessary to satisfy the requirements of s.133(1)(a) on the ground that the Rules provided for a collegiate electoral system. The fact that a particular nomination requirement would be appropriate to a type of collegiate electoral system which would satisfy the requirements of s.133(1)(a) in respect of a particular office does not necessarily mean that, in the absence of a collegiate electoral system, that nomination requirement is an acceptable one. Nor, in my view, does the fact that a particular nomination requirement would be appropriate to a collegiate electoral system of a type which would not satisfy the requirements of s.133(1)(a) in respect of that particular office indicate that, in the absence of such a collegiate electoral system, the particular requirement is, in itself, t contrary to the policy of the Act or oppressive, unreasonable or unjust. If the relevant matter for decision were the identification of the most desirable electoral procedure in the light of the objects of the Act and the purposes of the registration of organizations under the Act, I would be of the view that it was desirable that any two financial members of the Organization be competent to nominate a candidate for the federal offices in question and that any two financial members of a branch be eligible to nominate a candidate for the relevant branch offices. There is some force in the view that it is desirable that candidature for the relevant offices be restricted to persons who have sufficient general appeal or support to enable them to obtain nomination, in the ease of candidature for federal office, by two federal councillors or, in the case of candidature for branch office, by two members of the branch committee of management. There is some merit in adopting the method of nomination common under a collegiate electoral system with the result that the elected members of Committees of Management and the elected Councillors play some part, in their capacity as such, in the procedure for electing those who are to hold office during the period of their administration of branch cr organization. On the other hand, it does seem to me that, overall, the objects of the Act would be best served by less rigorous requirements as to nomination and that much of the rationale behind the common collegiate electoral nomination procedure is absent when the actual election is by direct voting of financial members. -14- The matter for decision is not, however, what would, in the view of the Court, constitute the most desirable provisions to be contained in the Rules of the Organization. The matter for decision is whether the Court is persuaded that the conditions, obligations or restrictions imposed by the actual Rules of the Organization upon applicants for membership or members are "oppressive, unreasonable or unjust" within the ordinary strong meaning of those words. I am conscious of the force of the judgment of Keely J., who sat at first instance, and it is with a@iffidence that I differ from the conclusion which he reached. I have, however, come to the clear conclusion that any condition, obligation or restriction upon applicants for membership or members flowing from the relevant nomination requirements cannot properly be described as oppressive, unreasonable or unjust. To the contrary, the relevant provisions of the Rules of the Organization are, in my view, within the limits of what members can reasonably and properly, and without injustice or oppression, accept as appropriate to the requirements of their own particular organization. It should be mentioned that it was also argued on behalf of the applicants that the Rules contravened s.140(1)(a) of the Act in that they failed to provide, as required by s.133(1)(d)(ii), for the manner in which persons -15- z may become candidates at an election for each of the relevant @ offices. It suffices to say that I agree with Evatt and Northrop JJ. that, for the reasons which they give, the argument to that effect should be rejected. In the result, I am of the view that the appeal should be allowed and that all three orders to show cause should be discharged. I cortify that this and the preceding pages are a true copy of '+1: sears io: ' -fgment herem of His Honour Mai Jastteg Deane: MK Alig bees KE ASSOCIATE 6 October 1981. Dale