CATCHWORDS Industrial Law - registered organization - inquiry into election for offices in organization - dual registration of "Branch" - whether election conducted in accordance with federally certified "Branch" rules - meaning of "irregularity" in the conduct of an election - whether numbering of ballot papers constitutes an irregularity - eligibility rule - meaning of "engaged in a clerical capacity" Conciliation and Arbitration Act 1904 ss.133(1), 133AA, 139{4), 140, 141, 159, 160, 163, 164, 165, 170A, 171D, 171F and 171G Conciliation and Arbitration Regulations Regs. 128, 136C and Part VAA In the matter of an application by Maureen Faye Hibbert and Others for an inquiry unto an election for offices in the Federated Clerks Union of Australia S.A. No.15 of 1981 EVATT J. Adebaide 28 June and 29 July 1983 IN THE FEDERAL COURT OF AUSTRALIA ) ) SOUTH AUSTRALIA DISTRICT REGISTRY )S.A. No.15 of 1981 ) ) INDUSTRIAL DIVISION IN THE MATTER of an application under s.159 of Conciliation and Arbitration Act 1904 for inquiry into an election an in THE FEDERATED CLERKS UNION OF AUSTRALIA, SOUTH AUSTRALIAN BRANCH ORDER JUDGE MAKING ORDER: EVATT J. DATE OF ORDER: 29 July 1983 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: Pursuant to s.165 of the Conciliation and Arbitration Act 1904 (the Act) (1) (2) (3) (4) The Court declares the election conducted for the officesof Deputy President, Vice President and three Federal Councillors of the Federated Clerks Union of Australia, South Australian Branch and completed on 31 March 1981, to be void. The Court declares that Mr Geert Louis Viergever was not then elected President of the Branch; Peter David Summerton was not then elected Vice President of the Branch; Robert Fellowes was not then elected as Deputy President of the Branch and that Harry David Krantz, John Kosmos Lesses and Leslie Richard Haseldine, were not then elected Federal Councillors of the Branch. The Court declares that Michael James Knight was elected President of the Branch. The Court directs that the Industrial Registrar make arrangements for a new election pursuant to «+ /2.. (5) (6) (7) (8) Date Entered: s.165A0f the Conciliation and Arbitration Act 1904 (the Act) for the offices of President, Vice President, Deputy President and three Federal Councillors, nominations to be called in February 1984, closing on 20 February 1984, and that such election be conducted in accordance with the certified rules of the Branch of the organization as at 16 February 1981, subject to the following directions and order. The Court declares that the certified rules of the Branch as at 16 February 1981 be modified so that r.31(g) (1v) thereof does not apply to the new election, and that the term of office provided for in r.30 be varied so that the term of each office shall be for the period to August 1985, or for such other period as the rules of the Branch may provide as at the close of nominations in the new election. The Court orders that the interim orders made herein on 18 September 1981 in respect of Mr Summerton and Mr Fellowes remain in force and continue until the election of persons to the offices of Vice President and Deputy President respectively pursuant to the new election. The Court orders that Harry David Krantz, John Kosmos Lesses and Leslie Richard Haseldine continue to hold office as Federal Councillors of the Branch until the election of persons to such office pursuant to the new election. Liberty is given to all parties to have the matter restored on 14 days notice to the other parties and to the Court. DISTRICT REGISTRAR IN THE FEDERAL COURT OF AUS'TRALLA ) ) SOUTH AUSTRALIA DISTRICT REGISTRY ) S.A. No.15 of 1981 ) ) INDUSTRIAL DIVISION IN THE MATTER of an applacation under s.159 of Conciliation and Arbitration Act 1904 for an inquiry into an election in THE FEDERATED CLERKS UNION OF AUSTRALIA, SOUTH AUSTRALIAN BRANCH EVATT J. 29 July 1983 EX TEMPORE JUDGMENT On 28 June 1983, the Court announced its determination in this matter that an irregularity had occurred in the subject election and that, in all the circumstances, the result of the election may have been affected by such irregularity. The Court then adjourned the matter in order that the parties mighthave an opportunity of perusing the reasons for judgment before making submissions as to what orders, 1f any, should be made. The parties have availed themselves of such opportunity. In the reasons for judgment there was a finding that the late Mr Viergever, the successful candidate for the office of President of the Branch, was at the time of his nomination ineligible to be nominated. At the time when nominations for that office closed there were but two candidates, namely, Mr Viergever and Mr Michael James Knight. The Court, 2n its reasons for judgment, has found that the numbering of ballot papers in accordance with Branch r.31(g) (4) constituted the irregularity found and that that irregularity ~./2.. ' may have affected the result of the election. The rule providing for such numbering of the ballot papers has been in the certified rules for many years and it has been the practice in elections held in this Branch for ballot papers to be so numbered. The Court makes reference to this matter at this stage to highlight the reason for the finding of the irregularity being the basis Of the Court's determination in this inquiry. As was stated in the reasons for judgment handed down on 28 June 1983, it is a practice which should cease, and no doubt will cease, in the future. There is no suggestion that there was, or has been, any mala fides on the part of any official of the Branch in the numbering of the ballot papers. In the submissions made to the Court since the handing down of its reasons for judgment, counsel representing the Branch of the organization submitted that under s.165(3) of the Act the Court has a discretion whether it should make any order even though it has made the findings set out in its reasons. On the other hand, the applicants and the federal organization claim that the Court, having made those findings, must make appropriate orders pursuant to s.165(3). As it is proposed to make certain orders, it is unnecessary that a definitive determination be made as to whether the Court in such circumstances has a residual discretion, but it is pointed out that in Kelly -v- The Amalgamated Metal Workers and Shipwrights Union (1981) 56 F.L.R.124, at p.149 Sheppard J. determined that s.165 does make provision for --/3.. such a residual discretion. The Court, pursuant to s.165 of the Act, makes the following orders: 1. The Court declares the election conducted for the officesof Deputy President, Vice President and three Federal Councillors of the Federated Clerks Union of Australia, South Australian Branch and completed on 31 March 1981, to be void. 2. The Court declares that Mr Geert Louis Viergever was not then elected President of the Branch; Peter David Summerton was not then elected Vice President of the Branch; Robert Fellowes was not then elected as Deputy President of the Branch and that Harry David Krantz, John Kosmos Lesses and Leslie Richard Haseldine, were not then elected Federal Councillors of the Branch. 3. The Court declares that Michael James Knight was elected President of the Branch. 4. The Court directs that the Industrial Registrar make arrangements for a new election for the offices of President, Vice President, Deputy President and three Federal Councillors, nominations to be called in February 1984, closing on 20 February 1984, and that such election be conducted in accordance with the certified rules of the Branch of the organization as at 16 February 1981, --/4.. subject to the following directions and order. The Court declares that the certified rules of the Branch as at 16 February 1981 be modified so that r.31(g) (iv) thereof does not apply to the new election, and that the term of office provided for in r.30 be varied so that the term of each office shall be for the period to August 1985, or for such other period as the rules of the Branch may provide as at the close of nominations in the new election. The Court oitders that the interim orders made herein on 18 September 1981 in respect of Mr Summerton and Mr Fellowes remain in force and continue until the election of persons to the offices of Vice President and Deputy President respectively pursuant to the new election. The Court orders that Harry David Krantz, John Kosmos Lesses and Leslie Richard Haseldine continue to hold office as Federal Councillors of the Branch until the election of persons to such office pursuant to the new election. Liberty is given to all parties to have the matter restored on 14 days notice to the other parties and to the Court. I think I have covered everything, gentiemen. Although I have not formally stated it, the new election will be an election under s.165A of the Act. I certify that this and the three preceeding pages are a true copy of the Reasons for Judgment herein of his Honour Mr Just P.G. E ised . r Justice vatt Me _ 24-7-83. Associate IN THE FEDERAL COURT OF AUSTRALIA ) ) SOUTH AUSTRALIAN DISTRICT REGISTRY ) S.A. No.15 of 1981 ) INDUSTRIAL DIVISION ) IN THE MATTER of an application under s.159 of Conciliation and Arbitration Act 1904 for an inquiry into an election in THE FEDERATED CLERKS UNION OF AUSTRALIA, SOUTH AUSTRALIAN BRANCH EVATT J. 28 June 1983 REASONS FOR JUDGMENT On 16 July 1981 Maureen Faye Hibbert, Michael James Knight, Michael Anthony Prichard, Alexander Milne Robertson, Frederick William Higgins and James Leslie Bailey as members of the Federated Clerks Union of Australia, South Australian Branch (the Branch of the organization) lodged with the Industrial Registrar an application under Part IX of the Conciliation and Arbitration Act 1964 (the Federal Act) seeking an inquiry into the election of the Branch President, the Branch Deputy President, the Branch Vice-President and three Federal Councillors of the Branch of the organization which had been completed on 31 March 1981. The Federated Clerks Union of Australia (the organization) is an organization of employees registered under the Federal Act. It has registered branches in the various States of Australia including South Australia. In the said election the first and fifth named applicants were candidates for two of the positions of Branch Federal Councillor; the second named applicant a candidate for the office of President; the third named applicant a candidate for the office of Branch Deputy President whilst the fourth named applicant was a candidate for the office of Branch Vice-President. None of the applicants was successful, the margins for each office other than Branch Federal Councillor being in the vicinity of 2 to 1 against in a total vote of some 2000 in respect of each office. The application for such inquiry particularised 16 alleged irregularities covering some 14 foolscap pages, details of which are dealt with later herein. The Industrial Registrar after satisfying himself that there were reasonable grounds for an inquiry referred the matter to the Court (see s.160 of the Federal Act). Thereafter the Court gave certain directions as to the filing of points of claim and points of defence by the applicants, the organization, the Branch of the organization and certain persons whom the Court had allowed to appear or to be represented (s.164). On 17 September 1981 Mr Johnston Q.C., who with Mr Heywood-Smith, appeared for the successful candidates in the election and (so far as it was legally possible) for the Branch of the organization, sought and was granted interim orders pursuant to s.163 of the Federal Act that the successful candidates for the offices of Branch President, Branch Deputy President and the Branch Vice-President who had assumed office following the subject election continue to act in each respective office. Mr Mansfield who, with Mr Moloney, appeared for the applicants opposed this application and submitted that the Court in all the circumstances should make interim orders that the respective applicants who had purported to nominate as candidates for each of the said three offices on 16 January 1981 in circumstances which are referred to later in these reasons be the holders of the respective offices pending the decision of the Court in the inquiry. Each of the successful candidates had in fact been elected to their respective offices in 1975 and again in 1978. As at 17 September 1981 the 1878 election, being an election completed within 4 years, may then have been challenged but the 1975 election, being completed more than 4 years before that date, was, subject to s.171G, deemed to be valid for all purposes (see s.171F of the Federal Act). In view of the votes cast for each of the candidates for each of the three offices in the subject election the Court, being satisfied that the efficient conduct of the affairs of the Branch of the organization would not be impaired by making the interim orders sought by Mr Johnston ordered that, pending further order of the Court, the three successful candidates continue to act in the offices that they had assumed following the declaration of the poll in the subject election. BACKGROUND In order to understand certain of the alleged irregularities particularised by the applicants a brief history of the South Australian Branch of the organization is set out. For many years in South Australia there has been an association of employees commonly known as either "the South Australian Branch of the Clerks Union" or simply "the Clerks Union of South Australia". At all relevant times there has been registered in accordance with the Industrial Conciliation and Arbitration Act 1972 (S.A.)(the South Australian Act) a union under the name of the "Federated Clerks Union of Australia, South Australian Branch" which hereinafter shall be referred to as "the State Union". This also has been the formal name of the Branch of the organization since about 1919 in South Australia (see federal r.12(1)). Pursuant to ss.139 and 140 of the South Australian Act the State Union on registration became on and from the day of its registration a "body corporate by its registered name" having a common seal and perpetual succession with the right to sue and be sued in its corporate name and capacity. At all relevant times rules of the State Union (the State Union rules) were registered with the South Australian State Industrial Registrar in accordance with the South Australian Act. Also during this period rules of the organization (the Federal rules) and of the Branch of the organization (the certified rules of the Branch of the organization or the Branch Rules) have been registered with the Federal Industrial Registrar. Up until about 1974 relevant rules of both the State Union and the Branch of the organization were the same. Both sets of rules made provision for a Branch Council and a Branch Executive and for certain officers and their election. Both sets of registered or certified rules included a rule making provision for the amendment of the respective rules. Additionally r.12(2) of the certified Federal rules at all relevant times provided that the rules of branches of the organization shall conform to the rules of the organization and that subject to the federal rules and to the approval of the Federal Executive, a branch shall have power to make rules from time to time for its own internal management (emphasis added). At all relevant times any amendment to the rules of either the State Union or the Branch of the organization had no effect until approved or certified by either the State Industrial Registrar pursuant to s.121(2) of the South Australian Act on the one hand or, on the other, by the Industrial Registrar pursuant to s.139(4) of the Federal Act and reg. 128 cf the regulations made thereunder. In practice any amendments to the rules of the Branch of the organization could not have been lodged for certification by the Industrial Registrar until approved by the Federal Executive. (see reg. 128(2) which provides that a Statutory Declaration be filed in support of an application to amend the rules showing that the alteration has been made in accordance with the rules of the organization or the Branch). It is clear in my view that for years no distinction has been made in the normal course of business by the Officials and the Members between the State Union and the Branch of the organization. Both were referred to simply as "the Branch" the bodies of each as "the Branch Council" or "the Branch Executive" and the rules as "the Branch rules". As will be seen later the date, 19 January 1981, was a material date. Between 1974 and 19 January 1981 meetings of a body known within "the Branch" simply as the "Branch Council" met from time to time and adopted resolutions including amendments to "the Branch Rules". During this period there was in general use within the Branch only the one set of rules printed in booklet form. From time to time this rule book would be reprinted to include amendments to the rules adopted by the Branch Council and would thereafter become the rule book for the use of the Branch officials. It was also issued to those members of the Branch who requested a copy of the Branch rules. Following the adoption of amendments to the rules by the Branch Council during this period the Branch Secretary, in accordance with the provisions of the South Australian Act and regulations, would lodge the amendments with the South Australian Industrial Registrar for registration and at the same time would forward copies of the amendments to the Federal Secretary of the organization (whose office was in Melbourne) for approval by the Federal Executive in accordance with Federal r.12(2). Thereafter the South Australian Industrial Registrar registered various relevant amendments to the State Union rules in accordance with the provisions of the South Australian Act. But for reasons which are not relevant to this inquiry the amendments to the rules of the Branch of the organization which had been forwarded to the Federal Secretary of the organization during this particular period had not received the approval of the Federal Executive and consequently had not been lodged with the Federal Industrial Registrar for certification pursuant to s.139(4) of the Federal Act. Consequently as at 19 January 1981 the registered rules of the State Union and the certified rules of the Branch of the organization were not identical in material respects particularly as to the last day for lodging nominations in elections for the subject Branch officers and Federal Councillors, the rule in respect of the appointment of a Returning Officer, the rules governing the procedure for the election of officers and Branch Councillors and the rules providing for the eligibility of members. These matters are dealt with later herein. Further, in or about 1975 pursuant to agreements made between certain employers of members of the Branch and the Branch itself, employers made deductions from the wages of members to cover those members' subscriptions to the Branch. Such deductions were made either weekly, fortnightly or monthly depending on the particular employer. Employers traditionally closed their businesses between Christmas and the New Year and experience had shown that many of them who had deducted appropriate amounts in respect of members' subscriptions during December did not forward those amounts to the Branch until late zn January, with the result that a list of members financial as at 31 December of a particular year compiled during January of the following year from the records kept within the Branch did not necessarily include ali financial members as at 31 December. In this regard no separate record was kept in respect of payments of dues to the State Union or to the Branch of the organization. The registered rules of the State Union and the certified rules of the Branch of the organization prior to 1976 provided that nominations for certain offices and positions within the Branch were to close by the third Monday in January in particular years and that the nominators and nominees for such offices or positions were to be fanancial as at 31 December of the previous year. Because of the matters referred to above difficulties had been experienced in ascertaining the correctness of the list of financial members as at 31 December. Consequently the Branch Council had in 1976 adopted an amendment to the Branch rules so that nominations for those offices and positions were to close on the third Monday in February, the cut-off date as to the financial position of the nominators and nominees still being 31 December of the previous year. In accordance with his practice the Branch Secretary had forwarded this amendment both to the South Australian Industrial Registrar and to the Federal Secretary for approval by the Federal Executive. Thereafter the South Australian Industrial Registrar approved the amendment but it is now known that the said amendment was not considered by the Federal Executive prior to 20 January 1981 and consequently had not been lodged with the Industrial Registrar for certification pursuant to s.139(4) of the Federal Act before the third Monday in January of that year, namely 19 January 1981. The evidence shows that in 1975 and 1978 there was only the one election held in each of those years for the filling of the offices of President, Deputy President, Vice-President and Federal Councillors in both the State Union and the Branch of the organization and that that was to be the position in respect of the triennial elections for those offices to be held in February/March 1981. In 1978 the election had been conducted in accordance with the provisions of r.31 appearing in the Branch rule book; that is any necessary ballot was to be a postal ballot of the whole of the membership of the Branch. This again was to be the position in 1981. Further this had also been the position 10. in regard to the election of the Branch Secretary and Assistant Branch Secretary in 1978. There was but the one election for these two offices in both the State Registered Union and in the Branch of the organization. Again any necessary ballot was to be a postal ballot of the whole of the membership of the Branch despite the fact that, as will be seen later herein, the certified rules of the Branch in 1978 provided that the filling of these two offices was to be by a collegiate election by members of the Branch Council. Further the evidence 1s that at all relevant times all members of the Clerks Union in South Australia belonged to both "Unions", that is the State Union and the Branch of the organization and only paid the one set of dues each year. As regards the intended timing of the subject election, the evidence is that the Branch Secretary on 29 August 1980 had filed with the federal Industrial Registrar in Melbourne a return, stated to be pursuant to reg.136B made under the Federal Act but obviously meant to be pursuant to reg. 136C, advising the Registrar that nominations for the filling of the subject offices were to be called not later than 9 February 1981 and were to close on Monday, 16 February 1981. Further, the agenda forwarded by the Branch Secretary to Branch Councillors on 14 January 1981 in respect of the meeting of the Branch Council to be held on 20 January 1981 shows an item no.9: "the 1981 Branch Elections: (a) appointment of Returning Officer and (b) ll. assistance to Returning Officer." Further it is clear from the evidence that meetings of the Branch Council and Branch Executive held from time to time during relevant periods up until January 1981 were not clearly designated as meetings of either the Council or Executive of the State Union or of the Branch of the organization. In this regard it is noted that in this inguiry there has been no real issue whether a particular meeting of the Branch Council or of the Branch Executive was in fact a meeting of the State Union body or of the body of the Branch of the organization and consequently no finding in this regard is made in this inquiry in respect of any of such meetings. Further, 1t is clear that during this time' the various rule books which had been printed by the Branch following amendments being registered by the South Australian Industrial Registrar were treated by the officials of the Branch as being the rules of the Branch without any deliberate consideration being given by the officials as to whether such rules were the certified rules of the Branch of the organization cr were the registered rules of the State Union. In addition it is noted that the Court as presently constituted has heard considerable evidence in some four other proceedings concerning the Branch of the organization which were ° ty commenced between 13 February 1981 and 21 October 1981 pursuant to s.140 and/or s.141 of the Federal Act. The applicants in those proceedings are in the main the same applicants as in the present inquiry. Those proceedings involve (inter alia) challenges to the rules of the Branch of the organization under s.140 of the Federal Act particularly the rules providing for the term of office for the Branch Secretary and the Branch Assistant Secretary, the rule providing for the election of members of the Branch Council other than the officers of the Branch and the rules providing for the appointment of a Returning Officer. The main thrust of those challenges apart from the term of office of the Branch Secretary and the Branch Assistant Secretary was first, that the Branch Council as at December 1980/January 1981 was improperly constituted so that the appointment by the Branch Council of the Returning Officer who conducted the subject election was invalid and secondly, that the Branch Council which had adopted amendments to relevant rules during the years up to 1981 had been invalidly constituted with the result that such amendments were invalid. These four proceedings remain part-heard. In addition two further orders-nisi have recently been granted pursuant to s.141 of the Federal Act to some of the applicants in the present inquiry wherein further serious challenges to the functioning of the Branch and its property are raised. Evidence in these two matters has yet to be commenced. The above does not purport to be a detailed summary of the voluminous evidence given i1n this inquiry and in the other 13. proceedings but is simply an introduction so to speak to particular matters which are dealt with in some detail hereafter. During the hearing of all these proceedings it was apparent to the Court that if ever there was a case where an application under s.171D of the Federal Act seeking the approval by the Court of a "scheme" was necessary then this was that case (cf. Sherrif & Ors. -v- Townsend & Ors., ((1980) 46 F.L.R. 20). From time to time during the hearing of the various matters the Court indicated this view. But it was the contention of the applicants that an application under s.171D could not be made because Federal rule 12(5) contained provisions which, so it was claimed, were effective means by which the Federal Executive of the organization could amend the Branch rules so as to enable the Branch to function effectively (see s.171D). This Federal rule is set out later herein. The Court is aware of the problems following the decision of the Commonwealth Industrial Court in Moore -v- Doyle & Ors., (1969) 15 F.L.R. 59 which have confronted numerous organizations registered under the Federal Act with branches in New South Wales and/or South Australia which are registered under the respective State Acts. The acts of branch officials of such branches may be and often have been exposed to challenges under ss.140 and 141 of the Federal Act by any member who 1s reasonably conversant with the principles laid down in that case and who is aware of the numerous administrative problems within such branches that may have arisen as a result of that decision. 14. Irrespective of the motives of such a member, he can bring about a state of affairs where the officials of such a branch are confronted with proceedings in the Court. Such proceedings of necessity may require thorough and lengthy research being first made, followed by lengthy and often complex evidence being presented to the Court, the consequences of which may be to effectively bleed the branch of its finances and also, because of the time-consuming efforts of the officials of the branch, to either materially weaken the branch or effectively destroy it. In this regard certain of the parties to this inquiry and certain respondents in the other proceedings being representatives of the Branch have challenged the standing of the third named respondent, Mr Prichard. An issue has been raised as to whether he was and still is entitled to be a member of the organization so as to have locus standi in the various proceedings. Serious questions as to his creditibility have been raised. The Court is aware that for some years up until 1980 Mr Prichard had been employed as a full-time Branch organiser and that in September 1980 he had been dismissed from that position. It is clear that he is the dominant applicant of the group of applicants in the proceedings. Of the applicants he alone has taken an active interest in the proceedings, attending Court on all hearing days and is obviously the person giving instructions to the applicants' legal representatives. The Court as presently constituted 1s aware that he, as a member of the South Australian Branch of the Shop Assistants Union, was active in a prolonged 15. factional fight involving the Victorian branch of the Shop, Distributive and Allied Employees' Association of Australia during 1976-7.(cf. Leveridge & Ors. -v- Shop Distributive and Allied Employees' Association, (1977) 31 FLR 385). In the present inquiry evidence has been led regarding certain conduct alleged to have been carried out by Mr Prichard which on one view might support an allegation of an offence under the Federal Act having been committed by him. The Court has been asked to make certain findings in this regard. The Court has also been asked to express its view in regard to the credit of Mr Prichard. In view of the findings and orders that the Court proposes to make in this inquiry and the fact that the other proceedings referred to above are still part heard the Court feels that no finding or observations in regard to these questions should be made at this stage but has agreed to make a determination as to his eligibility for membership of the organization as at the time of nominating as a candidate in the subject election. Such determination is set out later herein. POSITION GENERALLY OF "BRANCH" as at 20 January 1981 (1) BRANCH COUNCILLORS Both the certified rules of the Branch of the organization and the registered rules of the State Union then provided that; 16. (i) Sections may be established within the Branch on an industry or locality basis (r.21(a)). Rule 21(b) provided that, subject to approval of the Branch Council, Sections may frame their own rules and amend such rules. Rule 21(d) provided that the various Sections were to elect Councillors and alternate Councillors as required by r.15 in accordance with the rules of the Section. Rule 32(b) provided that Councillors were to be elected annually and hold office until their successors were elected. As at 20 January 1981 there were $ Sections within the Branch none of which had any rules which had been certified or registered under either the Federal Act or the State Act or otherwise adopted making provisions for the procedure for such elections. (ii)Rule 14 made provision for a Branch Council and provided that the President, Deputy President, Vice-President, Secretary and Assistant Secretary shail be the officers of the Union. (iii)Rule 15 provided that the Branch Council shall consist of the Officers together with Councillors elected by the Sections on a basis of a certain number of Councillors for the number of members within each Section. As at 20 January 1981 14 Councillors represented the 9 Sections. (2)BRANCH SECRETARY AND ASSISTANT BRANCH SECRETARY As at 20 January 1981 the certified Branch rules provided that the Secretary and the Assistant Secretary shall be 17. elected by the Branch Council and shall hold office for a term of six years(rr.24 and 25). But the holders of both these offices at that date had been elected in February 1978, purportedly for a period of 6 years in an election wherein any necessary ballot was to be a postal ballot of the whole of the membership of the Branch. This had come about as a result of amendments to both r.24 and r.25 of the Branch rules by the Branch Council in January 1976 whereby such elections were to be rank and file elections in lieu of the collegiate election. The term of office had not been amended at that time as the amendment to s.133(1) of the Federal Act by the insertion of paras. (da) and (db) did not come into force until July 1976. The said amendments adopted in January 1976 had been forwarded by the Branch Secretary for approval by the Federal Executive in the usual way but as no approval had been forthcoming at that time the amendment had not been certified by the Industrial Registrar under s.139(4). The amendment had in fact been approved by the South Australian Industrial Registrar and had become part of the registered rules of the State Union and had accordingly been printed in the Branch rule book. The procedure for the rank and file election was provided for in r.31. Such procedure made provision for a postal ballot. Rule 31 had been common to both sets of rules for many years, it being the procedure provided for in the Branch rule book for the election of the Branch Officers (other than the Secretary and the Assistant Secretary) and the Federal Councillors. nt 16. (3)BRANCH OFFICERS (OTHER THAN SECRETARY & ASSISTANT SECRETARY) AND FEDERAL COUNCILLORS - Rules dealing with their election as at 19 January 1981 Rule 30 of both the Branch rules and the State Union rules were identical and provided that nominations for an election of these officers were to be called not later than February every third year. Nominations had been called for the filling of these offices in 1978. Rule 31 of both sets of rules made provision for the procedure for such election which ex facie provided for a postal ballot within the meaning of that expression in the Federal Act. As xr.3l(g)(iv) provided (inter alia) that the ballot paper in any election for these offices be endorsed with the following printed thereon: "This number is for the purpose of preventing any irregularity. No: All ballot papers have been so shuffled that identification of any number with any person is impossible. YOUR VOTE IS SECRET." it was contended that any ballot conducted under that rule would not be a secret postal ballot (see s.133(1)(d) and s.133AA of the Federal Act)(emphasis added). This is discussed later herein. 19. But as at 19 January 1981 r.31(a) as registered and certified in the respective sets of rules was materially different. The certified rule of the Branch of the organization read: 31(a) Nominations in writing signed by the candidate and endorsed by 2 financial members must be in the hands of the returning officer by not later than the 3rd Monday in January" (emphasis added). The sub-rule then provided for the calling of nominations by advertisement in a daily newspaper and for a ballot where necessary. Rule 31(a) of the State Union rules on the other hand provided that the nominations had to be in the hands of the Returning Officer by the third Monday in February and that where the Returning Officer finds a nomination to be defective he shall, before rejecting the nomination, notify the person concerned of the defect. Amendments to s.3l(a) altering the sub-rule to read as registered in the State Union rules had been adopted by the Branch Council in January 1976. The purpose for the changing of "January" to "February" came about as a resuit of the difficulties referred to earlier herein whilst the amendment in respect of defects in a nomination was obviously brought about by the insertion of the provisions of para.(c) to s.133(1) of the Federal Act in 1973. Here again, the amendment had been forwarded to the Federal Secretary for approval by the Federal Executive. 20. Such approval not being forthcoming, the amendment was not lodged for certification by the Industrial Registrar. Accordingly it will be seen that the Branch Council as at 20 January 1981 consisted of (a) The Branch Secretary and Assistant Branch Secretary who had been elected in February 1978 for a period of six years at a time when the Federal Act provided that the maximum term of such offices shall not exceed 4 years (s.133(1)(db)). In fact both officers had been elected vunopposed, nominations having been called for under the procedures for a postal ballot laid down in r.3l1 of the then registered State Union Rules appearing in the Branch rule book as used by the officials of the Branch in 1978. (b) The Branch President, Branch Deputy President, and the Branch Vice-President who had been elected for a term of 3 years in 1978 under rr.30 and 31. (c) Some 14 Councillors "elected" in 1980. These persons were clearly the holders of "an office" within the meaning of "office" as defined in s.4 of the Federal Act. But none of the 14 Councillors had been elected under rules certified by the Industrial Registrar which complied with the Federal Act or reg.115(1)(d) made under that Act. APPOINTMENT OF RETURNING OFFICER FOR SUBJECT ELECTION The evidence is that a Mr Crimes who had been appointed Branch Returning Officer by the Branch Council some years before 1981 had advised the Branch Secretary before Christmas 1980 that because he was taking his vacation in March 1981 he would be unable to conduct the 1981 triennial Officers election. 21. On 20 January 1981 that Branch Council adopted a resolution appointing a Mr R.D. Clarke the Branch Returning Officer. On 21 January 1981 Mr Krantz as Branch Secretary wrote to Mr Clarke as follows: "Mr R. D. Clarke, 15 Richman Avenue, PROSPECT. S.A. 5082 Dear Ralph, The Branch Council at its meeting last night appointed you to be the Branch Returning Officer in accordance with Rule 16(j). Rule 16(j) reads:- "It shall appoint the Returning Officer who shall not be the holder of an office provided by these rules nor an employee of the Union." and you are eligible for appointment in accordance with the rule. The immediate duty will be to conduct the 1981 election of officers required by Branch Rules 30 and 31, and I am sure you will forthwith put in train the steps necessary to do this. The Branch Council also directed me as Secretary to make arrangements for any assistance needed by the Returning Officer for the pur pose of his conducting the election. With best wishes, Yours faithfully, (signed) H.D. Krantz, SECRETARY " Rule 16 of the Branch rules sets out the powers and duties of the Branch Council. Rule 16(3) quoted in the above 22. letter was then the sub-rule as registered in the State Union rules. It had been amended pursuant to an amendment adopted by the Branch Council in January 1976, apparently to conform with the provisions of s.133(1)(b) of the Federal Act which came into force in 1973. Here again the amendment was one of those forwarded by the Branch Secretary to the Federal Secretary of the organization for approval by the Federal Executive which approval as at 20 January 1981, had not been forthcoming. Again, following the registration of the amendment to r.16(j) by the South Australian Industrial Registrar it had been inserted in the reprinted Branch rule book in use by the Officials of the Branch. In fact r.16(j) of the certified rules of the Branch of the organization as at 20 January 1981 provided simply that the Branch Council "shall appoint the Returning Officers, Auditors and Tyler". Clearly the rules of the Branch of the organization as certified under the Federal Act as at January/February 1981 contravened paras.(b) and (c) of s.133(1) which provide that the rules of organizations include certain conditions in respect of returning officers. AMENDMENT TO BRANCH R.31(a) CERTIFIED 23 JANUARY 1981 RE CLOSING DATE OF NOMINATIONS IN SUBJECT ELECTION As pointed out earlier herein the printed rule book in use by the Officials of the Branch in January 1981 provided in 23. r.31(a) that nominations for the filling of the offices in the subject election were to be in the hands of the Returning Officer by the third Monday in February. How this came about has already been discussed. But certified rule 31l(a) of the Branch of the organization as at 20 January 1981 provided that such nominations were to close on the third Monday in January namely 19th January 1981. Folio 881 of the register of the organization held by the Industrial Registrar includes a Statutory Declaration of the Branch Secretary declared 23 January 1981. This folio deals with the amendment to r.3l1(a) of the certified rules of the Branch of the organization. The said declaration shows that on 20 January 1981 the Federal Secretary of the organization submitted for the approval of the Federal Executive of the organization, the amendment to r.3l(a) which (inter alia) amended the day for the closing of nominations for respective offices from the third Monday in January to the third Monday in February. This was the amendment adopted by the Branch in November 1975 and which had been forwarded by the Branch Secretary to the Federal Secretary of the organization on 25 February 1976 for the approval of the Federal Executive. The amendment was identical to that which had been registered by the South Australian Registrar in January 1976 and shortly thereafter printed 1n the Branch rule book. After the amendment had been submitted by the Federal Secretary to the Federal Executive for approval on 20 January 24. 1981 the same was formally approved by that body on 22 January 1981 and then lodged with the Industrial Registrar together with the said Statutory Declaration of the Branch Secretary on 23 January 1981. On that day the Industrial Registrar certified the amendment and advised the Branch Secretary accordingly by letter dated 23 January 1981. NOMINATIONS OF APPLICANTS LODGED ON 16 JANUARY 1981 Apparently Mr Prichard and the other applicants herein were aware on 15 January 1981 that the certified rules of the Branch provided that nominations for the subject offices closed on 19 January 1981. By 16 January 1981 each of the applicants othex than Mr Barley, the sixth-named applicant, had forwarded to the Returning Officer care of the Union Office by certified mail so called nominations for the offices of President, Deputy President, Vice-President and the three Federal Councillors in the "Federated Clerks Union of Australia South Australian Branch". The evidence discloses that these nominations were received within the Branch on Friday, 16 January 1981. At no time immediately prior to 19 January 1981 had nominations for the said offices been called for by a Branch Returning Officer. On 21 January 1981 Mr Prichard wrote to the Branch Secretary as follows:- 25. "Dear Sir, As you would be aware, nominations for the positions of President, Deputy-President, Vice-President and three Federal Councillors of the Federated Clerks' Union of Australia South Australian Branch were to be called under the S.A. Branch rules not later than the 5th January this year and closed not later than the thixd Monday in January 1981. I along with 5 other members sent our nominations in by certified mail on the 15th January posted at 2 p.m., to both registered offices. We feel that this allowed reasonable time for the valid nominations to arrive before the close of nominations on the third Monday in January of this year i.e. 19th. As a consequence, we would seek your co-operation in the following; (i) At the close on Monday the 19th January 1981, were there any other nominations beside my own and that of Mr M. Knight for President, Miss Hibbert for Deputy-President, myself for Vice-President with Mr Robertson, Mr Higgins, Mrs Myers for Federal Councillors? (i2z)I£ not - we are led to believe that we as the elected (unopposed) new S.A. Branch executive would respectfully request you to consider allowing us to use the conference room for our next meeting of the new executive of the South Australian Branch of the Federation after the 26th January. We appreciate that you have permitted other Unions to use the facilities there and as a consequence, we with respect make our request in that light. In addition, we also appreciate the fact that you have your own state registered union elections in February this year and therefore the conference room may be in use. If so, we would be only too happy with a samilar area. Finally as a courtesy to you, I 26. respectfully advise that I have notified the Federal Registrar of our nominations under the Rules of the South Australian Branch of the Federation. Further, I also have to avoid confusion, sent copies of this letter to alli other officers and councillors. I also have because we are a branch of the Federal Body, notified the Federal President and Secretary. We thought it not unreasonable to do this. Yours fraternally, (signed) Michael A. Prichard." On 4 February 1981 the Branch Secretary forwarded a memo to the Branch Returning Officer as follows:- "To: BRANCH RETURNING OFFICER Dear Mr Clarke, You will recall that the Branch Council appointed you Returning Officer at its meeting on the 20th of January last and on the subsequent day I informed you in writing of your appointment. On Friday 16th January, I signed two A.R. certified mail addressed as follows :- (a) The Returning Officer Federated Clerks' Union of Australia South Australian Branch c/- 12 Regent Street, ADELAIDE, S.A. 5000 (b) The Returning Officer Federated Clerks' Union of Australia South Australian Branch c/- Reids Building King William Street, ADELAIDE, S.A. 5000 27. Both envelopes contained what purport to be nominations for an election of officers in positions which are designated in the nominations. In accordance with the rules, you have taken the proper steps to call for nominations which close on the 16th inst and I refer the above mentioned documents to you for your attention. You will recall that the Branch Executive was authorised to give you such assistance as you need to carry out your duties and if you consider you would desire Counsel's advice, I believe you should speak to Mr Paul He ywood-Smith who 1s the Union's adviser. (signed) HDK 4/2/81" RELEVANT STEPS TAKEN IN SUBJECT ELECTION 20 January 1981 Branch Council appoints Mr Clarke Returning Officer (see above). 22 January 1981 Returning officer notified Section secretaries and Branch Councillors by letter of the election and enclosed copy of advertisement he intended to place in the "Advertiser" on Saturday 24 January. 24 January 1981 Nominations called for in advertisement in "Advertiser" of 24 January. Such advertisement is headed: "Federated Clerks Union of Australia South Australian Branch" Thereafter is set out the respective offices, the fact that only financial members of twelve months standing may nominate and that nominations required endorsement by two financial members and that the same had to be in the hands of the Returning Officer by not later than 5 p-em. on 16 February 1981. The third Monday in February 1981 was 16 February 1981. 28. 6 February 1981 The Returning Officer writes to the 6 persons, 5 of whom are the applicants herein, who had lodged the so called nominations with "the Returning Officer" on 16 January 1981 referred to above, informing them that he had had passed onto him their respective nominations and pointing out to them that the documents were dated prior to the calling of nominations and requesting confirmation that each intended to nominate in the advertised election for the respective offices referred to in their documents. 16 February 1981 The Returning Officer next hears from those 6 persons on 16 February 1981 when each of them lodges a nomination for a particular office mentioned in the advertisement but stipulating 'therein that the nomination was for that particular office in the State Registered Union. In addition each person sends similar letters dated 16 February 1981 to him. A copy of such nomination and letter forwarded by Mr Prichard reads: "The Returning Officer", Mr R. Clarke, Federated Clerks' Union of Australia (State reg. union) 12, Regent Street, ADELAIDE, S.A. 5000 Deax Sir, Re:Nominations for the 1981 ' elections in the State Registered Union for the positions of PRESIDENT, DEPUTY-PRESIDENT, VICE-PRESIDENT, SECRETARY and ASSISTANT SECRETARY I, Michael Anthony Prichard hereby nominate in accordance with rule 31 of the rules, for the position of Deputy President. Signed ....... 29. We..... and sees being financial members of the Federated Clerks' Union South Australian Branch - state registered union - endorse the nomination of Michael Prichard in accordance with rule 31 of the rules for the position of Deputy President in the elections fox the Officers of the Union. Signed ...ssse0- Signed ....-..0. The letter dated 16 February reads: "The Returning Officer, Mr R. Clarke, Federated Clerks' Union of Australia (State reg. union) 12, Regent Street, ADELAIDE. S.A. 5000 Dear Six, Please be advised that the nomination by me for the position of Vice-President in the FEDERATED CLERKS' UNION OF AUSTRALIA South Australian Branch, was in accordance with the registered rules of the South Australian Branch and a correct valid nomination as they closed on the third Monday in JANUARY, i.e. 5.00 p.m., the 19th, 81. Five other nominations plus my own were received at the Union office on or around the 16th JANUARY 81 sent in by certified mail. The nominations were unopposed! I and the five others therefore have been elected unopposed to the positions of PRESIDENT, Deputy-President, Vice-President, and the three Federal Councillors of the FEDERATED CLERKS' UNION OF AUSTRALIA South Australian Branch. The fact that the Federal Registrar registered a new rule in respect to nominations for the Union on the 23rd JANUARY 81, does not have any effect until the 1984 Branch elections. We are therefore elected until February, 1984! a 30. It 1s without prejudice to my successful South Australian Branch nomination and my election as Vice-President that I have much pleasure in attaching to this letter a nomination for the position of Deputy—-President in your STATE registered union as advertised on the 24th January by you. Whilst I appreciate that you are not the returning officer for the FEDERATED CLERKS ' UNION OF AUSTRALIA South Australian Branch, I have attached also a copy of the Branch rules certified by the Deputy Industrial Registrar in MELBOURNE, for your information. Yours fraternally, (signed) c.c. To Fed Secretary To Fed President" 17 February 1981 The Returning Officer writes to each of 5 of those 6 persons as follows, filling in the (blank)with the particular office to which each claimed he or she had been elected. "Sent to: Mr M. Prichard Mr A. Robertson Mr F. Higgins M/s M. Hibbert M.s L. Myers Dear I refer to my letter to you of the 6th February wherein I called upon you to confirm to me that nominations received at the offices of the Federated Clerks Union of Australia, South Australian Branch prior to my appointment as Returning Officer on 29th(sic) January, 1981 were nevertheless for the positions advertised by me in the "Advertiser" on 24/1/81. I have now received your letter of the °o 31. 16th February hand delivered to me at about 4.00 p.m. on the same day. It is apparent from the contents of your letter that your previous nomination was not for the position advertised by me. I shall treat it accordingly. As to the purported further nomination received by me on the 16th February, I find such purported nomination to be defective in the following ways: (a) it is accompanied by a letter asserting that you are already elected as the (blank) of the Federated Clerks Union of Australia, South Australian Branch. (b) the same accompanying letter asserts that I am not the Returning Officer of the Federated Clerks Union of Australia, South Australian Branch. (c) the nomination makes reference to a body entitled "State Registered Union". I am calling for nominations for officers in the Federated Clerks Union of Australia, South Australian Branch. (dad) the nomination asserts that it is in respect of an election for officers including those of Secretary and Assistant Secretary which positions are not up for election at this time. (e) all of the above defects combine to make it clear to me that you are not nominating for the positions advertised by me on the 24th January, 1981. Pursuant to Rule 31(a)(ii) of the Rules of the Federated Clerks' Union of Australia, South Australian Branch I hereby notify you of the defect. I hereby also give you the opportunity to remedy the defect within 7 days of today's date by filling in and returning to me the enclosed nomination form which is a form commonly used in previous Branch Elections. Dy 32. I must advise that unless that form or a similar unobjectionable form is completed and received by me by 5.00 p.m. on Wednesday, 25th February I shall not regard you as being a person who has nominated for any position in the election being conducted by me. Yours faithfully, R.D. Clarke, RETURNING OFFICER" A similar letter was sent to Mr Knight the second named applicant herein by the Returning Officer. 24 February 1981 The Returning officer receives nominations from each of the said 6 persons for a particular office the subject of the election. Such nominations are accepted as being in order. As more than the required number of nominations were received in respect of each of the various offices a ballot was required. Such ballot opened on 16 March 1981 and closed on 30 March, the Returning Officer declaring the poll on 2 April 1981. The voting in respect of the various offices as shown in the Returning Officer's report is as follows: 33. President Deputy President Knight, M.J. 230 Fellowes, A. 1352 Viergever,G.L 1287 Prichard, M.A. 762 Informal 49 Informal 52 Vice President Federal Councillors Robertson,A.M 501 Haseldine, L.R. 1659 Summerton,P.D. 1614 Hibbert, M.F. 689 Informal 51 Higgins, F.W. 504 Krantz, H.D. 1698 Lesses, J.K. 1536 Myers, L.dJ. 840 Informal 44 These figures show that of the 4383 ballot papers issued the return (2166) was approximately 49.5%. ELIGIBILITY RULE At relevant times the eligibility rule as registered with the State Industrial Registrar and that as certified by the Federal Industrial Registrar were different. As a result, the applicants have claimed that some two hundred persons may have received ballot papexs in the subject election who, under the Federal eligibility rule, were not entitled to be members of the organization but who may have been entitled to be members of the State Union. The difference may also be relevant when considering the eligibility of Mr Prichard to be a member of the organization. As the Court understands the position the difference between the respective eligibility rules may not have arisen as a result of the lack of approval by the Federal Executive to an amendment adopted by the Branch Council as was the case in respect of other amendments to the rules adopted by 34. the Branch Council in 1975/1976. The eligibility rule of the Branch of the organization could not have been wider than that of the organization as registered with the Federal Industrial Registrar (federal r.12(2)). In fact the certified eligibility rule of the Branch of the organization at all relevant times was identical with that of the federal organization and reads:- "2. CONSTITUTION The Union shall consist of all persons engaged in any clerical capacity, and/or engaged in the occupation of shorthand writers and typists and/or on calculating, billing, or other machines designed to perform or assist in performing any clerical work whatsoever." The registered eligibility rule of the State Registered Union at relevant times reads:- *2.CONSTITUTION The association shall consist of any person male or female (a) engaged in or about an office. Without limiting the generality of the foregoing shall include: any person so engaged (i) in any clerical capacity. (ii)either wholly or partially in the occupations of shorthand writer, typist, teleprinter operator, addressing machine operator, dictation machine operator, punch card machine operator, cashier, receptionist, messenger and/or telephonist. 35. (iii)either wholly oor partially in calculating whether by ordinary means, or by means of any machine designed to perform or assist in performing clerical work. (iv)on anvoicing, charging, billing, pricing, scheduling, planning, correspondence, books and accounts, checking or otherwise dealing with records, or in any other clerical capacity whatsoever. (v) as salesman, tracer, draughtsman, or in any similar technical capacity. (vi)as secretary, cost accountant, accountant, chief clerk, paymaster, sales manager, purchasing officer, production control officer, pay clerk, cost clerk, purchasing clerk, sales clerk, statistics clerk, foreman's clerk, timekeeper or any similar or other designated clerical position. {b) engaged outside an office in any clerical capacity or as a meter reader. (ec) engaged as depot superintendent by any Oil Company. (d) engaged as branch manager, sub-branch manager, auctioneer, wool valuer, wool technician, wool cadet or store manager by any Stock and Station Agent. (e) engaged as two-way radio operator in connection with a fleet of motor vehicles. (£) engaged as terminal officers, grain officers, senior inspectors or inspectors employed by South Australian Co-operative Bulk Handling Limited. (g) engaged in any combination of the above." These rules are discussed later herein when dealing with the allegations that the electoral roll used in the subject election was incorrect and that Mr Prichard was ineligibile to be a membex of the Federal organization. 36. 1981 AMENDMENTS TO BRANCH RULES BY BRANCH COUNCIL AFTER SUBJECT ELECTION COMPLETED Certain amendments to the rules of the Branch of the organization had been adopted by the Branch Council on 9 September 1975 and submitted by the then Branch Secretary to the Federal Secretary on 25 February 1976 for approval by the Federal Executive. Approval by the Federal Executive having been given on 18 February 1981, the amendments were filed with the Industrial Registrar on 20 February 1981 for certification under s.139(4) of the Federal Act. As there was a challenge to certain rules of the Branch under s.140 of the Federal Act then before the Court the Industrial Registrar by letter dated 18 March 1981 to the Branch Secretary declined to consider those amendments until the Court's determination of the proceedings brought under s.140. It is noted that the amendments adopted by the Branch Council in 1975 appear to have been an attempt to bring the Branch rules into conformity with the then statutory provisions of the Federal Act. In his letter to the Branch Secretary of 18 March 1981 the Industrial Registrar pointed out that even though he declined to consider certification of the amendments for the reason stated it would appear that certain of the amendments adopted in 1975 appeared not to conform with the Act as amended to 1981 as material amendments to the Act had been made during the years between 1975 and 1981. 37. Consequently the Branch of the organization through its Branch Council adopted further amendments to the Branch rules in May 1981. These amendments, having been approved by a majority of the Sections of the Branch in mid July 1981, were submitted for approval by the Federal Executive of the organization which was granted on 7 August 1981. Thereafter those amendments were lodged by the Branch Secretary with the Industrial Registrar for certification on 18 August 1981. On 30 September 1981 the Industrial Registrax issued his certificate in respect of the amendments which included - "30. ELECTION OF OFFICERS (a) Nominations shall be called as follows :- (i) For President, Deputy President, Vice President and Federal Councillors in August 1983 and in August of every second year thereafter. (ii) For Secretary and Assistant Secretary in February 1982 and then in August 1985 and August of every fourth year thereafter." Sub-r.(b) made provision for the filling of casual vacancies in the offices referred to in sub-r.(a). "44a. 1981 RULE (a) The President, Deputy President, Vice President and Federal Councillors elected in the February 1981 elections or any successor elected pursuant to rule 30(b) of these rules_- shall, notwithstanding the term of office applicable at the closing of nominations on the third Monday in February, 1981, hold office until the next election 38. required by rule 30(a)(i). (b) The Secretary and Assistant Secretary until the conclusion of the election of February 1982 shall be respectively Harry David Krantz and Leslie Richard Haseldine or any person elected in any casual vacancy to fill either office until the conclusion of the said election." 1981 AMENDMENTS TO BRANCH RULES BY FEDERAL EXECUTIVE AFTER SUBJECT ELECTION COMPLETED. On 4 Decembex 1981, counsel for the organization informed the Court that following a request from the officials of the South Australian Branch dated 28 October 1981 the Federal Executive had, pursuant to r.12(5) of the federal rules, amended certain rules of the South Australian Branch, namely, r.21, the rule making provision for Sections, by (inter alia) substituting a new sub-x.(d) providing for the election of Cowncillors to the Branch Council by the members of the various Sections within the Branch and inserting a new rule r.21A making special provisions for such Councillors. These amendments were lodged by the Federal Secretary of the organization for certification by the Industrial Registrar pursuant to s.139(4) of the Federal Act on 1 December 1981 and the Court has been informed that the Registrar's certificate in respect of the amendments was issued on 3 December 1981. Rule 12(5) of the federal rules reads: 39. (5) Where a Branch is unable to validly make rescind alter or add to its Rules by xeason of its not having a validly elected appointed or constituted person or body of persons (by whatever name called) empowered to make rescind alter or add to its Rules, then the Federal Executive ox Federal Council may make rescind alter or add to the Rules of such Branch for the purpose of enabling the Branch to have Rules :- (a) For its own internal management; (b) To comply with these Rules; (c) To comply with the requirements of the Commonwealth Conciliation and Arbitration Act and the Regulations made thereunder; (d) To enable it generally to function as a Branch of the organization; AND in so doing the Federal Executive or Federal Council may provide in any such Rules made by it as aforesaid for the mode in which the objects referred to in clauses (a),(b),(c) and (da) hereof may be effectuated, provided that any Rule so made by the Federal Executive or Federal Council shall not be inconsistent with these Rules or the Commonwealth Conciliation and Arbitration Act and Regulations made thereunder, and shall not prevent a validly elected appointed or constituted person ox body of persons (by whatever name called) thereafter altering in accordance with the rules of the oxganization and of such Branch, any rules so made for it by the Federal Executive or the Federal Council." The new r.21(d) set out at length the procedure for the election of Section Councillors and ex facie provides for a secret postal-ballot in accordance with ss.133 and 133AA of the Federal Act. This 1s to be contrasted with the former r.21(d) as certified as at and immediately before the time of the election 40. under challenge and which has been discussed earlier herein. New rule x.21A reads: "Q21A (1) Subject to sub rule (2) hereof those persons who at the date of the certification of this rule are acting as Councillors elected by Sections pursuant to Rule 15 hereof shall be Councillors notwithstanding any alleged invalidity in their election and shall be and may act as Councillors until the election of Councillors pursuant to sub clause (4d) (vi) of rule 21. The term "Councillors" in this rule includes "Alternate Councillors". (2) By the 31st March, 1982 or within one month of the certification of this rule, whichever is the later, (hereinafter called the due date), nominations shall be called for an election of Councillors in each Section which has not in the ordinary course between the date of certification of this rule and the due date held such election. In such case the Returning Officer shall declare the result to the Secretary and advise the Section Committee and the persons elected shall take office forthwith in lieu of at the Annual General Meeting of the Section as xequired by Rule 21(d)(1x) and shall hold office until the Annual General Meeting of the Section held in 1983 notwithstanding that the term is or may cote ical than that provided by Rule 32(b)." 1982 ELECTIONS OF BRANCH COUNCILLORS AND BRANCH SECRETARY AND ASSISTANT SECRETARY The Court has been informed that pursuant to new Branch rule 30(a)(ii)} certified on 30 September 1981 an election for the 41. filling of the offices of Branch Secretary and Branch Assistant Secretary was held in February/March 1982. Nominees for these two offices included Mr Krantz and Mr Haseldine, the persons referred to in new Branch r.44.A. As has been stated earlier herein both Mr Krantz and Mr Haseldine had been elected to the respective offices in 1978. Mr Knight, the second named applicant herein and Mr Prichard were also candidates for the respective offices in the 1982 election. Both Mr Krantz and Mr Haseldine were again successful in that election, the voting being: Krantz 1343 Haseldine 1410 Knight 1005 Prichard 939 Informal 32 Informal 31 Total 2380 2380 These figures show that of the 4172 ballot papers issued the return (2380) was in excess of 57% which, in the experience of the Court, is an extremely high percentage in ballots conducted in organizations registered under the Federal Act. Further, following the amendments made by the Federal Executive and certified on 30 September 1981, elections of Councillors from the various Sections of the Branch were conducted in accordance with the provisions of new Branch r.21(d) by March 1982. Thereafter it was the Branch officials' belief that the claims of the applicants in the various proceedings before the Court that the Branch Council was invalidly constituted had been overcome and that the new Council, constituted by (a) the newly elected Councillors representing the 42. various Sections; (b) the newly elected Secretary and Assistant Secretary pursuant to new xr.30 and (c) the three other Branch officers (namely, the Branch President, the Branch Deputy President and the Branch Vice-President) who were holding office pursuant to the interim order of the Court made on 17 September 1981 and/or undex the provisions of new r.44A), could validly conduct the business of the Branch including the amendment of the rules of the Branch of the organization as required. NOMINATION OF MR G.L. VIERGEVER FOR PRESIDENT IN SUBJECT ELECTION Mx Viergever who was the successful candidate in the subject election for the Branch President died on 22 September 1982. It will be recalled that the Court on 17 September 1981 had made interim orders that each of the successful candidates in the subject election including Mr Viergever remain in the respective offices they had assumed following the election. On 24 September 1982 an application was made on behalf of the Branch of the organization that the Court vary its interim order in so far as it concerned the office of President by ordering that a Mr William Turley, a Branch Councillor, occupy the office of President pending further order of the Court. On the other hand Mr Mansfield submitted that the applicant Mr Knight who had been the unsuccessful candidate for the office of Branch President in the subject election should be the person to act as President during this period. 43. Rule 23 of the certifzed Branch rules provides that the Deputy President of the Branch may act as President during the absence of the President. Accordingly the Court refused the application indicating that the Branch could take such steps as it may be advised. The applicants have claimed that the nomination of Mr Viergever was invalidly accepted by the Returning Officer in the subject election on the basis that he was not a financial member of the organization as at 31 December 1980. It was Mr Viergever's contention that at all relevant times he was a "Life Member" of the Branch and as such was not requixed to pay contributions and was entitled to all benefits of membership of the Branch. It was not disputed that for some time prior to 31 December 1980 Mr Viergever had not paid the normal dues or contributions as provided for in the rules of either the State registered union or the Branch of the organization. The certified federal rules of the organization at all relevant times made provision for Honorary and Life Membership. Rule 50 of those rules reads:- "50.HONORARY AND LIFE MEMBERSHIP 1.Any person who has per formed distinguished service to or on behalf of the Union may be admitted to Honorary Membership under the same procedures that apply to Life Membership; save that an Honorary member who is not otherwise a member shall not be entitled to stand for or vote in an election or vote at 44. any meeting. 2.Life Membership may be conferred upon any member who - (a) has been a member for at least 20 years; and (b) has held a paid position in the Union or has held office as a Branch or Federal Covwunciilor, or at Executive level for a minimum period of 10 years; (c) has been a member for 30 years and within that period has given outstanding service to the Union in any capacity; (a) Life members shall have full rights within the Union and shall without being required to pay any moneys to the Union be regarded as financial at all times; (e) Honorary ox life membership once conferred may only be removed by a decision made at a meeting at which 75% or more of the members of Federal Council entitled to attend decide in favour after at least 3 months notice of the proposed removal has been given to all branches, Federal Councillors and the honorary or life member concerned. 3. Any Branch or the Federal Executive or the Federal Executive Committee may nominate a person for Life Membership. 12 Honorary memberships and 12 Life Membership(sic) may be granted in any 2 year period. They shall be granted only at a meeting of Federal Council. 4. Each Branch, the Federal Executive and the Federal Executive Committee shall have the right to nominate one person in each class for considexation at any biennial meeting. The C.& S.Q. Branch, the Victorian Branch, and the New South Wales Branch may nominate an additional one in each class in each period. The nominations are not confined to the membership of the Branch or the State in which the Branch 1s situated. 5. In addition to Honorary or Life Membership a branch may within its own rules provide for members who have had 30 years membership or who are 60 years ° ri 45. of age or over and have had at least 15 years membership to be given membership rights without further financial contributions of any kind." Rule 7 of the certified rules of the Branch of the organization at relevant times read: "7, LIFE MEMBERSHIP (a) The Council may confer life membership upon any member who has performed distinguished service to or on behalf of the Union. (b) Notice of the proposal to confer life membership upon any member shall be given to the Council and the Secretary shall thereupon inform each section in writing of such proposal. (c) Not less than two months after the Secretary has given such notice the Council shall consider and decide the question. (a) The Council may cancel any such life membership. (e) A Life Member shall be a full member of the Union with all rights, privileges and obligations of membership except, however, that he shall not be required to pay subscriptions or general levies required by or imposed pursuant to these rules." Rule 12(3) of the certified rules of the organization reads: "12. BRANCHES (3) If a Rule of the Branch is inconsistent with any Rule of the Union the latter shall prevail and the Branch Rule shall to the extent of such inconsistency be void." Mr Heywood-Smith has submitted that the appointment of 46. Mr Viergever to "Life membership of the Union" as referred to in x.7 of the certified rules of the Branch of the organization on 26 June 1979 was a sufficient basis for the contention that Mr Viergever thereafter was not required to pay subscriptions or levies required by or imposed pursuant to those rules (r.7(e)). But clearly Branch r.7 1s inconsistent with Federal r.50. When considering Mr Viergever's entitlement to life membership of the organization as opposed to life membership of the State Union, the conditions provided for in Federal r.50 must be fulfilled. Those conditions were not met at the relevant time when the Branch purported to make him a life member of the organization. Accordingly he was not appointed to "Life Membership" within the meaning of Federal r.50. It is clear in my view that the term "Union" as used in r.7 and particularly sub-r.(e) must be read down to mean the State Union. Otherwise the rule, being inconsistent with Federal r.50, is to the extent of the inconsistency, void. As Mr Viergever was clearly not a financial member of the Branch of the organization within the normal meaning of that expression at the relevant time, he was not entitled to nominate or be nominated for the office of President of the Branch of the organization in the subject election. ELIGIBILITY OF MR PRICHARD TO BE A MEMBER OF THE ORGANIZATION The officials of the Branch of the organization have 47. challenged Mr Prichard's right to membership of the organization during the subject election and at the time when he made his application for the subject inquiry in July 1981 ox when such inquiry was deemed to have been instituted in the Court, namely 14 September 1981 (s.161). As stated earlier herein Mr Prichard had for some time been a member of the shop assistants union (the S.D.A.) in South Australia before becoming a full time Branch organizer in 1978. Shortly thereafter he signed an application to join the organization. The evidence shows that it had been the practice for many years for Branch organisers to become members of the Federal organization. Since joining the organization Mr Prichard had paid his subscriptions to the Branch during the relevant periods and such payments had been accepted by the Branch. In September 1980 he was dismissed from his position as Branch organiser. It is clear that during this period he was engaged in a clerical capacity within the meaning of that expression in r.2 of the Federal rules and accordingly was entitled to membership of the organization. The evidence shows that since his dismissal he has sought work in various positions of a clerical nature and has not been employed other than in a clerical capacity. Since his dismissal and up to -'Nevember 1981 he had accepted casual work of a clerical nature, such as a rental clerk employed by the hirer of mechanical goods; performing general work in a solicitor's office, involving photocopying, writing reports and taking statements) and the collating of records for computer 48. recording in a doctor's surgery. The Court has recently discussed the meaning of "engaged in a clerical capacity" as used in r.2 of the Federal rules in Gerda Voigtsberger -v- Shire of Pine Rivers, (1980) 49 F.L.R. 391 @ 398. In my view the principles therein referred to still apply. On the evidence I am satisfied that Mr Prichard was entitled to become a member of the organization during his employment with the Branch and to have remained a member thereof _ Since his dismissal up until at least the time when he gave his evidence before the Court in November 1981. The Court is aware that in late 1982 the Branch officials refused to accept moneys tendered by him for subscriptions allegedly on the ground that he was not then entitled to be a member of the organization. Mr Prichard has issued proceedings pursuant to s.141 of the Federal Act seeking orders in this regard. The matter has been mentioned before the Court and certain undertakings given by the certain officials of the Branch in this regard to the effect that should the Court in the present inquiry determine that Mr Prichard was entitled to be a member of the organization then the Branch would accept his dues retrospectively without prejudice to the continuity of his financial status. ALLEGATION THAT THE ROLL PREPARED FOR THE SUBJECT ELECTION NOT PROPERLY DRAWN UP a 49. This allegation was two-pronged. First, that as a result of the difference in the eligibility rules in the Branch of the organization and the State Union, certain persons who were entitled to join the State Union but not the organization may have been included in the electoral roll and secondly, as a result of amendments to rules increasing the amount of dues or subscriptions which had not been certified by the Federal Industrial Registrar wnder the Federal Act but which had been registered under the South Australian State Act and consequently printed in the Branch rule book, certain persons who were in fact financial members of the Branch of the organization were wrongfully excluded from the roll because of an incorrect test to determine whether the appropriate subscription had been paid during relevant periods. The constitution rules in each set of rules are set out above. Clearly r.2 in the rules of the Branch of the organization is very broad and Courts both Federal and State have expressed opinions as to the meaning of the expression "in a clerical capacity. "(see cases referred to in Voigtsbexger's case (supra.) @ p.398-400). The evidence before the Court in this inquiry is that during relevant pericds there was but the one register of members of the Branch. The Branch rule book as then used by the officials within the Branch set out the constitution rule of the State Union and over some years the only consideration that would have 50. been given to any particular applicant for membership of "the Branch" would have been his eligibility under that rule. It was possible that a significant number of persons in the following categories may have been wrongly uncluded in the electoral roll because it was assumed that they were eligible for membership of the Branch of the organization; R.A.A. operators, Taxi Radio operators, transport industry radio operators, Electricity Trust of South Australia meter readers, Axrmaguard cashiers, car hire hostesses, Credit Union cashiers, Totalizator Agency Board cashiers, Associated Co-operative Wholesalers cashiers, life members, Members of Parliament, retired Members of Parliament and solicitors. In view of the determination that the Court intends to make in this matter no definitive determination in regard to this wide spectrum should be made on the particular evidence before it. But the Court stresses that care will need to be taken by any Returning Officer conducting elections in the Branch of the organization because of the different eligibility rules. It may well be on hearing specific detailed evidence from persons within the categories mentioned above as to their duties a Court might readily determine that they are "engaged in a clerical capacity". As to whether any great number of members were treated by the Returning Officer as being wnfinancial when in fact they were financial according to the proper test as provided for in the certified Branch rules of the organization is not known. But again the Court warns any Returning Officex who prepares a roll of financial members of the Branch of the organization that there may be membexs in this category. Of 51. course the Court does not know of any recent relevant amendments to rules dealing with the amount of subscriptions payable by members which have in fact been certified under the Federal Act. The Court is aware that an election for the Officers and Federal Councillors of the Branch of the organization is due to be held in August 1983 in accordance with r.30(a)(i) certified on 30 September 1981 and that the Branch has made a request of the Federal Industrial Registrar for that election to be conducted pursuant to s.170 of the Federal Act. ENDORSEMENT (INCLUDING A NUMBER) ON EVERY BALLOT PAPER IN THE SUBJECT ELECTION Rule 31(g)(iv) of the certified rules of the Branch of the organization, part of which is set out earlier herein provides that every ballot paper shall have printed thereon a number consecutive from number one togethex with the endorsement which is set out earlier herein. The paragraph of the rule after setting out the endorsement then reads: "The ballot paper shall be shuffled so that the number on a ballot paper cannot be identified with any member". In fact each of the 4500 ballot papers printed for use in the subject election was endorsed as follows: "This number is for(sic) purpose of preventing any irregularity. 52. No. (Printed was a number between 1 and 4500). No number can be identified with any person. YOUR VOTE IS SECRET" It will be seen that such endorsement does not include the words "all ballot papers have been so shuffled that identification of any number with any person is impossible" as was required by the certified rule. This is clearly a breach of the rules. The omission of the words set out above is, in my view, of vital importance. Evidence has been given that a relatively small number of members who were entitled to vote in the subject election decided not to vote as a result of the endorsement on the ballot papers as they believed that their vote would not be secret. It is clear in my view that other members who were entitled to vote may have been inhibited from exercising their votes because of the particular endorsement on the ballot paper. Further the evidence discloses that some ten ballot papers with votes cast in accordance with the voting instructions set out on the ballot paper but with the said endorsement at the top of the ballot paper heavily crossed out or cut off had been received by the Returning Officer. He had treated such votes as informal. PARTICULARS OF ALLEGED IRREGULARITIES The following are the particulars of alleged 53. irregularities as set out in the application for the inquiry: 1. No nominations were called for or advertised for the election to the positions of Branch President, Deputy-President, Vice-President ox Federal Councillors as is required by rules 30 and 31(a) of the registered rules of the organization ("the rules"). 2. The returning officer was not appointed pursuant to rule 16( 3) of the rules. 3. The returning officer refused to accept the applicants' nominations as required by rule 31. 4. The returning officer failed to take such steps as were required in connection with the inconsistencies and inadequacies arising in the application of the rules as required by regulation 146AS(1) to the Act. 5. The returning officer was not impartial as required by rule 31(k) of the rules. 6. The returning officer was not appointed in compliance with section 133(1)(b) of the Act. 7. The returning officer did not prepare the roll of voters for the election as required by the rules of the organization and regulation 146AG to the Act. 8. The returning officer failed to comply with regulation 146AJ(4) to the Act. 9. The returning officer failed to comply with regulation 146AD(1)(d) and (e) to the Act. 10.The returning officer failed to comply with regulation 146AE(i)(a) of the Act. ll. The returning officer failed to comply with regulation 146AJ(8)(a) of the Act. 12. The election was not by secret ballot within the meaning of the Act and as prescribed by sections 133 and 133AA of the Act. 13. The full free and democratic vote of members of the organization in the election was hindered in breach of section 2(f) of the Act and in breach of the rules. n 54. 14. The correct ascertainment of the results of voting was prevented and hindered by the returning officer and the secretary of the organization in breach of sections 4 and 169 of the act and in breach of regulation 146AR(3) of the Act. 15. Any or any proper return was not filed by the organization compliance(sic) with regulation 136C(1) of the Act. 16.The returning officer omitted to take such steps as were necessary in the conduct of the election so as_ to correctly ascertain the subject offices and the results of the election. The application then sets out some eleven foolscap pages of alleged facts. Pursuant to s.165 of the Federal Act the Court "shall inquire into and determine the question whether any irregularity has occurred in or in connexion with the election and such further questions concerning the conduct and results of the election as the Court thinks necessary". The Court in its reasons for judgment handed down on 26 April 1979 considered the meaning of the word "irregularity" in Re Federated Liquor and Allied Industries Employees' Union of Australia; Ex parte Huxtable, (1979) 40 F.L.R. 418. This concerned an inquiry held under Part IX into an election held pursuant to s.170 of the Federal Act in the Tasmanian Branch of the said organization. The Returning Officer was in fact an officer of the Australian Electoral Office. At p.426 Northrop J. stated: "The applicants are not alleging any irregularities arising from the fact that the returning officer applied the farst paragraph only of branch 55. x.4(qualification for office). They are not attacking the validity of any of the rules of the union. They are saying that they accepted the advice given by the xeturning officer and therefore did not nominate for office. A xreturning officer is not authorized by the Act to give advice, his duty is to conduct the elections 1n accordance with the rules of the organization, complemented when necessary by the exercise of the powers conferred by s.170A of the Act. The Act enables a member of an organization to apply to the court for an order declaring that a rule of an organization contravenes s.140(1) of the Act. Apart altogether from any proceedings or orders made under s.140 of the Act, an irregularity in ox in connexion with an election occurs when a returning officer relies upon a rule which contravenes s.140(1) of the Act. In an inquiry under Pt Ix eof the Act an applicant is free to call evidence and make submissions to show that a rule relied upon by a returning officer contravened s.140(1) of the Act at the time it was relied upon. This occuxred in Lovell -v- Federated Liquor and Allied Industries Employees' Union of Australia"(1978) 35 F.L.R. 72. Again at p.427 : "A member of an organization must decide for himself whether to nominate for an office ox not. He must look to the rules of the organization. If he considers he is eligible to nominate, and he desires to nominate, he should nominate irrespective of any expressions of opinion by a returning officer or any other person. The returning officer thereafter is under a duty to accept ox reject the nomination in accordance with the rules of the erganization. The action by a returning officer in either accepting or rejecting the nomination provides a foundation for an inquiry under Pt IX of the Act. If 56. the court finds that a returning officer relied upon the wrong rule, or upon a rule which was contrary to s.140(1) of the Act, the court may conclude that an irregularity has occurred. Thereafter the court has wide powers to make orders xectifying the irregularity, s.165 of the Act." His Honour had stated at pp.424-5: "The word "irregularity" 1s defined in the Shorter Oxford Dictionary(23rd ed. 1972 reprint) as "the quality or state of being irregular; something that is irregular". In the same dictionary, the word "irregular" 1s defined in relation to things as "not in conformity with rule or principle, contrary to rule; disorderly in action or conduct, anomalous, abnormal". In the Act, by s.4, except where otherwise clearly intended, the word "irregularity" has the following meaning: "'Irregularity', in relation to an election or ballot, includes a breach of the rules of an organization or of a branch of an organization, and any act, omission or other means whereby the full and free recording of votes by alli persons entitled to record votes, and by no other persons, or a correct ascertainment or declaration of the results of the voting is, or is attempted to be prevented or hindered." This provision does not give a definitive meaning to the word "irregularity" but extends the meaning, if necessary, to include specific matters. In the present case, the facts assumed for the purpose of submission on the preliminary 1ssue cannot constitute an irregularity within the statutory extended meaning of that word. There has been no breach of the rules of the union or its Tasmanian branch. There has been no act or omission whereby the full and free recording of votes by all persons entitled to record votes, and by no other persons, or a correct ascertainment or declaration of the Union; Ex parte Wilson, (1979) 28 A.L.R. 330 Sheppard J. reasons 57. results of voting is, or 1s attempted to be, prevented or hindered." But in Re Australian Postal and Telecommunications fox judgment handed down on 20 December pp -335-336 stated: "The open letter was produced with money provided from union funds. That is so, at least to the extent of $998, which was the cost of printing it. There may be a question as to the amounts incurred for mailing and postage, bearing in mind that the offending document was despatched with a union newsletter. I do not need to decide that question, although I am inclined to the view that the whole of the expenditure was improperly incurred. It follows that there was an irregularity. The sendin of the circular was a breach of an implied EN el ee a a a a — Pr ae er ce eed provision of the union rules. But it is necessary to detexmine whether the ixregularity was an irregularity within the meaning of the Act(emphasis added). Unless it was, the jurisdiction vested in this court by s.165 of the Act does not arise. The expression "irregularity" is defined in s.4 of the Act as follows:- "*TIrregularity', in relation to an election or ballot, includes a breach of the rules of an organization or of a branch of an organization, and any act, omission or other means whereby the full and free recording of votes by all persons entitled to record votes, and by no other persons, or a correct ascertainment ox declaration of the results of the voting is, or is attempted to be, prevented or hindered." The definition, by reason of the use of the word "includes", may not be an exhaustive one, but it is difficult to in his at 58. think of any other type of irregularity that would not be within the definition. The words "any act, omission or other means" are very wide, notwithstanding they are qualified by the words that follow them. No submission was made based on the fact that the definition was an inclusive one and I put that matter aside. There is then the question of whether the words commencing with the word "whereby" qualify not only the words "any act, omission or other means", but also the earlier words "a breach of the rules of an organization or of a branch of an organization". In my opinion, the better view is that the words commencing with the word "whereby" do qualify the reference to a breach of rules, as well as the words "any act, omission or other means". In reaching that conclusion, I have taken into account the presence of the comma after the words "branch of an organization". But the irregularity which is being defined is an irregularity "in relation to an election or ballot". It seems unlikely that the legislature would have intended that any breach of the rules of an organization whatsoever would have been sufficient to warrant the court exercising jurisdiction under s.165. The position may have been different if the definition had defined an irregularity as a breach of a rule in relation to the holding of an election or ballot, but that is not the way it reads. It follows that for a breach of the rules of the organization to be an irregularity fox the purposes of s.165, the breach must have been one which prevented or hindered the full and free recording of votes by all persons entitled to record votes and by no other persons. The balance of the words of the definition can have no relevance. In my opinion, the breach of the rules which has here occurred is not of that kind." ~ 59. No reference was made in this case to Huxtable's case. Counsel for the applicants herein and Dr Jessup who appeared for the organization have both asked the Court not to follow Wilson's case, arguing that, on the proper construction of the definition of "arregularity" set out in s.4 of the Federal Act, the phrase "whereby the full and free recording of votes ..... is hindered" govern only the words "any act, omission or other means" and not "a breach of the rules". In a recent inquiry into an election in the Federated Clerks Union of Australia, Victorian Branch, Ex parte Rayner, Northrop J. in his reasons for judgment handed down on 24 May 1983 (unreported) had to consider(inter alia) the question whether an irregularity had occurred 1n or in connexion with an election fox the offices of State Conference delegate and State Councillor respectively of that Branch. The election had been conducted under unregistered or uncertified rules. It was contended by Counsel representing the officials of the Branch that as the election had been conducted under unregistered rules there could be no "irregularity" as defined in s.4 of the Federal Act as the words "the rules of a Branch of an organization" therein appearing mean "the rules of a Branch as registered or certified under the Act". His Honour at p.5 of his reasons for judgment, having indicated that there was force in such a contention, stated; "but it does not conclude the matter since the definition is not definitive of the meaning of the word "irregularity". I refer to and adhere to what was said in e 60. Huxtable's case (supra.) at pp.424-5". At p.6 of those reasons His Honour continues: "In fact, it 1s difficult to see a greater ixregularity, within the ordinary meaning of that word, in or in connexion with an election in a branch than where that election is conducted pursuant to unregistered rules". In the present inguixy I find it unnecessary to make a definitive determination as to the proper construction of the definition of "irregularity" in s.4 of the Federal Act. But when considering its proper construction it is essential, in my view, that one should bear in mind the history of Part IX of the Fedexal Act which was introduced together with the said definition by ss.4 and 6 of Act No.28 of 1949 and that the provisions of that Part were "intended to be cvwmulative upon and in no degree substitutional for" the provisions contained in s.141 of the Act. This history and its effect generally is discussed in The Queen -v- Spicer; Ex parte Foster, (1958) 100 c.L.R. 163. See also Walkerden -v- Giles, (1969) 15 F.L.R. 207 @ 212. Further it is important to keep in mind that the power of the Court under s.165 to make orders extends not only to "an election" but also "to any step in or in connexion with an election". Such a step would anciude the acceptance by a returning officer of a nomination where, contrary to a rule of the particular organization, one of the nominators was unfinancial. Could it be said that the acceptance of such a nomination "prevented or hindered the full and free recording of votes of members entitled to vote" or that the "correct 6l. ascertainment of the results of the voting was prevented or hindered"? Again the same questions might be asked where a returning officer calls for nominations at a time otherwise than that provided for in the rules of the organization. Likewise consideration should be given to the provisions of s.165(4), sub-ss.(6) and (7) of s.141 and s.170A and its precursor s.96M, the provisions of which were considered by the High Court in 1951 and 1953 in Federated Ironworkers -v- Commonwealth (1951) 84 C.L.R.- 265 @ 281-2 and 283 and The Queen -v- Court of Conciliation and Arbitration, Ex parte A.E.U. (1953) 89 C.L.R. 636 @ 646 (reg.146AS of the Regulations made under the Federal Act may also be relevant). I am firmly of the view that the endoxsement on the ballot papers in this election was a clear breach of the certified rules of the Branch of the organization which could have prevented or hindered the full and free recording of votes of persons entitled to record their votes. The Court understands that the practice of numbering ballot papers as was done in this case was a practice which prevailed many years ago in the rules ef several organizations. The Court understands that the rationale for such a rule was to prevent forgeries. Prima facie, in my view, the numbering of ballot papers in any fashion would result in a ballot being not a secret ballot. In Cameron -v- Australian Workers' Union, (1959) 2 F.L.R. 45 @ p.64 Spicer C.J. stated: in 62. "Here we are concerned with the meaning to be given to the words "secret bailot" an a Commonwealth Act of 1951 applicable in relation to elections in organizations under the Conciliation and Arbitration Act. I think these words do contemplate a ballot in which nothing will appear on the ballot paper capable of identifying the voter other than what he puts there himself in the act of voting. The degree to which the practice of attaching a voter's number to a ballot paper in a union election may operate to destroy secrecy is greater than in a Parliamentary election. The electorate is much smaller and the chance of the number of the voter being known or his identity ascertained from it by persons who may see the ballot papers is, I think, of greater moment than in a Parliamentary election." In that case a rule provided that on voting a member was required to attach to his ballot paper an appropriately lettered voting slip which 1n effect proved financial. At p.75 Dunphy J. said: "One result of this system is obvious - anyone sufficiently interested could obtain any member's union card and then, through a scrutineer or even a returning officer, ascertain details of the vote cast by the member concerned. It was said in evidence that the identity of voters with theix ballot papers had been ascertained in the past in this manner for the purposes of sheeting home certain fraudulent electoral practices. There is no dovbt that this system has certain material advantages to the union administration and there is equally no doubt that it militates very strongly against the principle of a "secret" ballot. Whatever may be the history of the development of the ""secret" ballot we are here dealing with the modern statute fox the "secret" ballot requirements were first inserted in the Act as late as 1951. A ballot conducted that he was te al 63. under the foregoing system is not, in my opinion, "secret""." I respectfully agree with these observations. The practice of numbering ballot papers as was done in this case should cease. In my view any such numbering of ballot papers would mean that any ballot required in a particular election would not be a "secret ballot" within the meaning of s.133(1)(d) ox an election by "secret postal ballot" wathin the meaning of s.133AA of the Federal Act. It is not to the point, as was the case in the subject election, that no record was kept by the Returning Officer or those assisting him of the number on the ballot paper sent to a particular voter or that the ballot papers had in fact been shuffled before being placed in envelopes for forwarding to members. Accordingly the Court declares that an irregularity within the meaning of s.165 has occurred in the subject election with the consequence that the provisions of sub-s.(4) of that section must be considered. Here the Court, in all the cixcumstances, is of the opinion that the result of the said election may have been affected by the said irregularity. . Additionally, as the certified rules under which this election was to be conducted included a rule making the numbering of the ballot papers in the way described mandatory, it followed that when the election commenced the rules of the Branch of the oxganization did not then provide for a secret postal ballot within the meaning of s.133AA(2) of the Federal Act (see also the 64. definition of "election" in reg. 146AA in Part VAA of the Regulations made under the Federal Act). This being so, the subject election should then have been conducted under and in accordance with the regulations set out in Part VAA. The applicants in this inquiry have made certain allegations in respect of the failure by the Returning Officer to conduct the said election in accordance with the provisions of certain of those regulations. In view of the Court's declaration that an ixregularity has occurred it is in all the circumstances unnecessary to make findings in respect of such allegations. Further, the Court does not find it necessary to make any observations in respect of the allegations by the applicants that the Returning Officer was biased or not impartial. But the Court repeats what was said in Lyons & Ors. -v- Deegan & Ors, (1978) 35 F.L.R. 430 @ pp.442-3: "We considex it plain that there is a duty on the part of a Returning Officer pursuant to rules such as x.21 and indeed in all cases in which a free vote of members is sought for the purpose of ascertaining the opinion of members, that the Returning Officer should consider himself as an official at arm's length from those members of the organization having any interest in the vote going one way or the other, so that, in all aspects of the machinery for the taking of the vote the taking of a free vote is achieved, uninfluenced by any propaganda in the machinery". In that case the Court was considering certain events which occurred during the conduct of a plebiscite. The observations quoted are just as relevant in the "1 65. conduct of an election for the falling of any office within any oxganization registered under the Act. The integrity, independence and impartiality of a Returning Officer in such an election must be beyond question. ' < ' I do not propose making any formal orders at this stage. I propose to allow an interval to enable Counsel and the parties to consider what I have said and thereafter to relist the matter to hear submissions as to what orders (if any) should be made under s.165 and/or s.167 or any other section of the Federal Act being mindful of the fact that an election for the subject offices is due in August. yacfhis donour