CATCHWORDS Conciliation and arbitration - electoral offence - disqualification from union office - regulation 140 - breach - conviction - conduct misguided but not dishonest - no intention to deceive electoral officer - applicant of good character - activist in union affairs - disqualification removed. Conciliation and Arbitration Act 1904 ss. 132 B, C, E, F, 3. Conciliation and Arbitration Regulation 140 IN THE MATTER of an Application by CLYDE RAYMOND FERRIS pursuant to Section 132C (1) of the Act to seek leave of the Court to become a candidate for election as a Delegate to the 1984 Annual Convention in the Australian Workers' Union. No. Qld 6 of 1983 ' Morling J. 16 August 1983 Brisbane. FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Qld No. 6 of 1983 INDUSTRIAL DIVISION IN THE MATTER of the Conciliation and Arbitration Act 1904 ~- and - IN THE MATTER of an Application by CLYDE RAYMOND FERRIS pursuant to Section 132c (1) of the Act to seek leave of the Court to become a candidate for Election as a Delegate to the 1984 Annual Convention in the Australian Workers' Union. ORDER ory JUDGE MAKING ORDER Morling J. DATE OF ORDER 16 August 1983 os Brisbane or WHERE MADE THE COURT ORDERS: That the applicant be granted leave to become a candidate for election as a Delegate to the 1984 Annual Convention oz the Australian Workers' Union. FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Qid. No. 6 of 1983 eee ee INDUSTRIAL DIVISION IN THE MATTER of the Conciliation and Arbitration Act 1904 - and - IN THE MATTER of an Application by CLYDE RAYMOND FERRIS pursuant to Section 132c (1) of the Act to seek leave of the Court to become a candidate for Election as a Delegate to the 1984 Annual Convention in the Australian Workers' Union. Morling J. 16 August 1983 EX TEMPORE JUDGMENT As this matter 1s of considerable urgency, I propose to give my decision this morning. I hope that in so doing I do not do injustice to counsel's careful arguments. This is an application pursuant to s.132C(1) of the Conciliation and Arbitration Act 1904 ("the Act"). The applicant Clive Raymond Ferris seeks the leave of the court to become a candidate for election as a Delegate to the 1984 Annual Convention of the Australian Workers' Union ("the union"). So far as the researches of counsel have revealed, this 1s the first application under the section. Section 132C and the other sections to which I shall presently refer were inserted into the Act by Act Number 143 of 1982 which was assented to on 31 December 1982 and commenced on 24 January 1983. The making of the application arises out of the circumstance that on 8 March 1983 Mr Ferris was convicted of a charge that, contrary to regulation 140 of the Conciliation and Arbitration Regulations, he, in relation to an election for office with the union's Queensland branch, forwarded an envelope containing documents purporting to be ballot papers on behalf of an elector other than himseli. The precise form of the charge was as follows: "That between the 4th day of December 1981 and the llth day of December, 1981 at Ayr in the State of Queensland CLYDE RAYMOND FERRIS did contrary to Regulation 140 of the Conciliation and Arbitration Regulations (as amended) being a person other than the person conducting an election for office within the Australian Workers' Union (Queensland Branch) pursuant to Section 170{5) of the Conciliation and Arbitration Act 19304 and without the authority of the person conducting the election purport to do an act in the conduct of the said election namely forward an envelope containing documents purporting to be ballot papers on behalf of an elector other than himselr" Section 132B(1) of the Act relevantly provides that a person who has, whether before or after the commence- ment of the section,been convicted of a prescribed offence is not eligible to become a candidate for election to an office within any organization unless, on an application made under s.132C in relation to the conviction of that person, he is granted leave to become a candidate for an election, or unless a period of five years has elapsed since the conviction. Sections 132C, 132E and 132F(1) provide as follows: "132c. (1) A person who - (a) desires to become, or to continue to be, a candidate for election, or to be appointed, to an office within an organization; and (b) has been, within the immediately preceding veriod of 5 years, convicted of a prescribed offence, or released from prison after serving a term of imprisonment in respect of his conviction of a prescribed offence, may, subject to sub-section (4), apply to the Court for leave to become, or to continue to be, a candidate for election, or to be appointed, as the case may be, to that office. (2) Where a person makes an application under sub-section (1) for leave to become, or to continue to be, a candidate for election, or to be appointed, to an office within an organization, the Court may - (a) (b) (c) grant the person leave to become, or to continue to be, a candidate for election, or to be appointed, as the case may be, to that office; refuse the person leave to become, or to continue to be, a candidate for election, or to be appointed, as the case may be, to that office and ~ specify, for the purposes of sub- section 132B(1), a period of less than 5 years; or refuse the person leave to become, or to continue to be, a candidate for election, or to be appointed, as the case may be, to that office. (3) A person who - (a) holds an office within an organization; {b) was convicted of a prescribed offence after the commencement of this section; and (c) on an application made under sub-section (1) in relation to his conviction of that prescribed offence, is, under Paragraph (2) (b) or (c), refused leave 'to become, or to continue to be, a candidate for election, or to be appointed, to an office within an organization, thereupon ceases to hold the office referred to in paragraph (a). (4) A person is not entitled to make an application under this section in relation to the conviction of the person of a prescribed offence if he has previously made an application under this section or under section 132D in relation to that conviction." - ""132E. For the purposes of exercising the power under section 132C or 132D to grant or refuse leave to a person who has been convicted of a prescribed offence to become, or to continue to be, a candidate for election, or to be appointed, to an office within an organization or to continue to hold an office within an organization, the Court shall have regard to - (a) the nature of the prescribed offence; (b) {c) (d) (e) the circumstances of, and the nature of the person's involvement in, the commission of the prescribed offence; the general character of the person; the fitness of the person to be involved in the management of organizations, having regard to his conviction of the prescribed offence; and any other matter that, in the opinion of the Court, is relevant." "132F. (1) 'In sections 132B, 132C, 132D and 132E, (a) (b) (c) 'prescribed offence' means ~ an offence under a law of the Commonwealth, of a State, of a Territory or of another country involving fraud or dishonesty punishable on conviction by imprisonment for a period of not less than 3 months; an offence under section 46, 132G, 141 143, 153A, 153B, 158, 158AE, I58AF, 158AG, 158AH, 158AL, 158M, 160, 166, 169, 169A, 170A, 171 or-185 or an offence under regulation 140, 146, 146AQ, 146AS or 170 of the Conciliation and Arbitration Regulations as amended and in force from time to time under this Act; any other offence in connectiomwith the formation, registration or management of an association or organization; or (d) any other offence under a law of the Commonwealth, of a State, of a Territory or of another country, being an offence involving the intentional or reckless use of violence towards another person, the intentional or reckless causing of death or injury to another person or the intentional or reckless damaging or destruction of property." It will be seen from these sections that, by reason of the conviction which he suffered on 8 March 1983, the applicant will be disqualified for a period of five years from becoming a candidate for election to the office of Delegate unless he succeeds in this application. The applicant was a candidate in the 1981 general election in the Queensland branch of the union. He stood for the positions of Queensland Branch President, Northern District Secretary, and Delegate to the 1982 annual convention. The poll for the election was conducted by the Australian Electoral Office by postal ballot over a period of some 12 weeks ending on 11 December 1981. About 3 December 1981, the applicant telephoned the electoral office and informed the returning officer, Mr Kevin Fitzgerald, that a considerable number of financial members of the union had told him that they had not received their ballot papers. According to the applicant, he supplied Mr Fitzgerald with several names, and Mr Fitzgerald told him that sets of ballot papers had been sent to these persons care of the Post Office at Clare in South Australia. Mr Ferris said that he advised Mr Fitzgerald that Clare was not the proper destination of the ballot papers and that they should have been sent to Claredale, a sugar-growing hamlet about 35 kilometres from Ayr in North Queensland. 'Mir Ferris said that he told Mr Fitzgerald that the error in sending the ballot papers to Clare would have been the result of incorrect or incomplete address information on the butts of the union tickets. According to Mr Ferris, Mr Fitzgerald despatched ballot papers to the eight persons care of the Post Office, Claredale. It 1s to be noted that the evidence to which I have so far referred has no direct bearing on the charge of which Mr Ferris was convicted. Nevertheless he relies upon it as demonstrating that in the 1981 election he did all in his power to assist the returning officer to conduct the election. He claimed that the evidence showed that it was his intention in the 1981 elections, as it was in the 1982 elections, to ensure that every financial member who was entitled to vote had the opportunity to do so. The applicant said that Mr Gordon Raymond Tuffin, who resided at Ayr, also told him that he had not received ballot papers. Apparently there were three ballot papers to be completed by each elector. Mr Tuffin swore an affidavit confirming the applicant's evidence in this respect. Mr Tuffin was a candidate for one of the positions of a Delegate to the 1982 Annual Convention of the union and he was entitled to vote in the election. Mr Tuffin's affidavit included the following: "5, On several occasions during the final two weeks of voting time in the said elections, I informed Ray Ferris that I had not received any ballot papers. 6. At the closing date of the poll, I had not received any ballot papers from the Australian Electoral Office. Nor did they arrive subsequent to the closing date of the poll." The applicant said that on or about 3 December 1981, he telephoned the returning officer and suggested to him that he could photocopy his own ballot papers before he voted so that Mr Tuffin could record his vote on the photo- copies. The returning officer said that it would not be wise for Mr Ferris to do this as he could be held in breach of the Act or regulations. Indeed, after this conversation, the returning officer sent a telegram in the following terms to Mr rerris: 10. "Pollowing our telephone conversations of 3 December and 4 December 1981, I must warn you against introducing photostat ballot papers to the scrutiny in connection with the above election. "Should you contemplate taking any further action in this regard, your attention is drawn to section 171 of the Conciliation and Arbitration Act 1904 and regulation 140 of the Conciliation and Arbitration Regulations. From: K.3. Fitzgerald RETURNING OFFICER." The applicant responded to this telegram by writing a letter dated 5 December 1981 to the returning officer in the following terms: "THE AUSTRALIAN WORKERS' UNION 1981 GENERAL ELECTIONS. I acknowledge receiving your telegram on Friday December 4 and I have examined s171 of "The Commonwealth Conciliation and Arbitration Act 1904" and s140 of the Regulations. Section 171 of the Act states 'A person shall not, without lawful authority or excuse ... (g) supply a ballot paper.' It is my intention to enquire among federal Rule 6 members whether or not they have lL. recorded votes in the current elections, and if any disclose to me that they have not recorded votes, and that they require ballot papers to execute their democratic right to vote, then, considering the ballot closes at 10 am on December 11, I intend to supply them with a photostat copy of my own ballot papers because there would be no other way they could claim their right to vote. I wish to make it clearly understood that I° will not supply a copy of my ballot papers to any person not entitled to vote or who may already have voted. I ask you to examine s2({f) of the Act 'to encourage the democratic control of organisations so registered and the full participation by members of such an organisation in the affairs of the Organisation.' I emphasise '.... full participation by members ....' It is my open, sincere belief that the wording of s2(f) gives me 'lawful excuse' within the meaning of s171(1) of the Act. My decision to act in the manner set out above is not. a hasty one, but has been carefully thought out in the light of information given to me by the accredited A.W.U. representative at Invicta Sugar Mill, Giru, in that he delivered the butts of union tickets to an officer of the Union on 17th November 1981 and at 4th December 1981 some of those members had not received ballot papers. 12. This has given me cause to believe that A.W.U. officers are not complying with s2 (f) of the Act and my actions are designed to remedy this defect in the Organisation. It is my intention to record a list of the names and addresses of all persons to whom I supply ballot papers and I will forward a copy of this list to your office. I assure you there is nothing criminal or nefarious in carrying out the actions recited above but quite the opposite in that I intend 'encouraging the full participation by members' as contemplated by the Act. I write this letter in open honesty and I abjure to the truth of the above with my own hand. Signed: Ray Ferris." The applicant claimed that the photocopies of the ballot papers which he supplied to Mr Tuffin were clearly distinguishable from the official ballot papers. There does not appear to be any doubt that this was so. Moreover, when Mr Tuffin completed his ballot papers, he affixed his membership slip so as to authenticate his vote, in accordance with the electoral requirements. The taking of these steps ensured there was no possibility of Mr Tuffin recording two votes. I should say at once that there 1s no suggestion 13. that Mr Tuffin intended to vote more than once. Mr Ferris lodged an application for an inquiry into the 1981 election but this application was dismissed by Fitzgerald 3 on 25 October 1982. I shall return to this Matter later in these reasons. According to the applicant some candidates in past union elections have complained that inaccuracies in information supplied to the Australian Electoral Office have led to some members not receiving ballot papers. It seems clear that it was the applicant's dissatisfaction with what he believed to be the inaccuracies in the union records that led him to take the action which led to his subsequent conviction. He claimed that as a result of the action which he had taken: "The system has now been changed and it does appear that my actions played some significant part in forcing the change. It is my opinion that the fact that change was considered desirable is a complete vindication of my actions in the matter." I am satisfied that there was nothing dishonest or underhanded in the applicant's conduct, unwise though it may have been in the light of the advice that he received from Mr Fitzgerald. He said of his own conduct that: 14. ".,. everything was done in open honesty and in the interest of union reform, at no time did I attempt to deceive any one nor did I attempt to perpetrate any fraud." I think this statement is borne out by the evidence. Indeed, I did not understand the contrary to be suggested by Mr Murdoch of counsel who appeared for the union. The applicant desires to be one of the Delegates to the 1984 Convention. Nominations for these positions opened on 21 March 1983 and closed on 21 April 1983. The applicant's nomination was rejected due to the conviction recorded against him. It appears to be accepted by all parties that if this application succeeds the applicant's nomination will be accepted and his name will be included on the ballot paper. It may well be the case that success in the application will have that result, but that is not a question with which I am concerned. In support of his application Mr Ferris relied upon the evidence given by the Honourable Clyde Cameron, a very well known figure in Australian union and political life and a former minister of the Crown. He has been a member of the union since about 1928 and active in its affairs over very many years. He became secretary of the South Australian branch of the union in 1941 and held that office for a number of years. He has since maintained an interest in 15. the union's affairs as well as being a member. Mr Cameron had furnished a written statement of his opinion of Mr Ferris' character, and he verified in evidence that this statement accurately recorded his opinion of the applicant. The statement is in the following terms: "Mr Ray Ferris of Ayr has been known to me personally for more than ten years. He is an honest, hard working and highly intelligent person who has dedicated his life to making the Australian Workers' Union a better voice of its rank and file. I first met him in the shearing sheds where he was well known and highly respected for his activity as a sincere unionist bent on reforming the rules and procedures of the A.W.U. so that it would become democratic and fully responsive to its membership. I praised him in the Parliament and I eulogise him in my book, Unions in Crisis. Ray Ferris fought for clean elections and for rules that will give every financial member the right to nominate for office in his Union. It was a daunting task and certain to raise the ure and bitter opposition of those officials who had a vested interest in perpetuating the undesirable practices of the past. Nonetheless, Ferris pressed his campaign to the point where he is now able to command the support required to be elected a delegate to the Union's Convention. 16. Though still a rank and file member, Ray Ferris is one of the most articulate A.W.U. members I have ever known. Moreover, I know of no paid official of that Union who can match his literary ability or dedication to reform and it is with pride and a great deal of pleasure that I commit to paper my opinion of this very fine Australian worker. (Signed) Clyde R. Cameron" Having regard to Mr Cameron's long association with the un1ron movement in general and the union in particular, and to his distinguished career in public life, I think his views are entitled to great respect when consideration is given to the question whether the applicant should be permicted to stand for the office of Delegate in his union. In considering whether the court should make the order sought it is first necessary to consider the purpose which s.132C 1s intended to serve. It is plain that the section is intended to give the court a discretion, in proper cases, to relieve persons convicted of prescribed offences from the consequences of s.132B. Section 132B and s.132c find their counterparts, in a general sense, in s.227(2) of the Companies Act Commonwealth (1981). Section 227(2) makes it an offence for a person convicted of certain offences to act as a director or to take part in the management of a company within five years after his 17. conviction. Section 227(2) was itself based on s.122 of the Companies Act (1961) (N.S.W.). This latter section was considered by Bowen, C.J. in Eq. (as he then was) in re Magna Alloys and Research Pty. Limited (1975) 1 A.C.L.R. 203. His Honour said at p.205; "The policy to which s.122 gives effect is that a person convicted of an offence of any of the types specified in that section is not to be permitted to act as a director or to take part in the management of a company. The section is not punitive. It is designed to protect the public and to prevent the corporate structure from being used to the financial detriment of investors, shareholders, creditors and persons dealing with the company. In_its operation it is calculated to act as a safeguard against the corporate structure being used by individuals in a manner which is contrary to proper commercial standards. "The court is given jurisdiction to grant leave to a person, notwithstanding the prohibition, to act as a director or to take part in the manage- ment of a company, but an applicant who comes seeking leave bears the onus of establishing that the general policy of the legislature laid down in the section ought to be made the subject of an exception in his case (Re Ferrari Furniture Co. Pty. Ltd., [1972] 2 N.S.W.L.R. 790; Re Magna Alloys & Research Pty. Ltd., 18 October 1973, Street, C.J., 1n Eq.; Re Macquarie Investments Pty. Ltd. (1975), 1 A.C.L.R. 40; Re Maelor Jones Pty. Ltd. (1975), 1 A.C.L.R. 4). Supreme Bowen C. 18. The court in exercising its discretion will have regard to the nature of the offence of which the applicant has been convicted, the nature of his involvement, and the general character of the applicant, including his conduct in the inter- vening period since he was removed from the board and from management. Where, as here, the applic- ant seeks leave to become a director and to take part in the management of particular companies the court will consider the structure of those companies, the nature of their businesses and the interests of their shareholders, creditors and employees. One matter to be considered will be the assessment of any risks to those persons or to the public which may appear to be involved in the applicant's assuming positions on the board or in management. I think those observations are generally applicable to an application under s.132c. In Re Zim Metal Products Pty. Limited (1977) 2 A.C.L.R. 553, McInerney J in the Victorian Court referred with approval to the observations of J. in Eq. in the Magna Alloys Case. In my opinion the prime purpose of the provisions of the Act dealing with electoral offences is to ensure that members of unions are given a proper opportunity to cast their votes in union elections. Section 132C must be considered in the light of and in conjunction with these provisions. Plainly s.132C is not itsel= punitive. To the contrary its purpose 1s, as I have said, to give the 19, court a discretion in a proper case to relieve a person who has been convicted of an electoral offence from the consequences of the conviction. The application was opposed by the union. Mr Murdoch pointed out, quite correctly in my opinion, that the applicant sought the leave of the court to become a candidate for election to a most important office in the union. Reference to the union's rules shows that the office of Delegate is one of considerable importance and responsibility. Mr Murdoch submitted that the applicant's unsuitability for such office was demonstrated not only by his conviction, but also by his conduct in other respects. As to the conviction, it was submitted that the applicant deliberately ignored repeated advice given to him by Mr Fitzgerald. I agree that this was so, but having regard to the whole of the evidence surrounding the committing of the offence I do not think the conviction demonstrates that the applicant is an unsuitable person to be a Delegate. I accept his evidence that his sole motivation in making copies of the ballot papers was to enable Mr Tuffin to cast votes to which he was entitled. It is clear beyond any doubt that the applicant did not attempt to deceive the electoral officer. It was unfortunate that the applicant preferred to rely upon his own interpretation of reg.140 20. rather than accept the advice tendered to him. I have the firm impression of the applicant that he is something of a bush lawyer with a great enthusiasm for causes in which he believes. Such men are not uncommonly an irritant in movements to which they belong, but that is not to say that they do not serve a worthwhile purpose. In my opinion the union movement generally and the union in particular is big enough to accommodate such persons although their efforts may sometimes be misguided. It is plain that the applicant laboured under the impression that there were and are deficiencies in his union's voting methods and procedures. I should make it clear that I express no opinion on the question whether such deficiencies exist now or have ever existed. Nor do I express any opinion whether it was anybody's fault that Mr Tuffin did not receive his ballot papers. It is sufficient that I say that the steps taken by the applicant to enable Mr Tuffin to vote were not tainted by impropriety in the ordinary sense of that word. The second matter which Mr Murdoch relied upon as demonstrating the applicant's unfitness for the office of Delegate was his action in applying for an inquiry by the court into the 1981 election. It was said that this 21. action was quite unjustified as was demonstrated by the decision of Fitzgerald J to which I have already referred. I have read his Honour's judgment and I agree with Mr Murdoch's submission that his Honour was, to say the least, quite unimpressed with any of the grounds relied upon by the applicant in those proceedings. However, I do not think that I should treat the making of the applic- ation for the inquiry as evidence of the unfitness of the applicant for the position of Delegate. I have already stated my opinion that the applicant may be a source of irritation to others in his union. But I think he is the sort of person who would be diligent, not to say over- zealous, in ensuring that union rules are observed. The role of the activist is often unpopular and sometimes deservedly so, but there is a real part for such persons to play in union affairs. They are a counter-balance to the apathy sometimes shown by members to the affairs of their own union. I think there is a real purpose to be served by honest and well meaning activists, even 1£ their actions are sometimes misguided. I turn now to consider what order should be made on the application. It is necessary to have regard to all the matters referred to in s. 132E. As to the nature of the offence, it is right to say that a breach of reg. 140 is a serious matter. But it should also be 22. said that at the time of the commission of the offence the maximum penalty prescribed for a breach of reg. 140 was $200. A breach of reg.140 is to be contrasted with offences of the kind referred to in s.132F(1) (a) - that is, offences involving fraud or dishonesty punishable on conviction by imprisonment for a period of not less than ny three months. The second matter which s.132E directs me to consider is the circumstances of and the nature of the applicant's involvement in the commission of the offence. What I have so far said shows that the applicant, although misguided, acted honestly and made no attempt to mislead the electoral officer. The offence was not trivial, but neither was it so serious as to justify a continuing disqualification from standing for union office. The next matter that s.132E requires to be consider- ed is the applicant's general character. Having regard to Mr Cameron's evidence I am satisfied that the applicant bears a good character. No doubt he has his faults, and lack of judgment may well be one of them, but he has other qualities which make him a suitable candidate for union office, Section 132E also requires consideration of the applicant's fitness to be involved in the management of 23. his union. What I have already said shows that I am satisfied as to his fitness in this respect. There are no other matters which appear to me to mitigate against the success of the application. Section 13273 of the Act provides, inter alia, that where an application is successful, the applicant may apply to the Attorney-General for financial assistance in respect of costs or expenses incurred in the application. Although it will be a matter for the Attorney-General, I express my opinion that this is an appropriate case for the exercise of the power to grant financial assistance. This is the first application brought under the new legislation and for that reason alone, I think that it would be proper for the Commonwealth to grant financial assistance under the section. Secondly, the facts in this case are very special. In this respect I refer to the circumstances that when the applicant acted in a fashion which led to his conviction, the maximum penalty for breach of reg. 140 was a fine of $200. It could not have been contemplated at the time that a misreading o£ the regulation, leading to a conviction, could lead to the draconian consequence that the applicant would be prevented from standing for union effice for a period of five years. 24, Yet another matter which might commend itself to the Attorney-General is that 1t may well be the case that the applicant has been put to not inconsiderable expense aun calling evidence from Mr Cameron. Mr Cameron resides in South Australia. When this matter was in the list for directions I took it upon myself, because the applicant was appearing in person, to commend to him the wisdom of calling Mr Cameron in view of an objection, properly taken by Mr Murdoch, to the reception of his written reference. Indeed, I indicated to the applicant that I would reject Mr Cameron's reference unless he were called to support it in the witness box. Because the outcome of the application was so dependent upon the applicant's suitability to hold union office, Mr Cameron's evidence was of particular significance. Although the cost of calling oral evidence from a character witness would not ordinarily warrant special consideration, I think 1t does in this case. Most of the considerations to which I have referred on the subject of s. 1323 also apply to the union's position. It was perfectly proper for the union to appear on and oppose the application. Indeed, its appearance was occasioned by a direction given by Fitzgerald J that it be served with notice of the application. That was a 25. direction I myself would have given. The application was novel and it was entirely proper that the union should appear. The court has been considerably assisted by Mr Murdoch's submissions. It 1s no part of my function to seek to influence the exercise of the Attorney's discretion under s.1327, insofar as he has one, and I merely record the above observations in case they should be of assistance to him. The order of the Court is that the applicant be granted leave to become a candidate for election as a Delegate to the 1984 Annual Convention of the Australian Workers' Union. ———_——_ cemcunmarse sce. = rT | x AN t ™" ANY a