a . Abo? \ CATCHWORDS 'Lo \ \ Ls / 4 Industrial Law - registered organizations - application for inquiry into election - statutory declaration - whether compliance with State statute sufficient - whether requirements of application mandatory - whether Court has power to remedy defect. Conciliation and Arbitration Act 1904 s. 159(2) s. 160 s. 161 Acts Interpretation Act 1901 s. 27(c), s. 38, s. 30(2) Statutory Declarations Act 1959 s. 6,<&% s. 10 AS SL > care Federal Court of Australia Act 19782 5 a . an . Judiciary Act 1903 s. 79 Grech v Bird (1936) 56 C.L.R. 228 ¥.Z. Finance Co. Pty. Ltd. v Cummings (1964) 109 C.L.R. 395 Dilworth v Commissioner of Staups [1899) A.C. 99 R. v_ Commonwealth Court of Conciliation and Arbitration; Fx parte Federated Clerks Union of Australia, New South Wales Branch (1950) 81 C.L.R. 229 Re Election in Administrative and Clerical Officers' Association Commonwealth Public Service (1980) Industrial Arbitration Service Current Review, case no. B87 Re_an Inquiry into an Election in the Amalgamated Metal Workers and Shipwrights Union; Ex parte Nagui (1982) 59 F.L.R. 173 Re Application by Ferris for Inguiry into Election in Australian Workers Union (1982) 2 I.R. 432 GRAY J. MELBOURNE 4TH SEPTEMBER 1984 IN _THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY INDUSTRIAL DIVISION JUDGE MAKING ORUER: DATE OF OPNE'R WHERE MATL THE COURT ORDERS dismissed. that OPDER GRAY J. 4TH SEPTENSE MELBOUPNE each of the No. Q 1 of 1984 No. Q 2 of 1984 IN THE MATTER OF Applications by GRePy VINCENT 9' DOWD ana PEPER KEVIEL SULLIVAN for Jn Inguirt1ies unto an Dlection un the COMMON OFFICERS ' purported Applications Ls ve IN THE FEDERAL COURT OF AUSTRALIA No. Q 1 of 1984 ) ) QUEENSLAND DISTRICT REGISTRY ) ) ) No. Q 2 of 1984 INDUSTRIAL DIVISION IN VWHE MATIN OF ' Appitcations by GPEGORY VINCENT Of DCD and PTER KEVITL SUES TYAN for Inguirres ante an LEleccion in the Ch ONTALTH LAUR Orr (CEerRrs! i" JUDSE: GRAY J. DALE: 4th FevlLoember 1°84 REASONS Coe JUDSM aT Before the Court are {eo seprrate purported Spplicetsons for inquiries pursuant to Part YA of the Conerlraturs nd Arbitration Act 1904. By consent, the two were heard together. Each sought an inquiry into an election for the office of Federal Secretary in the Commonwealth Bank Officers' Association. Mr. Murdoch appeared for both Applicants, and Mr. Holmes for the Orgenization, Arthur Mobbs (the successful candidate) and two unsuccessful candidates. It is to be noted that there was no necessity for two separate Applications. Fach raised the same matters. One application could have been made, even if both the Applicants joined in it. Such a course could have resulted in a saving of costs. The election concerned was conducted by the Australian Electoral Commission, pursuant to a request made .inder s. 170 of the Conciliation and Arbitration Act 1904. Altogether, there were five candidates, Mr. Mobbs, Mr. Redford, Mr. Lawrence, Mr. Friers and one of the Applicants, Mr. Sullivan. A ballot was conducted between 26th July 1983 and 23rd August 1983. After distribution of preferences, Mr. Mobbs had the highest nunhber of votes. On 25th August 1983, he was declared elected. The purported Applications for inciixies vere filed wit the Industrial Registrar shortly before the end of tie six month period allowed by s. 159(2)(b) of the Ceonciliatici and Arbitration Act 1904. Each was accompanied by a stuavutery declaration of the Applicant stating that he was a member of the Commonwealth Bank Officers' Association,and that the facts stated in his Application were truc to the best of his knowledge, information and belief. In each case, the declaration contained the following clause: "AND JI make this Statutory Declaration helieving the contents to be true and correct in all respects and by virtue of the Oaths Act 1867-1981." Each of these statutory declarations was declared on 17th ae February 1984 before a Mr. Tutt, who 18 the solicitor for the Applicants and, apparently, also a Justice of the Peace. The Oaths Act 1867-1981 is an Act of the Parliament of the State of Queensland. In the course of the hearing, the Court raised with Counsel for the parties the question whether the requirement of S. 159(2)(d) of the ConciJiation and Arbitration Act 1904 that an application under s. 159 shall be accompanied by a statutery declaration was satisfied by the existence of a statutory declacation made pursuant to a State statute. Counsel for the parties stated that they had not considered this question. Each Counsel was given leave to rely on weitten submissr.ons after the close of the hctartnag ona number of watcers, including thic question. To ascertain the meaning of the words "statutory @eclaration" in s. 159(2)(d) of the Conciliaticn and Arbitration Act 1904, resort must be had to the Acts Interpretation Act 1901, Section 27 of that Act contains the following provision: 27. In any Act, unless the contrary intention appears- (c) The words "statutory declaration" shall mean a declaration made by virtue of any Act authorizing a declaration to be made otherwise than in the course of a Judicial proceeding; (d) wee nema Mr. Murdoch did not submit that a contrary intention appears in s. 159 of the Conciliation and Arbitration Act 1904, which would oust the statutory definition. On an examination of s. 159, I can find no such contrary intention. I therefore act on the footing that, where the words "Statutory declaration" appear in s. 159(2)(d), they are to be construed by reference to the definition of those words found in s. 27(c) of the Acts Interpretation Act 1901. It will be noted that the words "any Act" appear in the opénang words of s, 27, and again in paragraph (c). Those 'ords A appear ian many sections of the Arcts_ Interpretation Act 1901. Sect.cn 38 of that Act provides as follows: "3B. (1) An Act passed by the Parliament of the Commonwealth may be referred to by the vord "Act" alone. (2) An Act passed by the Parliament of the United Vanjdon way be referred to by the form "Imperial Act." (3) An Act passed by the Parliament of a Stace may be referred to by the term "State Act.""" In s. 30(2), the word "Act" is used un contradistinction to the words "State Act", These provisions compe) the conclusion that the word "Act" in s. 27(c) means an Act of the Australian Parliament, and does not include an Act of the Parliament of a State. If this were not the casé, the phrase "any Act" ins. 27(c) would be used ina totally different sense from the sense in which it is used throughout the Acts Interpretation Act 1901. No ground exists for holding this to be the case. Se The definition of "statutory declaration" in s. 27({c) of the Acts Interpretation Act 1901 1s similar to the definition of the same term which was found in the Oaths Act 1900 of New South Wales. In Grech v Bird (1936) 56 C.L.R. 228, at pages 243-244, McTiernan J. explained the history of such a provision. The object was, apparently, "CO suppress the practice of administering and receiving oaths and affidavits voluntarily taken and made in matters mot the sukject of any judicial inquiry or in any pending casc." This need for some document in which 2 person was capable of "swearing" as to something, without the taking of an oath, and without the making of an affidavit, in the absence of a court proceeding, exyplains the presence of the words "to be made otherwise than in the course of a judicial procerding" in the definition ain 5S. 27(c) of the Acts Interpretition Act 1901. An application to the Industrial Reqiri_ar pursuant ta s. 159 of the Conciliation and Arbitration Act 1994 1s nota judicial proceeding. The only judicial proceeding which takes place in respect of such an application the unquiry which results from the reference by the Industrial Registrar of such an application to this Court. It follows that the words "statutory declaration" ins. 159(2)(d) must be given the meaning attributed to them by s. 27(c) of the Acts Interpretation Act 1901, namely a declaration made by virtue of any Act of the Australian Parliament authorizing a declaration to be made otherwise than in the course of a judicial proceeding. tome ee . - + - a nie - ee toe ee ee ee ee The only Act of the Australian Parliament which is of general application, and which authorizes such a declaration to be made is the Statutory Declarations Act 1959. This contains the following relevant provisions: eee ee ee ee "6, (1) A person may, 1f he so desires, make a statutory declaration in relation to eny matter. (2) Subject to the next succeeding sub-section, a statutory declaration may be used- (a) for the purposes of a law of the Commonwealth or of a Territory, unless the contrary intention appears in that law; (b) in connexion with any matter urising under a law of the Commonwealth or of a Territory, unless the contrary inteution appears in that low; ov (c) in connexion with the administration of any Department of Etate of the Common-ralth. (3) The last preceding sub-section dees not autlncrize a Statutory declaration to be used as evidence in a judicial proceeding but nothing in this section prevents a statutory declaration from being sc used. 7. Where, in a law of the Commonwealth or of a Territory (whether passed or made before or after the commencement of this Act), a reference 1s made toa statutory declaration, the reference includes a reference to a statutory declaration made by virtue of this Act, unless the contrary intention appears in that law. 8. A statutory declaration may be in accordance with the form ain the Schedule to this Act and may be made before- : (a) a Magistrate; (b)} a Justice of the Peace; (c) a Commissioner for Affidavits; (ad) a Commissioner for Declarations; (e) a Notary Public; (f) a person before whom a statutory declaration may be made under the law of the State in which the declaration is made; or (g)} an Australian Consular Officer or an Australian Diplomatic Officer as defined by section two of the Consular Fees Act 1955." Act Section 9 provides for the appointment of person to be Commissioners for Declarations. Section 10 provides as follows: "10. Where, by alaw of the Commonwealth or of a Territory (whether passed or made before or after the commencement of this Act), a declaration 1s required to be made by a person hefore sone other person, the declaration may, unless the contrary intention appears an that law, be made before the person mentioned in that law or before a person before whom a statutory declaration under this Act may be made." Section 11 creates an offence of wilfully making a false + statement in a statutory declaration, and provides fer its prosecution and punishment. Section 12 confers federal jurisidiction on State courts with respect to such an offence, and rakes other provision fol prosecution cf such an offence. Tt wil) be secn that s. 6(2)(a) perrits the usc of a statutory declaration under s. 159(2 of the Conciliation and Arbitration Act 1904, which is, of course, a lav of the Commonwealth. It will be noted that s. 7 is phrased in terms which appear to be extensive, and not exclusive or exhaustive. Jhis 1s shown by the use of the word "includes" wnich, in the context in which it appears, 1s unlikely to be regarded as giving rise to an exhaustive definition. See Y.Z. Finance Co. Pty. Ltd. vy Cummings (1964) 109 C.L.R. 395, especially at pages 398-399, 401-402 and 405, where discussion occurs of the well known passage in the speech of Lord Watson in Dilworth v Cormissioner of Stamps £1899] A.C. 99, at pages 105-106. The existence of such an extensive definition raises a question as to what else 15 intended to be included in the words defined. Mr. Murdoch has submitted that s. 7 of the Statutory Declarations Act 1959 is apt to show that a reference in an Act of the Australian Parliament to a statutory declaration includes a reference to a statutory declaration made under an Act of the Parliament of a State. In my view, however, this would be a startling conclusion. If the Parliament had intenced by the words of s. 7 of the Statutor Declarations Act 1959 to import the laws of each state relating to statutory declarations, clear words would have been used. The section does not expressly import any provision of State law; ac rather assumes that there wil] be other provisions in Acts of the Australian Parliament which make reference to statutory declaretions. Wherever such a provision ovis, its cequarchents Py can be satisfied by a declaratiucn wade onder the Sroetutare Declarations Act 1959. Ina specific case, an enactment uf the Australian Parliament may also provide that its requiraxents of a statutory declacation might be satistied by a declaration mide under an Act of a State Farliament relating to = statutary declarations. Section 159(2)(d) of the Conciliation ani Arbitration Act 1904 does not do this. The possibility also exists that Acts of the Australian Parlianent might. provide for special forms of statutory declarations, or for special classes of persons Lefore whom such declarations could be taken. In such event, s. 7 of the Statutory Declarations Act 1959 provides that the requirements of those provisions are to he satisified by fulfillment of the requirements of the Statutory Declarations Act 1959, unless a contrary intention appears in the specific rome enactment. In my view, 1t 1s impossible to regard s.7 as importing the provisions of any law of a State. Section 8 of the Statutory Declarations Act 1959 is also permissive in ats terms. It provides that a statutory declaration "may" be in accordance with the form in the schedule, and ""may" be made before any of the persons listed in that section. Specifically included are persons before whom a statutory declaration may be taken under the law of the States concerned. Plainly, this specifically imports an clement cf State luw into the proccss of making a statutory declaration. That element is contined to the classes of persons beforc whom such a declaration miy be made. There 1s so doubt that, in the present case, the Applicants could have nade their statutcry declarations before a Justace of th» Poace, as they did. Assuming that the Oaths Act 1867-1981 of the State of Quecnsiana perrzts ai declaration to be taken before a solicitor, 4 Qeclaratior under the Statutory Declarations Act 1959 could also 'Oo tor a be so made. Section G6 of the Statutory Declarations Act 1 does not, however, import any form of a declaration prescrsbed under any State Act. As with s. 7, it makes allowance for the existence of specific forms cf statutory declaration required under other Acts of the Australian Parliament. The form which appears in the schedule to the Statutory Declarations Act 1959 contains the following clause: "And [I make this solemn declaration by virtue of the aa 10, Statutory Declarations Act 1959, and subject to the penalties provided by that Act for the making of false statements in statutory declarations, conscientiously believing the statements contained in this declaration to be true in every particular." It will be seen that this form of declaration differs from that adopted by the Applicants under the Queensland Act in at least one material respect. The form adcpted by the Applicants contains no reference to any penalty for the making of a false statement. In making the declarations, the Applicants did not have brought to their attention, by such a clause as that quoted above, the question of penalties for false stutements. Quicve apart fron this, the only legislation referred to ain the Applicants' declaravions was the G@ ths Aci Th67-1901, vhoch 3s, of coursc, a State Act. Each declaration mice by the Apelscants urports to be made under Strate legislation, and not under an - 4 Act of the Australian Parlianent. For these reasons, I am satisfied that neither of the declarations which accompanied the Applications in the present case was a "Statutory declaration" within the meaning of those words ins. 159(2)(d) of the Conciliation and Arbitraticn Act 1904. The fact that each of the declarations may have beena statutory declaration for the purposes of the law of Queensland is, in my view, insufficient to satisfy the definition of "statutory declaration" in the Acts Interpretation Act 1901. The provisions of the Statutory Declarations Act 1959 do not import the law of any State with respect to the taking of statutory declarations. Having reached this conclusion, I must consider the effect of a failure to comply with 5. 159(2)(d). In BR. ov Commonvealth Court cf Conciliation and Arbitration; ex parte Federated Clerks' Union of Australia, New Seuth Nales Branch (1950) 81 C.h.R. 229, the High Court of Australia gave consideration to the effect cf non-conpliance with that was then ». 96A(7) of the Concitiriationianc fvibPiteation act 199°, the plLovzsions of which were in precisely tne same form as thuse now found 1m s. 159(2). In that case. a purported anplication had been wade to the Inmductrial Regi-trar other. se than in the prescribet Gorm. Vhes purported application had been referred te the then Court of Conciliation and irbitration by the Irduttrial Registrar The Ceovrt High held, by ao omayoraity, that no ayPpiicatron within the section had been made, that the reftrence to the Court had been made without auLlnority, and that the Court had no jurisdiction to proceed sith the matter. A OVWeL of prohibition was granted to restrain the Court of Conciliation and Arbitration from proceeding with the purported Inquiry. In Re Blection in Administrative and Clerical Qfficers' Associntisn, Commomuvwealth Public Service (1980) Industrial Arbitration Service Current Review, case no. B87, Sheppard J. held that the provisions of 5. 159(2){d) of the Conciliation and Arbitration Act 1904 were mandatory, following the decision of the High Court to which I have referred. His Honour refused to proceed in respect of a purported application referred by the Industrial 12. Registrar on finding that the application had not been "accompanied by" a statutory declaration, the statutory declaration having been filed with the Industrial Registrar six days after the filing of the application, and outside the Limitation period specified in s. 159(5)(b). lis Honour rejected a submission that the duty ci the Industrial Registrar to refer automatically an application ain rergect of an election conducted undcr s. 1706 ot the Act distinguished that case fron the decision of the High Court in the Clerks Union case. In Re an Traceisr into an "lection un the Puciaametod Metal Lurkers and Snitw sghts Unien; ex pirte Naqvi (1982) 59 F.LL.R. 173, BFwatt J. also "eld that the provisions of all parayraphs of 5. l29(2) of the Cons ilrayion Agy P21 wo weanlacory. day viat { case, at the time wnen the statutory dectauvation tus made, the application to which 1t yurported to refer was net in oristenve. As a corsequence, the facts stated ain tne applic.tion haa not been verified by a statutory decilaraticn. fine Honou. dismissed the purported application for an inquiry. Finally, reference should be made to Re Application by Fertis for Inquiry into Election 3n Australian Workers Unzron (1982) 2 I.R. 432 at page We 447, where Fitzgerald J. accepted that the requirements of s. 159(2) are nandatory and that a failure te comply with them substantially avoids the application. It follows from these decisions that, the Applications in the present case not being accompanied by statutory declarations within the meaning of s. 159(2)(d) of the 13. Conciliation and Arbitration Act 1904, those Applications were void, and the Industrial Registrar had no power to receive them or to refer them to the Court. The Court, therefore, had no jurisdiction to embark upon an inquiry into the election concerned. It was put by Mr. Murdoch that s. 51 of the Federal Court_of Australia Act 1976 prevented the Applications from being invalidated by any dcfect in the statutory declarations. That section provides as follows: "61. (1) No proceedings in the Court are invalidated by a formal defect cr an irregularity, unless the Court 15 of opinion that substantiol wnjustace his been taused by the defect or arregulerity and that the injustice cannot he remedied by an order of the Court, (2) The Court or a Judge wav, on such conditions (if ony) as the Court or Jdwiee thinks fit, make an order declaring that the procecding t5 not invalié hy rauson of a defect that it or he considers to be torial, or by reason of an irregularity." It may be seen that the section only applies to proceedings in the Court. In the present case, the defects were in Applications to the Registrar. On the authorities to which I have referred, those defects deprived the Industrial Registrar of any power to deal with the Applications, and in particular any powers to refer them to the Court. Accordingly, there was no proceeding in the Court. Section 51 could not operate. An argument similar to Mr. Murdoch's was rejected by the High Court of Australia in the Clerks Union case. In that case, 1t was argued that what was then s. 40(m) of the Conciliation and Arbitration Act 1904, under of ee 14. which the Court of Conciliation and Arbitration had power to correct, amend or waive any error, defect or irregularity, whether in substance or in form, was applicuble, so that the Court could have permitted the amendment of the purported application. The High Court held that that power was applicable only to matters which were before the Court; as there was no matter before the Court, the provision did not apply. It might also be pointed out that s. 79 of the Judiciary Act 1903 cannot be relied upon to import the provisions of *he Oaths Act 1867-1981 of the State of Quecnsland. That provision operates to make the laws of the State binding on courts exercising federal jurisdiction in that Siate, an 211 ca-as 10 which those lews are applicable. Becavse there 1s no Proceeding before the Court, the Court as not cipoble of exercising its } jurisdiction in the State of Quecnciand, cr at all. In andi 4. tion, as I have held, the prcvisions of the Oaths Art 1667-19281 of the State of Queenslund are not applicable to the case. Mr. Murdoch also sought to rely upon the provisions of s. 159(4)(a) of the Conciliation and Arbitration Act, and particularly upon the provision that, when the Industrial Registrar refers an application to the court, "thereupon an inquiry shall be deemed to have been instituted". His argument was that this provision operates to overcome all formal defects. In effect, this would leave the Industrial Registrar with the sole right to decide whether the reyuirements of s. 159(2) had acme 15. been satisfied. Again, a similar argument was rejected in the Clerks Union case. At the time of that case, the Act contained the provision that 1s now s. 161(1), which also deems an inquiry to have been instituted ian the Court following reference by the Industrial Registrar, pursuant to s. 160, of an application. That deeming provision was held by the High Court not to have given to the Court of Conciliation and Arbitration any jurisdiction which that Court lacked by reason of the defects in the purported applicution. I am, therefore, satisfied that no Application was prorerly rade to the Industrial Registrar in these matters, and that this Court has no jurisdiction to proceed with any inquiry anto the question whether irreqularities have occurred in cr in connexion with the subject election. I should say that I have not found it easy to reach this conclusion. I am disturbed by the thought of making any decisicn which renders 1 more difficult and more technical to bring before this Court an application for an inquiry concerning an election. Nevertheless, having considered the matter carefully, I am compelled to this conclusion. It is a matter of regret that the parties have been put to the trouble and expense of conducting a full hearing in the purported inquiry before this point was discovered. It is alsoa matter of regret that, the point now having been determined 16. against the Applicants, they will find that the time limit laid down in s. 159(5)(b) has expired, and that 1t 1s not possible for them to bring another application. It is worth noting, however, that if the original Applications had been made earlier than they were, and if the point had been determined in time, a further application could have heen brought. It may be some consolation to the parties for me to state that, 1f I had found that any irregularity had cccurred in or in connexion with the subject election, I should have felt constrained by s. 165(4) of the Conciliation and Arbitration Act 1904 to refrain from making any order in respect of the election or any ol.poan iit. In my view, 1t vas extrenoly unlikely tno. any irregularity thich 1 might bave fouud to have eristed ray have affected the result of the clection. lt seems to me that, in the circumstances as I have found them to he, I am unable to exercise the power given by s. 168(2) of the Conciliation and Arbitration Act 1904, to certify that the Applicants acted reasonably in applying for an inquiry That power can only be exercised by the Court "upon an inquiry". As I have held, there 1s no inquiry before the Court. It 15 unfortunate that the Applicants will he deprived of any opportunity to approach the Attorney-General for any payment of costs and expenses which they have incurred in relation to their purported Applications. 17. Mr. Holmes made an Application for an order that the costs of his clients be paid by the Applicants. This Application was based upon s. 197A of the Conciliation 1904, and in particular on the argument that the Applications were made vexatiously or without reasonable cause within the meaning of that section. There was nothing vexatious about the Applicaticns. made, 1t has been necessary for ne diificutlt questions of the construction of several] Although I have beld that they were not properly ta consider carefully Statutes to reach thut conclusion. In the circumstances, I am unable to oay Je that the Apolication: were made without wore necessary 'for mre to consider ihe should Ee disposed to say thit, uron fhe them at the time when the 4ppiacebron. ve reg.rd to the stale of the authoritiss, reasonable cuuse to make an application. reasonable cause. Tf 1t merjts of the matter, T information avarl. vie tu Feo comuenecd, and haviuny tho Aprlicants did have It 3s unlikely that the existence of tyo separate Applicavlons lad any substant al cfitect on the costs of those who apreared Accordingly, I make no order as to costs. The order of the Court will in response to them. be that each of the purported Applications for an Inquiry is dismissed. le Sr (GON & and Arbitration Act ae mc ee sole?' (R. CATCHWORDS Industrial Law - registered organizations - application for inquiry into election - statutory declaration - whether compliance with State statute sufficient - whether requirements of application Mandatory - whether Court has power to remedy defect. Conciliation and Arbitration Act 1904 s. 159(2) s. 160 s. 161 Acts Interpretation Act 1901 s. 27(c), s. 38, s. 30(2) Statutory Declarations Act 1959 s. 6 Judiciary Act 1903 s. 79 Grech v_ Bird (1936) 56 C.L.R. 228 . ¥.2. Finance Co. Pty. Ltd. v Cummings (1964) 109 C.L.R. 394 Dilworth v Commissioner of Stamps [1899] A.C. 99 R. v_ Commonwealth Court of Conciliation and Arbitration; Ex parte Federated Clerks Union of Australia, Now South Wales Branch (1950) 81 C.L.R. 229 Re Election in Administrative and Clerical Officers' Association Commonwealth Public Service (1980) Industrial Arbitration Service Current Review, case no. B87 Re_an Inquiry into an Election in the Amalgamated Metal Workers and Shipwrights Union; Ex parte Naqui (1982) 59 F.L.R. 173 Re Application by Ferris for Inquiry into Election in Australian Workers Union (1982) 2 I.R. 432 GRAY J. MELBOURNE 4TH SEPTEMBER 1984 ee ee we ry IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY INDUSTRIAL DIVISION JUDGE MAKING ORDER: DATE OF ORDER WHERE MADL THE COURT ORDERS that dismissed. eer re a erm ee No. Q 1 of 1984 No. Q 2 of 1984 wee ww IN THE MATTER OF Applications by GREGORY VINCENT DOWD and PETER \ KEVILL SULLIVAN for Inquiries into an Election in the COMMONKEALTH BANK OFFICERS' ASSOCIALION ORDER GRAY J. 4TH SEPTEMBER 1984 MELBOURNE each of the purported Applications is mer ad IN THE FEDERAL COURT OF AUSTRALIA No. Q 1 of 1984 ) ) QUEENSLAND DISTRICT REGISTRY ) ) ) No. 0 2 of 1984 INDUSTRIAL DIVISION IN THE MATTER OF ' Applications by GREGORY VINCENT O'DOWD and FIER KEVILL SULLIVAN for Inquiries into an Election in the COMMONARALTH BANK OFFICERS' ASSOCIATION JUDGE: GRAY J. DATE: 4th September 1984 REASONS FOR JUDGMENT Before the Court are two separate purported Applicet:ons for inquiries pursuant to Part IX of the Conciliation and its Arbitration Act 1904. By consent, the two were heard together. Each sought an inquiry into an election for the office of Federal D Secretary in the Commonwealth Bank Officers' Association. Mr. Murdoch appeared for both Applicants, and Mr. Holmes for the Organization, Arthur Mobbs '(the successful candidate) and two unsuccessful candidates. It is to be noted that there was no necessity for two separate Applications. Each raised the same matters. One Te Nr ee ee ne eee -- ~ ees. - application could have been made, even if both the Applicants joined in it. Such a course could have resulted in a saving of costs. The election concerned was conducted by the Australian Electoral Commission, pursuant to a request made under s. 170 of the Conciliation and Arbitration Act 1904. Altogether, there were five candidates, Mr. Mobbs, Mr. Redford, Mr. Lawrence, Mr. Friers and one of the Applicants, Mr. Sullivan. A ballot was conducted between 26th July 1983 and 23rd August 1983. After distribution of preferences, Mr. Mobbs had the highest number of votes. On 25th August 1983, he was declared clected. The purported Applications for inquiries were filed with the Industrial Registrar shortly before the end of the six ronth period allowed by s. 159(2)(b) of the Concijiation and Arbitration Act 1904. Each was accompanied by a statutory declaration of the Applicant stating that he was a member of the Commonwealth Bank Officers' Association,and that the facts stated in his Application were true to the best of his' knowledge, information and belief. In each case, the declaration contained the following clause: "AND I make this Statutory Declaration believing the contents to be true and correct in all respects and by virtue of the Oaths Act 1867-1981." Each of these statutory declarations was declared on 17th Se ae - - - - -- 5 February 1984 before a Mr. Tutt, who is the solicitor for the Applicants and, apparently, also a Justice of the Peace. The Oaths Act 1867-1981 is an Act of the Parliament of the State of Queensland. In the course of the hearing, the Court raised with Counsel for the parties the question whether the requirement of s. 159(2)(d) of the Conciliation and Arbitration Act 1904 that an application under s. 159 shall be accompanied by a statutory declaration was satisfied by the existence of a statutory declaration made pursuant to a State statute. Counsel for the parties stated that they had not considered this question. Each Counsel was given leave to rely on written submissions after the close of the hearing ona number of matters, including this question. To ascertain the meaning of the words "statutory declaration" in s. 159(2)(d) of the Conciliation and Arbitration Act 1904, resort must be had to the Acts Interpretation Act 1901. Section 27 of that Act contains the following provision: 27. In any Act, unless the contrary intention appears- (a) eee (b) oes (c) The words "statutory declaration" shall mean a declaration made by virtue of any Act authorizing a declaration to be made otherwise than in the course of a judicial proceeding; (d) eee" a erg a Se me ee cee wr ene = Mr. Murdoch did not submit that a contrary intention appears in s. 159 of the Conciliation and Arbitration Act 1904, which would oust the statutory definition. On an examination of s. 159, I can find no such contrary intention. I therefore act on the footing that, where the words "statutory declaration" appear in s. 159(2)(d), they are to be construed by reference to the definition of those words found in s. 27(c) of the Acts Interpretation Act 1901. It will be noted that the words "any Act" appear in the opening words of s. 27, and again in paragraph (c). Those words appear in many sections of the Acts Interpretation Act 1901. Section 38 of that Act provides as follows: "38. (1) An Act passed by the Parliament of the Commonwealth may be referred to by the word "Act" alone. (2) An Act passed by the Parliament of the United Kingdom may be referred to by the term "Imperial Act." (3) An Act passed by the Parliament of a State may be referred to by the term "State Act."" In s. 30(2), the word "Act" 1s used in contradistinction to the words "State Act". These provisions compel] the conclusion that the word "Act" in s. 27(c) means an Act of the Australian Parliament, and does not include an Act of the Parliament of a State. If this were not the case, the phrase "any Act" in s. 27(c) would be used in a totally different sense from the sense in which it 1s used throughout the Acts Interpretation Act 1901. No ground exists for holding this to be the case. a The definition of "statutory declaration" in s. 27(c) of the Acts Interpretation Act 1901 is similar to the definition of the same term which was found in the Oaths Act 1900 of New South Wales. In Grech v Bird (1936) 56 C.L.R. 228, at pages 243-244, McTiernan J. explained the history of such a provision. The object was, apparently, "to suppress the practice of administering and receiving oaths and affidavits voluntarily taken and made in matters not the subject of any judicial inquiry or in any pending case." This need for some document in which a person was capable of "swearing" as to something, without the taking of an oath, and without the making of an affidavit, in the absence of a court proceeding, explains the presence of the words "to be made otherwise than in the course of a judicial proceeding" in the definition in s. 27(c) of the Acts Interpretation Act 1901. An application to the Industrial Registrar pursuant ta s. 159 of the Conciliation and Arbitration Act 1904 1s nota judicial proceeding. The only judicial proceeding which takes place in respect of such an application is the inquiry which results from the reference by the Industrial Registrar of such an application to this Court. It follows that the words "statutory declaration" in s. 159(2)(d) must be given the meaning attributed to them by s. 27(c) of the Acts Interpretation Act 1901, namely a declaration made by virtue of any Act of the Australian Parliament authorizing a declaration to be made otherwise than in the course of a judicial proceeding. ee eee ee ws ose eee a a a eee —- -- "km ee wane | ee Bn eet A ees Met me et ree ee eee he The only Act of the Australian Parliament which general application, and which authorizes such a declarati be made is the Statutory Declarations Act 1959. This contains the following relevant provisions: "6, (1) A person may, if he so desires, make a statutory declaration in relation to any matter. (2) Subject to the next succeeding sub-section, a statutory declaration may he used- (a) for the purposes of a law of the Commonwealth or of a Territory, unless the contrary intention appears in that law; (b) in connexion with any matter arising under a law of the Commonwealth or of a Territory, unless the contrary intention appears in that law; or (c) in connexion with the administration of any Department of State of the Commonwealth. (3) The last preceding sub-section does not authorize a statutory declaration to be used as evidence in a judicial proceeding but nothing in this section prevents a statutory declaration from being so used. 7. Where, in a law of -the Commonwealth or of a Territory (whether passed or made before or after the commencement of this Act), a reference is made toa statutory declaration, the reference includes a reference to a statutory declaration made by virtue of this Act, unless the contrary intention appears in that law. 8. A statutory declaration may be in accordance with the form ain the Schedule to this Act and may be made before- : (a) a Magistrate; (b) a Justice of the Peace; (c) a Commissioner for Affidavits; (ad) a Commissioner for Declarations; (e) a Notary Public; (f) a person before whom a statutory declaration may be made under the law of the State in which the declaration 1s made; or (gq) an Australian Consular Officer or an Australian Diplomatic Officer as defined by section two of the Consular Fees Act 1955." is of on to Act RI renin er ee ce eee ee ne ee ee ee ee oe ee a eee eee ered CL) ee ee el St ett eae bee ot Pa Section 9 provides for the appointment of person to be Commissioners for Declarations. Section 10 provides as follows: "10. Where, by a law of the Commonwealth or of a Territory (whether passed or made before or after the commencement of this Act), a declaration is required to be made by a person before some other person, the declaration may, unless the contrary intention appears in that law, be made before the person mentioned in that law or before a person before whom ae statutory declaration under this Act may be made." Section 11 creates an offence of wilfully making a false statement in a statutory declaration, and provides for its prosecution and punishment. Section 12 confers federal jurisidiction on State courts with respect to such an offence, and rakes other provision for prosecution of such an offence. Tt will be seen that s. 6(2)(a) permits the use of a statutory declaration under s. 159(2) of the Conciliation and Arbitration Act 1904, which 1s, of course, a law of the Commonwealth. It will be noted-that s. 7 is phrased in terms which appear to be extensive, and not exclusive or exhaustive. This is shown by the use of the word "includes" which, in the context in which it appears, is unlikely to be regarded as giving rise to an exhaustive definition. See ¥.Z. Finance Co. Pty. Itd. v Cummings (1964) 109,C.L.R. 395,- especially at pages 398-399, 401-402 and 405, where discussion occurs of the well known passage in the spcech of Lord Watson in Dilworth v Commissioner of Stamps [18991 A.C. 99, at pages 105-106. The existence of such an extensive definition raises a question as to what else is intended to be included in the words defined. Mr. Murdoch has submitted that s. 7 of the Statutory Declarations Act 1959 1s apt to show that a reference in an Act of the Australizan Parliament to a statutory declaration includes a reference to a statutory declaration made under an Act of the Parliament of a State. In my view, however, this would be a startling conclusion. If the Parliament had intended by the words of s. 7 of the Statutorv Declarations Act 1959 to import the laws of each State relating to statutory declarations, clear words would have been used. The section does not expressly import any provision of State law; ic rather assumes that there will] be other provisions in Acts of the Australian Parliament which make reference to statutory declarations. Wherever such a provision occurs, its reguirecments can be satisfied by a declaration made under the Statutory Declarations Act 1959. Ina specific case, an enactment of the Australian Parliament may also provide that its requirements of a statutory declaration might be satisfied by a declaration made under an Act of a State Parliament relating to statutory declarations. Section 159(2)(d) of the Conciliation and Arbitration Act 1904 does not do this. The possibility also exists that Acts of the Australian Parliament maght provide for special forms of statutory declarations, or for special classes of persons before whom such declarations could be taken. In such event, s. 7 of the Statutory Declarations Act 1959 provides that the requirements of those provisions are to be satisified by fulfillment of the requirements of the Statutory Declarations Act 1959, unless a contrary intention appears in the specific Patan ee eee enactment. In my view, 1t is impossible to regard s. 7 as importing the provisions of any law of a State. Section 8 of the Statutory Declarations Act 1959 1s also permissive in ats terms. It provides that a statutory declaration "may" be in accordance with the form in the schedule, and "may" be made before any of the persons listed in that section. Specifically included are persons before whom a statutory declaration may be taken under the law of the State concerned. Plainly, this specifically imports an element of State law into the process of making a_ statutory declaration, That element is confined to the classes of persons before whom such a declaration may be made. There is no doubt that, in the present case, the Applicants could have made their statutory declarations before a Justice of the Peace, as they did. permits a dcclaration to be taken before a solicitor, a declaration under the Statutory Declarations Act 1959 could also be so made. Section 68 of the Statutory Declarations Act 1959 does not, however, import any form of a declaration prescribed under any State Act. As with s. 7, 1t makes allowance for the existence of specific forms of statutory declaration required under other Acts of the Australian Parliament. The form which appears in the schedule to the Statutory Declarations Act 1959 contains the following clause: "And I make this solemn declaration by virtue of the - oer ee er ee ee 10. Statutory Declarations Act 1959, and subject to the penalties provided by that Act for the making of false statements in statutory declarations, conscientiously believing the statements contained in this declaration to be true in every particular." It will be seen that this form of declaration differs from that adopted by the Applicants under the Queensland Act in at least one material respect. The form adopted by the Applicants contains no reference to any penalty for the making of a false statement. In making the declarations, the Applicants did not have brought to their attention, by such a clause as that quoted above, the question of penalties for false statements. Quite apart from this, the only legislation referred to in the Applicants' declarations was the Oaths Act 1667-1981, which 3s, of course, a State Act. Each declaration made by the Applicants purports to be made under State legislation, and not under any Act of the Australian Parliament. For these reasons, I am satisfied that neither of the declarations which accompanied the Applications in the present case was a "statutory declaration" within the meaning of those words ins. 159(2)(d) of the Conciliation and Arbitration Act 1904. The fact that each of the declarations may have beena statutory declaration for the purposes of the law of Queensland aus, in my view, insufficient to satisfy the definition of "statutory declaration" in the Acts Interpretation Act 1901. The provisions of the Statutory Declarations Act 1959 do not import the law of any State with respect to the taking of statutory Se ee - - een ee ee ee ee ll. ' declarations. Having reached this conclusion, I must consider the effect of a failure to comply with s. 159(2)(d). In R. ov Commonwealth Court of Conciliation and Arbitration; ey parte Federated Clerks' Union of Australia, New South Wales Branch (1950) 81 C.L.R. 229, the High Court of Australia gave consideration to the effect of non-compliance with what wus then s. 96A(2) of the Conciliation and Arbitretion Act 1904, the provisions of which were in precisely the same form as those now found ins. 159(2). In that case. a purported application had been made to the Industrial Registrar otherwise than in the prescribed form. This purported application had heen referred to the then Court of Conciliation and Arbitration hy the Industrial Registrar. The Court Haigh held, by a majority, that no application within the section had been made, that the refcrence to the Court had been made without authority, and that the Court had no jurisdiction to proceed with the matter. A writ of prohibition was granted to restrain the Court of Conciliation and Arbitration from proceeding with the purported Inquiry. In Re Election in Administrative and Clerical Officers' Association, Commonwealth Public Service (1980) Industrial Arbitration Service Current Review, case no. 887, Sheppard J. held that the provisions of s. 159(2)(d) of the Conciliation and Arbitration Act 1904 were mandatory, following the decision of the High Court to which I have referred. His Honour refused to proceed in respect of a purported application referred by the Industrial 2 rede ee 12. Registrar on finding that the application had not been "accompanied by" a statutory declaration, the statutory declaration having been filed with the Industrial Registrar six days after the filing of the application, and outside the limitation period specified in s. 159(5)(b). His Honour rejected a submission that the duty of the Industrial Registrar to refer automatically an application in respect of an election conducted under s. 170 of the Act distinguished that case from the decision of the High Court in the Clerks Union case. In Re an Inquiry into an Election in the Amalgamated Metal Workers and Shipwrights Union; ex parte Naqvi (1982) 59 F.L.R. 173, Evatt J. also held that the provisions of all paragraphs of 5s. 159(2) of the Conciliation and Arbitration Act 1904 are mandatory. In chat case, at the time when the statutory declaration was made, the application to which it purported to refer was not in existence. As a consequence, the facts stated in the application haa not been verified by a statutory declaration. His Honour dismissed the purported application for an inquiry. Finally, reference should be made to Re Application by Ferris for Inquiry into Election in Australian Workers Union (1982) 2 I.R. 432 at page 447, where Pitzgerald J. accepted that the requirements of s. 159(2) are mandatory and that a failure to comply with them substantially avoids the application. It follows from these decisions that, the Applications in the present case not being accompanied by statutory declarations within the meaning of s. 159(2)(d) of the Wr oor paren mrs en ne mee ee eco 13. Conciliation and Arbitration Act 1904, those Applications were void, and the Industrial Registrar had no power to receive them or to refer them to the Court. The Court, therefore, had no jurisdiction to embark upon an inquiry into the election concerned. It was put by Mr. Murdoch that s. 51 of the Federal Court of Australia Act 1976 prevented the Applications from being invalidated by any defect in the statutory declarations. That section provides as follows: "51. (1) No proceedings in the Court are invalidated by a formal defect or an irregularity, unless the Court is of opinion that substantial injustice has been caused by the defect or irregularity and that the injustice cannot be remedied by an order of the Court. (2) The Court or a Judge may, on such conditions (if any) as the Court or Judge thinks fit, make an order declaring that the proceeding 15 not invalid by reason of a defect that it or he considers to be formal, or by reason of an irregularity." It may be seen that the section only applies to proceedings in the Court. In the present case, the defects were in Applications to the Registrar. On the authorities to which I have referred, those defects deprived the Industrial Registrar of any power to deal with the Applications, and in particular any power to refer them to the Court. Accordingly, there was no proceeding in the Court. Section 51 could not operate. An argument similar to Mr. Murdoch's was rejected by the High Court of Australia in the Clerks Union case. In that case, 1t was argued that what was then s. 40(m) of the Conciliation and Arbitration Act 1904, under ee npr, nnere tere eee - - eee ee oe eee om we ve Cae eres 14, which the Court of Conciliation and Arbitration had power to correct, amend or waive any error, defect or irregularity, whether in substance or in form, was applicable, so that the Court could have permitted the amendment of the purported application. The High Court held that that power was applicable only to matters which were before the Court; as there was no matter before the Court, the provision did not apply. It might also be pointed out that s. 79 of the Judiciary Act 1903 cannot be relied upon to import the provisions of the Qaths Act 1867-1981 of the State of Qucensland. That provision operates to make the laws of the State binding on courts exercising federal jurisdiction in that. State, in all cases to which those laws are applicable. Because there 1s no proceeding before the Court, the Court is not capable of exercusing its jurisdiction in the State of Queensland, or at all. In addition, as I have held, the provisions of the Oaths Act 1867-198] of the State of Queensland are not applicable to the case. Mr. Murdoch also sought to rely upon the provisions of s. 159(4)(a) of the Conciliation and Arbitration Act, and particularly upon the provision that, when the Industrial Registrar refers an application to the court, "thereupon an unquiry shall be deemed to have been instituted". His argument was that this provision operates to overcome all formal defects. In effect, this would leave the Industrial Registrar with the sole right to decide whether the requirements of s. 159(2) had eee eee -- - -- - - ~~ = om 15. been satisfied. Again, a similar argument was rejected in the Clerks Union case. At the time of that case, the Act contained the provision that 15 now s. 161(1), which also deems an inquiry to have been instituted in the Court following reference by the Industrial Registrar, pursuant to s. 160, of an application. That deeming provision was held by the High Court not to have given to the Court of Conciliation and Arbitration any jurisdiction which that Court lacked by reason of the defects in the purported application. I am, therefore, satisfied that no Application was properly made to the Industrial Registrar in these matters, and that this Court has no jurisdiction to proceed with any inquiry into the question whether irregularities have occurred in cr in connexion with the subject election. I should say that I have not found it easy to reach this conclusion. I am disturbed by the thought of making any decision which renders it more difficult and more technical to bring before this Court an application for an inquiry concerning an election. Nevertheless, having considered the matter carefully, I am compelled to this conclusion. It is a matter of regret that the parties have been put to the trouble and expense of conducting a full hearing in the purported inquiry before this point was discovered. It is alsoa matter of regret that, the point now having been determined A ee ee ee 16. against the Applicants, they will find that the time limit laid down ins. 159(5)(b) has expired, and that it 1s not possible for them to bring another application. It is worth noting, however, that if the original Applications had been made earlier than they were, and if the point had been determined in time, a further application could have been brought. It may be some consolation to the parties for me to state that, if I had found that any irregularity had occurred in or in connexion with the subject election, I should have felt constrained by s. 165(4) of the Conciliation and Arbitration Act 1904 to refrain from making any order in respect cf the election or any step in it. In my view, it was extremely unlikely thot any irregularity which I might have found to have existed mav have affected the result of the election. It seems tc me that, in the circumstances as I have found them to be, I am unable to exercise the power given by s. 168(2) of the Conciliation and Arbitration Act 1904, to certify that the Applicants acted reasonably in applying for an inquiry That power can only be exercised by the Court "upon an inquiry". As I have held, there is no inquiry before the Court. It is unfortunate that the Applicants will he deprived of any opportunity to approach the Attorney-General for any payment of costs and expenses which they have incurred in relation to their purperted Applications. 17. - Mr. Holmes made an Application for an order that the costs of his clients be paid by the Applicants. This Application was based upon s. 197A of the Conciliation and Arbitration Act 1904, and in particular on the argument that the Applications were made vexatiously or without reasonable cause within the meaning of that section. There was nothing vexatious about the Applications. Although I have held that they were not properly made, it has heen necessary for we to consider carefully aifficult questions of the construction of several statutes to reach that conclusion. In the circumstances, I am unable to say that the Applications were made without reasonable cause. If it were necessary for me to consider the merits of the matter, I should be disposed to say that, upon the information avaslable to them at the time when the Applications were comnucnced, and having regard to the state of the authorities, the Applicants did have reasonable cause to make an application. It is unlikely that the existence of two separate Applications had any substantial effect on the costs of those who appeared in response to them. Accordingly, I make no order as to costs. The order of the Court will be that each of the purported Applications for an Inquiry 1s dismissed. , ve oan + (6 Siereen mL Lepo Horets Terentia epee we ne tee ee ee - - _ a -n-