» 3 y) 5 CATCHWORDS a" Industrial Law - registered organization - inquiry into election - whether application within time - "date of completion of the election". Conciliation and Arbitration Act 1904 s. 159, s. 133(1)(d), gs. 170 Re Federated Clerks Union of Australia; Re Callaghan (1983) 6 I.R. 258 R. v. Coaks (1854) 3 El. and Bl. 249 Pritchard v. Mayor of Bangor (1886) 18 Q.B.D. 349, and (1888) 3 App. Cas. 241 Lynch v. McGrané (1965) 7 F.L.R. 188 Beeson v. Blayney (1966) 8 F.L.R. 292 (1949) 66 C.A.R. 435 R. V. Commonwealth Court of Conciliation of Arbitration; Parte Grant (1950) 81 C.L-R. 37 RE ADAMSON: APPLICATION FOR AN INQUIRY INTO AN 4 THE AMALGAMATED METALS FOUNDRY & SHIPWRIGHTS UW], GRAY J wero 5TH SBEPEMBER 1984 | MELBOURNE Ex ee _— a ~eey IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY INDUSTRIAL DIVISION Mote ee ee ee - —-- - ' NSW No. 28 of 1984 IN THE MATTER OF the Conciliation and Arbitration ' Act, 1904 , AND IN THE MATTER OF an Application by ROBERT McCOLL ADAMSON for an Inquiry into an Election for an office in the AMALGAMATED METALS FOUNDRY & SHIPWRIGHTS" UNION ORDER JUDGE MAKING ORDER: GRAY J. ' DATE OF ORDER: 5TH OCTOBER 1984 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: The applications for the orders sought in paragraphs 1 and 2 of the Notice of Motion filed on behalf of Charles Bali on 17th September 1984 are dismissed. The inquiry is adjourned to a date to be fixed, for the hearing of the applications for the remaining orders sought in the Notice of Motion. ee a, ' -_-—— ~ ey teen ee ee ee ee ee -- IN THE FEDERAL COURT OF AUSTRALIA Pry NEW SOUTH WALES DISTRICT REGISTRY NSW No. 28 of 1984 i} INDUSTRIAL DIVISION IN THE MATTER OF the | Conciliation 'and Arbitration Act, 1904 AND IN THE MATTER OF an 4 Application by ROBERT McCOLL ADAMSON for an Inquiry into an Election for an office in the AMALGAMATED METALS FOUNDRY & SHIPWRIGHTS' UNION j | JUDGE: GRAY J. DATE: 5TH OCTOBER 1984 REASONS FOR JUDGMENT On 5th September 1984, the Industrial Registrar referred | to the Court an application by Robert McColl Adamson for an inquiry into an election in the Amalgamated Metals Foundry an: Shipwrights' Union ("the Union"). The reference was made pursuant to the duty which the Industrial Registrar has, by virtue of s. 159({4)(a) of the Conciliation and Arbitration Act 1904 ("th Act"), forthwith to refer an application to the Court in respect of an election conducted under s. 170 of the Act. By way of preliminary question it is necessary to | - es a ~ 2 ~ determine whether the Court lacks jurisdiction to conduct an inquiry by ¥eason of the alleged failure of the Applicant to lodge his application with the Industrial Registrar within the time limit laid down by s. 159(5) of the Act. The election concerned was for the position of National Oxganizer - Division 4 in the Union. The Applicant was a candidate, as was one Bali; there were no other candidates. The ballot opened on 23rd January 1984 and closed at 10.00am on 17th February 1984. The counting of the votes was completed on 17th February 1984. At some time on that day, the identity of the successful candidate, Mr. Bali, was known to the officer of the Australian Electoral Commission who conducted the election. In addition, both candidates had scrutineers present thoughout and at the completion of the counting of the votes. The identity of the successful candidate was known to both the Applicant and to Mr. Bali, at the latest, on 18th February 1984. On that date, the fact that Mr. Bali had won the election was published in an article in the Weekend Australian, a newspaper which circulates nationally, although the figures given in that article for the number of votes secured by each of the candidates bore little resemblance to the actual results. By letter dated 2nd March 1984, the officer of the Australian Electoral Commission who acted as Returning Officer wrote to the National Secretary of the Union, advising that the election had been duly conducted and that the results, together c ne nee . ee eee 2 -~3- with his declaration of the poll, were attached. Attached was a sheet bearing a heading "Declaration of the Poll", and containing information as to the number of votes received by each candidate, the number of informal votes received, the total number of ballot papers printed, the total number of ballot papers posted and the total number of duplicates issued. : ' xu? > Rule 2 of the Rules of the Union deals with elections and voting. Part "A" of that rule relates to elections for national officers, including National Organizers. Sub-rule 7 of that part lays down the duties of a returning officer with respect to the conduct of a ballot in any such election. These duties appear in paragraphs designated by the letters of the alphabet; \ in general, they are set out in the order in which the returning officer might be expected to perform them. Paragraph (u) is as follows: "(u) No later than 14 days after the completion of the counting of ballot papers the Returning Officer shall declare the result of the election by issuing to the National Council a statement in writing setting out: (i) the number of ballot papers printed; (ii) the number of ballot papers posted to persons on the roll of voters; (443) the number of duplicate ballot papers issued; (iv) the number of formal votes cast; (v) the number of votes rejected as informal; and (vil) the number of votes received by each candidate." Paragraph (v) requires the returning officer to cause a copy of his statement to be forwarded to each candidate. Paragraph (w) = cu ~ 4 ~ imposes an obligation on the returning officer to keep for a period of one year after the completion of an election all ballot papers, envelopes, rolls and other documents coming into his possession in or in connection with the conduct of the election. Paragraph (x) is in the following terms: (x) Subject to paragraph (xa), a person elected to an office referred to in sub-rule (1) shall take 'up office no Yater than 2 months after the declaration of the result of the election and shall, subject to these rules, hold office until the election of a successor or the attainment of 65 years of age, whichever sooner occurs. Paragraph (xa) concerns persons who attain the age of 65 no earlier than 12 months before the expiration of their terms of office. It is unnecessary to refer to paragraphs (y) and (2), which relate to candidates, rather than to the duties of the returning officer. Paragraph (za) deals with casual vacancies. The application for inquiry was lodged with the Industrial Registrar on 30th August 1984. No attempt was made to rely upon the extended time limit laid down by s. 159(5)(c), or to contend that the application had been lodged before the completion of the election, within the meaning of s. -159(5){a). The issue, therefore, is whether the application was lodged within six months "commencing on the date of completion of the election", within the meaning of s. 159(5)(b). The question which the Court is required to answer is essentially one of statutory construction. Mr. Trew, who appeared -5- » with Mr. McCarthy for the successful candidate in the election, argued that: the date of completion of the election was either the date on which the ballot closed, being the date at which the fates of the candidates were determined by the presence of all completed ballot papers in the ballot box, or, at the latest, the date by which the result was "known". The first limb of this argument was based on a number of authorities, to which I shall turn shortly, in each of which it had been held that a person was entitled to be treated as having been elected in the absence of a declaration, or a correct declaration, of the result of a ballot. The second limb of Mr. Trew's argument was really designed to take account of the decision of the Full Court of the Federal Court of Australia in Re Federated Clerks Union of Australia; Re Callaghan (1983) 6 I.R. 258, with which I shall also deal shortly. On the basis of this decision, Mr. Trew argued that the date of completion of the election may vary, according to the provisions of the rules under which it is conducted; there may be cases in which a declaration is essential to the entitlement of the candidate with the highest number of votes to hold office. According to Mr. Trew's argument, the Rules of the Union indicate that the declaration comes after the election is over; paragraph (u) of sub-rule 7, referred to above, obliges the returning officer to "declare the result of the election"; under paragraph (x), once the election of a successor is achieved, the person who previously held the office ceases to do so. Mr. Trew also canvassed the history of the legislation, with particular reference to s. 133({1)(d) of the Act. -6- Mr. Moore, who appeared for the Applicant, and whose argument was adopted by Mr. Shaw, who appeared for the Union, relied on authorities which tended to conflict with those upon which Mr. Trew relied, and in particular upon the Callaghan case, referred to above. Ms. Donaldson, who appeared for the Electoral at ' Commission, did not make submissions on the point. In R. v. Coaks (1854) 3 El. & Bl. 249, the Court of Queens Bench held that a candidate in a municipal election was entitled to vote on the council, notwithstanding that the returning officer had declared another candidate elected at a previous election. The candidate declared elected had been ineligible to stand, and the Court took the view that the other candidate was entitled to be treated as elected even in the absence of a declaration by the returning officer in his favour. In argument before me, reference was made to Pritchard v. Mayor of Bangor, both in the Court of Appeal (1886) 18 Q.B.D. 349, and in the House of Lords (1888) 13 App. Cas. 241. Both sides relied upon this case as authority to support their respective arguments. Again, the election was a municipal one. Upon the votes being counted, the returning officer stated to the Mayor the number of votes given to each candidate; having considered the position, the returning officer then declared the candidate with the lesser number of votes elected, on the ground Pu ~ 7 7 that the candidate with the greater number was ineligible to stand. - It Was held that the question of eligibility to stand was not properly one for the returning officer, and that the returnincs officer should have declared elected the candidate with the greater number of votes. The proceeding was commenced by the candidate with the lesser number of votes, who had been declared elected. It was' an_ application for mandamus. The view seems to as? have been taken, in the Court of Appeal and the House of Lords, that the statement to the Mayor by the returning officer of the number of votes which each candidate had received amounted to a sufficient declaration of the result, and that, accordingly, the Candidate with the greater number of votes had in fact been elected. For this reason, the case is of little assistance in determining whether an election can be said to have been completed without declaration of the result. Reference was made to certain views expressed. On the one hand, at page 364 of the report of the Court of Appeal decision, Lord Esher M.R. said "Though it is not necessary to decide the point, I am inclined to think that his declaration is merely ministerial, and that, if he remained silent and did not make any declaration, the person who had the majority of votes would be duly elected." On the other hand, in the House of Lords, Lord Watson said, at page 253, "If there was no declaration, then there was no completed election of either of these two candidates." In Lynch v. McGrane (1965) 7 F.L.R. 188, the Commonwealth Industrial Court held that a member of an > ~ 8 ~ organization registered under the Act was entitled to be treated as a member* of the committee of management of a branch of that organization, despite the fact that he had not been validly declared elected to that committee of management. At page 194, the court said: ° "As stated above, Ryan's nomination was the only one received for the office to which he was declared elected. He. 'was therefore 'entitled to be declared elected without the taking of any vote. If the meeting of 17th January, 1962 had refused to approve his election, he could have obtained an order from this Court to enforce his rights. In these circumstances it seems to us that a formal declaration of his election was not a pre-requisite to his participation in the affairs of the committee of management, and that the resolution of 15th August, 1962, could properly be seconded by him. In the case of R. v. Coaks [(1854) 3 El. & Bl. 249; 118 E.R. 1133] it was held that a person who was entitled to be declared elected as a councillor at a municipal election was entitled to participate in the election of mayor, even though the returning officer had declared the poll in favour of another candidate. This case would seem to show that in the absence of express provision to the contrary, the declaration of the poll in favour of the successful candidate is not essential to his participation in the affairs of the body to which he is elected." In Beeson v. Blayney (1966) 8 F.L.R. 292, the question was whether the term of office of the Secretary-Treasurer of a branch of an organization was determined by rules in force at the date when his election commenced, or by amended rules in force at the date when he was declared elected. Joske J., with whom the other two members of the court concurred, held that the amended rules did not apply. At page 294, his Honour said: "In my opinion the amendments to the rules apply and were intended to apply only to future elections and have no application to an election which had already er 2 -9- commenced and was in progress at the time the rules were amended." . By way of further reason, at page 295, his Honour said: "There is, however, an additional reason in the present case for saying that the amendment of the rules does not apply and that is that the election in question was already completed at the time the amendments to the rules were certified by the Registrar and became effective. It is true that at that time the declaration of the ballot' had not taken place, but the actual election is complete as soon as the ballot closes. The ballot has been finally determined and the result is in the ballot box. The election is by the votes. The declaration of the poll is not the election. It merely declares the result of the election which has already been completed. The entitlement of the elected candidate flows from the poll of the votes and the rights which he possesses as the elected candidate belong to him and vest in him immediately the poll closes." Joske J. cited Lynch v. McGrane, referred to above. In the Callaghan case, referred to above, the Full Court was called upon to determine the eligibility of certain persons to be elected as federal officers of an organization. This eligibility depended upon membership by those persons of the Federal Council of the organization. On the same day as the election for federal officers was conducted, but at a subsequent time, new Federal Councillors were declared elected in place of the two persons concerned. It was argued, on the basis of Lyncn v. McGrane and Beeson v. Blayney that these new Federal Councillors had been elected before they were declared elected, the ballot for their election having closed some days before the election for federal officers. The Full Court refused to follow : - 10 - those two cases, holding that the new Federal Councillors could not be regarded as having been elected until they had been identified. At page 262, Northrop and Lockhart JJ. said: "In some circumstances the close of the ballot may be the relevant time, as in Lynch v. McGrane where the time of the election determined the length of the term for which the successful candidate was to hold office. In other cases, if the one candidate only is nominated, the close of nominations may be the relevant time, but this may depend 'upon the particular rules of the organization. But even there, it may well be that that will not be known until the returning officer declares that the one nomination only has been received." Under the particular rules there in question, the Full Court held that the relevant time was the declaration of the ballot, on the basis that that was the time when it was first ascertained who would be the new Federal Councillors. It was this decision which forced Mr. Trew into his alternative argument that, if the election was not complete when all the votes were in the ballot box, it was complete at the time when the indentity of the winning candidate was known. It is plain, however, from an examination of the judgment of the majority of the Full Court, that knowledge of the identity of the candidates was regarded as stemming from the declaration of the result of the ballot. The case does not support the proposition that there is some intermediate position between the close of the ballot and the declaration of its results, at which stage the election becomes complete, by reason of some unquantified knowledge by some unidentified persons as to who the victor was. It must be remembered that the phrase "th date of completion of the election" is found in Part IX of the Act, which is concerned with inquiries into possible a ae sos. ES _ -l- irregularities in elections within organizations. Section 159(1) gives the right to make an application for such an inquiry to any member of an organization, or any person who, within the preceding period of twelve months, has been a member of an organization. Knowledge by the candidates themselves as to the result of a ballot, or by their scrutineers, or by some other limited and unspecified class gf persons would place those persons at an advantage in terms of the running of the limitation period provided for in s. 159(5)(b), when compared with others who are entitled to make application. The inference is strong that the legislature intended the starting point of the limitation period to be a point ascertainable with reasonable certainty. The choice appears to lie between the close of the ballot and the declaration of its result, assuming that there is no later event that could b. said to be part of the election. In my view, the Callaghan case does not assist Mr. Trew's argument; if anything, it is against that argument. It is a decision which binds me, whereas Lynch v. McGrane and Beeson v. Blayney are of persuasive authority only. The reality is, however, that little assistance is to be gained from the cases to which I have so far referred. Both Lynch v. McGrane and the Callaghan case were concerned with the determination of the dates on which elected persons took office. That date may not necessarily be the same date as the date of completion of the election. It is interesting to note that, at page 294 of the report in Beeson v. Blayney, Joske J. was prepare' to describe the election as being "in progress" and "not , -12- completed" at the time when the relevant rule amendments came inte operation.*" At that time, the only event which remained outstanding was the declaration of the result. This tends to suggest that, although a person may, in some circumstances, be regarded as having been elected at the time when the ballot Closes, the election itself is not completed. Indeed, the fact that votes still need to be counted before the indentity of the winner can be ascertained suggests strongly that the process of the election continues beyond the stage of the close of the ballot. There is no reason why the declaration of the result should not be regarded as part of this process, even if, in law, the winner is already elected. If the ordinary and natural meaning of words is chosen, it seems to me that the ordinary person would not say that an election was completed while the returning officer had one further duty to perform, that of declaring the result. So far as other authority exists, it tends to support the view that the election is not completed before the declaration of the result. In Re Boilermakers' Society of Australia; Ex Parte O'Shea (1949) 66 C.A.R. 435, Dunphy J. was called upon to decide whether the legislation relating to inquiries into elections within organizations, which had come into operation on 12th July 1949, was applicable to an election commenced before that date. The ballot in the election concerned closed prior to 12th July, but his Honour found that the result had been declared on 16th July. At page 438 of the report, his Honour held that the , - 13 - election had not been completed until 16th July, the date of declaration*'of the resuit. Although his Honour then went on to hold that the legislation was applicable even if the election had not been completed, it cannot be said that the conclusion that the election was completed on 16th July was not part of the reasoning on which his Honour's decision was based. Application was made to the High Court for a writ of prohibition in respect of the a! decision of Dunphy J. See R. v. Commonwealth Court of Conciliation and Arbitration; Ex Parte Grant (1950) 81 C.L.R. 27. The application was unsuccessful. At page 48, Latham C.J., with whom Williams and Webb JJ. agreed, said: "There was, however, no declaration of the result of the election until 16th July and it is clear that his Honour was right in holding that the election was not completed until 16th July." At page 55, McTiernan J. said: "The election in respect of which the court made the orders which are now in question was not completed before the Act came into operation. Any irregularity whether before or after the Act was a permissible matter of anquiry by the court. The meaning of the word "election" is not confined to the acts whereby the members of the organization exercise their right to choose the candidates whom they wish to hold office. An election is not completed before a binding and definitive declaration is made in accordance with the xules of the organization of the names of the persons chosen by the members" Mr. Trew argued that these observations in the High Court were not essential to the Court's reasoning, and therefore were of persuasive authority only. Even if that were the case, the observations are entitled to great weight. Unless there were - 14 - clear authority to the contrary, or serious objections in principle, it is my view that I should follow what was said by the members of the High Court in that case. In my view, there is no authority to the contrary, and there is no serious objection in principle to the view that an election is regarded as completed when the result is declared. It is worth noting that a similar view was taken by the then Industrial . Registrar in Re Federated Storemen and Packers Union of Australia (1958) 89 C.A.R. 847. Little weight can be attached to the Industrial Registrar's conclusion, however, as the matter was not argued before him; his statement, that the election concerned was completed on the day the result was declared, seems to be an assumption, rather than a decision. Such other authority as exists tends to support the same conclusion. I refer to statements by the members of the High Court in Hodge v. R. (1907) 5 C.L.R. 373, at pages 379, 383 and 387, and the decision of Slattery J. in Ex Parte Hinds; Re Penboss [1972] 2 N.S.W.L.R. 542, at pages 545-547. Nothing in the history of the legislation detracts from this conclusion. The phrase "the completion of the election", with reference to a time limit, was first introduced into the Act by Act No. 28 of 1949. That phrase now appears in s. 159(2)(b), with reference to the time limit for applications for inquiries into elections other than those conducted under s. 170. By Act > - 15 - No. 18 of 1951, there was first inserted into the Act a provision similar: to that which is now s. 133(1)(d). This paragraph requires that the rules of an organization make provision for elections to be by secret postal ballot, with provision for a number of things including "the declaration of the result of the ballot"., The provisions of paragraph (u) of sub-rule 7 of Part A of Rule 2 of the Union's Rules, quoted above, can be regarded as satisfying this requirement. When the present s. 159(5) was inserted, by Act No. 37 of 1972, the legislature chose to use the phrase "the date of completion of the election". Mr. Trew argued that, if the Parliament had intended that the limitation period in Ss. 159(5)(b) was to run from the date of declaration of the result of the ballot, it would have said so, borrowing that phrase from s. 133(1)(d){vi). Two things must be borne in mind, however. In the first place, not all elections go to the stage of a ballot. If there are no more candidates than there are positions to fill. no ballot will be necessary. It was necessary for the Parliament, in fixing the point at which the limitation period begins to run, to choose words, which would be applicable to all elections, not only those in which a ballot is necessary. In the second place consistency in the legislation dictated that a phrase which did not differ markedly from that which appears in s. 159(2)(b) war chosen. As I have said, the Rules of the Union require that the returning officer declare, by a particular method, the result of an election in which a ballot is necessary. In my view, having | ene were 1 > - 16- regard to the terms of the rules, that act of the returning officer is--to be regarded as part of the election itself. Mr. Trew argued that the reference in paragraph (u), quoted above, to "the result of the election" involved a reference to a past event, suggesting that the election was already complete. He also referred to paragraph (x), contending that the specific reference in that paragraph .to "the declaration of the result of the election" suggested that this was an act separate from the process of the election. He contrasted these Rules with provisions sometimes found, obliging a returning officer to declare the identity of the person "to be elected", and argued that a declaration under provisions of the latter kind would be more likely to be regarded as part of the process of the election. In my view, however, such an argument reads too much into the provisions of the Rules. In ordinary language, the distinction is not always drawn between an election and a ballot. The Rules of the Union, in sub-rule 6(a) of Part A of Rule 2 require the returning officer to declare a candidate elected unopposed when there is only one nomination for election to an office. Plainly, sub-rule 7(u) is intended to relate to the declaration of the result of a ballot. This is the provision required by s. 133(1)(d)(vi) of the Act. Such a declaration is an integral part of the ballot, and accordingly of the election. It may be the only means by which the result of an election may become known to many officers and members of the Union. c > -7.ite- My conclusion, therefore, is that the application xeferred to' the Court by the Industrial Registrar in this case was commenced within the time limit laid down by s. 159(5)(b) of the Act. Accordingly, the Court has jurisidiction to proceed to conduct an inquiry. The applications for the orders referred to in paragraphs 1 and 2 of the Notice of Motion filed on behalf of Mr. Bali on 17 September 1984, which sought the dismissal of the Application on the ground that it was out of time, will b2 dismissed. The application for the orders sought in the remaining paragraphs of that Notice of Motion will be determined at a later | date. ' I certify that this and the [6 Sry ten preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Gray. Associate