~™ -Ccr a \'8° cs $45 CATCHWORDS Industrial law - registered organization - election - whether misleading of electors an "irregularity" - application for inquiry - whether application specified irregularity - whether application validly made. Concrliation and Arbitration Act 1904, s. 159, Part IK, s. 4(1). Judiciary Act 1903, s. 23(2)(b). R. v. Gray; Ex parte Marsh, High Court of Australia, 17/10/85, unreported. Evans v.Crichton-Browne (1981) 147 C.L.R. 169. Consandine v. Strathfield Municipal Council (1981) 44 L.G.R.A. 435. Re Bragg and Australasian Society of Engineers (South Australian Branch) (1985) 60 A.L.R. 136. IN THE MATTER OF AN APPLICATION BY DUDLEY BRAILEY FOR AN INQUIRY INTO ELECTIONS IN THE FEDERATED LIQUOR AND ALLIED INDUSTRIES EMPLOYEES UNION OF AUSTRALIA GRAY J. BRISBANE 21ST NOVEMBER 1985 IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY INDUSTRIAL DIVISION No. Q 10 of 1985 wee Ww IN THE MATTER of an Application by DUDLEY BRAILEY for an inquiry into elections in the FEDERATED LIQUOR AND ALLIED INDUSTRIES EMPLOYEES UNION OF AUSTRALIA MINUTE OF ORDER JUDGE: GRAY J. DATE OF ORDER: 21ST NOVEMBER 1985 WHERE MADE: BRISBANE THE COURT ORDERS THAT the purported application for an inquiry into elections is dismissed. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF' AUSTRALIA QUEENSLAND DISTRICT REGISTRY INDUSTRIAL DIVISION No. Q 10 of 1985 IN THE MATTER of an Application by DUDLEY BRAILEY for an inquiry into elections in the FEDERATED LIQUOR AND ALLIED INDUSTRIES EMPLOYEES UNION OF AUSTRALIA JUDGE: GRAY J. DATE: 21ST NOVEMBER 1985 REASONS FOR JUDGMENT On 29th July 1985, the Industrial Registrar referred to the Court an application by Dudley Brailey, which purported to be made pursuant to s. 159 of the Conciliation and Arbitration Act 1904 ("the Act"). The Application sought an inquiry pursuant to Part IX of the Act into elections in the Queensland Branch of the Federated Liquor and Allied Industries Employees Union of Australia. The elections were for the offices of guardian, two trustees, eight members of the branch committee of management, and three branch representatives on the federal council of the Union. The elections had been completed by the time when the application was made. -?2- By notice of motion, dated 7tn October 1985, five persons, who had become parties to the purported inquiry which resuited from the reference of the application, sought orders in relation to the proceeding. These included an order that the proceeding be dismissed or stayed, on the ground that the matters alleged 1n the application didnot amount to "irregularities" within the meaning of the Act, and an order that the inquiry be terminated on the ground that the Court could not be satisfied that there was reasonable ground for the application (see s. 159(4)(b) of the Act). By two affidavits, sworn on llth October 1985 and filed 1n the proceeding, the applicant made further allegations of irregularities, in or in connection with the subject elections, which were unrelated to the allegations made in the application. These new allegations concerned improper use of the resources of the Union in the conduct of an election campaign. The matter came before me on 15th October 1985, and was adjourned for reasons which were then given. Subsequently, on 17th October, the High Court of Australia delivered judgment in R. v. Gray; Ex parte Marsh (not yet reported). This matter-was then relisted yesterday, and argument was heard on the notice of motion. Mr. Shaw appeared with Mr. Marshall to move the Court on behalf of the five respondents. Mr. Trew Q.C. and Mr. Smith appeared for the applicant and opposed the motions. Ms. Chappell appeared for the Attorney-General for the Commonwealth, and the Australian Electoral Commission, but did not make submissions to the Court. ~3- Attention was directed in argument to the terms of the application. Under the heading "Particulars of Alleged Irregularities", the application contained one paragraph, which referred to the publication and dissemination of false and misleading material, alleged to have been damaging to the applicant; the paragraph resembles a pleading 1na defamation action. Under the heading "Facts Relied On", reference was made to two publications, one a circular letter addressed "Dear Member", and the other a newspaper advertisement. The former is headed "Official Unity Team 1985 Union Elections". It advises members that the applicant had issued a "How to Vote Ticket" implying that he was the leader of a team supported by a number of officials and delegates of the Union. It asserts that the applicant had been invited to stand on the same official ticket as other union officials, and had deciined. it gives the opinion of the writer that this was "a highly divisive action designed to disrupt the harmony achieved within the union office". It goes on to allege that the applicant had placed delegates and officials on his ticket without the authority or permission of the persons concerned, and after he had been told that they wished no part of his ticket. The newspaper advertisement contains a disclaimer by certain persons of association with the applicant's How to Vote Ticket, and an appeal by those persons to members to vote for the Official Unity Team. In the application, in the ninth paragraph under' the heading "Facts Relied On", the aliegation appears that the use of the word "official" ain the phrase "Official Unity Team" in the publications was without the authority or sanction of the Union, - 4 - was likely to mislead electors, and constituted an irregularity. Apart from this allegation, the application concentrated upon the effect of the publications on the applicant's reputation. In argument, little was said about reputation; the major issue is whether the styling of a group of candidates as the "Official Unity Team", when it 15 alleged that they have no authority from the Union to do so, arguably amounts to an irregularity within the meaning of Part IX of the Act. In Marsh's Case, the High Court of Australia examined the meaning of "irregularity" as used in the Act. The leading judgment is that of the Chief Justice, with whom the other five members of the Court concurred on this point. It was held that the definition of irregularity in s. 4(1) of the Act is inclusive and not exhaustive. See pp. 15 and 16 of the judgment print. The court then examined, firstly whether the allegations in that case fell within the statutory definition of "irregularity" and, secondly, whether they fell within the ordinary meaning of that word. On the first question, the High Court followed Evans v. Crichton-Browne (1981) 147 C.L.R. 169. At pp. 18-19, Gibbs C.J. said: "Some misleading statements may hinder the full and free recording of votes and so fall within the extended meaning of "irregularity" contained in s. 4 of the Act. In Evans v. Crichton-Browne, the Court drew a distinction between misleading statements which were intended or likely to affect an elector when he sought to record and give effect to the judgment he had formed as to the candidate for whom he intended to vote, and misleading statements which might do no more than affect the formation of that judgment. Examples of statements of the former kind were given in the judgment, at p.205: "For example, a statement contained in a newspaper advertisement that a ballot-paper should be marked in away that would not - 5 - conform to the requirements of the Act and whicn would render the vote invalid might misiead or improperly interfere with an elector in the casting of his vote. The same mignt be true of a statement that a person who wished to support a particular party should vote for a particular candidate, when that candidate in fact belonged to a rival party." Another example is provided by the facts of Consandine vw. Strathfield Municipal Council (1981) 44 L.G.R.A. 435, where a "how to vote" card falsely represented that a2 particular candidate was, with six other candidates, a member of a group whose members had similar or identical policies. The words of the definition ins.4({1) are materially different from those considered in Evans _v. Crichton-Browne, and it is unnecessary to consider whether a false statement that a candidate was endorsed by a particular political party would be an irregularity within the definition, if the election was one at which political parties had endorsed candidates, and a voter attempting to vote for the candidate endorsed by that party was misled into voting for someone else. It should be made clear in the present case that it was not represented that Mr Bali was a candidate formally endorsed by the Australian Labor Party, and that the statements that he had had a long history of service in that Party, and had been for some years the holder of offices in the Party, were not suggested to be untrue. It is clear that the representations in the present case could do no more than influence an elector in his choice of the candidate for whom he would vote. The statements allegedly made on behalf of Mr Bali could not have prevented or hindered the "full and free recording of votes" within the meaning of the definition." On the question of the ordinary meaning of irregularity, Gibbs C.J. said at pp. 19-20: "The question then arises whether the conduct alleged - the distribution of the pamphlets and the publication of the advertisements - could arguably have amounted to an irregularity within the ordinary meaning of that word. According to the Oxford English Dictionary "irreguiarity", in its relevant sense, means "want of conformity to rule; deviation from or violation of a rule, law, or principle...deviation from what 15 usual or normal". The notion of an irregularity, in relation to an election, involves the idea of some departure from some rule, established practice or generally accepted Principle governing the conduct of the election. The question 1s whether it can be said that the alleged conduct of Mr Bali and his supporters did depart from some rule, practice or principle of that kind." -6- This question was answered in the negative, with the general statement, at p. 22: "It cannot be assumed that the Parliament intended to enable an election to be challenged under Pt.IX on the ground that statements were made which might in some way mislead the electors in making their decision as to how to vote or that facts were not revealed which might have influenced the electors in their choice. If the Parliament had so intended, 1t could easily have expressed that intention, but it has not done so." Considerable regard must also be paid to the judgment of Keely J. in Re Bragg and Australasian Society of Engineers (South Australian Branch) (1985) 60 A.L.R. 136, which was cited with apparent approval by Deane J. in Marsh's Case, at p. 39. In that case, his Honour discussed at length the question whether a misleading statement may constitute an irregularity. His Honour followed Evans v. Crichton-Browne, and, at p. 144, said: "T accept that it 1s an irregularity where a statement misleads a voter, who is seeking to "give effect to the Judgment which he has farmed as to the candidate for whom he intends to vote" (Evans' case (169 CLR) at 204; (33 ALR) at 614), anto marking the ballot paper in favour of a candidate for whom the voter, at the time of voting, did not intend to vote. However, in my opinion, the making, during an election campaign, of a statement which misleads a voter in the formation of his judgment as to the candidate for whom to vote, does not constitute an "irregularity in or in connection with an election for an office"; in my opinion that 1s 50, irrespective of whether that misleading statement deals with the candidate's personal qualities or his policies or his membership of or affiliation or association with a political party or an association or any other body of persons." In the light of these authorities, the Court's task in the present matter is to decide whether the two publications relied on were capable of misleading members of the Union in - 7 - Queensland, in giving effect to their decisions as to the candidates for whom they would vote, or only in forming those decisions. It is very clear that statements in those publications which reflected adversely upon the applicant could only have the effect of persuading voters not to cast their votes in favour of the applicant. No suggestion was made that those statements were in any way likely to produce confusion amongst voters as to the identities of the candidates for whom they were voting, or to mislead them into voting for one candidate, when they intended to vote for another. Mr. Trew did contend that the use of the description "Official Unity Team" in the publications amounted to an irregularity, both within the statutory definition, as an act whereby the full and free recording of votes was prevented or hindered, and within the ordinary meaning of irregularity, as a breach of a rule (other than a rule of the Union), practice or principle governing the conduct of the elections. He sought to show that members might be influenced in their choice of candidates by the combination of the description "Official Unity Team", the presence as candidates of some actual officials of the branch, and the knowledge that those officials were part of a group, or team, with other candidates. Reliance was placed on Consandine v. Strathfield Municipal Council (1981) 44 &.G.R.A. 435, especially the passage at pp. 440-441, where Street C.J. said: "The material presently under consideration was clearly enough likely to mislead or improperly interfere with an elector in forming his judgment as to whom he wished to vote for. But it went significantly further than that. It represented to an elector who came to cast his vote - 8 - that the seven persons, who were in fact ungrouped, listed in the right-hand column of the ballot-paper, were in fact a group. The unauthorized heading of the column "PROGRESSIVE RE-FORM", and the reference at the top of the facsimile ballot-paper in both documents to "his progressive Re-Form group" is a direct representation of at least an affinity, if not an identity, of policies on the part of the seven named persons as well as of the existence of some mutual association between those seven persons." In Marsh's Case, it was clearly recognized that Consandine's Case was a case in which the offending material was likely to have caused voters to cast votes for one candidate, in the mistaken belief that they were voting for a candidate of a political party, to which that candidate did not in fact belong. This view of the case is confirmed by an examination of the passage in the judgment of Street C.J. immediately following that quoted above: "An elector coming into the polling beoth with the intention of casting a vote for, say, Mr. O'Donnell, or any one of the other four Australian Labor Party candidates numbered three to six in the appellant's "how to vote" card, knowing for certain that the candidate of his choice was a member of the Australian Labor Party, could well have concluded from the appellant''s "how to vote" card that the seven persons listed in the righthand column were all Australian Labor Party candidates." That case was very different from the present. There is no suggestion in the present case that any member, having formed the view that he or she desired to vote for a particular candidate or group of candidates, might have been misled into voting for another candidate or other candidates who did not represent the desired point of view. If a vote were cast for a candidate, unknown to the voter, on the basis that the candidate -~ 9 - was represented to be a member of the "Official Unity Team", that would be because the voter was persuaded to form an intention to vote for that candidate. If the voter was misled into forming that intention, on the authority of Marsh's Case and Bragg's Case, this would not amount to an irregularity. I am therefore of the view that the application does not disclose any allegation capable of amounting to an irregularity for the purposes of Part IX of the Act. The question then arises whether the inquiry should be terminated, or whether it should be allowed to continue, to enable the applicant to pursue his later allegations concerning expenditure of the resources of the Union on election campaigns. Section 159(2) of the Act lays down a number of requirements with which an application of this kind is to comply. Among them, in paragraph (c) of the sub-section, is a requirement that the application shall "specify...the irregularity which is claimed to have occurred". In a number of cases, the requirements of s. 159(2) have been held to be mandatory, and the view has been taken that, if any of those requirements has not been complied with, no application under the section has been made to the Industrial Registrar, and the Court has no jurisdiction to deal with any inquiry. See R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Federated Clerks Union of Australia, New South Wales Branch (1950) 81 C.L.R. 229, especially at pages 242-3 and 244, Re Election in Administrative and Clerical Officers' Association, Commonwealth Public Service (1980) Industrial Arbitration Service, Current Review, case no. - 10 - B87, Re an Inguiry into an Election in the Amalgamated Metal Workers and Shipwrights Union; Ex parte Nagvi (1982) 59 F.L.R. 173, Re Application by Ferris for Inquiry into Election in Australian Workers Union (1982) 2 I.R. 432, at page 447, and Re O'Dowd; Ex parte Commonwealth Bank Officers' Association (1984) 3 F.C.R. 150. The first of these cases 1s of particular interest in the present matter, as it involved a purported application which suffered from a number of vices, including failing to specify the irregularities relied on. If that is a mandatory requirement, it has not been complied with in the present case. In Marsh's Case, the High Court was evenly divided on the question whether a writ of prohibition should issue to this Court, to restrain it from continuing to conduct a purported inguiry under Part IX of the Act, in which no valid allegation of irregularity had been made. This issue depended upon the question whether this Court was exceeding its jurisdiction in conducting such a purported inquiry. Because of the equal division, the effect of s. 23(2)(b) of the Judiciary Act 1903 was that the view of the Chief Justice prevailed, and a writ of prohibition issued. In his judgment in Marsh's Case, at p. 23, the Chief Justice said: "We were referred toa line of cases in which it has been held that the Court under s.165(1) of the Act may inquire into any irregularity disclosed by the evidence even though it was not specified in the application made under s.159: Re Elections for Offices in Australasian Meat Industry Employees Union (1963) 5 F.L.R. 260, at p.265; Jutte v. Amalgamated Engineering Union, Australian Section (1967) 10 F.L.R. 195, at pp.201-202; Re Federated Liquor & Allied Industries - ll - Employees Union of Australia (1970) 16 F.L.R. 107, at p-lll; Re Australian Postal & Telecommunications Union; Ex_ parte Wilson (1979) 28 A.L.R. 330, at p. 333. Assuming that tne statements made in those cases were correct, it does not follow that the Court has jurisdiction to proceed with an inquiry under Pt.IX when the only matters complained of are alleged irregularities which are not capable of answering that description." At p. 33, Wilson J. said: "It seems to me that Parliament could not have intended the Court to have jurisdiction to embark on an inquiry with all the potential for expense, delay and disruption to the affairs of an organization if the claimed "irregularity" is not capable of constituting an irregularity within the meaning of the Act. The Court derives its jurisdiction in the case of an election conducted under s.170 from a combination of sub-ss.(1) and (4) of s.159, namely, the making of an application which the Registrar is obliged to refer to the Court. Thereupon an inquiry shall be deemed to have been instituted. The application must be based on a claim that there has been an irregularity 1n or in connection with the election. Such a requirement is fundamental. One must read the statutory definition of "irregularity" in s.4 of the Act into s.159(1). A claim based on facts which even if accepted as true would not establish an irregularity within the meaning of the Act is insufficient 1n my opinion to support an application which attracts the jurisdiction of the Court to conduct an inquiry under Pt IX of the Act." Brennan J. quoted s. 159(2) at p. 36, and then proceeded at p. 37: "The jurisdiction to inquire thus depends on whether an applicant claims the occurrence of what amounts to an irregularity. If he makes such a claim the Court has jurisdiction to inguire; if he does not, the Court lacks jurisdiction to inquire. If, on the face of the application, what the applicant claims to have occurred does not amount to an irregularity for the purposes of Part IX, a defect in jurisdiction appears." These were the three justices whose judgments supported the issue of a writ of prohibition. At p. 29, Mason J. said: - 12 - "The jurisdiction of the Court to hold an inquiry under s.165(1) into the election depended on the reference by the Industrial Registrar of an application for an inquiry lodged under s.159(1) claiming that there had been an "irregularity" in or in connexion with the election. The application lodged by Mr Adamson claimed that irregularities had occurred and, in conformity with 8.159(2)(c), specified the irregularities. The matter specified did not fall within the meaning of the word "irregularity" where it appears in Pt IX of the Act." His Honour went on to hold that the jurisdiction of the Court is not conditioned on the actual occurrence of an irregularity, but that a judge conducting an inquiry under Part IX of the Act had power to decide conclusively whether an alleged irregularity had occurred. At p. 30, his Honour said: "Nor is there a case for saying that jurisdiction depends on the applicant specifying an irregularity which falls within the statutory concept. The obligation to specify the irregularity is imposed by 8.159(2)(c), a provision which is directed to the giving of particulars so as to identify the issues which will arise for determination in the inquiry. Where an election is conducted under s. 170, it is the application for an inquiry under s.159{1) based on the claim that an irregularity has occurred that attracts the Court's jurisdiction to hold an inquiry, subject to the Court satisfying itself that there is reasonable ground for the application before it is required to proceed (s.159(4)(b))." Each of Deane and Dawson JJ. expressed views similar to those of Mason J., although Dawson J. did not advert specifically to s. 159(2) of the Act. It must be remembered that my task is not to determine whether a writ of prohibition should issue against this Court, if it continued to conduct this purported inquiry, after reaching the conclusion that no allegation of irregularity had been made in the application. I have to decide, as the primary judge, - 13 - whether this Court has jurisdiction to continue the inquiry in those circumstances. To that extent, the reasoning of Mason, Deane and Dawson JJ., as to the power of this Court to decide its own jurisdictional facts, is of no assistance in the task. I am bound by the views of Gibbs C.d., Wilson and Brennan JJ. as to the limits of the Court's jurisdiction. Even if not bound by those views, I am persuaded by them, in the light of the earlier authorities, to which I have referred, as to the effect of s. 159(2). I therefore hold that, because of my conclusion that no allegations were made in the application of any facts which could amount to an irregularity within the meaning of Part IX of the Act, there never was a valid application to the Industrial Registrar, or a valid reference by him to the Court, and the Court has no jurisdiction to conduct any inquiry with respect to the subject elections. In expressing this conclusion, I intend no criticism of the Industrial Registrar. Apart from any other considerations, the Industrial Registrar, in deciding to refer the application, did not have the benefit of the judgment of the High Court in Marsh's Case. It is a heavy burden to place on an Industrial Registrar the obligation to determine whether he has received a valid application, before he decides to refer it to the Court; no doubt, the inclination of any Industrial Registrar would be to refer a doubtful application to the Court, and to leave it to the Court to determine whether a proper application had been made. So far, I have not addressed the application made under gs. 159(4)(b) of the Act. It follows from what I have said ~ 14 - earlier that, upon the allegations made in the application, f could not be satisfied that there is reasonable ground for the application. I am not able to examine the further allegations made in the affidavits filed later, and express no view upon them. It would not be proper to express a view, as I have heard no argument on those matters. If there is substance in them, the applicant will, no doubt, look to the possibility of making a further application to the Industrial Registrar for an inquiry into those allegations. The order of the Court is that the purported application for an inquiry is dismissed. to Cote dera AP teaeenng Cooef fo De eet MO RAB EOS ne SUSTICE P+ Cred Mbrs—(— S-Xocate — Dated ass7 noveme@ez (987