— eee te SF nen ee Cece | fiofae CLY ieee are nere djzcugr LP) TFASIA. a < aoe ne ee RAT Mat lg a a LS al Ea RN a NE TEL utente Parana ES ten Papasan ttn eli a eal 4mm 2danin—e de de le BL, e Fela date mele ed te he aes earns etenye tot 2. Bee , ee ee ete IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY No. 9 10 of 1985 INDUSTRIAL DIVISION IN THE MATTER of an application by DUDLEY BRAILEY for an inquiry into an election in the FEDERATED LIQUOR AND ALLIED INDUSTRIES EMPLOYEES UNION OF AUSTRALTA JUDGE: GRAY J. DATE: 15TH OCTOBER 1985 EX TEMPORE REASONS FOR JUDGMENT On 29th July 1985, the Industrial Registrar referred to the Court an application by Dudley Brailey, dated 18th July 1985. That application is made under Part IX of the Conciliation and Arbitration Act 1904. It seeks an inquiry into elections for a mumber of offices in the Queensland Branch of the Federated Liquor and Allied Industries Employees Union of Australia. I shall endeavour to summarize the irregularities alleged in that application. In the first place, Mr. Brailey complains that the material distributed in support of certain candidates in the election describes Mr. Brailey as having been guilty of divisive bone Meee ete "a, o. o,7 PLU? Wee et bo al ae Mae rae vale Ii -2- and disruptive conduct and as having acted in opposition to the branch secretary. Mr. SBrailey contends that those descriptions are misleading and likely to cause people not to vote for him. The second complaint is that certain candidates issued election material describing themselves as the "Official Unity Team". It is contended that such an application is misleading, in that it anvolves claims of sponsorship which the candidates did not have, that sponsorship being sponsorship by or on behalf of the organization itself. After directions had been given, and by a later affidavit filed on 25th September 1985, Mr. Brailey sought to raise a further area of alleged irregularity. This was the contention that certain persons: ",..had access contrary to law to the resources and facilitzres of the Federated Liquor and Allied Industries Employees Union, (Queensland) Branch, such as Cars, Office Equipment, and Phones and by reason thereat the funds of the said Union as well as the utilizaticn of staff members and candidates of the Official Unity Team who had the opportunity to canvass votes in the course of their employment and/or their duties whereas the use of resources and facilities was denied to (Mr. Braileyl." Several subpoenas have been issued out of the Court seeking documents which, by their descriptions in the subpoenas, would appear to be relevant to the last mentioned area of irregularities. Certain named parties - Mr. Elton, Mr. Dummett, Mr. Livingstone, Mr. Hardie, and Mr. Hamilton - have failed a notice ft j i q i] : ee toe De ee a A anol oe ony ie eat a Bigcheese a Me Nd a Oe Sal EY a Eb eee Rte -3- of motion on 7th October 1985, seeking a number of orders with respect to the proceedings. In substance, what is claimed on behalf of those persons is that the complaints made in the original application are not complaints of irregularities within the meaning of that term in s. 4 of the Conciliation and Arbitration Act 1904. The notice of motion also raises the question of the validity of Part IX of the Concriiatzon and Arbitration Act 1904, the allegation being that that Part purports to vest in this Court jurisdiction which 1s not part of the judicial power of the Commonwealth, nor incidental Gr ancillary thereto. Certain of the questions raised enter upon the field which was the subject of a decision of this Court 1m Re Adamson; Application for an Inquiry into an Election in Amalagamated Metals Foundry and Shipwrights' Union (No. 2) (1984) 57 A.L.R. 280. In that case, the Court was compelled to look at the question whether misleading conduct in certain respacts might amount to an irregularity for the purposes of Part IX of the Act. In a subsequent proceeding in that case, the Court also held that the conduct of an inquiry into an election under Part IX of the Act is an exercise of the judicial power of the Commonwealth. See Re Application by Adamson for an Inquiry into an Election in the Amalgamated Metals Foundry and Shipwrights Union (Federal Court of Australia, Gray J., 17th dune 1985, unreported). Those two questions have now been taken up in proceedings in the High Court ef Australia, in which judgment has been reserved. coe 5 aoe ~ oan eee nes mets age Pe "*, 2. os 1s . 1 ppd, ey Ce Sr et A teatime Sok mew Tae Fe ! tiated i, aa -4- d i One additional factor which has occurred since the first As a 4 of the Adamson decisions, to which I have referred, 1s the £ decision of this Court in Re Bragg and Australasian Society of Engineers (South Australian Branch) (1985) 60 A.L.R. 136. That case dealt with the question of the meaning of irregularity, and whether 1t extended to the giving out of misleading electoral propaganda. 4 It 1s my view that, having regard to the subsequent i decision of the Court in the Bragg case and to the pending 1 judgment of the Hagh court cf Australia in the Adamson case, this Court ought not presently to proceed with the inquiry so Far as it depends upon questions of misleading electoral propaganca. In : other words, the criginal complaints of the applicant in his application ought to be put over until such time as the Court has : the benefit of the judgment of the High Court in the Adamson case, if that is possible. Of course, if delay is too great, then the Court can a deh easily relist this matter for hearing. This case is not a case un which delay appears to cause considerable damage either to the organization itself, or its branch, or to any person involved. The Court has been informed that none of the offices the subject of the inquiry is a full-time office. Therefore, no person is being paid a salary to which he or she might not be entitled, or not being paid a salary to which he or she might be entitled, by reason of any delay. It has not been shown that the organization or its branch would suffer in its administration by having the { i : J persons who were elected conduct its business. = eee ath wot te duddnn ee tat ae a ns mb ek me Bone nmr Scab eee leet " . - ve Se ta ci ATE NE St be a Ce EE - 5 - So far as the other area of irregularity is concerned, it is also my view that I should adjcurn the anguiry with respect to that. I reach that conclusion for two reasons. The first 1s that I am not satisfied that adequate notice has been given to those who have made themselves respondents to the inquiry of the precise nature of the allegations that have been made. Two affidavits were apparently filed in Court last Friday, 11th October 1985, with respect to those matters. Having looked at those affidavits, I find that they do somewhat less than is desirable to make plain the nature cf the allegations involved. It is only fair that those who have to answer those allegations should have a proper opportunity to do so. The other reason 1s that, if the Court were to embark upon an inquiry into those allegations, no doubt the subpoenas with respect to them would be called Gon immediately. Mr. Madgwick, who appears for the respondents, has informed the Court that the question of judicial power would then be raised. Even though that question may not be resolved, or he resolved completely, by the judgment of the High Court in the Adamson Gase, it is inmy view likely to be a question which is less troublesome in the event of an adjournment than is the case at the present time. For those reasons, I propose to adjourn this inguiry, giving liberty to any party to apply on seven days' written notice to each other party. I certify that this and the 4 preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Gray. Associate: MN conl—4 g fu 8s