Q44 CATCHWORDS INDUSTRIAL LAW - Mandatory injunction - Rule change empowering Council of Association to affiliate with ACTU - Rule change allegedly passed in non-compliance with mandatory procedural requirements - Alleged non-compliance of Rule with section 140(1)(c) of Conciliation and Arbitration Act 1904 - Alleged non-compliance of affiliation resolution with requirements of Rules - Strong case for invalidity of failure to comply with procedural requirements - Mandatory injunction to preserve status quo - No continuing obligation - Balance of convenience favouring grant of mandatory injunction. Conciliation and Arbitration Act 1904 ss.140, 141 NSW I.19 of 1987 IN THE MATTER of the Conciliation and Arbitration Act, 1904. AND IN THE MATTER of an Application under Sections 140 and 141 of the Act. JOHN LOCKWOOD LAWRENCE v_ PORTER & ORS, SWANCOTT & ORS and THE AUSTRALIAN JOURNALISTS ASSOCIATION French J Sydney 18 May 1987 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. NSW 1.19 of 1987 meer ee ee INDUSTRIAL DIVISION IN THE MATTER of the Conciliation and Arbitration Act, 1904 AND IN THE MATTER of an Application under Sections 140 and 141 of the Act BETWEEN: JOHN LOCKWOOD LAWRENCE Applicant AND: PORTER AND OTHERS First to Twelfth Respondents SWANCOTT AND OTHERS Thirteenth to Fifty Second Respondents THE AUSTRALIAN JOURNALISTS ASSOCIATION Fifty Third Respondent CORAM: FRENCH J PLACE: SYDNEY DATE: 18 MAY 1987 MINUTES OF ORDER THE COURT ORDERS THAT: The Federal Secretary, being the Fourth named Respondent herein, forthwith send an urgent telegram on behalf of the Australian Journalists Association to the Secretary of the Australian Council of Trade Unions ("ACTU") in the following terms: "On behalf of the Australian Journalists Association I hereby withdraw the application for affiliation to the ACTU made in my letter of 30 April 1987 and request the repayment of the sum of $5,934.20". The Respondents other than the Australian Journalists Association refrain until further order, or the hearing and determination of the substantive application, from taking any action in reliance upon or consequential upon the resolution passed by the Federal Council on or about 3 April 1987 that the Australian Journalists Association affiliate with the ACTU. Upon the Respondent undertaking to proceed forthwith to apply for leave to appeal against this decision to the Full Court and upon the Respondents undertaking that it will require the ACTU Executive to defer consideration of the affiliation application until Thursday 21 May 1987, the operation of these orders will be stayed until 5pm on Wednesday 20 May 1987. 4. Costs reserved. 5S. Liberty to apply. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY INDUSTRIAL DIVISION BETWEEN: AND: CORAM: FRENCH J PLACE: SYDNEY DATE: 19 MAY 1987 No. NSW I.19 of 1987 IN THE MATTER of the Conciliation and Arbitration Act, 1904 AND IN THE MATTER of an Application under Sections 140 and 141 of the Act JOHN LOCKWOOD LAWRENCE Applicant PORTER AND OTHERS First to Twelfth Respondents SWANCOTT AND OTHERS Thirteenth to Fifty Second Respondents THE AUSTRALIAN JOURNALISTS ASSOCIATION Fifty Third Respondent REASONS FOR JUDGMENT On 3 April 1987, by a postal ballot, the Federal Council of the Australian Journalists Association resolved to seek affiliation of the Association with the Australian Council of Trade Unions ("ACTU"). Pursuant to that resolution the Secretary of the Association wrote to the Secretary of the ACTU on 30 April 1987 applying for affiliation and enclosing a cheque for $5,934.20 to cover fees for the first six months of that affiliation. The ACTU Executive in Perth meets in the week commencing Monday, 18 May and at that meeting will consider the Association's application for affiliation. The Association is an organisation of employees registered under the Conciliation and Arbitration Act 1904. One of its members, John Lawrence, its Federal President between 1973 and 1986, has formed the view that actions of the Federal Council leading up to and including the passing of the affiliation resolution are in contravention of the constitution of the Association and contrary to the will of its members as expressed in successive plebiscites. Background to Proceedings On 1 May 1987 Mr Lawrence instituted proceedings in this Court seeking various orders under ss.140 and 141 of the Conciliation and Arbitration Act 1904. On that day a Rule to Show Cause was made by Beaumont J returnable on 7 May 1987. The respondents then named in the application were the principal office bearers of the Association and members of its Federal Executive. The Federal President was separately named as representative of the members of the Federal Council. The Association was also named as a respondent. Interlocutory relief was sought to restrain the President and Executive from taking any further steps in pursuance of any decision, direction or resolution of the Federal Council on the question of affiliation. When the matter came on before Beaumont J on 7 May the claim for interlocutory relief was not heard. However directions were given which, among other things, gave the applicant leave to join further respondents and consequential directions as to filing and service of the amended rule and further affidavits. In the event the applicant has joined the members of the Federal Council as respondents. A notice of motion seeking interlocutory relief together with a copy of the order of Beaumont J and an affidavit sworn 12 May by Lawrence were delivered to the offices of the Association at 3 pm on that day by way of service on the additional respondents. A covering letter advised that the motion was listed for 2.15 pm on 13 May. The solicitors on record for the respondents originally named were also served with copies of the same documents. The matter came on before me at 2.15 pm on 13 May. Mr Kenzie QC appeared for the applicant. Mr Shaw QC appeared for the original respondents and opposed the preliminary application for an order abridging time for service. I made the order to enable the matter to commence on 13 May on the basis that time would be made available on 15 May to continue the argument so that Mr Shaw had an opportunity to properly address the issues raised on the motion. When the matter resumed on 15 May at 10.15 am Mr Shaw indicated that he now represented the respondents listed on the application with the exception of Brad Turner, Bob Beatty, Rada Rouse, Liz Fell, Arthur Gorrie, Des Driberg and Will Atkins. There had evidently been some difficulty in communicating with these people. In my opinion however all relevant interests were sufficiently represented to enable one to hear and determine the motion for interlocutory relief. The Relief Sought By his notice of motion the applicant sought an order directing the Federal Secretary to send a telegram on behalf of the Association to the Secretary of the ACTU withdrawing the application for affiliation and requesting repayment of the affiliation fees. He also sought orders substantially to the effect that the respondents take no further steps in pursuance of the affiliation resolution of the Federal Council. Having heard argument on the 13 and 15 May 1987 I delivered my decision at 3.15 pm indicating my preparedness to grant injunctive relief. The matter was then stood over to 9.30 am on Monday 18 May in order to enable to respondents to consider the practicability of a request to the ACTU to defer consideration of the affiliation application until the determination of the substantive application herein. In the event and after hearing further argument on Monday 18 May I made certain orders which are attached to these Reasons and granted the stay to enable the respondents to urgently seek leave to appeal to the Full Court. These Reasons are published in relation to the decision and orders made on 15 and 18 May. Historical Background to the Affiliation Resolution The issue of affiliation with organisations of the trade unions is one of respectable antiquity in the history of the Association. It was debated in the 1920's and again in the early 1940's. In 1944 a national plebiscite of members voted against the proposal for affiliation, 843 votes to 389. Another such plebiscite in 1956 rejected affiliation by 1344 votes to 624. In 1973 a third plebiscite yielded 2409 "No" votes to 1083 "yes" votes from a membership said to be 6853 in total. In 1980 the question was again put to members of the Association and again it was answered in the negative with 2343 against affiliation and 1707 in favour. In 1984 a similar proposal was defeated, 2772 votes to 1790. In each case the question put to the plebiscite was, according to Mr Lawrence, to the effect: "Are you in favour of the AJA affiliating with the ACTU?" This characterisation was not disputed and I accept it for present purposes as stating the substance of the question as put on those occasions. It is against this background that the question of affiliation came before the meeting of the Federal Council held in Bronte in New South Wales between 2 and 7 November 1986. The November Meeting of Federal Council On 22 September 1986 a three page Business Paper for a meeting of the Federal Council of the Association to be held on 2 November 1986 was circulated to branches of the Association. It contained no reference to any question of affiliation with the ACTU. Delegates to the Council meeting were given another 11 pages of the Business Paper on their arrival in Sydney on 1 November, No issue of affiliation with the ACTU was mentioned on these additional papers. There was notice of a motion from a West Australian delegate to amend a rule of the Association so that a branch, sub-branch or division might affiliate with a Trades and Labour Council in its territory if a majority of financial members at a general meeting so determined. This motion however was not debated. One of the agenda headings on the original Business Paper was designated "Acceptance of Urgent Business". The minutes of the Federal Council meeting record that under that heading 2 delegates, Messrs Swancott and Phillips moved and seconded a motion: "That the following items of urgent business be accepted for consideration at a later stage by Federal Council." There then followed a list of items UB-(1) to UB-(18). One of those items, number UB-(8) was as follows: "affiliation That Federal Executive be authorised to arrange a national plebiscite on AJA affiliation to the ACTU during 1987." The motion for acceptance of that and the 17 other items as urgent business was recorded in the minutes as "Carried with the required majority". The required majority under the provisions of Rule 8(b) was "60 per cent of total delegates". "The mover of the motion the subject of item UB-(8) was shown as a Mr Donohoe. The minutes record that subsequently Mr Donohoe was given permission to move the motion standing in his name in the following form: "That Federal Executive be authorised to conduct a national plebiscite on AJA affiliation to the ACTU between now and the 1988 Federal Council and that this Federal Council supports the principle and acknowledges the benefits of AJA state branches affiliating to their respective Trade Hall Councils. Further that the AJA make a donation of $2,000 in 1986 and 1987 to the ACTU in recognition of their assistance in superannuation, wages, occupational health and other matters." An amendment to the motion was moved and accepted by the mover and seconded, that being: "The Federal Executive be instructed to plan a comprehensive national information campaign among the membership as a pre-requisite to such a plebiscite." On a further motion however consideration of the proposal was adjourned pending a report from a sub-committee comprising Messrs Swancott, Warren and Donohoe. The question of affiliation was raised at the continuation of the Council meeting on 5 November when the following resolution moved by Mr Harriden and seconded by Mr Swancott was carried: "1. THAT a new Rule 57(a) be inserted to read as follows: 10. 'Notwithstanding anything to the contrary in these Rules, Federal Council, a Branch or Sub-Branch shall be authorised to affiliate with any industrial organisation or peak body of bona fide trade unions.' 2. Amend Rule 57(c) by deleting the first sentence and by inserting the following: 'A Branch or Sub-Branch may only affiliate with a Trades and Labour Council in its territory after receiving consent from Federal Council.' 3. Renumber Rules 57(a), (b), (c), (d), (e) and (f) accordingly." A further motion also brought under the head of Urgent Business was moved by Mr Donohoe and seconded by Mr Baker and was carried in the following terms: "THAT Federal Council authorises Federal Executive to consider and arrange, if determined, a plebiscite on AJA affiliation to the ACTU between now and the 1988 Federal Council. THAT this Federal Council instructs Pederal Executive to co-ordinate, before any plebiscite, a comprehensive information campaign among the membership on the benefits of affiliation to the ACTU. THAT Federal Council declares that AJA branches should affiliate with their respective Trades Hall Councils in keeping with the objects of the AJA Rule 3(a)(3). To enable Federal Executive to arrange the timing for a plebiscite, in Rule 56(c) add the words 'instruct Federal Executive to' after 'if Federal Council decides to take a plebiscite it shall'. Delete 'instruct Federal Executive' from Rule 56(c)(2). THAT the AJA make a donation of Two thousand dollars in 1986 and two thousand dollars in 1987 to the ACTU in recognition of its assistance on superannuation, wages, occupational health and safety and other matters." ll. On 24 November 1986 the then secretary of the Association lodged with the Deputy Industrial Registrar of the Conciliation and Arbitration Commission a statutory declaration setting out various changes to the rules effected by the Federal Council meeting including the alteration to Rule 57. In the declaration at para.8 it was said that all changes, with certain immaterial exceptions there stated, "were considered by Federal Council in conformity with Rule 7(k)". Rule 7(k) which will be considered later, relates to the requirement to give to Council delegates notice of items of business to be discussed at meetings of Federal Council. The Deputy Registrar evidently consented to the changes as required by s.139 of the Act. The Affiliation Decision It does not appear from the evidence that any further step was taken pursuant to the resolutions of the November meeting of the Council until 16 March 1987 when a document entitled "Circular/Memo" under the letterhead of the Association and over the name of the Federal Secretary was circulated to delegates. 12. It appeared from the circular that at a meeting of the Federal Executive of the Association held in Brisbane, the Executive had resolved to propose to the Council that it consider affiliation with the ACTU. ' Reference was made to rules of the Association, specifically rule 7(m) providing for special meetings of the Federal Council to deal with urgent matters provided 75% of the delegates considered such a meeting warranted. The circular also invoked rule 7(0) allowing for decisions of special meeting of the Federal Council to be made by postal or telegraphic vote. It went on to advise delegates of two questions thereby submitted to Federal Council and to be answered by postal vote: "1. Do you agree that a decision of Federal Council should be taken by postal vote on the urgent matter of ACTU affiliation? 2. If more than 75% of members of Federal Council vote 'Yes' on question 1, do you agree that Federal Council should immediately seek affiliation with the ACTU in accordance with rule 57(a)?" A ballot paper was attached to each circular. The circular went on to outline the reasons for which the Federal Executive considered affiliation to be imperative. 13. The affidavit of the present Federal Secretary, Mr Warren, indicates that the postal vote answered the first question in the affirmative, 38 votes to 9 and the second also in the affirmative, 37 to 10. The vote in favour of a postal ballot exceeded the a required 75% of delegates by one vote. Pursuant to the vote, Mr Warren wrote to the Secretary of the ACTU on 30 April 1987 applying to affiliate the Association and enclosing a cheque for $5,934.20 by way of fees for the first 6 months. Before considering the applicant's objections to the course taken by the Federal Council it is necessary to refer to the constitution, objects and rules of the Association as they presently stand. Constitution and Rules of the Australian Journalists Association The Constitution and Rules of the Association set out its objects in Rule 3 which include: "(1) act for members in any matters whatsoever connected with their calling; (2) uphold and defend the professional interests, status and rights of members and the usages and customs of journalists; (3) safeguard and advance the remuneration and conditions of employment and industrial rights and welfare of members." 14. Control and management of the Association is referred to in Rule 5 in the following terms: "5. ~- CONTROL AND MANAGEMENT Supreme control of the Association shall rest with financial members voting by plebiscite. The governing body shall be Federal Council, with complete authority over policy, management, and all affairs of the Association. The general administration of the Association shall be vested in Federal Executive, and through it, Federal Management Committee, which shall run the day to day affairs of the Association. The membership of the Association shall be divided into Branches and/or Divisions to one of which each member shall belong. A branch shall have authority to act for its members within the scope of these rules and in accordance with decisions of Federal Council and/or Federal Executive. Financial members voting by ballot shall be the highest authority of a branch. The management of a branch shall be vested in a branch committee. Branch members residing in defined areas of a branch may be divided into Sub-Branches and vested with authority to act in accordance with these rules and under control of the Branch. A group of Branch members may be formed into a Section with authority to advise and assist the Branch Committee. A group of members employed within an office may elect a house committee in consultation with the Branch Committee." Rule 6 describes the authority of the Federal Council in terms which include the following: "(a) The governing body of the Association shall be Federal Council which shall have complete authority over policy, Management and all matters concerning the Association and/or its members. It shall have authority to take any action it considers necessary or desirable on policy, management or any matter concerning the Association and/or its members and specially to - 15. (1) determine, direct, alter, enforce and protect the policy of the Association in relation to the industrial and/or professional welfare of members; (2) amend, rescind or take any action concerning the Constitution, Objects and Rules of the Association; (4) submit any matter or question for opinion or decision by plebiscite to all financial members or by ballot to a portion of financial members; (14) delegate any of its authority or business to Federal Executive, to Federal Management Committee, a Branch, Sub-Branch, Division, an officer, a member, or any other person. A decision of Federal Council shall be final and binding throughout the Association and shall remain in force until superseded, amended or rescinded (a) at a subsequent meeting of Federal Council; or (b) by decision reached by plebiscite." The Council is composed of a Federal President, two Federal Vice Presidents, the Federal Secretary, the Assistant Federal Secretary and the President and Secretary of each branch and additional delegates for each branch. Entitlement to branch representation is by para.(g) of Rule 6, a function of the branch membership provided that each branch is entitled to a minimum of two delegates. Rule 7 deals with meetings of the Federal Council and in particular provides in relation to the biennial meeting: 16. "(j) Acceptance of any matter for the business paper of Biennial Federal Council shall close at 5 pm on October 15 of the year in which Biennial Federal Council is to meeting (sic). Any matter other than reports shall be in the form of substantive motions. Matter may be placed on the business paper by Federal Executive, Federal Management Committee, a Branch or by any Federal Council delegate, provided that it conforms to the requirements of this rule. All matter for the business paper shall be submitted in writing to the Federal Secretary on or before the date mentioned in this rule. Provided that, where a biennial meeting is to be held, pursuant to rule 7(g) in the first quarter of an odd numbered year, acceptance of any matter for the business paper shall close at 5.00 pm fifteen (15) days before the date set for the opening of the meeting. (k) The Federal Secretary, in consultation with Federal Management Committee, shall as soon as is practicable after October 15 (or such other date ag may be fixed pursuant to rule 7(j)) co-ordinate the items of business received pursuant to rule 7(j) and have copies made for distribution to each Federal Council delegate at least ten (10) days before the meeting of Federal Council begins." Special Council meetings are dealt with in paras.(m) to (o) as follows: "(m) A special meeting of Federal Council may be held to deal with an urgent matter connected with the Rules provided that at least 75 per cent of Federal Council delegates consider the matter urgent enough to warrant a special Federal Council meeting. A special meeting of Federal Council shall be held in the event of the removal or suspension of a Federal officer under the provisions of Rule 50A. (n) When 75 per cent or more of Federal Council delegates consider a Special Federal Council is warranted under rule 7(m), or when a Federal Officer is removed or suspended from office, the Federal Secretary (or Federal President) 17. shall give each delegate and each Federal officer at least 72 hours notice of the meeting. The notice shall set out the place, date and time of the meeting and business which is to be submitted to the meeting. (o) Where appropriate, decisions of a Special Meeting of the Federal Council may be made by postal or telegrahic vote provided that reasonable notice of the matter or matters for decision has been given to all members of Federal Council. Matters may only be submitted to such a meeting by the Federal Executive or Federal Management Committee." I observe in passing that the concept of a "meeting" does not sit easily with the provision for a postal ballot where there is no mechanism provided for debate or exchange of views in the discharge of a deliberative function. The bringing forward of urgent business at meetings of the Council is regulated by Rule 8 which provides, inter alia: ""(a) When a delegate to Federal Council wishes to bring forward as urgent business any matter of a substantive nature not on the business paper of a Biennial Federal Council meeting, written notice shall be given to the Chairman. The Chairman shall read it aloud and then ask Council to decide whether the nature of the matter is, in its opinion, sufficiently urgent to be dealt with by the meeting. (b) Unless delegates representing at least 60 per cent of total delegates vote in favour of the matter being accepted for consideration later, its merits shall not again be brought before the meeting. When Council accepts any matter as urgent business it shall then determine its place on the business paper." 18. Rule 15 describes the authority of the Federal Executive in the following terms: "Authority (a) Federal Executive shall be the authority to administer and manage the affairs of the Association when Federal Council is not in session. It shall not prevent Branches from conducting their own affairs within the Rules, and shall wherever possible consult Branches before initiating or determining any question involving major policy. Federal Executive may exercise any of the powers of Federal Council except the power to - (1) add to, amend or rescind the Constitution, Objects and Rules of the Association; or (2) act contrary to or alter or revoke any decisions of Federal Council unless authorised to do so by reason of a majority decision by plebiscite of members. Decisions (b) All decisions of federal executive shall be binding throughout the Association and shall remain in force unless superseded, amended or rescinded by Federal Council or by a plebiscite of members of by a subsequent meeting of Federal Executive." The membership of the Association is divided into Branches and each member is attached to a particular Branch (Rule 20(a)). Decisions of a general meeting of a Branch are binding throughout the Branch "unless superseded, amended or rescinded by a subsequent General Meeting or by decision of Federal Council or Federal Executive or by a decision of a plebiscite or ballot of members" (Rule 20(g)). 19. Plebiscites are provided for in Rule 56. The ways in which a plebiscite may be initiated are set out in para.(a) as follows: "(a) A plebiscite of all financial members of the Association may be taken - (1) by resolution of Federal Council in session or by a decision under rule 17; (2) at the request of at least two Branches in accordance with clauses (e), (£), (gq) and (h) of this rule." Paragraph (f) limits the time within which two or more Branches may request a plebiscite on any decision of Federal Council to 14 days from the close of the meeting at which the decision was made. There follow quite detailed provisions regulating the conduct of a plebiscite including the form in which questions are to be put in the ballot paper, the printing of voting papers, the issue thereof and the return and counting of votes. N Rule 57 dealing with affiliation and representation provides, inter alia: "(a) Notwithstanding anything to the contrary in these Rules, Federal Council, a Branch or sub-Branch shall be authorised to affiliate with any industrial organisation or peak body of bona fide trade unions. 20. (d) A Branch or sub-Branch may only affiliate with a Trades and Labour Council in its territory after receiving consent from Federal Council. Representation of a Branch, Sub-Branch or Division affiliated with a Trades and Labour Council shall not take part or vote in any political discussions at a Trades and Labour Council unless and until the Committee or a General Meeting of the Branch, Sub-Branch or Division has determined what attitudes or action the representatives should take. (e) A Branch, sub-Branch, Division or Section shall not affiliate with or be represented on any other organisation, cause or movement unless Federal Council Or Federal Executive has granted approval. (f) Federal Council or Federal Executive may approve of any Branch, sub-Branch, Division or Section being affiliated with or represented at any organisation, cause or movement to deal specifically with: (1) protection of freedom of speech or of the press or of civil liberties in so far as they affect members of the Association in their calling; (2) promotion of cultural and educational activities which are of value to members of the Association in their calling; (3) industrial matters which are in harmony with the objects and industrial aims of the Association." I accept that Rule 61 makes clear that the notice requirements for ordinary meetings and the special majority requirement for urgent business to be considered by Federal Council are mandatory in relation to alterations to the Constitution. 21. The Validity of the Amendments to Rule 57 The applicant first attacks the validity of the amendment to Rule 57 passed at the Biennial meeting of the Federal Council in November. For it is that amendment which by the new para.(a) would authorise the Council to affiliate the Association with "a peak body of bona fide trade unions". The applicant alleges that the Federal Council in passing the amendment did not comply with procedural requirements of the Constitution. The question of an alteration to the Rules relating to affiliation was not mentioned in the business paper as required by Rules 7(j) and 7(k) of the Constitution. The only way therefore in which the matter could be brought before the Federal Council was as urgent business under Rule 8. The question relating to affiliation which was accepted as an item of urgent business under that Rule was a proposed resolution designated item UB-(8): "THAT Federal Executive be authorised to arrange a national plebiscite on AJA affiliation to the ACTU during 1987." No specific consideration was given under the provisions of Rule 8, to the proposal later moved under that head whereby the Council would be given direct authority to affiliate the Association. 22. Rule 8 authorises the Federal Council to consider as urgent business "any matter of a substantive nature not on the business paper" where a constitutional majority of 60 per cent accepts the matter for such consideration The threshold requirements of a special majority and separate consideration of the question whether the proposed urgent business should be dealt with at all reflect the importance placed by the Constitution on a departure from the notice provisions of Rule 7. The importance of such a departure 1s emphasised in the case of proposed Rule changes by the provisions of Rule 61 which make mandatory the requirement for compliance with either Rule 7 or Rule 8. For the respondents it was submitted that once a matter is properly accepted as urgent business, any question having a sufficient relevant rational connection with it may be considered as a part of that urgent business. What comes within the scope of a matter accepted as urgent busines will necessarily involve evaluative judgment. In my opinion however there is prima facie a significant distinction between a resolution seeking to authorise the Federal Executive to conduct a plebiscite on the 23. question of affiliation and a resolution which confers on the Federal Council power to effect affiliation without a plebiscite. The two resolutions on the face of it do radically different things. The distinction is sharpened with the recognition that the resolution accepted as urgent business proposes to put in motion the decision-making process of a plebiscite. The resolution passed effects a change in the Constitution. It is also in my view appropriate to consider the significance of the distinction between that which was accepted under Rule 8 and that which was ultimately passed, against the background of a history over 40 years of plebiscites rejecting affiliation proposals. In my opinion the applicant has made out a strong case for the proposition that the amendment to Rule 57 was passed in breach of mandatory procedural requirements of the Association's Constitution. It follows, if that view 1s correct, that the Federal Council did not have authority in the face of a recent plebiscite to the contrary to arrogate to itself the decision to affiliate the Association with the ACTU. It may be said that the Federal Council which voted on the rule change was the same Federal Council empowered to accept matters as urgent business. 24. The number of delegates attending the meeting at the time the rule change proposal was put and the extent of the majority in favour of it at that time does not appear from the record. In the end however it is difficult to see how the position could be altered even had there been a unanimous vote in favour of the rule change. It was also put on behalf of the applicant that the rule change if passed in accordance with the requirements of the Constitution would contravene the requirements of para.140(1)(c) of the Conciliation and Arbitration Act. That provision 1s in the following terms: "140(1) The rules of an organisation -- (c) shall not impose upon applicants for membership, or members, of the organisation, conditions, obligations or restrictions which, having regard to the objects of this Act and the purposes of the registration of organisations under this Act are oppressive, unreasonable or unjust; ..." Reference was made to the ojbects of the Act as set out in s.2 and in particular para.(f): "to encourage the democratic control of organisations so registered and the full participation by members of such an organisation in the affairs of the organisation." 25. Accepting that the question whether Rule 57(a) complied with this requirement must be answered with an evaluative judgment, counsel for the applicant pointed to the important role of direct membership control through plebiscites and otherwise under the provisions of the Constitution. He also pointed to the history of plebiscites on the question of affiliation which tend to indicate that the question is one of fundamental importance to the members. Counsel for the respondent on the other hand referred to the recent broadening of the democratic base of the Federal Council, the fact that all branches are represented on it and the fact that any two branches can, within 14 days of a Federal Council decision, requisition a plebiscite on it (Rule 56(f£)). In my opinion there may well be a serious question to be tried on this issue but the applicant does not have such a clear prospect of success as would be necessary to justify on this point the unusual course of issuing a mandatory injunction -- State of Queensland v Australian Telecommunications Commission (1985) 59 ALUJR 562. It was also contended for the applicant that the postal resolution in favour of a special meeting was invalid as the subject matter was not, as required by Rule 7(m), "an urgent matter connected with the Rules" (emphasis added). 26. Again while accepting that there could be an arguable case on this point it does not clear the threshold necessary to attract the grant of a mandatory injunction. The respondents contend against the grant of a mandatory injunction in any event on the basis that affiliation is reversible if the applicant should ultimately succeed. On the other hand if affiliation cannot be effected at the pending ACTU Executive meeting in Perth then the Association will, by virtue of the ACTU rules, be unable to participate in its 1987 Congress in September. Evidence was given of various pressing issues facing both print and media journalists on whicn it was said to be desirable that the Association, as an affiliate of the ACTU, have effective input to its policy-making process. The extent to which these issues do indeed require the urgent affiliation of the Association is controversial. The question whether the Association should be affiliated to the ACTU is and has been through the history of the Association, one of fundamental importance. It goes in the perception of some of the members as disclosed in records of plebiscite debates to the question of the nature and objects of such an Association. 27. The step of afffiliation once taken and even if later reversed may rightly be seen as one of great symbolic importance to many of the Association's members. To say that is to make no comment on the merits of affiliation. Indeed the present applicant says he is is favour of affiliation provided that decision is made in accordance with the Constitution. Nor do these observations involve any judgment on the propriety of a mechanisms whereby the Federal Council itself is authorised to make the decision. The importance of the issue tc the membership of the Association suggest that if a strong case has been made out that the Federal Council lacked authority to make the affiliation decision then that decision should not be implemented until its validity has been properly tested. Further although the injunction sought in paragraph 1 of the motion is mandatory in nature it has the effect of preserving the status quo and does not impose any continuing positive obligation on the respondents. Conclusion In my opinion and for the above reasons the applicant has demonstrated that there is a substantial prospect of success for his attack upon the validity of alterations to 28. Rule 57(a) in so far as that attack is based upon a failure to comply with the mandatory procedural requirements of the Constitution of the Australian Journalists Association. How high those prospects must be to support the grant of mandatory injunctive relief depends upon the precise nature of the relief and the extent and nature of the inconvenience on either side according to whether the relief is granted or withheld. While it appears that the step of affiliation once effected may be undone, that step if taken, will be of substantial symbolic importance to members of the Association who have in the past repeatedly rejected it in plebiscites stretching over 40 years. In my opinion the prospects of success are sufficiently high to support a mandatory order to halt the process of affiliation pending the final determination of these proceedings or until a further order is made. A fortiori an ancillary restraint along the lines of that set out in paragraph 3 of the notice of motion is also justified. Having regard to Mr Kenzie's invitation to the respondents to request the ACTU Executive to defer consideration of the application for affiliation until the outcome of these proceedings, I heard from the parties as to 29. whether a mandatory order requiring the respondents to do no more than that and thereby to preserve the position of the Association with respect to the 1987 Congress would be sufficient. Counsel for the respondents however advised the Court that if the affiliation decision were deferred beyond Thursday 21 May 1987, the last day of the ACTU Executive meeting in Perth, then the Association would be unable to participate in this year's Congress. In the event and after hearing further argument [I decided to make orders in the form of the Minutes attached to these reasons incorporating a stay order to enable the respondents to seek the leave of the Full Court to appeal from my decision. I certify this and the twenty-eight (28) preceding pages to be a true copy of the Reasons for Judgment of his Honour Mr Justice French. Associate: Marth Ya . Date: 19 May 1987 Counsel for the Applicant: Mr RC Kenzie OC with Mr M F Moore Solicitors for the Applicant: R L Whyburn & Associates Counsel for the Respondents: Mr J W Shaw QC with Mr J W Nolan Solicitors for the Respondents: Turner Freeman Date(s) of hearing: 13 and 15 May 1987 IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. NSW I.19 of 1987 ) ) INDUSTRIAL DIVISION IN THE MATTER of the Conciliation and Arbitration Act, 1904 AND IN THE MATTER of an Application under Sections 140 and 141 of the Act BETWEEN: JOHN LOCKWOOD LAWRENCE Applicant AND: PORTER AND OTHERS First to Twelfth Respondents SWANCOTT AND OTHERS Thirteenth to Fifty Second Respondents THE AUSTRALIAN JOURNALISTS ASSOCIATION Fifty Third Respondent CORAM: FRENCH J 7 PLACE: SYDNEY \ DATE: 19 MAY 1987 CORRIGENDUM FEDe a Fergie | oy Reus or 0 Correction to the Reasons for Judgment of his Justice French of 19 May 1987: page 20 Immediately before the last paragraph commencing with the words "I accept that Rule 61 ..." insert the following: "Rule 61 regulates the process by which the Constitution may be altered: '(a) The Constitution, Objects and Rules of the Association shall not be altered, amended, added to, or repealed, except by resolution of a meeting of Federal Council. (b) Any proposal to alter, amend, add to or repeal the Constitution, or Objects or any of the Rules of the Association shall not be considered by the Federal Council unless all members of the Federal Council have been given notice of the proposal in accordance with Rule 7(k), or unless the provisions of Rule 8(b) have been complied with.'" Associate: Mark parol, 19 May 1987