a t 1 p SA | " ! CATCHWORDS | | Industrial Law - registered organization - elections -. whether irregularities - duplicate ballot papers - electioneering at organization's expense - misleading voters | - blank envelopes instead of reply paid envelopes - ! inaccuracies in roll of voters - whether irregularities may have affected results - new ballot - interim orders. Conciliation and Arbitration Act 1904, ss.163(1), 164(4)(b), 165(1), 168(1) and (2) IN THE MATTER of an application by MICHAEL PATTERSON for an inquiry into elections in the ASSOCIATION OF RATLWAY PROFESSIONAL OFFICERS OF AUSTRALIA NSW No. 27 of 1986 16th June 1987 Gray J. Brisbane Rem See eee weer FT ee ee ee cee ee eee eee " ny L IN THE FEDERAL COURT OF AUSTRALTA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) NSW No. 27 of 1986 ) ) INDUSTRIAL DIVISTON IN THE MATTER of an application by MICHAEL PATTERSON for an inquiry into elections in the ASSOCIATION OF RAILWAY PROFESSIONAL OFFICERS OF AUSTRALIA JUDGE MAKING ORDER: GRAY J. DATE OF ORDER: 16th June 1987 WHERE MADE: Brisbane ORDER The Court having found that irregularities have occurred in or in connection with the elections for the offices of General Treasurer and General Secretary in the Association of Railway Professional Officers of Australia, and being satisfied that the results of the elections may have been affected by irregularities declares and orders: 1. That the ballot conducted in the elections for the offices of General Treasurer and General Secretary in the Association of Railway Professional Officers of Australia in and about September 1986 is void. Dd That James Vyner Enow has net been elected a= General jy an Treasurer in the Assec1ation af Railway Profession Officers of Australia. That John Pichard flilliam Pobertson has not been elected as General Secretary ain the Association of Railway Professional Officers of Australia. That the Industrial Registrar is directed to make arrangements for the conduct of a new ballot for the offices of: (a) General Treasurer, between the existing candidates. Michael Charles Patterson and James Vyner Snov, or such of them as wish to continue their candidature, and (b) General Secretary, between the existing candidates, Gregory Norman Woodward and John Richard Willzam Robertson, or such of them as wish to continue their candidature. That until the result of such new hallot is declared or further order: co os ores ee a rn oie en ae ae pare ooo a he s (a) (b) ta James Vyner Snow act in the office of General Treasurer in the Association of Railway Professional Officers of Australia; John Richard William Robertson act in the office of General Secretary in the Association of Railway Professional Officers of Australia. Liberty is reserved to any party to apply on 7 days notice in writing to each other party. -—aianiienes a erye ree ee ee ee ep er ee i oe eee ee ade eo ee IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSW No. 27 of 1986 INDUSTRIAL DIVISTON IN THE MATTER of an application by MICHAEL PATTERSON for an inquiry into elections in the ASSOCIATION OF RAILWAY PROFESSIONAL OFFICERS OF AUSTRALIA JUDGE: GRAY J. DATE: 15th June 1987 REASONS FOR JUDGMENT' On 27th October 1986, the Industrial Registrar referred to the Court an application for an inquiry into two elections aun the Association of Railway Professional Officers of Australia ("the Association"). The elections were for the offices of General Treasurer and General Secretary, both being offices at the federal level in the Association. The elections were conducted pursuant to s.170 of the Conciliation and Arbitration Act 1904 ("the Act"), by an officer of the Australian Electoral Commission. Nominations for the elections opened on 29th July 1986 and closed on 19th August. There were two candidates for each of the offices concerned. A ballot was therefore A NR OE Pe ee wry ee 7 . . sien rial) Pye conducted between lst September and 18th September. 1,683 ballot papers were issued and 581 of them were returned. On 29th September, the result was declared. For the position of General Treasurer, Michael Charles Patterson (the applicant). received 280 votes, James Vyner Snow received 291, and ten informal votes were cast. In the election for the office of General Secretary, John Richard William Robertson received 301 votes and Gregory Norman Woodward 269, with eleven informal votes. Mr. Snow and Mr. Robertson were therefore declared elected. It will be noted that the margins were eleven and thirty-two respectively. Prior to the declaration of the results, Mr. Snow had held office as General Treasurer, and Mr. Woodward as General Secretary. It is worth noting that the ballots were conducted in conjunction with ballots for other positions within the Association. The inquiry was heard on 26th, 27th and 28th May and 4th June. Although he had retained solicitors during the interlocutory stages of the proceeding, the applicant appeared in person throughout the inquiry. Mr. Woodward, the defeated candidate for the office of General Secretary, also appeared in person. Mr. Harris of counsel appeared for the successful candidates, Mr. Snow and Mr. Robertson. Mr. Bridge of counsel appeared for the Australian Electoral Commission. At the beginnning of the hearing, Mr. Harris also announced his appearance for the Association. There was some controversy between the applicant and Mr. Harris as to ae regi yree seqnereemen: whether Mr. Harris's instructing solicitors had authority to represent the Association. The controversy was resolved by Mr. Harris applying for and being granted leave on 28th May to withdraw from representing the Association. Thereafter, the Association was not represented, and was understood to take a neutral stance as to the outcome of the inquiry. Pursuant to s.165(1) of the Act, the task of the Court is to inquire into and determine the question whether any irregularity has occurred in or in connection with the subject elections. Section 4(1) of the Act contains a definition of "irregularity" in the following terms: ""Trregularity", in relation to an election or ballot, includes a breach of the rules of an organization or of a branch of an organization, and any act, omission or other means whereby the full and free recording of votes by all persons entitled to record votes, and by no other persons, or a correct ascertainment or declaration of the results of the voting is, or is attempted to be, prevented or hindered;" This definition is inclusive and not exclusive, so that the word "irregularity" comprehends such things as it would ordinarily mean, as well those specifically included. See R. v. Gray; Ex parte Marsh (1985) 157 C.L.R. 351, at pp.364-365. The applicant alleged a number of irregularities. It is convenient to deal with these allegations under separate headings. pee oe ae we wees were ion — a rr er Duplicate Ballot Papers As a result of an error, two ballot papers and two reply paid envelopes were sent to twenty-eight members of the Association. The error occurred as a result of the amalgamation in or about July 1986 of the former Port Augusta, Adelaide and Tasmanian branches to form the South Australia/Tasmania Branch. The names of sixteen people in Port Augusta and tweive in Tasmania were mistakenly included on two lists of members supplied to the Returning Officer, which were relied on in the preparation of the roll of voters. On 4th September, the Returning Officer discovered his error. He took steps to secure the return of the extra ballot papers by posting to each of the twenty-eight recipients of them a request to return a ballot paper or provide evidence of its destruction, together with a business reply paid envelope. As a result, the Returning Officer received twenty-one of the twenty-eight ballot papers. A further two recipients of them indicated that they had destroyed their ballot papers. The duplicate ballot papers were the subject of affidavits of Terrence Raymond Gill and James Snow, each sworn on 26th May 1987. Each deposed to enquiries made of members who had received two lots of ballot material, and noe ep Weegee eee ree rn _ caaliaaehiene rues ¥ aleerrarak aameaes wee er aaa mertanee Twn es saree oe re exhibited statutory declarations From persons from whom enquiries were made. Mr. Gill was one of the recipients of two ballot papers and his affidavit exhibited statutory declarations from six other recipients. Mr. Snow's affidavit. exhibited statutory declarations from five people in Port Augusta. It also contained evidence of a conversation, in which one J. Carlisle stated that he had destroyed both sets of papers received by him. Mr. Snow's evidence was that Mr. Carlisle was "currently on leave overseas". Evidence in these forms is not entirely satisfactory. It is, of course, hearsay, except in the case of Mr. Gill's evidence as to the fate of his own duplicate ballot paper. Further, the statutory declarations are all ina form appropriate to making a declaration under the Oaths Act 1900, an Act of the New South Wales Parliament, although none of the declarations was made in New South Wales. The statutory declarations exhibited to Mr. Snow's affidavit are in a standard form, and are clearly copies of a single type-written form, with spaces left for the insertion of names and addreses by hand; they were apparently typed on the same typewriter as Mr. Snow's affidavit. The statutory declarations attached to Mr. Gill's affidavit have the operative words hand-written and vary in form. Even if these statutory declarations are regarded as no more than written statements, however, they can be received in evidence by the Court conducting an inquiry under Part IX of the Act. Under s.164(4)(b), the Court is not bound by any rules of evidence, but may inform itself on any en er tp et ee ee = matter in such manner as it thinks just. No party objected to the receipt in evidence of Mr. Snow's and Mr. Gill's affidavits, and their exhibited statutory declarations, and no party sought to cross-examine either deponent. I have no difficulty, therefore, in making findings based on this material. Between them, the Returning Officer, Mr. Gill and Mr. Snow have accounted for all but one or two of the twenty-eight duplicate ballot papers. One is clearly unaccounted for, namely that sent to one G. Templer. Another, sent to a member under the name "P. Thurm" may be accounted for by a statutory declaration of Dieter Gerhard Thurm, exhibited to the affidavit of Mr. Gill. The sending of the duplicate ballot papers clearly amounted to an irregularity. It gave to some members the opportunity to vote twice, and therefore hindered the full and free recording of votes by all persons entitled to record votes and by no other persons, or hindered a correct ascertainment of the results of voting. Because all but one or two of the duplicate ballot papers have been accounted for, however, the irregularity could only have affected the results of the elections in conjunction with other irregularities. This question will be dealt with separately. TLD TE ee ere ae or a Use of the Association's Resources Improper use of the resources of the Association to conduct campaigns was alleged on each side. It is necessary to set out the nature of the allegations at some length. Prior to the ballot, Mr. Woodward, as Branch Secretary of the New South Wales Branch of the Association, sent out a newsletter to members of the Association in its New South Wales Branch. The first page of this newsletter contained a report of the activities of four persons, including Mr. Robertson and Mr. Snow, in holding a purported special Federal Committee of Management meeting in Adelaide on 8th August. The report stated that a special New South Wales Branch Council meeting on 7th August had resolved to authorize the Branch President to take action in the Federal Court to stop the Federal Committee of Management meeting or the implementation of any decisions made at it. There followed a report of a proceeding in the Federal Court, and of undertakings given by the four persons concerned in that proceeding. The second page of the newsletter contained information concerning elections. There was a list of persons nominated for four offices, including the two the subject of this inquiry. The candidates were not listed in alphabetical order, in which they subsequently appeared on the ballot ——— ay ¢ rte nnn a ' ve .? 7 ~—— paper. The members of the "New Tcam", of which Mr. Woodward was a member, were listed first. The given names, or abbreviations thereof, of the New Team members were shown; only one initial was shown for other candidates, including Mr. Snow and Mr. Robertson. Attention was then drawn to certain industrial issues, including an anomaly in pay, which was a live issue within the Association. The newsletter continued: "This is your chance to vote for the Federal Officers that control the Association in Award and other Federal matters. Please give your vote to those you think will best pursue the negotiations for the new award to the most beneficial result." Copies of the newsletter were placed in unsealed envelopes and given to members of the New South Wales Branch Council to distribute amongst the members of the Branch in their workplaces. Some were given to Mr. Kevin Nash, a Vice-President of the New South Wales Branch. He believed that the newsletter was biased, and resolved to prepare his own electioneering material to counteract the bias. He had a typist at his place of work type a list of the candidates for the various positions in alphabetical order. He hand wrote on the list numbers to show the preferences. Above the list, he wrote: "When you receive your ballot paper would you please vote as follows for a more effective Federal Council." ae ed ee nar The list was then photocopied at the expense of Mr. Nash's employer. Approximately fifty photocopies were then inserted into envelopes with newsletters, and distributed to members. There is controversy over two matters as to distribution. In the first place, there is conflict on the evidence between Mr. Nash and Mr. Woodward as to the fate of all the newsletters given to Mr. Nash. Mr. Woodward had asked Branch Council members to distribute newsletters, and to return any undistributed newsletters to him so that they could be posted. According to Mr. Woodward, Mr. Nash told him that he had "got rid of them all", and this surprised Mr. Woodward, as there were some 200 newsletters given to Mr. Nash, and he expected Mr. Nash to have difficulty in finding all of the members to whom they were addressed. Mr. Nash's evidence was that, out of approximately 150 newsletters given to him, he returned about twenty to Mr. Woodward to be posted. There was also an issue as to whether Mr. Nash signed all of those copies of his list which were inserted with newsletters. Mr. Nash gave clear evidence as to signature, but Mr. Woodward pointed to evidence that other copies of the list, not signed by Mr. Nash, were in evidence, and raised the question whether Mr. Nash had signed all that went with the newsletter. In my view, the evidence is clear that Mr. Nash did sign them, and that the unsigned copies memes 4 won eng 10. were distributed by a Mr. Donald Charles Gee, otherwise than with the branch newsletter. The successful candidates alleged that the production. and distribution of the branch newsletter itself amounted to an irregularity, as it contained electioneering material and was produced and distributed by the use of the funds and resources of the Association. It was alleged that the report on the first page of the newsletter was inaccurate, and cast certain persons, including Mr. Snow and Mr. Robertson, in an unfavourable light. It was also alleged that the report on the elections on page 2 was slanted in favour of the New Team. The inaccuracy alleged on the first page arose from the fact that no resolution authorising the taking of Federal Court proceedings appears in the minutes of the special meeting of the New South Wales Branch Council held on 7th August 1986. There was some evidence that such a resolution was passed and omitted by accident from the minutes and that the Branch Council received a report on the proceedings on 25th September 1986, without any member of the Branch Council making complaint that the proceedings were unauthorized. The successful candidates claimed that if Mr. Nash's actions would normally have amounted to an irregularity, they did not so amount in the present case, because they were <r ll. merely correcting the position which arose from the irregularity created by the newsletter. The applicant and Mr. Woodward contended that Mr. Nash's action in distributing his "how to vote" material with the newsletter amounted to an. irregularity. It has been held that the use of funds and resources of an organization registered under the Act to promote one set of candidates 1n an election may amount to a breach of the rules of the organization. Reference should be made to the discussions in Scott v. Jess (1984) 3 F.C.R. 263, at pp.270-212 and 287-288, Tanner v. Maynes (1985) 7 F.C.R. 432 at pp.440-441 and Tanner v. Darroch (Federal Court of Australia, Gray J., 24th October 1986, not yet reported). Accepting that such electioneering is a breach of the rules, the question arises whether it amounts to an irregularity. It will be noted that the definition of "irregularity" in s.4(1) of the Act, set out above, contains a reference to a breach of the rules. It is not easy to decide whether the words "whereby the full and free recording of votes by all persons entitled to record votes, and by no other persons, or a correct ascertainment or declaration of the results of the voting is, or is attempted to be, prevented or hindered" are intended to qualify the reference to a breach of the rules, or only to qualify the words "any act omission or other means". See Re Australian Postal and Telecommunications Union; Ex Parte Wilson (1979) 28 A.L.R. 330, at p.336. — 12. Certainly, not every breach of the rules could amount to an urregularity, whether within the statutory definition or otherwise. Only such a breach as is likely to have some effect in relation to an election could amount to an irregularity. There appear to be only two ways in which it could be said that electioneering at the expense of the organization amounts to an irregularity. The first lies in the gaining of an advantage by those candidates who are supported at the organization's expense, in that they or their supporters have been able to communicate with members without expense, or without as much expense as they would have incurred otherwise. The second is that, because it occurs in or with an official publication of the organization, the electioneering material concerned may be given an air of official recommendation. Both of these consequences are undesirable, but that does not conclude the question whether they amount to irregularities. In most, if not all, cases the financial advantage derived from electioneering at the expense of an organization will be negated altogether if the persons concerned reimburse the organization for any funds and resources' used. Such reimbursement, for example, for the cost of production and distribution of a newsletter, would place the advantaged candidates in exactly the same position as if they had paid for the production and distribution of their own electioneering material in the first place. There may be "+ ¥----— aaee 13. cases of difficulty, im which a candidate takes advantage of a "free ride", not available to the other candidate. Compare Valentine v. Butcher (1981) 51 F.L.R. 127. Indeed, the allegations made in the present case about Mr. Nash's how to vote material appear to amount to allegations that Mr. Nash obtained a free ride. To the extent to which some of his newsletters may have ended up in the post at the Association's expense, and that some of those newsletters may have contained his how to vote card, he may have had a free ride in distributing those how to vote cards, and thereby saved himself some expenditure, without additional expense to the Association. Whether such a free ride amounts to a breach of the rules is difficult to determine. There is a more fundamental objection to regarding such a breach of the rules as an irregularity. This objection also overcomes the second way in which electioneering might be described as objectionable, namely, the giving of an official air to an electioneering material. InR. v. Gray; Ex parte Marsh (1985) 157 C.L.R. 351 at pp.365-370, it was held that the publication of pamphlets and advertisements, which were alleged to have been likely to mislead electors in their choice of candidates, could not amount to an irregularity, either within the ordinary meaning of the word, or within the extended meaning given by the definition in s.4(1) of the Act. At p.370, Gibbs C.J. (with whom the other members of the Court concurred on this point) said: aiahiniee enciremd: _ . . 7 a aor eens wr a - yee, i. ae 14. "l.. ait does not follow that the Parliament intended that every statement by which voters might be misled, or every failure to disclose information which voters might consider material, should be an irregularity within the meaning of Pt IX of the Act. It was pointed out in Evans v. Crichton-Browne £(1981) 147 C.L.R., at p.2071, that 'the result of many elections might be rendered uncertain if any untrue or incorrect statement of fact, opinion, belief or intention might have the effect of invalidating the election if the statement was intended or likely to mislead or improperly interfere with any elector in the formation of his political judgment'. The uncertainty might be even greater if non-disclosure was a ground for avoiding an election. It is entirely a matter for the Parliament to decide whether considerations of that kind should outweigh the need to attempt to ensure absolute purity in the electoral process. 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 decisions 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, it could easily have expressed that intention, but it has not done so." The distribution of electioneering material, whether at the expense of the organization concerned or otherwise, and whether with or without an official air, can only have the effect of causing members of that organization to make up their minds in a particular way as to how they should vote. At least in the absence of a specific rule to the contrary, this cannot amount to an irregularity for the purposes of Part IX of the Act. It is therefore unnecessary for me to determine whether the report on the first page of the Branch newsletter was fo eras ew rr ee 15. accurate or otherwise. It would also be inappropriate to attempt to determine whether or not the New South Wales Branch Council on 7th August did pass a resolution authorizing the taking of Federal Court proceedings. That question may yet be the subject. of other proceedings, in which all the appropriate parties may be joined. In any event, even if the report on the first page be untrue, it did not amount to electioneering. Merely to publish material about issues which might reflect unfavourably upon candidates in an election is not to infringe the ban on electioneering material, even when such publication occurs during the conduct of an election. See Scott v. Jess (1984) 3 F.C.R. 263, at p.272, 286-287 and 290, and Tanner v. Maynes (1985) 7 F.C.R. 432 at p.44l1. It was proper for members to be informed about a Federal Committee of Management meeting, whether or not an election was taking place, and whether or not the report contained an inaccuracy as to the authorization of Federal Court proceedings. The Court does not act as a censor of the publications of registered organizations, nor does it supervise the moral obligation to state the truth in those publications. The processes of debate about issues in such publications must be as free as is reasonably practicable, subject to the application of the principles approved in Tanner v. Maynes (1985) 7 F.C.R. 432, at pp.440-441. There is no evidence of lack of bona fides, and the report on its face does not amount to electioneering. wet = in eee oO ¢ c wey nye Te ey rn ne pn oe onan Seer ene - - : . 7 T toe . ms . zt oo : cee ene vat Ot ne a 16. As to the materia] concerning the elections, on the second page of the newsletter, I incline to the view that a breach of the rules of the Association was involved. The order in which the names were listed, the use of "benign" names for some candidates and initials for others, the choice of issues discussed, and the urge to vote with those issues in mind slanted the report in favour of the New Team. This was sufficient to amount to electioneering. It could only bear upon the result of the election by operating upon the minds of potential voters, inducing them to vote for New Team candidates. For the reasons which I have given above, this could not amount to an irregularity. It is unnecessary for me to attempt to resolve the conflict between Mr. Woodward and Mr. Nash on whether some of Mr. Nash's newsletters were posted. On either view, the only effect of Mr. Nash's how to vote material could be in inducing electors to decide to vote for particular candidates, and that does not amount to an irregularity. In any event, I am satisfied that Mr. Nash did sign the copies of his how to vote material which he inserted with newsletters. Having regard to the form of the how to vote material and to these signatures, there could be no real possibility of members regarding the how to vote material as some official recommendation. — aa oo a , 17. One witness, Mr. Malcolm Stones, did give evidence of receiving how to vote material in the same envelope as his ballot paper. The Returning Officer gave clear evidence as to what was placed in the envelopes in which ballot papers. were forwarded to members. There was also evidence that profiles of candidates were forwarded with ballot papers in elections for positions within the New South Wales Branch of the Association, which took place in or about January 1987. I am satisfied that Mr. Stones was mistaken in believing that he had received anything other than ballot papers and a reply paid envelope in the subject elections. It is probable that he was confused by the materials sent in the later branch elections. There was also an attempt made to obtain evidence in cross-examination of Mr. Woodward that he misused the resources of the Association in the production of electioneering material for the New Team. Such material was prepared for distribution in the Association's New South Wales Branch office, although outside normal working hours, and with the use of resources other than those owned by the Association, with the exception of the possible use of two sheets of paper. In addition, Mr. Woodward appeared to have attended at the Post Office during his working hours with bundles of New Team electioneering material for postage. Some technical breaches of the rules may have occurred, but the position is exactly the same as if those responsible =a eooery 18. reimbursed the Association for anything used. For the reasons I have given earlier, I am of the view that no irregularity occurred. If there was any such irregularity, it plainly did not affect the results of the elections, as.- the New Team candidates were defeated in any event. Blank Envelopes It was intended that each ballot paper should be accompanied by a reply paid envlope, addressed to the Returning Officer at G.P.0. Box 9000, Sydney, N.S.W. 2001. These envelopes are printed by the Government Printer and purchased in bulk by the Australian Electoral Commission. Stocks of envelopes are maintained, printed with the various Post Office box numbers used by the Australian Electoral Commission in the conduct of various elections in registered organizations. A machine is used to place ballot papers, reply paid envelopes, and any other necessary material into envelopes addressed to voters. In the present case, without the knowledge of the Returning Officer, some of the envelopes which should have been printed as reply paid envelopes addressed to the Returning Officer were blank. A similar problem has occurred from time to time in relation to other elections conducted by the Australian Electoral Commission, but in those cases only one or two envelopes were affected. | | eo en er ee TRS Te ea et te ea ape ae eer 19. In the present case, there were far more. Approximately nine telephone complaints or inquiries, alleging the receipt of blank envelopes, were received by the Australian Electoral Commission. Two letters were also received on the same. subject. Mr. Woodward received .some complaints. In each case either the Returning Officer or Mr. Woodward advised or attempted to advise the person concerned that the ballot paper should be forwarded to the Returning Officer at an appropriate address. Bight ballot papers were in fact received in envelopes which had been blank, on which had been written either the address for the election or P.0. Box 21 Darlinghurst, which is the postal address of the Australian Electoral Commission in Sydney. A telephone survey of approximately 172 Members, conducted by Diana Crawford Mills, a solicitor employed with the firm which formerly acted for the applicant, gave rise to five complaints of receipt of blank envelopes. Affidavits were also filed, sworn by two members who had received blank envelopes; it is probable that these two persons were among those whose ballot papers were returned to the Returning Officer. It is impossible to know how many voters received blank envelopes. There can be no doubt that those who did were hindered in the exercise of their right to vote. The failure to send reply paid envelopes amounted to a breach of a = er eer nsrrrr er moan 20. provision in ¢.14 of the Association's rules. It should be noted that, in this respect, the rules complied with s.133A of the Act, in requiring elections to be by secret postal ballot, and with the definition of "Postal ballot" in s.4(1) of the Act, which includes a requirement for the provision of facilities for the return of a completed ballot paper by post without expense to the voter. As well as a breach of the rules, there was involved an omission whereby the full recording of votes by all persons entitled to record votes was hindered, and therefore, an irregularity within the statutory definition. The likely effect of this irregularity will be discussed later. Inaccuracies in the Roll of Voters There was evidence that some members who were on the roll of voters did not receive ballot papers, that ballot papers were forwarded to persons who had ceased to be members (and in one case to a deceased member), and that the addresses shown on the roll of voters were in some cases inaccurate. The telephone survey of Ms. Mills gave rise to six complaints that no ballot paper had been received. There was also evidence of a survey conducted by Dennis Paul Murphy, among a number of members employed ina branch of the Department of Motor Transport known as the Traffic Authority. —— oe 21. Mr. Murphy received from Mr. Woodward a computer print-out list of members of the Association employed at the Traffic Authority, and their addresses as known to the Association. He followed up the list. He ascertained that three persons- on the roll had ceased to be members of the Association and another one had died. Three persons who claimed to be financial members were not shown on the list. Between the opening of the ballot and 8th September, Mr. Woodward received information showing a number of inaccuracies on the roll of voters. He supplied this information to the Returning Officer on 8th September. Included in it were forty-one changes of address. Because the Returning Officer had already forwarded ballot papers to the persons concerned at the addresses shown on the roll of voters, he was unable to forward other ballot papers unless and until the earlier ones were returned unclaimed. In five cases out of the forty-one, ballot papers were returned unclaimed and were redirected. In addition, Mr. Woodward gave evidence of problems being experienced in the New South Wales Branch of the Association at the relevant time with the keeping of records of members. There are always difficulties about allegations of this nature. It is impossible for the roll of voters in an election in a registered organization to be perfect. It is true that the Court may receive hearsay evidence in a case of mor ot mare eee ae . a bo bo this kind, but a statement of a person that he or she has resigned from or is a financial member of an organization is not necessarily evidence of compliance with the rules as to resignation, membership or payment of dues. Nor is a statement, made some months after an election, that no ballot paper was received necessarily to be accepted as accurate. Nevertheless, the evidence from Mr. Murphy of a relatively large number of inaccuracies of these kinds, in a relatively small sample of forty-five members, shows a substantial likelihood of inaccuracies in the roll. So also does the contemporaneous information received by Mr. Woodward. For these reasons, I am of the view that it is probable that irregularities occurred in the receipt of ballot papers by persons not entitled to vote and the non-receipt of ballot papers by persons entitled to vote. The numbers of such persons cannot be known. In making these findings, I am aware that evidence that a ballot paper was sent to a former address of a member does not constitute evidence that that member did not receive the ballot paper. Many persons make arrangements for the forwarding of their mail when they change addresses. Should amember fail to notify an organization of a change of address, he or she can hardly expect a ballot paper to be sent to the new address. Nor do I place any reliance upon Mr. Murphy's evidence that he asked a number of persons rhe cere > pieenchedne tie 23. whether they had received ballot papers and was given negative answers. His survey, if it can be called that, was taken a very short time after the ballot opened, at a time when ballot papers may yet have been undelivered in the mail. I do not rely upon the proposition from Mr. Murphy's survey that six persons shown on the list received by him had ceased to work in the Traffic Authority. This is not of itself evidence that their membership had ceased, although as Mr. Woodward had pointed out, they may have ceased to be financial members, and therefore not to have been entitled to vote, because of the cessation of the regular deduction of contributions from their pay. Finally, I do not place any reliance on evidence from Ms. Mills's telephone survey that twenty-seven members surveyed could not recall what they had received. It is easy to understand that, for many people, a union election is not such a major event that they would take careful note of every item arriving in an envelope. Whether Results Affected I have reached the conclusion that irregularities did occur in the sending of duplicate ballot papers to twenty- eight members, the sending of blank envelopes instead of reply paid envelopes to an unknown number of members, the receipt of ballot papers by persons not entitled to vote in ——s Bate See ce tae ewes ere ne ' 5 . 1- $ 4 * . amen pe ane men pe ae ee 24. an unknown number of cases, and the non-receipt of ballot papers by persons entitled to vote in an unknown number of cases. By s.165(3) of the Act, if the Court finds that an irregularity has occurred, the Court may make one or more orders of the kinds therein set out. By virtue of s.165(4), however, the Court may not make such an order "unless the Court is of opinion that, having regard to the irregularity found, and any circumstances giving rise to a likelihood that similar irregularities may have occurred or may occur, the result of the election may have been affected or may be affected by irregularities." In applying this provision, the Court is obliged to look at the irregularity which it has found to have occurred, and to consider whether similar irregularities are likely to have occurred in all the circumstances. It is then obliged to ask whether the irregularities found, and such likely similar irregularities, may have affected the result of the election. In taking this last step, the Court is not asked to act on the balance of probabilities; nor is it to look at fanciful possibilities. It is to act on "real not merely theoretical possibilities". See the helpful judgment of Keely J. in In re Application by Noack for an Inquiry into an Election in the Vehicle Builders' Federation of Australia, South Australian Branch (23rd April 1987, not yet reported), citing Re Australasian Meat Industry Employees Union, Western Australian Branch; Ex eet ter ee ne; arn 7 zy > 25. parte Ferquson (Federal Court of Australia, Toohey J. Sth November 1986, unreported). , The inaccuracies which I have found to have existed in the roll were found as a result of samples of the membership. It is likely that, if evidence were available of the whole of the membership of the Association, further inaccuracies in the roll would be found to have existed. That is to say, there is a likelihood that it would be discovered that further ballot papers were sent to persons not entitled to receive them, and further persons entitled to receive ballot papers did not receive them. These actual and likely irregularities in combination with those resulting from the sending of an unknown number of blank envelopes instead of reply paid envelopes, and the one or two duplicate ballot papers unaccounted for, may have affected the results of the two elections the subject of this inquiry. It must be borne in mind that the margins of the successful candidates in these two elections were eleven and thirty-two votes respectively. In my view, the blank envelopes themselves would have raised a sufficient possibility that the results of the elections may have been affected. It was argued by Mr. Harris that the only complaints of receipt of blank envelopes appeared to come from those whose names began with the letter "S" and "W" and that therefore it could be assumed safely that only members whose names began with any of the last few letters of the alphabet received blank envelopes. yo et 26. Ms. Mills survey was conducted by telephoning or attempting to telephone all those members on the roll whose names began with the letters "S", "T", "U", "V", "W", "X", "¥" and "Z". Only five of those who responded said that they had received blank envlopes. It could therefore be assumed safely, so Mr. Harris contended, that there were very few such envelopes in circulation. The reality is, however, that the number of such envelopes is and always will be unknown. Ms. Mills managed to speak to only eighty-seven of the 172 persons she attempted to contact. Twenty-seven of those could not remember what they had received. An extrapolation of the percentage of positive informants who had received blank envelopes, even to the 172 persons whom Ms. Mills attempted to contact, is discouraging for the validity of the elections. I am therefore of the view that the results of the elections may have been affected by irregularities. Orders The applicant originally sought orders that the elections be declared void. After discussion, however, he indicated that he only sought orders that the ballot be declared void and a new ballot conducted. Such an order is clearly appropriate. There is no reason why fresh nominations should be called, but every reason why a new bailot should be conducted among the existing candidates, or such of them as wish to continue their candidature. I _ shall we pe eo ae wer te ee kr Stale attested Ne gg ee ee et er es 27. therefore declare that the ballot conducted between Ist September and 18th September 1986, in the elections for the offices of General Treasurer and General Secretary in the Association is void, and that Mr. Snow was not elected as General Treasurer and Mr. Robertson was not elected as General Secretary. I shall direct the Industrial Registrar to make arrangements for the conduct of a new ballot between the existing candidates, or such of them as wish to continue their candidature. The question then arises as to what orders should he made for the occupation of the respective offices in the meantime. Section 163(1) gives the Court power to make any of the following relevant orders: "(b) an order that a person who has assumed an office, continued to act in an office, or claims to occupy an office, being an office to which the inquiry relates, shall not act in that office; (c) an order that a person who holds, or who has last held before an election, an office to which the inquiry relates may act or continue to act in that office; (d) where it considers that an order under paragraph (c) would not be practicable or would be prejudicial to the efficient conduct of the affairs of the organization or would be inappropriate having regard to the nature of the inquiry, an order that a member of the organization or another person specified in the order may act in an office to which the inquiry relates;" iy 28. The circumstances which would prompt an order under paragraph (d) do not exist in the present case. As to the position of General Treasurer, both the applicant and Mr. Woodward conceded that Mr. Snow, who held the position before the- subject election, should continue- to hold the office pending a new ballot. There was conflict as to who should hold the office of General Secretary pending the new ballot. The applicant and Mr. Woodward both contended that Mr. Woodward should hold the office. This was on the basis that he had been the General Secretary prior to the subject election, and had been appointed as Federal Industrial Officer, at the same salary and on the same conditions as he received as General Secretary, after he had lost the election. They also relied upon the fact that the registered office of the Association is in New South Wales, and that Mr. Robertson lives and works in Perth, in Western Australia. They contended that the preparation of the new roll of voters would be facilitated if Mr. Woodward were acting as General Secretary, as he would be the person to whom the Returning Officer could give any directions as to the supply of lists of members. The making of orders in a situation such as this poses acute problems for the Court. There can be little doubt that a person will derive advantage in a ballot from being called upon by the Court to act as caretaker in a particular office. For this reason, particular care needs to be taken to prevent the Court from appearing to act in a partisan way in the a a - oy wong Sone ee 29. election. In most cases, the preferable course is to act upon the last expression of the will of the voters, even though that expression may possibly be flawed by the irregularities which the Court has found to have occurred. In the present case, I find that. last expression the safest guide. I do not think that real problems will arise from Mr. Robertson being in Perth, or that the preparation of the roll of voters for the new ballot will be inhibited. In the normal course, the Returning Officer will direct whoever acts as General Secretary to supply lists of members, and that person will obtain from the various branches, including the New South Wales Branch, appropriate lists, and certify as to their accuracy. This can be done just as easily by Mr. Robertson in Perth as it can by Mr. Woodward in Sydney. For these reasons, I shall order that Mr. Snow act as General Treasurer and Mr. Robertson as General Secretary. I propose to leave to the Returning Officer the question of dates for the conduct of the new ballot. The Court having found that irregularities occurred in the subject elections, s.168(1) of the Act operates in relation to the applicant's costs of engaging solicitors in the interlocutory stages of the inquiry. There is no need for the Court to consider granting a certificate under s.168(2). sore yoo oe rhe "av rr ree res S re ee . i er Sa oatep te 30. I certify that this and the preceding twenty-nine (29) pages are a true copy of the Reasons for Judgment of the Honourable Mr. Justice Gray. Dated: 15-te- S+ Associate Neve "KL | - X APPEARANCES : Mr. M. Patterson appeared in person. Mr. G. Woodward appeared in person. Mr. G. Harris of counsel for Mr. Snow and Mr. Robertson. Instructing Solicitors: Steve Masselos & Co. Mr. A. C. Bridge of Counsel for the Australian Electoral Commission. Instructing Solicitors: Australian Government Solicitor a rows ee > shat zoster