y mn JUDGMENT blah tf Bom IN THE FEDERAL COURT OF AUSTRALIA ) ) QUEENSLAND DISTRICT REGISTRY ) NO. Q3 of 1986 ) ) INDUSTRIAL DIVISION IN THE MATTER of an application by Patrick James Brophy for an inquiry into an election in the Pederated Clerks Union of Australia (R No. 107 of 1986) AND IN THE MATTER of a reference of such application by - the Industrial Registrar to the Federal Court of Australia 30 OCTOBER, 1987 KEELY J. REASONS FOR JUDGMENT On Tuesday, 13 October 1987, the court made certain orders under s. 165(3)(d) of the Conciliation and Arbitration Act 1904 (the Act) and reserved the delivery of its reasons for making those orders. Those reasons are now given and are to be read in the light of the reasons for judgment delivered earlier in this matter (5 June 1987); the matters there set out need not he repeated. In the hearing on 12 and 13 October 1987 Mr. Amerena, of counsel, on behalf of 23 persons who were referred to as the respondent Branch Officials, advanced reasons why the court, in the exercise of its discretion, should refrain from making the orders sought. He supported his submission by reference to the . Qh -- oo yor aco 2. objects of the Act, the "practicability" of the situation and the length of the time since the election the subject of the present enquiry. He pointed out that, if it were ordered that a new election be held in accordance with a particular time-table (which contained dates and times agreed to by all parties to the proceedings and the Australian Electoral Commission), the persons elected in that new election would only hold office for approximately 8 months. He relied upon the cost to the Branch if the court ordered a new election, including both the time which would be spent by Branch officials in connexion with the preparation of a voters' roll and the resultant interference with the normal activities of the Branch. He conceded that the extent to which he could rely on those matters was "somewhat weakened" by the fact that, in any event, 1t would be necessary to prepare a voters' roll for the election to be held in respect of 12 of the 30 offices in question ~ by reason of the proceedings in matter number Q 2 of 1986. He also sought to rely upon the cost to the Australian taxpayers. In that connection he contended that, in an election ordered by the court, essentially the same electorate (as that which voted in 1985) would be ""re-enfranchised" and entitled to vote. He put it that the Parliament did not intend a new election to be ordered where "the utility of that exercise is, in the end, slight". He conceded, however, that, on the material before the 3. court as to the extent of the yearly "turnover" of the members in the Branch, "it is, to a degree, speculation" as to what proportion of persons who voted in the 1985 election would also be eligible to vote in any election ordered by the court in 1987. In my opinion the intention of the Parliament, as expressed in Part IX of the Act, 1s clear. Where the court, after enquiry, has determined that an irregularity has occurred (s. 165(1)) and has formed the opinion, as in this case, that " ... the result of the election may have been affected ... by irregularities ..." (s. 165{4)), the court should declare the election (or, in an appropriate case, any step in or in connexion with the election) to be void and make "an order directing the Industrial Registrar to make arrangements" in accordance with s. 165(3)(c) unless it is satisfied that there are cogent reasons why, in the particular circumstances of that case, the court should refrain from making the orders sought. I shall comment briefly upon the matters relied upon by Mr. Amerena in support of his submission that the court should, in the exercise of its discretion, refrain from making the orders sought. In my opinion the period of office likely to be held is not so short as to constitute a factor of significant weight in this case. If that period had been only a few weeks it could have been a matter of considerable weight - although it would have been —T a aan '4, necessary to consider the reasons for the time which elapsed before the court commenced the hearing which led to the finding that an irregularity had occurred. It would also be necessary to have regard to the reasons for the court's decision on 5 June 1987 to adjourn the further hearing. Both of those matters played a part in shortening the likely period of office of persons elected under any "new election" conducted as a result of an order declaring the 1985 election void. As to the cost to the taxpayer, that matter was doubtless considered by Parliament before inserting s. 170A(4) in the Act. In my opinion it 1s not a factor of any weight in the present case - although it might be where the likely period of office was very short. As to the cost to the Branch, there will always be some cost to, and some interference with the activities of, an organization or branch when a new election is ordered. Doubtless those matters also were considered by Parliament and they are not matters of any weight in the present case. It may be added that in my view it is also proper to have regard to the fact that the irregularity is the direct result of the Branch Council purporting to exercise a power to give rebates which it did not have under the rules. I reached the conclusion that, in all the circumstances of this case, the matters relied upon by the respondent Branch Officials fell far short of constituting cogent reasons for refraining from making the orders sought by the applicant and alias REI OO te rte ar oe a 5. accordingly that the court should not exercise its residual discretion in the manner sought. Mr. Tracey, on behalf of the applicant, submitted that, by reason of the provisions of Branch Rules 27 and 34 (third last paragraph) those office holders who were validly in office immediately before the 1985 elections would continue to hold those offices if the court made an order declaring the 1985 election to be void; accordingly that those persons (many of whom were purportedly "re-elected" in the 1985 elections) would hold office until the declaration by the returning officer as to the successful candidates in any new election ordered by the court. Mr. Amerena adopted those submissions by Mr. Tracey. Branch Rule 27, so far as material, reads as follows:- "27 ~- Tenure of Office Subject to any later provisions in this Rule, Branch Councillors other than the Branch Officers shall hold office until their successors are declared elected by the Returning Officer or are elected by Branch Council in the filling of an extraordinary vacancy or vacancies in accordance with Rule 29. The Branch Officers shall hold office until the Returning Officer's Report has' been adopted by the Branch Council." As to the election of Branch Executive members, Branch Rule 34 provided that:- rd 5 7 roe Wor cree ee come os ete \e soe ergs et pape res at "The successful candidates shall assume office as from the declaration of the ballot and shall hold office until their successors are elected." Dr. Jessup, of counsel, on behalf of the Federated Clerks' Union of Australia, conceded, correctly in my view, that un rule 27 the words "until their successors are declared elected" are to be read as if the word "validly" were inserted before the words "declared elected"; similarly that, in the following paragraph of the rule, the words "until the Returning Officer's Report has been adopted by the Branch Council" are to be read as if the word "validly" were inserted before the word "adopted". Dr. Jessup submitted that Branch Rule 27 was no more than a transitional provision, "to ensure continuity ... where elections are held in accordance with the rules" and was not intended to bring about the result that, upon the making of an order declaring void an election, persons who had held office two years earlier should be "restored to office". It may well be that the draftsman did not contemplate - and therefore did not have the specific intention - that such a result would follow; the draftsman may not have given consideration to the possibility of an election being declared void. Dr. Jessup accepted that there was difficulty in formulating a construction of the rule (with the word "validly" notionally inserted in it in the two places to which reference has been made) which would support his submission but nonetheless have the effect that previous office—holders would be "restored to office" in a case where an election was declared 7. voud shortly after the declaration of the result. Although the construction of the rules is not free from difficulty, I accept the submission by Mr. Tracey which was adopted by Mr. Amerena; accordingly, those persons who held office immediately before the 1985 elections hold those offices upon the making of an order by the court declaring void the 1985 elections and will continue to hold them until the declaration of the result of the election ordered by the court. Mr. Amerena submitted that, if the elections for the offices were to be declared void, then they should "be declared void as from the 21st day of December, 1987". In my opinion the court's power to declare "the election ... to be void" (s. 165(3)(a)) does not include a power to declare it to be void from some future date. An election declared void is void from the time when it was held; it is doubtless for that reason that s. 167(1) of the Act was inserted, making "valid and effectual for all purposes" -— subject to s. 167(2) - acts done by persons "while so purporting to act" in those offices. I rejected the submission by the respondent Branch Officials that the power conferred on the court by s. 165(3)(d) included the power to modify the operation of the rules in the following manner (1) by providing that there "shall be no Branch Triennial Election held in November 1988" (2) by providing that persons elected in any new election in 1987 shall hold office oer 8. until the 1991 Triennial elections (3) by requiring the Branch Secretary to make a request to the Industrial Registrar under s. 170 of the Act (4) by deeming certain members "to be financial ... for the 1987 special Elections" (5) by deeming them "financial ... for all elections thereafter"; the latter may be said immediately to be utterly untenable. In my opinion the court's power under s. 165(3)(d) to make "an order modifying the operation of the rules of the organization" is limited, as a matter of legislative intention, to a modification which is necessary to enable a new election to be held. Mr. Amerena submitted that such a construction of the power is a "narrow" one and pressed a submission that the court should adopt what he called a "broad interpretation" of the power but it is no part of the function of the court to "broaden" the law laid down by the Parliament. In my opinion the terms of s. 165(3)(d) were plainly intended to limit the power conferred to modify the operation of the rules, notwithstanding the apparent width of the words "an order ... incidental or supplementary to, or consequential upon, any order under this section". In reaching that conclusion I had regard to (1) the words used within the brackets, conferring expressly the power to modify the operation of the rules "to the extent necessary to enable a new election to be held", (2) the context in the Act and, in particular, in Part IX of the Act and (3) the fact that the words used by Parliament to confer the power ee wor yt cee was Se woe ee ee 9. are different from -— and narrower than -— the words used elsewhere un the same Act and elsewhere in the same Part of the Act. Parliament did not provide that the operation of the rules may be modified to the extent that the court "considers it desirable so to do" — the words used in s. 167(2) in the same Part of the Act. Nor did it provide that the court "may make such order as it thinks fit" ~ the words used in s. 171C(2) in Part IXA of the Act. In my opinion Parliament in s. 165(3) clearly set out the limits which it placed upon the powers conferred upon the court and did not authorize the making of the orders sought by the respondent Branch Officials. If, contrary to my opinion, the court has power to make any of those orders I would not be prepared, as a matter of discretion, to make any of them . Dr. Jessup submitted that the powers conferred on the court by s. 165(3)(d) included the power to order that "the powers of the Branch Council and the Branch Executive be vested in a Committee, consisting of" certain office holders, or their nominees, during the period between the making of the orders and the declaration of the poll in any election to be held by reason of the court's order. He submitted that such an order would be "consequential upon" an order under s. 165(3). However, having upheld (for the reasons already given) the submissions of Mr. Tracey -— adopted by Mr. Amerena - as to the construction of Branch Rules 27 and 34, it 1s plain that such an order could not be "incidental or supplementary to or consequential upon any order" moe ne a ee 10. made by the court in this matter. It follows that the court has no power to make that order and accordingly it 1s not necessary to consider whether, in the absence of rules as to office-holders holding office until their successors are elected, the court would have power to make the order sought by Dr. Jessup. Counsel for all parties jointly asked that, in all the circumstances, an order by the court for a new election should modify the operation of the branch rules by prescribing a timetable which had been drawn up after consultation with the Australian Electoral Commission. It was in the following terms:- "(a) Nominations to open at 12 noon on the 8th day of February, 1988; (b) Nominations to close at 12 noon on the 22nd day of February, 1988; (c) Ballot to open at 12 noon on the 14th day of March, 1988; (da) Ballot to close at 12 noon on the 28th day of March, 1988." After hearing all the parties and the Australian Electoral Commission, the court decided that, in the light of the agreed time table, the date for determining the financiality of any member seeking to be nominated for election or seeking to vote in the election should be 31 December 1987. Two other matters should perhaps be mentioned. Pirst, that Mr. Tracey stated on behalf of the applicant that he accepted a po ~~ ' ry 11. that proposed timetable "reluctantly" and only after being "persuaded, from what we have been told by the other parties, that it is an unavoidable delay. There are sound administrative reasons why things cannot be done any more quickly than is proposed in the timetable." Second, that although liberty to apply has been reserved to the parties, it should be noted that s. 170A(1) confers upon the Australian Electoral Commission officer conducting the election the power to:- "... take such action and give such directions as he considers necessary in order to ensure that no irregularities occur in or in connection with the election or to remedy any procedural defects in those rules which appear to him to exist." I certify that this and the 10 preceding pages are a true copy of the Reasons for Judgment herein of the Honourable Mr. Justice Keely. Dated: 30 October, 1987 a Yo- os ty pe see - woot arene