FEDERAL COURT OF AUSTRALIA Short v Camillo [2000] FCA 504 JOHN SHORT v JOHN CAMILLO and DOUGLAS CAMERON S 21 OF 2000 MANSFIELD J 3 APRIL 2000 ADELAIDE IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 21 OF 2000 BETWEEN: JOHN SHORT Applicant AND: JOHN CAMILLO and DOUGLAS CAMERON Respondents JUDGE: MANSFIELD J DATE OF ORDER: 3 APRIL 2000 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The order to show cause be discharged. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 21 OF 2000 BETWEEN: JOHN SHORT Applicant AND: JOHN CAMILLO and DOUGLAS CAMERON Respondents JUDGE: MANSFIELD J DATE: 3 APRIL 2000 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 This is the hearing of a rule to show cause and order made on 15 March 2000 on the application of John Short. It is made under s 209 of the Workplace Relations Act 1996 (Cth) ("the Act") for orders that John Camillo and Douglas Cameron comply with the Rules of the Automotive, Food and Metal, Engineering, Printing and Kindred Industries Union ("the organisation") in the appointment of delegates to the Australian Labor Party State Convention to be held on 8 April 2000 ("the ALP Convention"). 2 Mr Short has been a member of the organisation since 1981. He is a member of the State Council of the organisation, and a delegate of the State Conference of the organisation. He is also a member of the South Australian branch of the Australian Labor Party ("the ALP"). Mr Camillo is the acting state secretary of the State Branch of the organisation. Mr Cameron is the national secretary of the organisation. 3 The rule to show cause, in effect, seeks to set aside the decision of Mr Cameron and Mr Camillo to appoint fifteen named persons as delegates and proxy delegates of the organisation to the ALP Convention. That decision was made under and pursuant to a decision of the National Council of the organisation, made on 8 March 2000 ("the National Council resolution"). It is claimed that the decision in respect of those fifteen persons is null and void because it did not comply with the Rules of the organisation. There is no challenge to the decision of the National Council itself. 4 The facts are not really in dispute. The real questions are as to the applicability of rule 22 of the Rules of the organisation to the respondents in the making of the decisions and, if it applied to them in making the decision, as to the proper meaning and operation of rule 22 of the Rules. 5 Although there is a difference in the functions which Mr Cameron and Mr Camillo were to perform in accordance with the National Council resolution, the delegates were to be chosen by Mr Cameron in consultation with Mr Camillo. For this reason I do not find it necessary in these reasons to distinguish between their respective positions. No distinction between the roles which they played was made in the course of submissions. 6 The ALP's rules provide for an annual State convention at which candidates for internal and public office are selected and policy is determined. Affiliated organisations comprise a significant portion of the delegates to the ALP Convention, and this year the organisation is entitled to provide eighteen delegates to the ALP Convention. Under rule 62(e) of the ALP rules, delegates to the ALP Convention must be notified not less than four weeks before the convention, that is, by 10 March 2000. 7 Rule 22 of the Rules of the organisation deals with the topic of delegates of representative bodies. Rule 22.2 deals with the appointment of delegates to the ALP and to Labor councils. Rule 22.3 provides some additional eligibility requirements for persons to be appointed in accordance with rules 22.1 and 22.2. Rules 22.2 and 22.3 provide: "22.2 A.L.P. and Labor Councils State Councils may from time to time appoint and remove delegates to representative bodies to which the Union is affiliated in the manner decided by the appropriate State Council. Such delegateship is not an office and such delegates shall not thereby become Officers of the Union. Provided always that there shall be proportional representation of delegates representing the Divisions to any such representative body and subject to the requirements of the rules of that body, the delegates shall be drawn from financial members of the Union in the Technical and Supervisory Division, the Vehicle Division, the Food and Confectionery Division and the Printing Division in the state in such manner as may be decided – (a) in the case of the Technical and Supervisory Division – by the State Council; (b) in the case of the Vehicle Division – by the Regional Council; (c) in the case of the Food and Confectionery Division – by the Regional Council; and (d) in the case of the Printing Division – by the Regional Council. 22.3 Members appointed to a position referred to in paragraphs one and two of this Rule must have at least two years' continuous membership of the Union and be financial in accordance with these Rules. Members shall not be appointed for a period longer than three years but may be eligible for re-appointment." 8 Some steps were taken by the State Council of the South Australian branch of the organisation towards appointing delegates to the ALP Convention. However, there was a controversy about the process by which the State Council of the organisation proposed to appoint its delegates to the ALP Convention. On 3 March 2000, Mr Short sought orders under s 209 of the Act directing Mr Camillo and others to comply with the Rules of the organisation by convening a State Council for the purpose of determining its delegates to the ALP Convention, and for orders directing the State Council about the numbers of delegates from each of the five divisions of the State branch of the organisation to comprise that delegation. 9 In the light of that application, and before it had been resolved, the National Council of the organisation resolved on 8 March 2000 to deal afresh with the appointment of delegates from the South Australian branch of the organisation to the ALP Convention. 10 Counsel for Mr Cameron and Mr Camillo identified the introductory words of rule 8 as providing the foundation for the National Council to make such a resolution. It provides: "The National Council shall be the Committee of Management of the Union and shall subject to the powers and decisions of the National Conference and these rules, have the care, control, superintendence, and management in all respects of the affairs, business, funds and property of the Union and without limiting the generality of the foregoing …" 11 In addition, counsel referred to rule 8(1)(h) of the Rules of the organisation, which empowers the National Council to ensure that officers of the organisation carry out its rules, decisions and policies. 12 It is common ground, I note, that the delegates to the ALP Convention were not officers of the organisation. As I have already noted, there is also no challenge to the validity of the National Council resolution. Accordingly I proceed upon the basis that the decision of the National Council was a valid exercise of the National Council's power under the Rules of the organisation. The National Council resolution was, relevantly, in the following terms: "1. The South Australian ALP convention is scheduled to commence 8 April 2000. 2. The effect of ALP Rule 62(e) is that the Delegates to the ALP convention from the Union's South Australian Branch should be provided to the ALP Returning Officer four weeks before the ALP Conference date (ie. by 10/3/00). 3. At its meeting held on 7 July 1999 the South Australian State Council appointed as ALP Delegates certain members who had been nominated as such by the Print and Vehicle Division Regional Councils respectively. There were 2 appointed from the Print Division and 9 from the Vehicle Division. At its meeting held on 24 November 1999 the South Australian State Council appointed M. Adlam as the T&S Division Delegate to the ALP. 4. The South Australian State Council resolved at its 2 February 2000 meeting as follows:- [The State Council resolved upon a number of delegates from each Division] . . . 7. Apart from the 1999 appointments (referred to in paragraph 3 above) the South Australian State Council has not appointed ALP Delegates. The 1999 appointments are at least arguably invalid given that they were made prior to the State Council determining a proportional representation formula in accordance with Rule 22.2. . . . 10. South Australian Branch member Brother Short has initiated proceedings in the Federal Court (Short v. Camillo & Others, action number S16 of 2000) seeking orders as appear in the Rule to Show to Cause granted by Justice Mansfield of the Federal Court in Adelaide on 3 March 2000, a copy of which has been distributed to National Councillors. … 13. Having regard to the orders sought by Brother Short in the Federal Court proceedings and having regard to the requirements of Union Rule 22.2 National Council considers that it is at least arguable that what the South Australian State Council has done in relation to this topic is invalid and in any event considers that the process provided for in Rule 22.2 has not been completed and further notes that the Union is very rapidly running out of time to complete that process. … [The National Council determined]: 1. The formula for divisional representation shall be upon the basis of the number of members calculated as follows:- Numbers of affiliated as at the date of re-affiliation – 31.12.98: 19,288 comprising of Food - 138 Metal - 6,964 Printing - 2,252 T&S - 1,086 Vehicle - 8,848 TOTAL 19,288 Divided by number of Delegates (as allocated by ALP) – 18 = quota of 1,071. Therefore number of Delegates as follows:- Metals 6,964 divided by 1071 = 6.5 7 T&S 1,086 = 1 Food & Confectionery 138 = 0 Vehicle 8,848 = 8.2 8 Print 2,252 = 2 TOTAL 18 2. The delegates are to be chosen by National Secretary Doug Cameron in consultation with South Australian State Secretary John Camillo. National Secretary Cameron shall also in consultation with South Australian State Secretary Camillo choose at least one proxy Delegate from each represented Division and if more than one proxy is chosen by them then such proxies shall be allocated an order of replacement for Delegates from the respective Divisions. The Delegates and proxy Delegates so chosen shall be eligible in accordance with the Union Rule 22 and the ALP's Rules so as to ensure that each Delegate is entitled to vote in ALP preselections. 3. The Delegates are directed to vote with the PLA (now known as the Labor Left) group. 4. The members appointed by this process shall be the AMWU ALP Delegates for the purpose of the forthcoming SA ALP Convention in particular so that the South Australian Branch of the Union may thereafter appoint replacement Delegates in accordance with Rule 22" 13 The particular provisions of that resolution which are of moment to the present application are those which, in effect, gave Mr Cameron the responsibility of choosing the delegates to the ALP Convention in consultation with Mr Camillo (par 2 of the resolution) and the limitation contained within that resolution upon that choice by requiring that the delegates and proxy delegates so chosen "be eligible in accordance with union rule 22". Mr Short contends that Mr Camillo and Mr Cameron, in implementing the resolution, were bound to comply with rules 22.2 and 22.3 and that they have failed to do so. 14 Mr Short also submits that the National Council resolution was no more than an enabling resolution, which required the respondents to choose the proposed delegates but, nevertheless, obliged them then, or Mr Camillo as the acting state secretary, to convene (urgently, given the exigencies of time) a State Council meeting to resolve to appoint those chosen persons as the delegates of the organisation. Alternatively it is submitted that even if the National Council resolution was intended to bypass that step, in the making of the selection of delegates, the respondents were each bound to comply with rules 22.2 and 22.3 in any event. 15 As those issues involve consideration of the National Council resolution, it is helpful to refer in a little more detail to the background in which it came to be passed. 16 The organisation is an amalgam of five separate registered unions under the Conciliation and Arbitration Act 1904 (Cth) or the Industrial Relations Act 1988 (Cth). As a consequence, the Rules recognise the fact of those amalgamations by creating divisions within the organisation which have some degree of independent existence. Those divisions are the Vehicle Division, the Food and Confectionery Division, the Technical and Supervisory Division and the Printing Division. Members within the relevant industry or calling are attached to those divisions. Members who are engaged in the industry or calling applicable before any amalgamation occurred are attached to what is called informally the Metals Division, although that division is not recognised separately in the rules. 17 It is to reflect those matters that rule 22.2 provides for proportional representation of delegates representing the divisions to such bodies as the ALP Convention. 18 Mr Cameron has described how differences between key officials of the South Australian branch, or of the division which they represent, have led to severe internal problems which have detrimentally affected the ability of the South Australian branch of the organisation to function in a united and cohesive fashion. That led to the affiliation of the South Australian branch of the organisation with the South Australian branch of the ALP, and with the United Trades and Labor Council of South Australia, being suspended or withdrawn for a period from 1 July 1976 to April 1999. It was restored, retrospective from 30 June 1998, at least in respect of the ALP. 19 Mr Cameron also describes how, in the view of the organisation, the socialist left faction of the ALP has two subfactions, one of which is known as the "Progressive Labor Alliance" ("the PLA") or "Labor Left". It is that subfaction of the socialist left faction of the ALP with which the organisation is aligned nationally, and which the organisation wishes to ensure that the South Australian branch should support following reaffiliation with the ALP. The organisation also wishes to ensure that its delegates adopt a single policy position on key issues at the ALP Convention. Following reaffiliation, the affiliation fees of some $68,000 were duly paid, effective or operative from 30 June 1998. 20 Mr Cameron also deposes to the fact that the organisation is also aware that one of the critical matters to be determined at the ALP Convention is the determination of a number of preselection ballots for the ALP parliamentary candidates at both state and federal level. The size of the organisation's delegation is a significant one to the voting processes at the ALP Convention. The two ALP socialist left subfactions are expected by the organisation to support different and rival candidates. Mr Cameron was concerned that the South Australian branch delegation to the ALP Convention be united in supporting the PLA candidates, and he had in his mind at least some reason to think that persons nominated as delegates from certain of the divisions of the South Australian branch of the organisation might not do so if selected as delegates to the ALP Convention. 21 It was in that context, as well as in the context of the then extant order to show cause issued on Mr Short's application on 3 March 2000, that the National Council resolution was passed. Those concerns are reflected in recitals 14 and 15 and in paragraph 3 of the National Council resolution. 22 In accordance with the National Council resolution, Mr Cameron, in consultation with Mr Camillo, chose eighteen delegates and seven proxy delegates to the ALP Convention. It is not contended that the selection of those delegates was not in accordance with the formula for divisional representation fixed by the National Council, at least in a numerical sense. Those persons were duly notified to the ALP. 23 Mr Short claims that fifteen of those twenty-five persons were ineligible for appointment as delegates to the ALP Convention under the Rules of the organisation ultimately for two reasons. Firstly, it was contended that none of those persons were appointed by the State Council pursuant to rule 22. As noted that depends upon the meaning and intent of the National Council resolution, in particular whether it required the respondents to submit their chosen delegates to the State Council for its consideration and for it then to comply with rule 22. Although the attack was upon fifteen only of the twenty-five delegates and proxy delegates chosen, that claim, if correct, in my judgment would lead to there having been no valid appointment of delegates to the ALP Convention at all. 24 The second reason was that none of those fifteen persons were "representing the divisions" or "drawn from financial members of the union" in those divisions as decided by the four divisions recognised under the Rules. It is also contended that either the National Council resolution by reference obliged Mr Cameron and Mr Camillo to comply with rule 22 in ensuring that those chosen persons represented the divisions or, alternatively, that rule 22 still directly applied to them so as to oblige them to comply with rule 22 and choose delegates who actually represented the divisions. 25 I note that no point is taken except in the case of one of the appointed delegates, Mr Abfalter, that the persons chosen were not financial or that they did not have at least two years continuous membership of the organisation, so as to qualify for eligibility under rule 22.3 of the rules. In the case of Mr Abfalter, the parties now accept that he was ineligible to be appointed as a delegate, and it is proposed that he be replaced at the ALP Convention by proxy delegate, Mr DeLaine, a sitting member of Parliament. 26 I turn to consider whether the provisions of rule 22.2 generally apply in the circumstances. The background to the national council resolution is set out above. It is apparent that the National Council was concerned about the operations of the South Australian branch of the organisation. The recitals to the National Council resolution further explain the context in which it was passed. That resolution was passed only two days before the deadline for the appointment of delegates to the ALP Convention. The resolution notes that the organisation "is very rapidly running out of time to appoint its delegates" pursuant to rule 22.2 and rule 22.3. There had already been nominations by the Print Division and by the Vehicles Division through their regional councils to the State Council for delegates to be appointed to the ALP Convention, but those nominations had been made before the State Council resolution of 2 February 2000, purporting to determine the proportional representation of divisions in accordance with rule 22.2. Questions existed in the mind of the National Council as to the validity of those nominations in the circumstances. Questions also existed, according to the recitals, as to the eligibility of certain of those nominees to be appointed as delegates to the ALP Convention. Questions also existed in the mind of the National Council as to the validity of the resolution of the State Council of 2 February 2000 purporting to prescribe the appropriate proportional representation of delegates to represent the divisions to the ALP Convention. The National Council was also evidently concerned to ensure that the delegation, when appointed, voted in accordance with the National Council policy. 27 Recitals 14 and 15 of the National Council resolution provide: "14. If the National Council does not act to remedy the situation which the South Australian Branch finds itself in in relation to this matter then the Union is likely to miss the opportunity to exercise its entitlement to have properly accredited Delegates present and voting in pre-selection ballots to be conducted at the South Australian ALP Convention. 15. State Secretary Camillo has raised a concern that all AMWU Delegates conform with the voting policy of the AMWU as determined by National Council on 5/3/99." 28 The National Council then said: "Having regard to all of the above this National Council determines that it is necessary and appropriate for it to now deal afresh and entirely with the matter of Delegates from the South Australian Branch to the forthcoming ALP Convention and accordingly hereby determines …" 29 In my judgment those matters all point clearly to the conclusion that the National Council resolution was intended to operate so as to lead to the appointment of delegates to the ALP Convention in lieu of the procedure prescribed by rule 22.2 of the rules applicable to the State Council. The factors of timing, the context of the resolution and the terms of the resolution all point to that conclusion. The National Council determined upon a formula for proportional representation of divisions, and provided expressly for the delegates to be chosen by Mr Cameron in consultation with Mr Camillo. The requirement that the delegates and proxy delegates so chosen "shall be eligible in accordance with union rule 22" also indicates that it was intended for the National Council resolution to be in lieu of, rather than a prequel to, the State Council proceeding in accordance with rule 22. So, too, are the terms of clause 4 of the National Council resolution which speak of "the members appointed by this process" being the delegates to the ALP Convention. 30 Accordingly, in my judgment the resolution of the National Council was the means by which the delegates of the South Australian branch of the organisation were to be appointed to the ALP Convention. It was not intended that the State Council would have any further function to perform in that process, save for the replacement of delegates contemplated by the final words of clause 4 of the National Council resolution. 31 I have also reached the conclusion that the actions taken by Mr Cameron and Mr Camillo in accordance with clause 2 of the National Council resolution were not actions taken in circumstances in which they were directly obliged to comply with rule 22.2 of the rules of the organisation. In my view, the terms of the National Council resolution lead to that conclusion. The selection of delegates was to be made expressly in accordance with the resolution. 32 Whatever function Mr Cameron and Mr Camillo were performing, it was a function in accordance with that resolution, rather than a function under the Rules. The criteria for selection specified, namely the numbers of delegates from each of the divisions, and that the delegates "be eligible in accordance with union rule 22 and the ALP rules" are criteria specified by the resolution itself. The reference to eligibility in accordance with the union rule 22 incorporates, by reference, certain features of rule 22 in the resolution but it does not mean that the power which they were then exercising in accordance with the resolution was a power which was available to them to be exercised under and by reason of rule 22. In particular it does not mean, by virtue of that resolution, that rule 22.2 itself imposed an obligation upon them to perform or observe the provisions of rule 22.2 33 The provisions of rule 22.2 also do not lend themselves to the conclusion that the choosing of delegates by Mr Cameron and Mr Camillo was a function performed by them under rule 22. In its terms, it empowers the State Council to appoint and remove delegates to certain representative bodies. It imposes the obligation of proportional representation of delegates upon the State Council in performing that function, but it does so in a compendious way by requiring that the delegates to be selected be drawn from financial members in the four divisions (other than the informal metals division) who have been put forward by those divisions. 34 It is difficult to see how that rule can be broken up so as to create any obligation from selected words of that rule upon Mr Cameron or Mr Camillo in complying with the National Council resolution. The rule does not expressly provide any power to or obligation upon Mr Camillo or Mr Cameron which they should or could be ordered to perform and observe. It is not apparent how a particular concept drawn from the rule, such as the expression "representing the divisions" (the expression particularly relied upon in the submissions made on behalf of Mr Short) can properly be drawn from the rule so as to impose an obligation upon them. That expression is part of the whole expression of the means by which the State Council exercising its powers under rule 22.2 is to select delegates. 35 Furthermore, to a significant extent the National Council resolution has performed that function or a parallel function in lieu of the State Council. The National Council resolution has apparently attempted to provide a means of proportional representation of delegates representing the divisions. If there has been any noncompliance with the National Council resolution (and I make no finding that there has been noncompliance with that resolution), that is not a failure to comply with rule 22. It would be a failure to comply with the National Council resolution. I do not consider that rule 22 itself imposes obligations upon Mr Cameron or Mr Camillo. 36 Accordingly, in my judgment, I am not persuaded that Mr Cameron and Mr Camillo have failed to perform and observe the rules of the organisation, in particular rule 22.2 because that rule does not impose any obligation upon them to comply with it in the circumstances. 37 In light of those conclusions, it is not necessary to address the contentions put on behalf of Mr Short that the selection of retired persons who are honorary members of the organisation, or the selection of sitting members of parliament, as persons to be delegates to the ALP Convention contravenes rule 22.2 because they are not persons who represent the divisions, in the sense in which that term is used in rule 22.2 38 In my judgment, the order to show cause should be discharged. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate: Dated: 18 April 2000 Counsel for the Applicant: Mr S Blewett Solicitors for the Applicant: Lieschke & Weatherill Counsel for the Respondents: Mr P Moloney Solicitors for the Respondents: Moloney & Partners Date of Hearing: 30 March 2000 Date of Judgment: 3 April 2000