FEDERAL COURT OF AUSTRALIA Becker, in the matter of an application for an inquiry in relation to an election for offices in the Australian Education Union, Queensland Branch [2004] FCA 1534 INDUSTRIAL LAW – election inquiry – 'irregularity in relation to an election for an office' Workplace Relations Act 1996 (Cth) Commonwealth Electoral Act 1918 (Cth) Industrial Relations Act 1999 (Qld) Industrial Relations Act 1988 (Cth) Conciliation and Arbitration Act 1904 (Cth) Re Post; Re Election for Offices in Transport Workers Union of Australia, Western Australia Branch (1992) 40 IR 162 The Queen v Gray Ex parte Marsh (1985) 157 CLR 351 Re Collins Ex parte Hockings (1989) 167 CLR 522 Re Davidson (1990) 31 IR 102 Short v Wellings (1951) 72 CAR 84 Scott v Jess (1984) 3 FCR 263 Allen v Townsend (1977) 31 FLR 431 Valentine v Butcher (1981) 51 FLR 127 Re Penhallurick (1983) 51 ALR 589 Porter v Dugmore (1984) 3 FCR 396 (FC) Darroch v Tanner (1987) 16 FCR 368 (FC) Belan v National Union of Workers [2001] FCA 724 (FC) Thomas v Hanson and the AWU [2001] FCA 539 Kingham v Sutton (No 2) [2001] FCA 400 ANDREW KINGSLEY BECKER, IN THE MATTER OF AN APPLICATION FOR AN INQUIRY IN RELATION TO AN ELECTION FOR OFFICES IN THE AUSTRALIAN EDUCATION UNION, QUEENSLAND BRANCH Q21 OF 2004 COOPER J 26 NOVEMBER 2004 BRISBANE IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q21 OF 2004 Becker, in the matter of an application for an inquiry in relation to an election for offices in the Australian Education Union, Queensland Branch JUDGE: COOPER J DATE OF ORDER: 26 NOVEMBER 2004 WHERE MADE: BRISBANE THE COURT ORDERS THAT: The application for an inquiry pursuant to Pt 3 of ch 7 of Sch 1B to the Workplace Relations Act 1996 (Cth) into the election for Federal Conference Delegates representing the General Division of the Australian Education Union, Queensland Branch declared 4 November 2003 be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q21 OF 2004 Becker, in the matter of an application for an inquiry in relation to an election for offices in the Australian Education Union, Queensland Branch JUDGE: COOPER J DATE: 26 NOVEMBER 2004 PLACE: BRISBANE REASONS FOR JUDGMENT 1 The Australian Education Union ('AEU') is a registered organisation under the provisions of the Workplace Relations Act 1996 (Cth) ('the Act'). Each election for an office in an organisation, or a branch of an organisation, must be conducted by the Australian Electoral Commission: s 182(1) of Sch 1B to the Act. In 2003 elections were held for offices in each of the branches of the AEU, including the Queensland Branch. On 2 February 2004 the applicant, the Electoral Commissioner as defined in the Commonwealth Electoral Act 1918 (Cth), formed the belief that there had been irregularities in relation to the AEU (Queensland Branch) election. Accordingly, the applicant made an application pursuant to s 200(3) of Sch 1B for an inquiry by this Court into the matter. 2 As required by O 48 r 10A(1)(a) of the Federal Court Rules, the applicant filed an application in Form 50A which set out particulars of the election and of the alleged irregularities. The application having been filed, the Court is required if it 'is satisfied that there are reasonable grounds for the application' to fix a time and place for conducting the inquiry: s 201 of Sch 1B of the Act. 3 The duties of the Court at an inquiry and the orders which it may make are found in s 206 of Sch 1B. Section 206 so far as presently relevant provides: '206(1) [Inquiry into irregularity] At an inquiry, the Federal Court must inquire into and determine the question whether an irregularity has happened in relation to the election, and such further questions concerning the conduct and results of the election as the Court considers necessary. … 206(4) [Orders where irregularity found] If the Court finds that an irregularity has happened, the Court may, subject to subsection (5), make one or more of the following orders: (a) an order declaring the election, or any step in relation to the election, to be void; (b) an order declaring a person purporting to have been elected not to have been elected, and declaring another person to have been elected; (c) an order directing the Industrial Registrar to make arrangements: (i) in the case of an uncompleted election – for a step in relation to the election (including the calling for nominations) to be taken again and for the uncompleted steps in the election to be taken; or (ii) in the case of a completed election – for a step in relation to the election (including the calling for nominations) to be taken again or a new election to be held; (d) an order (including an order modifying the operation of the rules of the organisation to the extent necessary to enable a new election to be held, a step in relation to an election to be taken again or an uncompleted step in an election to be taken) incidental or supplementary to, or consequential on, any other order under this section. 206(5) [Conditions for declaring election void] The Court must not declare an election, or any step taken in relation to an election, to be void, or declare that a person was not elected, unless the Court is of the opinion that, having regard to the irregularity found, and any circumstances giving rise to a likelihood that similar irregularities may have happened or may happen, the result of the election may have been affected, or may be affected, by irregularities.' (original emphasis) 4 The term 'irregularity' is defined in s 6 of Sch 1B as follows: 'irregularity, in relation to an election or ballot, includes: (a) a breach of the rules of an organisation or branch of an organisation; and (b) an act or omission by means of which: (i) the full and free recording of votes by all persons entitled to record votes and by no other persons; or (ii) a correct ascertainment or declaration of the results of the voting; is, or is attempted to be, prevented or hindered; and (c) a contravention of section 190.' (original emphasis) 5 Section 190 of Sch 1B provides: '190 An organisation or branch commits an offence if it uses, or allows to be used, its property or resources to help a candidate against another candidate in an election under this Part for an office or other position. Maximum penalty: 100 penalty units.' 6 On 20 February 2004 the AEU and the Queensland Teachers Union of Employees ('the QTU'), which is an organisation registered under the Industrial Relations Act 1999 (Qld), were granted leave to appear and make submissions on the matters arising under s 201(1)(b) of Sch 1B, namely whether there were reasonable grounds for the application for an inquiry. 7 The application set out the following particulars of the election and of the alleged irregularities: 'Particulars of election 1. Organisation or branch: Australian Education Union Queensland Branch. 2. Office:Federal Conference Delegates representing the General Division. 3. The result of the election was declared on 4 November 2003. Particulars of alleged irregularities 1. The Queensland Teachers' Union of Employees ("QTU"), is - an organisation registered under the Industrial Relations Act 1999 (Qld) and - an associated body of the Australian Education Union ("AEU"), an organisation registered under Schedule 1B of the Workplace Relations Act 1996 (the WR Act); 2. Julie-Ann McCullough ("McCullough") was at relevant times - President of the QTU, - a member of the AEU, - Branch President of the Australian Education Union Queensland Branch ("AEU(Q)") and - a candidate for election to the office of Federal Conference Delegate representing the General Division of the AEU(Q), being Election E No. 207 of 2003 conducted by the Australian Electoral Commission ("the election"). 3. John Battams ("Battams") was at relevant times - General Secretary of the QTU, - a member of the AEU, - Branch Secretary of the AEU(Q). 4. Ron Frame ("Frame") was at relevant times - a member of the AEU; - an organiser employed by the QTU; 5. Trevor John Meldon ("Meldon") is, and was at all relevant times, - a candidate in the election, or a person proposing to nominate as a candidate in the election. 6. On 4 September 2003, the QTU and McCullough used QTU resources to create and distribute a notice of a Special Meeting of State Council of the QTU to be held on 13 September 2003 for the purpose of helping particular candidates against another candidate in the election. 7. On 4 September 2003, Battams used QTU resources to create and distribute a Memorandum dated 4 September 2003 questioning the veracity of statements made by Meldon, for the purpose of helping particular candidates against another candidate in the election. 8. On 13 September 2003, the QTU, Battams and the Members of the State Council of the QTU ("State Council members") used resources of the QTU to hold a meeting of the State Council to pass a resolution purporting to authorise QTU endorsement and support for 14 candidates in the election for the purpose of helping particular candidates against another candidate in the election. 9. On 13 September 2003, the QTU, Battams and the State Council members purported to authorise use of QTU resources to support 14 candidates in the election against Meldon for the purpose of helping particular candidates against another candidate in the election. 10. On 17 September 2003, the QTU and Battams used QTU resources to create and distribute a publication titled "Newsflash" numbered 28/03 dated 17 September 2003 and containing: (i) a "How to Vote Card" authorised by Battams describing 14 candidates in the election as "QTU-endorsed" and recommending votes for those 14 candidates in the election, against Trevor Meldon ("Meldon") another candidate in the election; (ii) a statement that Meldon "has stood against the endorsed QTU candidates"; and (iii) a recommendation that "members follow the How to Vote Card as indicated", for the purpose of helping particular candidates against another candidate in the election. 11. Between 17 September 2003 and 30 September 2003, the QTU and Frame used QTU resources to create and distribute a publication titled "Regional Newsletter – Metropolitan East" dated September 2003, containing a reference to Newsflash No 28 and recommending that "members follow the How to Vote Card as indicated in the Newsflash" for the purpose of helping particular candidates against another candidate in the election. 12. On 9 October 2003, the QTU and Battams used QTU resources to create and distribute a publication titled "Queensland Teachers' Journal" dated 9 October 2003 and containing: (i) a "How to Vote Card" authorised by Battams describing 14 candidates in the election as "QTU-endorsed" and recommending votes for those 14 candidates in the election, against Trevor Meldon ("Meldon") another candidate in the election; (ii) a statement authorised by Battams referring to Meldon and implying that he is not "prepared to act in accordance with the democratic decisions of the representative decision-making bodies of the QTU"; and (iii) a recommendation, authorised by Battams, that members "follow the 'how to vote' card distributed to schools and reproduced on this page", for the purpose of helping particular candidates against another candidate in the election. 13. Between 3 September 2003 and 29 October 2003, the QTU and Battams used QTU resources to create and distribute 2 How to Vote Cards authorised by Battams describing 14 candidates in the election as "QTU-endorsed" and recommending votes for those 14 candidates in the election, against Trevor Meldon ("Meldon"), another candidate in the election, for the purpose of helping particular candidates against another candidate in the election. 14. On each of the occasions particularised in paragraphs 6 to 13 above, the use of QTU resources by the persons or bodies for the purposes referred to was in breach of the Rules of the Australian Education Union (the AEU) namely, implied rules that: (i) an Associated Body must not use its property or resources or allow them to be used to support any candidate against any other candidate in an election for an office or other position with the AEU; (ii) the AEU and each of its members and officers who are also members and/or officers of an Associated Body must not suffer that Associated Body to use its property or resources or allow them to be used to support any candidate against any other candidate in an election for an office or other position within the AEU.' 8 In written and oral submissions by senior counsel on behalf of the applicant it was submitted that: (a) the definition of 'irregularity' in Sch 1B extends to conduct affecting voting intentions rather than being confined to the processes of nomination, conduct, and declaration of the poll; (b) the conduct complained of fell within the ordinary meaning of the term 'irregularity in relation to an election for an office'. (c) '44. Sub-paragraph (a) of the definition of "irregularity" in section 6 of Schedule 1B of the WR Act refers to the rules of "an organisation", and "organisation" is defined to mean an organisation registered under the WR Act. On its face, the organisation whose rules (including rules which might be implied by a court relying on Scott v Jess principles) were breached was the QTU which is not an organisation under the WRA. 45 The Applicant contends, however, that there are implied into the AEU Rules additional rules to the following effect: (i) that the AEU will not use or allow to be used its property or resources to support any candidate against any other candidate in an election for an office or other position, whether that office or position is within the AEU or within any Associated Body of the AEU, as defined in Rule 11; (ii) that the AEU shall ensure that the rules of each Associated Body (as defined in Rule 11) contain a rule that the Associated Body will not use or allow to be used its property or resources to support any candidate against any other candidate in an election for an office or other position, whether that office or position is within the AEU or within any Associated Body of the AEU; (iii) that the AEU and each of its members and officers who are also members and/or officers of an Associated Body shall not suffer that Associated Body to use or allow to be used its property or resources to support any candidate against any other candidate in an election for an office or other position, whether that office or position is within the AEU or within any Associated Body of the AEU.' 9 Section 201(b) is in substantially the same terms as its predecessor s 219(b) of the Industrial Relations Act 1988 (Cth). As to the requirement that the Court be satisfied that there are reasonable grounds for the application, French J in Re Post; Re Election for Offices in Transport Workers Union of Australia, Western Australia Branch (1992) 40 IR 162 said (at 166-167): 'The questions for the Court mandated by s 219(b) of the Industrial Relations Act 1988 is whether it is satisfied that there is reasonable ground for the application. It will not be so satisfied if the grounds relied upon could not, even if made out, constitute "an irregularity in relation to an election for an office in the organisation". The question whether there is such an irregularity lies at the heart of this jurisdiction. Nor will it be so satisfied if the allegations of fact relied upon in the application do not at least offer good grounds for suspicion that there has been such an irregularity. The Court will not entertain an application of a speculative nature based upon the applicant's opinion that there has been irregularity unless that opinion rests upon some substantial factual foundation. Necessary conditions to establish the requisite state of satisfaction can be multiplied. It is harder to state what is sufficient to satisfy the Court beyond the words of the section itself which require an evaluative judgment at this preliminary stage.' 10 Where the particulars alleged, on the assumption that they can be proved up on an inquiry, could not as a matter of law constitute an 'irregularity' in relation to an election for an office, the application discloses no reasonable grounds for an inquiry (Post at 168) and there is no jurisdiction for the Court to embark upon the inquiry: The Queen v Gray Ex parte Marsh (1985) 157 CLR 351 at 371, 379, 381 – 382. 11 The ordinary meaning of the term 'irregularity in relation to an election or ballot …' was considered by the High Court in Ex parte Marsh. In that case Gibbs CJ said (at 367 – 368): 'The question then arises whether the conduct alleged – the distribution of the pamphlets and the publication of the advertisements – could arguably have amounted to an irregularity within the ordinary meaning of that word. According to the Oxford English Dictionary "irregularity", in its relevant sense, means "want of conformity to rule; deviation from or violation of a rule, law, or principle … deviation from what is usual or normal". The notion of an irregularity, in relation to an election, involves the idea of some departure from some rule, established practice or generally accepted principle governing the conduct of the election. The question is whether it can be said that the alleged conduct of Mr. Bali and his supporters did depart from some rule, practice or principle of that kind.' 12 That definition was adopted and applied by the High Court in Re Collins Ex parte Hockings (1989) 167 CLR 522 at 525 (per Brennan and Deane JJ), 526 (per Toohey and McHugh JJ) and 529 (per Gaudron J). 13 The ordinary meaning of 'irregularity' in the Industrial Relations Act 1988 (Cth) which uses the phrase 'irregularity in relation to an election for an office' (the same phrase as used in the present Act) was no different from the meaning of the phrase in the 1904 Act which was the subject of the decision in Ex parte Marsh and the decision in Ex parte Hockings: see Re Post at 168; Re Davidson (1990) 31 IR 102. 14 The applicant submitted that the introduction of s 190 into Sch 1B of the Act had the effect that the ordinary meaning of the term 'irregularity in relation to an election for an office' was extended to include conduct affecting voting intentions. In my opinion the extension of a statutory definition to include conduct which did not otherwise fall within the ordinary meaning of the phrase 'irregularity in relation to an election' does not alter the ordinary meaning of the phrase; it simply gives the meaning of the phrase an extended operation it would not otherwise have had. 15 The ordinary meaning of the phrase in Pt 3 of ch 7 of Sch 1B of the Act, in my opinion, remains as stated by Gibbs CJ in Ex parte Marsh and as applied in Ex parte Hockings. The question is whether any of the conduct particularised in the application as the irregularities did depart from some rule, established practice or generally accepted principle governing the conduct of the election. 16 The applicant submits that there is an established rule, established practice or generally accepted principle governing the conduct of elections in registered organisations that the registered organisation and/or its officers do not use or allow to be used, its property or resources to help a candidate against another candidate in an election for an office in the organisation. In support of such a principle the applicant relies upon the decisions Short v Wellings (1951) 72 CAR 84 and Scott v Jess (1984) 3 FCR 263. 17 The same argument was advanced by the prosecutor in Ex parte Hockings (see at 523) and was rejected by the Court. If an irregularity consists merely in the steps taken to affect voting intentions but leaves untouched the processes of nomination, conduct and declaration of the poll it is not an irregularity 'in or in connexion with an election': see at 525. As Toohey and McHugh JJ said (at 526): '… Conduct which constitutes a breach of the rules of an organization but which goes no further than supporting the candidature of members of a particular "team" amounts to an irregularity but it does not give rise to an irregularity in or in connexion with an election because it does not involve a departure from some rule, practice or principle governing the conduct of the election.' 18 There is no allegation of conduct on the part of the AEU which falls within the ordinary meaning of 'irregularity in relation to an election for an office'; nor is there any allegation that the AEU has engaged in conduct which falls within pars (b) or (c) of the extended definition of the term 'irregularity' in s 6 of Sch 1B. There is however, an allegation that there has been a breach of implied rules of the type which are pleaded in par 14 of the application and par 45 of the applicant's written submissions. The implication of such rules is said to be open upon the reasoning underlying the decision of the Court in Scott v Jess. 19 The decision in Scott v Jess is a decision of a Full Court of this Court (Evatt, Northrop and Gray JJ). The application concerned an application under s 141(1G) of the Conciliation and Arbitration Act 1904 (Cth) for directions to officers of the relevant union to perform and observe the rules of that union. One aspect of that jurisdiction is to ensure that officers of an organisation perform the duty that they are under to exercise powers conferred upon them by the rules of the organisation, bona fide for the purposes for which the powers are conferred: at 269 citing Allen v Townsend (1977) 31 FLR 431 at 483 – 489. The normal form of directions given would be that members of a committee of an organisation, or an officer of the organisation who has resolved to exercise a power conferred by the rules otherwise than bona fide for the purpose for which the power was conferred, perform and observe the rules of the organisation by treating the resolution and any action taken on it as void and of no effect: Scott v Jess at 269 – 270. 20 As Evatt and Northrop JJ made clear in Scott v Jess, the prohibition of the use of the resources and funds of an organisation to support one candidate in an election in circumstances where they have been denied or will be denied to another was based on the same principle relating to the proper use of a power. Namely, that the power to deal with the funds granted under the rules was not a power granted for the impugned purpose: see 270 – 271 and the references to Short v Wellings at 87 – 88; Valentine v Butcher (1981) 51 FLR 127 at 138 – 139 and Re Penhallurick (1983) 51 ALR 589 at 595. The rationale is that the funds and resources of an organisation belong as much to one faction as another and all should be treated equally when and if resources are to be made available for election purposes. Further the powers are to be exercised fairly to ensure that all qualified candidates may stand for election on an equal footing. 21 There is nothing in the joint judgment of Evatt and Northrop JJ in Scott v Jess to support any principle other than that a power conferred by a rule of an organisation may only be exercised by the recipient of the power bona fide for the purpose for which the power was conferred and that principle is applicable to the use of the funds and resources of an organisation in relation to an election for an office in the organisation. Importantly for present purposes, the majority did not hold that independent rules may be implied into the rules of a registered organisation and Gray J was against any such power of implication: at 283 – 284. 22 There is ample authority that the rules of a registered organisation cannot be supplemented by implied terms as distinct from permitting the ascertainment of the meaning of the rules upon their true construction which may involve the implication of a limitation on a power: Porter v Dugmore (1984) 3 FCR 396 (FC) at 407 – 408; Darroch v Tanner (1987) 16 FCR 368 (FC) at 377; Belan v National Union of Workers [2001] FCA 724 (FC) at [48] – [50]. Reference can also be made to the first instance judgments of members of this Court in Thomas v Hanson and the AWU [2001] FCA 539 at [34] – [35]; Kingham v Sutton (No 2) [2001] FCA 400 at [32]. 23 Accordingly I reject the submission that there are to be implied into the rules of the AEU implied rules in the terms contended for by the applicant which it is alleged were breached because the conduct complained of was engaged in by the QTU and specified office holders of that organisation. 24 The applicant submitted in the alternative that there was to be implied into the powers conferred by the rules of the AEU limitations on the powers in the terms of or to the effect of the implied rules which the applicant contended for. 25 The applicant does not point to any specific power of the committee or an office holder of the AEU which has been exercised or sought to be exercised in relation to the relevant election which it is said is beyond power because it is burdened with a limitation of the type contended for as an implied rule. Further, there is nothing in the case law which would indicate that any limitation beyond that now provided for in s 190 of the Act as an offence exists in relation to the use of the funds and resources of the organisation in relation to an election to an office of the organisation. 26 The applicant submits that the prohibition relating to the use of the funds and resources of an organisation to support one candidate to the exclusion of another referred to in the decisions in Short v Williams and the subsequent decisions giving effect to such a principle is also a prohibition which operates in respect of the QTU. Thus, it is submitted, the QTU cannot use its resources to support one 'ticket' in an election to the exclusion of another where the election is for an office in the QTU. Similarly, it cannot engage in such conduct for an election to an office because the AEU is an organisation with which the QTU is associated by the terms of the AEU rules and because there exists a commonality of committee membership and general membership of the AEU Queensland Branch and the QTU. The applicant does not allege that the conduct falls within pars (b) and (c) of the extended definition of irregularity in s 6 of Sch 1B and the QTU and its officers are not contravening any rule of the AEU and therefore par (a) is inapplicable. How then, is it said that the conduct of the QTU provides reasonable grounds for an inquiry? 27 The conduct alleged against the QTU and its named office holders amounts to discriminatory acts in favour of one group as the 'endorsed ticket' against another in respect of those groups candidature as members of the AEU (Queensland Branch) another trade union, although one associated with the QTU. There is no case cited to me that holds that such conduct is 'irregular' conduct if the use of the funds and resources of the State organisation for that purpose is a proper use of the power to use the funds and resources conferred by the rules of the State organisation. If the conduct is also categorised as discriminatory conduct by the QTU between its members for an improper purpose and is therefore irregular, it is an irregularity in the conduct of the affairs of the QTU which falls to be dealt with under relevant Queensland legislation. It is only when the conduct of the QTU and its named officers amounts to an irregularity in relation to an election for an office conducted under Sch 1B to the Act, that such conduct falls to be dealt with under the Act. 28 If the conduct of the QTU is to provide the reasonable ground for an inquiry then it must be shown to come within the ordinary meaning of an 'irregularity in relation to an election' as determined in Ex parte Marsh and Ex parte Hockings. As the conduct alleged relates to attempts to persuade eligible voters in the AEU (Queensland Branch) election to vote for a particular 'team' and does not touch the processes of nomination, conduct, and declaration of the poll, the conduct does not constitute 'an irregularity in relation to an election for an office' as required by the Act. 29 It does not assist the applicant to submit, as he does, that the decision in Ex parte Hockings would be decided differently under the present statutory scheme in Pt 3 of ch 7 of Sch 1B to the Act. If such is the situation, it is because of the presence of par (c) in the statutory definition of 'irregularity' and not because the ordinary meaning of the phrase has changed. The reasoning which underpinned the conclusion in Ex parte Marsh and Ex parte Hockings as to the ordinary meaning of 'irregularity' in relation to an election, is equally apposite in respect of the phrase in the contexts where it is used in the present Act. 30 Even if I accept that there are reasonable grounds to believe that the QTU and the named office holders of that organisation engaged in the conduct particularised in pars 1 to 13 of the application and deposed to in the supporting affidavits, I am of the opinion that such conduct does not in law constitute 'an irregularity in relation to an election for an office' for the purposes of Pt 3 of ch 7 of Sch 1B of the Act. There is no other conduct alleged nor apparent in the material filed which could ground a belief that there are reasonable grounds for an inquiry for the purposes of s 201 of Sch 1B. Absent such a belief as to the existence of reasonable grounds, the application must be dismissed. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper. Associate: Dated: 26 November 2004 Counsel for the Applicant: G Martin SC and M Swan Solicitor for the Applicant: Australian Government Solicitor Counsel for Queensland Teachers Union of Employees: R Perry Solicitor for Queensland Teachers Union of Employees: Macrossans Lawyers Counsel for Australian Education Union: C Murdoch Solicitor for Australian Education Union Holding Redlich Date of Hearing: 14 July 2004 Date of Judgment: 26 November 2004