FEDERAL COURT OF AUSTRALIA Nimmo, in the matter of an application for an inquiry relating to an election for an office in the Australian Education Union (NT Branch) [2011] FCA 38 Citation: Nimmo, in the matter of an application for an inquiry relating to an election for an office in the Australian Education Union (NT Branch) [2011] FCA 38 Parties: STEPHEN GRAEME NIMMO File number: NTD 33 of 2010 Judge: REEVES J Date of judgment: 3 February 2011 Catchwords: INDUSTRIAL LAW – application for inquiry relating to an election under s 200 of the Fair Work (Registered Organisations) Act 2009 (Cth) ("the Act") – consideration of who bears burden of proof under s 206(2) of the Act – whether an irregularity occurred with respect to non-receipt of ballot papers of 21 members – interpretation of s 6(b) of the Act and what constitutes a departure from that section – some departure from a norm governing the election is required to breach s 6(b) of the Act – whether an irregularity occurred with respect to period chosen for the election given the remote locations of certain members – whether Union members were improperly removed from voting roll constituting an irregularity – the timing of removal must relate to the election – consideration of whether irregularities would affect election result – there must be a real and not merely theoretical possibility the irregularity affected the election result – voting patterns and participation rates in the election taken into consideration Held that the mere non-receipt of ballot papers did not constitute an irregularity – while certain members received ballot papers too late, and some were improperly removed from the voting roll, neither constituted an irregularity that, as a real possibility, would have affected the result of the election. Legislation: Fair Work (Registered Organisations) Act 2009 (Cth) Industrial Relations Act 1988 (Cth) Workplace Relations Amendment (Registration and Accountability of Organisations) Act 2002 (Cth) Workplace Relations Act 1996 (Cth) Conciliation and Arbitration Act 1904 (Cth) Cases cited: The matter of an Application by Pullen for an Inquiry into Elections in the Federated Liquor and Allied Industries Employees Union of Australia (NSW Branch) (1990) 98 ALR 699 Thompson, in the matter of an inquiry relating to an election for an office in the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union Victorian Branch [2000] FCA 745 Re Bailey; Re Transport Workers' Union of Australia (Victorian Branch) (1997) 79 IR 1 Re Jacomb (2000) 180 ALR 134; [2000] FCA 1891 R v Gray; Ex parte Marsh (1985) 157 CLR 351 Re Collins; Ex parte Hocking (1989) 167 CLR 522 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Re Churchill (2001) 109 FCR 104; [2001] FCA 469 In re Carter; Re Federated Clerks Union of Australia, Victorian Branch (No 1) (1989) 32 IR 1 Re Communication Workers Union of Australian Postal and Telecommunications Branch (NSW) (1996) 67 IR 246 Australian Communications Network Pty Ltd v Australian Competition and Consumer Commission (2005) 146 FCR 413; [2005] FCAFC 221 Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465 Re Ferguson; Re Inquiry into Election in the Australasian Meat Industry Employees Union, WA Branch (1986) 17 IR 208 Re Noack; re Vehicle Builders Employees' Federation of Australia SA Branch (1987) 18 IR 100; [1987] FCA 195 Re Transport Union of Australia, NSW Branch; Ex parte Edwards (1990) 33 IR 436 Parker v Amalgamated Society of Carpenters and Joiners of Australia (1992) 43 IR 248; [1992] FCA 538 Re Patterson; Re Association of Railway Professional Officers of Australia (1987) 19 IR 373 Re Carter; Re Federated Clerks Union of Australia, Victorian Branch (No 2) (1989) 32 IR 30 Re Australian Timber and Allied Industries Union; Ex parte Black (1991) 39 IR 106 Oxford English Dictionary Dates of hearing: 13 and 14 December 2010 and 11 January 2011 Date of order: 11 January 2011 Place: Brisbane (heard in Darwin) Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 91 Counsel for the Applicant: Mr E White Solicitor for the Applicant: RL Whyburn & Associates Counsel for Mr Clisby: Mr Clisby appeared in person Solicitor for the Australian Electoral Commission Mr A Jarvis of the Australian Government Solicitor Counsel for the Australian Education Union Mr WL Friend Solicitor for the Australian Education Union Hall Payne Lawyers IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY DISTRICT REGISTRY FAIR WORK DIVISION NTD 33 of 2010 IN THE MATTER OF AN ELECTION FOR AN OFFICE IN THE AUSTRALIAN EDUCATION UNION, NORTHERN TERRITORY BRANCH STEPHEN GRAEME NIMMO Applicant JUDGE: REEVES J DATE OF ORDER: 11 January 2011 WHERE MADE: BRISBANE (HEARD IN DARWIN) THE COURT ORDERS THAT: 1. This inquiry be terminated. 2. The matter be adjourned to a date to be fixed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY DISTRICT REGISTRY FAIR WORK DIVISION NTD 33 of 2010 IN THE MATTER OF AN ELECTION FOR AN OFFICE IN THE AUSTRALIAN EDUCATION UNION, NORTHERN TERRITORY BRANCH STEPHEN GRAEME NIMMO Applicant JUDGE: REEVES J DATE: 3 FEBRUARY 2011 PLACE: BRISBANE (HEARD IN DARWIN) REASONS FOR JUDGMENT INTRODUCTION 1 In July and August 2010, the Australian Electoral Commission ("the Commission") conducted a ballot for the position of Branch Secretary of the Northern Territory Branch of the Australian Education Union. The Australian Education Union is a registered organisation under the Fair Work (Registered Organisations) Act 2009 (Cth) ("the Act"). 2 Two candidates contested the election: Mr Lampe, the incumbent, and Mr Clisby. When the result of the election was declared on 12 August 2010, Mr Clisby had won by 22 votes. 3 Mr Stephen Nimmo is a member of the Union. Under s 200(1) of the Act, a member of a registered organisation is entitled to "make application for an inquiry by the Federal Court" where he or she claims that "there has been an irregularity in relation to an election for an office in the organisation or a branch of the organisation". 4 On 1 October 2010, Mr Nimmo filed an application in this Court seeking such an inquiry into the Branch Secretary's election. In essence, he claimed three categories of irregularity happened in the election. They were: 1. The ballot papers of certain members were posted to them and either returned unclaimed by Australia Post, or not received at all. 2. Certain members received their ballot papers too late to allow them to cast their ballots before the ballot closed on 11 August 2010. 3. Certain financial members were removed from the membership roll of the Union and were not included in the ballot. Procedural History 5 After an application has been lodged under s 200, if the Court is satisfied there are reasonable grounds for the application, it "must fix a time and place for conducting the inquiry": see s 201. On 4 November 2010, I decided that I was satisfied that there were reasonable grounds for the application and, accordingly, I ordered that the inquiry be conducted in Darwin to commence on 13 December 2010 and be completed within three days. There was some urgency in the conduct of the inquiry because under rule 137(b) of the Northern Territory Federal Branch rules of the Union ("the NT rules"), the newly-elected Branch Secretary is to take office from Monday, 17 January 2011. 6 Under s 205(1) of the Act, all persons who apply to the Court for leave to appear and "who appear to the Court to have an interest in the inquiry" may be allowed to appear at the inquiry. Those persons are then taken to be parties to the proceeding: see s 205(2). The following persons sought, and were granted, leave to appear at the inquiry: Mr Nimmo, the Commission, the Union and Mr Clisby. Each of these parties was represented by counsel at the inquiry, except Mr Clisby, who appeared in person and represented himself. sOME RELEVANT LEGISLATIVE PROVISIONS 7 There are two provisions of the Act that have a particular bearing on this inquiry. The first is s 6 of the Act where the word "irregularity" is defined 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. 8 The second is s 206(5) of the Act, which provides as follows: 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. How the election was conducted 9 Before turning to consider each of the three categories of irregularity identified by Mr Nimmo, it is convenient to provide some of the background to this election and to briefly summarise the evidence as to how it was conducted. 10 Mr Lampe was elected Branch Secretary in mid to late June 2007 following the early resignation of the previous Branch Secretary, Mr Perrin. Under the NT rules, the Branch Secretary holds office for a three year term. As I have already mentioned, that term commences on the third Monday of January, following his or her election. 11 Since he was elected to fill a casual vacancy, Mr Lampe and the Branch Executive of the Union assumed that his term as Branch Secretary would expire when Mr Perrin's term was due to expire in January 2009. 12 Under s 182 of the Act, the Commission is required to conduct each election for an office of an organisation, including that of Branch Secretary. 13 In mid-2008, acting on the assumption mentioned above, Mr Lampe asked the Commission to conduct an election for his position. However, the Commission took the view that Mr Lampe had, in fact, been elected for a three year term from June 2007 and that term was not due to expire until June 2010. As a consequence, the Commission declined to conduct an election for Branch Secretary in 2008. 14 In May 2010, Mr Lampe again asked the Commission to conduct an election for his position. On this occasion, the Commission accepted his request. 15 Ms Christine Roper, an employee of the Commission, was appointed as the Returning Officer for the election on 31 May 2010. On the same day, she wrote to the Union advising it of her proposed timetable for the election. Under that timetable, nominations were to open on 1 June 2010 and close on 17 June 2010. The ballot was then to open on 19 July 2010 and close at 5.00 pm on 11 August 2010. 16 By the close of nominations, only two candidates had nominated for the election – Mr Lampe and Mr Clisby. 17 Ms Robyn Tilbury is the person in the Union's secretariat who is responsible for maintaining the computerised membership roll of the Union. On 18 June 2010, Ms Roper obtained from Ms Tilbury a USB stick containing two lists of union branch members who were financial as at 25 May 2010, in accordance with the NT rules. Two lists were necessary because, in addition to the ballot for the position of Branch Secretary of the Union, the position of the National Principals Committee (General Division) Member was also to be elected and 70 members of the Union who were within its TAFE Division were not entitled to vote for that position. 18 Including those 70 members, a total of 1,907 members of the Union were listed on the two lists as being entitled to vote for the position of Branch Secretary. Ms Roper subsequently sorted and checked these two membership lists and discovered that there were three names on them that had been duplicated. She confirmed this with Ms Tilbury on 21 June 2010 and those three duplications were deleted, leaving a total of 1,904 eligible members. 19 Ms Roper then used a computer program called Rollmaker to sort the names and addresses of all these eligible members into alphabetical order. She subsequently arranged the printing of the ballot papers for the election. On 13 July 2010, she caused the requisite ballot materials to be delivered to an organisation called Mailfast so that the names and addresses of the eligible members could be mail merged to envelopes. Finally, on Monday, 19 July 2010, she caused the ballot papers to be posted to the 1,904 eligible members via Australia Post. 20 During the period the ballot was open, a total of 71 ballot papers were returned unclaimed by Australia Post. Of those, Ms Roper was able to obtain new addresses from Ms Tilbury for 40 and she redirected the ballot papers for those members to the new addresses she obtained for them. 21 In all, 483 ballot papers were duly returned by Australia Post by the time the ballot closed on 11 August 2010. Of those, 11 were rejected because the member concerned had not signed the declaration panel on the ballot envelope. Of the 472 ballot papers remaining, four were rejected as informal. The 468 formal ballot papers were then counted and the result of the election was declared by Ms Roper as follows: Mr Peter Clisby 245 Mr Adam Lampe 223. Thus, Mr Clisby was declared the winner by a margin of 22 votes. 1. Ballot papers posted to certain members but returned unclaimed, or not received 22 Turning then to the first category of irregularity identified by Mr Nimmo: the ballot papers of certain members were posted to them and either returned unclaimed by Australia Post, or not received at all. 23 In his original affidavit filed in support of his application, Mr Nimmo annexed a schedule of 48 members of the Union who he claimed had not received their ballot papers in the election. This annexure was referred to as SN-3. It was the precursor to a schedule Mr Nimmo's counsel provided to me during final addresses at the inquiry. Among other changes, five non-financial members had been removed from SN-3, thus reducing the final schedule to 43 members. I will refer to this schedule in these reasons as the (or Mr Nimmo's) final schedule. There was some overlap between the members who fell into each of Mr Nimmo's three categories of irregularities. The number of members in each category were as follows: The first category fell into two groups, as indicated above: 4 returned unclaimed 17 non-receipts Second category – 8 Third category – 16. 24 In relation to this first category, Mr Nimmo claimed that the fact that the 21 members concerned did not receive their ballot papers was an act or omission by means of which the full recording of the votes of all persons entitled to vote in the election was prevented or hindered. He claimed this, therefore, constituted an irregularity in the terms of subparagraph (b) of the definition of "irregularity". He contended that it did not matter if there was no explanation as to why these members did not receive their ballot papers. In this respect, he contended that he did not bear any burden to prove or disprove facts to establish that this irregularity (or any of the other irregularities) had occurred in the election. 25 In support of these claims and contentions, Mr Nimmo relied upon the decision of Gray J in The matter of an Application by Pullen for an Inquiry into Elections in the Federated Liquor and Allied Industries Employees Union of Australia (NSW Branch) (1990) 98 ALR 699 ("Pullen"). In that case, Gray J conducted an inquiry into a union election under the provisions of the Industrial Relations Act 1988 (Cth). For present purposes the relevant provisions of that Act were in the same terms as the relevant provisions of the Act. Among other things, Gray J found that an unknown number of members entitled to vote in that election did not receive their ballot papers, either because they were forwarded to their employers' addresses and not passed onto them, or because they were posted to them too close to the date of the close of the ballot, or for a combination of those two reasons. Based on this finding, his Honour held that an irregularity had occurred in the election because (at 709): [T]here was an act or omission by means of which the full and free recording of votes by all persons entitled to record votes was prevented or hindered. The relevant act or omission was either the failure of an employer to pass on mail which arrived addressed to a union member, or failure of an employer or of a delegate, organiser or collector of the branch to forward information about the financial status of members at the relevant date to the branch office sufficiently early. (emphasis added) 26 Mr Nimmo's counsel claimed that by parity of reasoning the fact these 21 members did not receive their ballot papers constituted an irregularity. In relation to the onus of proof issue, Mr Nimmo also relied upon the decision of Finkelstein J in Thompson, in the matter of an inquiry relating to an election for an office in the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union Victorian Branch [2000] FCA 745 ("the Automotive decision"). In that decision, Finkelstein J held that an applicant in a position similar to Mr Nimmo, viz a person who had sought an inquiry into a union election, does not carry any burden of proof, whether that be a legal burden, or an evidential burden (see at [25]), and his Honour rejected the view that any finding in an inquiry of this kind must be made according to the civil standard of proof (see at [26]). Instead, his Honour held that the only burden that an applicant must satisfy is to show that an inquiry should be instituted (see at [25]). In reaching these conclusions, Finkelstein J declined to follow the decision of Gray J in Re Bailey; Re Transport Workers' Union of Australia (Victorian Branch) (1997) 79 IR 1 ("Bailey"), the critical part of which was as follows (at 21): [T]hose who wish to establish that irregularities have happened in relation to elections must at least bear an onus of producing evidence and that, on the whole of the evidence, the Court must be satisfied on the ordinary civil onus of proof that such irregularities have occurred, before it can make a finding to that effect. 27 I consider each of these claims and contentions must be rejected. It is convenient to deal first with the onus of proof issue. It involves two interrelated questions: what is the standard of proof and who, if anyone, bears the onus of proof? Since the Automotive decision, the legislature has answered the first question. Section 206(2) of the Act now expressly provides that: "The Court must determine whether an irregularity has happened on the balance of probabilities." This provision was first inserted when the Workplace Relations Amendment (Registration and Accountability of Organisations) Act 2002 (Cth) came into effect on 12 May 2003. The equivalent section in the Workplace Relations Act 1996 (Cth) in force at the time of the Automotive decision (s 223) did not contain any similar provision, but it was otherwise in relevantly identical terms to s 206. 28 While this does not directly resolve the interrelated question as to who, if anyone, bears the onus of proof, I consider it does so by implication. Since the civil standard of proof has now been adopted by the legislature for the purposes of this type of inquiry, in my view that clearly implies that someone has to meet that standard in the inquiry. As Gray J observed in Bailey, while these proceedings are in the nature of an inquiry, they must still be conducted as judicial proceedings (see at 21). I consider it follows the person who "claims that there has been an irregularity in relation to an election" under s 200(1) of the Act must at least bear the onus of producing evidence to satisfy the Court that the irregularities he or she claims to have occurred did, in fact, happen. For these reasons, I respectfully agree with the observations of Gray J in Bailey set out above. I also note that in Re Jacomb (2000) 180 ALR 134; [2000] FCA 1891 ("Jacomb"), Weinberg J (at [9]) appears to have accepted that an applicant in a similar position to Mr Nimmo bears such an onus. I therefore reject Mr Nimmo's counsel's contention on this issue and hold that Mr Nimmo does bear the onus of producing evidence to satisfy me that the irregularities he claims occurred in relation to this election, did happen. 29 Turning then to the contentions about subparagraph (b) and the Pullen decision. First, I consider Pullen can be distinguished on its facts from the present case. In this case, there is little, if any, evidence to suggest that any of the 21 members involved in this alleged irregularity did not receive their ballot papers because they were forwarded to their work addresses and not passed onto them by the employer. Ms Roper gave evidence, which I accept, that she posted the requisite ballot materials to each of these 21 members at the addresses appearing on the Union's membership list. Indeed, Mr Nimmo accepted that this was so in his final schedule. 30 From that membership list, it is apparent that 11 of the 21 addresses concerned were not, on their face, work addresses. Included in this 11 was one of the four members whose ballot papers were returned unclaimed – in her case from a post office box in Tennant Creek. 31 Of the 10 addresses on the membership list that were, on their face, work addresses, seven were the post office boxes, or private mail bags of the work addresses. Three of those were the other members whose ballot papers were returned unclaimed. With these four members, the most obvious inference to be drawn is that the member concerned was not at the address to claim the envelope containing the ballot papers. It is also worth noting that these four members were among the 31 members whose ballot papers were returned unclaimed and in relation to whom Ms Tilbury was unable to find another address (see [20] above). While Ms Tilbury obviously made these inquiries to attempt to ensure that as many members as possible received their ballot papers, it was not her responsibility to do so. Under the Federal rules of the Union, that responsibility rests with the member concerned: see rule 19. 32 Putting aside these three members, the evidence as to what happened to the ballot papers of the other seven members who had their ballot papers posted to work addresses is equivocal at best. It involved hearsay evidence for two members. While I am not bound by the rules of evidence (see s 205(3)(b)), I consider I must still treat this hearsay evidence with the usual caution. In any event, this hearsay evidence showed the ballot papers had not been received, not that they were received at their work address and not passed onto them by the employer. With three of them, I note that the addresses given in the statement or email in the evidence differed from that on the Union membership list. This probably suggests that they were not received at all, rather than that they were received at their work addresses and not passed onto them. In the remaining two cases, there is no evidence at all from one and the email that is in evidence from the other simply says "no" without any further explanation. So, based on the evidence before me, I do not consider Mr Nimmo has established the factual basis necessary to rely upon Pullen. 33 In any event, I do not consider the mere non-receipt of a ballot paper, in the circumstances of this case, can be said to involve an irregularity as defined in subparagraph (b) of s 6 of the Act. In R v Gray; Ex parte Marsh (1985) 157 CLR 351 ("Ex parte Marsh"), the High Court considered an almost identical provision to subparagraph (b) in relation to an alleged irregularity in a union election under the Conciliation and Arbitration Act 1904 (Cth). In construing the definition of the word "irregularity", Gibbs CJ observed (at 364–5) that the definition was an inclusive one and extended to the ordinary meaning of that word. Then (at 367–8) his Honour referred to the Oxford English Dictionary definition of that word and said that: "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." These observations were subsequently applied by all the members of the Court in Re Collins; Ex parte Hocking (1989) 167 CLR 522 ("Re Collins") at 524–5 per Brennan and Deane JJ; 526 per Toohey and McHugh JJ; and 528–9 per Gaudron J. 34 The obvious purpose of these provisions of the Act is to ensure that elections for important positions in industrial organisations are conducted fairly and democratically. The words "full and free" in subparagraph (b) must therefore be construed to advance that purpose. However, those words must also be construed having regard to their context in the Act as a whole and, among other things, the practicalities of the situation to which they apply. In this regard, it is important to note that if Mr Nimmo's contention were correct, it would essentially mean that a Returning Officer conducting an election of this kind under the Act would have to guarantee the delivery of all ballot papers to all eligible voters before it could be said that there had been a full recording of the votes of all persons who are entitled to vote. In this case, that would mean guaranteeing the delivery of ballot papers to 1,904 members living throughout the Northern Territory. In my view, such a construction would place an impossible burden on the Returning Officer. The obvious impracticality, expense and uncertainty that would be created in this, and all similar elections under the Act if that approach were to be adopted, tell heavily against subparagraph (b) being construed in this way: see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]–[70] and [97]–[98]. 35 Furthermore, I consider the context of subparagraph (b) requires the act or omission concerned to be linked to, or involve, some departure from some norm or standard. As Ex parte Marsh shows, that is the ordinary meaning of the word "irregularity". That is also what is required by subparagraph (a) – a breach of a rule of the organisation – and subparagraph (c) – a breach of s 190 of the Act. At the same time, this does not mean that I consider the act or omission must involve some intentional wrongdoing. Nor do I consider it means, at the other end of the spectrum, that inefficiency, mere error, or neglect, would suffice. 36 It follows that I consider Mr Nimmo needs to show, on the balance of probabilities, that the non-receipt of these 21 ballot papers was linked to, or involved, a departure from some norm or standard. In my view, he has failed to do that. He did not allege that any of the rules of the Union had been breached and he accordingly eschewed any reliance on subparagraph (a) of the definition of "irregularity". Similarly, he did not rely upon subparagraph (c) of the definition. Nor did he point to any established rule, practice, or accepted principle that had not been followed by Ms Roper, or someone else connected with this election. Instead, he relied solely on the non-receipt of the ballot papers without producing any evidence to explain how that involved some departure from some specified norm or standard. It hardly needs to be said that there is any number of regular explanations for the non-receipt of a ballot paper through the mail. They include a change of address (already mentioned above), a failure by a member of a household to pass on the mail, an absence on leave, or through illness, or even some delay or error within Australia Post. 37 For these reasons, I do not consider this first category of alleged irregularity constituted an irregularity in relation to the election as defined in s 6 of the Act. 2. Certain members received their ballot papers too late to cast a vote 38 Mr Nimmo's second category of alleged irregularity was that: certain members received their ballot papers too late to allow them to cast their ballots before the ballot closed on 11 August 2010. According to Mr Nimmo's final schedule, eight members of the Union were affected by this irregularity. Seven of these eight members were located at various remote communities in the Northern Territory, including Mount Allan, Kiana, Robinson River and Borroloola. In fact, Mr Nimmo himself was the only member in this category who was not located in a remote community. He lives in Alice Springs. 39 At its heart, this irregularity relates to the 23 day election period Ms Roper adopted for this election – from 19 July 2010 to 5.00 pm on 11 August 2010. 40 Mr Smith, the President of the Union, explained in his evidence that this creates a difficulty for those members of the Union living in very remote parts of the Northern Territory, which he described as those members who are only accessible by aircraft and/or barges during the wet season. He claimed that approximately 300 to 430 members of the Union are located in these areas. Ms Tilbury, who maintains the membership lists, said it was 286. Mr Smith said that the ordinary mail service available in many of these remote areas is usually provided once per week by plane. This means that it can take at least seven days for the mail to reach its destination and, once it does, it cannot be returned for another seven days, when the next mail plane arrives. This is borne out by an email in evidence from one of the members living at Kiana in the Northern Territory, where he describes the mail service available at that remote location as follows: We receive all mail via a mail-plane from Tennant Creek each Friday. So mail needs to be in Tennant early enough to be sorted and bagged for the Friday plane. Also the plane does not wait for us to read and sign letters so our completed papers would not get into the mail bag until the following Friday at the earliest. 41 Another member made similar comments about the mail service at Robinson River. He said: "We only receive mail once a week, by air, on Tuesdays. Thats assuming there is nothing wrong with the plane, etc." 42 Because of these limitations to remote mail services, Mr Smith claimed that the traditional period for a Union postal ballot was between 28 and 35 days. He said that if a postal ballot is conducted over a period that is shorter than 28 to 35 days: "there is a real chance that the very remote members will not receive their ballots in sufficient time so as to enable them to cast a vote and return it to Darwin before the close of the ballot". By way of example, he pointed to the recent elections held for the positions of President, Vice Presidents, Treasurer and 10 executive council members of the Union. He said they were open for 31 days between 18 October 2010 and 18 November 2010. 43 The history of postal ballots conducted by, or for, the Union, for Branch Executive member positions, including the positions of President and/or Branch Secretary, tends to support Mr Smith's claims. The relevant details of those ballots dating back to 1990 are contained in a part of an annexure to the affidavit of Ms Roper. It discloses that the election periods for those postal ballots, were as follows: Year Election Election Period in Days 90 Branch Executive positions including President and Secretary 31 91 President – casual vacancy 21 92 Branch Executive positions including President 31 93 Branch Executive positions including Secretary 31 96 Branch Secretary – casual vacancy 21 96 Branch Executive positions including President and Secretary 32 98 Branch Executive positions including President 21 99 Branch Executive positions including Secretary 22 2000 Branch Executive positions including President 21 2002 Branch Secretary – casual vacancy 28 2002 Branch Executive positions including President and Secretary 31 2003 Branch President – casual vacancy 21 2004 Branch Executive positions including Secretary 31 2005 Branch Executive positions including Secretary 35 2006 Branch Executive positions excluding Secretary 28 2007 Branch Secretary – casual vacancy 21 2008 Branch Executive positions excluding Secretary 33 2010 Branch Secretary 23. 44 I have excluded from this list postal ballots to fill casual vacancies other than for President or Secretary. 45 In summary, this history shows that, until the subject election of Branch Secretary, with the exception of elections to fill casual vacancies for either the position of President, or Secretary, and apart from a period between 1998 and 2000, all other postal ballots for Branch Executive positions of the Union, which included the positions of President and/or Secretary, were open for a period of between 28 and 35 days. 46 Mr Smith's claims also appear to be supported by rule 110 of the NT rules of the Union. That rule provides that the ballot papers for elections for Branch Executive member positions, including President and Branch Secretary, are to be forwarded by pre-paid post to each financial member of the Union by not later than 14 September (see rule 110(c)) and are to be returned to the Returning Officer by not later than 5.00 pm on 15 October (see rule 110(d)). If these dates are applied exactly, this allows for an election period of 31 days. 47 With an exception I will mention a little later, s 193(1)(a) of the Act requires the Commission to comply with the rules of an organisation when it is conducting an election for an office or position in that organisation. 48 I was not told why rule 110 of the NT rules of the Union was not followed in relation to this election. This raises a number of difficulties with the way in which this issue came to the fore in this inquiry. First, while an inquiry of this kind is not limited to the irregularities identified in the application for the inquiry (see Re Churchill (2001) 109 FCR 104; [2001] FCA 469 ("Churchill") at [7] per Finkelstein J), this issue is not specifically mentioned in that document. In fact, the first time it was mentioned as a general concern was in Mr Smith's first affidavit filed on 26 November 2010. Even then, rule 110 is not specifically mentioned. 49 Secondly, while I accept that it is possible to review certain decisions of a Returning Officer made in relation to an election, there is debate in some decisions of this Court as to how far that review jurisdiction extends (see In re Carter; Re Federated Clerks Union of Australia, Victorian Branch (No 1) (1989) 32 IR 1 ("Re Carter") at 4 per Gray J; Re Communication Workers Union of Australian Postal and Telecommunications Branch (NSW) (1996) 67 IR 246 at 257 per Moore J and Churchill at [16]–[19]). 50 Thirdly, while I also accept that it is possible to mount a collateral challenge to a decision of a Returning Officer in an inquiry of this kind (see the discussion in Churchill at [17]), that course presents difficulties where, as here, Ms Roper, in her capacity as the Returning Officer, is not a party in this inquiry. That means that the precise nature of this challenge has not been put to Ms Roper and she has not had an opportunity to explain. For all I know, there may be a good explanation as to why rule 110 was not followed in this particular instance. For example, s 193(1)(b) of the Act allows a Returning Officer, in spite of anything in the rules of an organisation, to take such action and give such directions as he or she considers necessary to, among other things, avoid irregularities and remedy any procedural defects that appear to exist in the rules of the organisation. It is, of course, possible that Ms Roper used this power in this case. 51 It has occurred to me that I could resolve these difficulties by reconvening this inquiry, allowing Ms Roper leave to become a party and to then put in place a procedure to allow this issue to be properly ventilated and determined. As will emerge later in these reasons, this option also presents itself in relation to the third category of alleged irregularity. However, for the reasons I have given there, I have ultimately decided that course would be futile because, even if I were to conclude that one or both of these two alleged irregularities did constitute irregularities in relation to the election within the provisions of the Act, I do not consider either or both of them could have affected the result of this election. 3. Certain financial members removed from the membership roll 52 Mr Nimmo's third category of alleged irregularity was that: certain financial members were removed from the membership roll of the Union and, as a consequence, they were not included in the postal ballot for the Branch Secretary's position. As I understand the way this irregularity was ultimately put by Mr Nimmo's counsel in final addresses, it was said to be an irregularity because it involved a breach of the rules of the Union. He may also have tentatively suggested that it extended to a breach of the Act. 53 It is convenient to begin my consideration of this irregularity by describing how it arose as an issue in this inquiry. 54 As with the second category of irregularity, this irregularity was not specifically identified, at least in the terms it now is, in Mr Nimmo's original application. Instead, as I have already mentioned, Mr Nimmo annexed a schedule to his affidavit in support of his original application, referred to as SN-3, which listed 48 members who he claimed had not received their ballot papers. 55 Ms Roper gave evidence that when she read Mr Nimmo's affidavit she checked SN-3 against the membership list that had been provided to her by Ms Tilbury. As a consequence, she said she was able to identify 16 members listed on SN-3 whose names did not appear in the membership list provided by Ms Tilbury. In her affidavit, Ms Roper set out the names and addresses of those 16 members (at [59]). 56 In his supplementary affidavit, Mr Smith gave evidence that, when he first became aware of the evidence in [59] of Ms Roper's affidavit, he raised it with Ms Tilbury. When he did, he said Ms Tilbury advised him that, with the exception of one person who did not become a member until after the election and another who was an associate member, she removed the balance of the members listed in [59] because they did not have a current mailing address. Ms Tilbury also told Mr Smith that she had made: "a rational decision as there is no current address". Mr Smith added that, so far as he was aware, no officer of the Union had given any direction to Ms Tilbury to remove those members' names. 57 During cross-examination, Ms Tilbury confirmed that she had removed approximately 20 members from the membership roll of the Union because she did not have mailing addresses for them. Ms Tilbury also said that she did not keep any details of the members she had removed because, since that time, the Union had conducted another election. She added that all the information in the membership database is updated constantly. At this point it is convenient to observe that, despite the fact Ms Tilbury destroyed her records of the details of these members, I consider it can be inferred that the details of at least 16 of them are those set out in [59] of Ms Roper's affidavit. 58 I will now turn to consider how this evidence stands with the rules of the Union and the provisions of the Act. 59 The rules of the Union are in two parts – the Federal rules and the NT rules. First and foremost, it is to be noted that all (and only) financial members of the Union may vote in elections for Branch Executive positions (see NT rules 105(a)(ii) and 110(b)). 60 The membership rules of the Union are set out in the Federal rules. A person may become a member of the Union if he or she is eligible and applies for membership in the appropriate form (see Federal rule 9(1)). The eligibility requirements for Northern Territory members are set out in clause 5(10) of the Federal rules. In essence, they provide that a person who is employed in the public education sector in the Northern Territory as a teacher, assistant teacher, superintendent, director, education officer or lecturer is eligible to apply for membership. An applicant for membership is required to supply details of, among other things, their name, address, occupation, employer and place of employment (see Federal rule 9(2)). Further, Federal rule 19 requires a member to report to the relevant Branch Secretary in writing any change to his or her place of residence, employer or place of employment within 14 days of it occurring. Federal rule 9(4) provides (subject to the exceptions contained therein) that an eligible applicant for membership shall be deemed to have become a member of the Union as from the date of admission in accordance with subrule (1) or from the date of receipt of the applicant's application at the office of the branch. By Federal rule 11, members are obliged to pay by way of entrance fees and subscriptions such amounts as are determined from time to time by the respective branch councils. While a person remains a member of the Union, he or she remains liable to pay all subscriptions, levies or fines due by that person (see Federal rules 12(6) and 17(5)) and becomes unfinancial on failing to do so. Federal rule 18(1) provides that a person shall cease to become a member when he or she is no longer eligible, is expelled, dies, submits a valid notice of resignation, or the Branch Executive accepts an earlier resignation. Significantly, for present purposes, Federal rule 18(1)(f) provides that a person shall cease to be a member when: being unfinancial and having failed to keep the Union informed of his/her place of residence, employer and place of employment as required by these rules and, the Secretary of the Branch in the area of which he/she was last known to reside having made proper attempts to do so is unable to contact him/her for a period of more than three months, the Branch Executive rules that his/her membership shall be determined. 61 The relevant provisions of the Act are these. Section 230(1)(a) requires an organisation to keep "a register of its members, showing the name and postal address of each member". Section 230(2)(b) requires an organisation to remove from its register of members "the name and postal address of each person who ceases to be a member under s 171A, or under the rules of the organisation, within twenty-eight days after the person ceases to be a member". Section 171A of the Act provides that if a person is a member of an organisation and is no longer an employee, independent contractor performing the work of an employee eligible for membership, or an officer of the association – these criteria are set out in s 18B of the Act – that person's membership of the organisation immediately ceases. 62 For present purposes, I consider the net effect of these rules and statutory provisions is that, absent a valid resignation under the rules, a person who had been duly accepted as a member of the Union and who remains eligible for membership under the rules, does not cease to be a member unless he or she is unfinancial and has failed to keep the Union informed of his or her place of residence, employer and place of employment. However, if this latter situation applies, that person's membership does not cease until the Secretary of the Branch has made proper attempts to contact the member and been unable to do so for a period of more than three months and the Branch Executive has ruled that his or her membership has been determined. 63 It follows that, based on the evidence outlined above, I am constrained to find that Ms Tilbury had no power or authority under the relevant rules of the Union to remove the 20 members (approximately) from the membership roll of the Union simply on the basis that they had not provided her with a current address. Before a person can be removed from the membership roll on this ground, he or she must be unfinancial and the process described in Federal rule 18(1)(f) (above) must be followed. In reaching this conclusion, I hasten to add that I do not intend to suggest any criticism of Ms Tilbury's conduct. I have absolutely no doubt she acted with the best of intentions and in what she thought was a sensible and practical manner in the circumstances. 64 However, I do not consider this finding means that Mr Nimmo has established this third alleged irregularity. This is so because, as Gaudron J pointed out in Re Collins (at 529): "not every breach of union rules is capable of constituting an 'irregularity in or in connection with [an election]' … For example, there may be no election in progress or in prospect." At this point it is appropriate to interpolate that the expression under consideration in Re Collins was "in connection with an election" whereas the expression in s 206(5) of the Act is "in relation to an election". However, in this context, I do not consider there is any relevant distinction in the width of the relationship or connection involved in the two expressions because both expressions have been given a wide meaning, not necessarily involving a causal connection: see Australian Communications Network Pty Ltd v Australian Competition and Consumer Commission (2005) 146 FCR 413; [2005] FCAFC 221 at [24]–[28] and Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465 at 479–80 per Wilcox J. 65 It follows that, in this case, if Ms Tilbury removed those 20 members in the months before this election, as a part of the constant process of maintaining the membership roll she described, I do not consider that conduct could be said to have occurred in relation to this election. In other words, to establish that this irregularity occurred in relation to this election, I consider Mr Nimmo would need to show that Ms Tilbury removed those 20 members at about the time, or shortly before, she provided the membership lists to Ms Roper for the purposes of this election. 66 I consider this presents a difficulty for Mr Nimmo. It is that there is no clear evidence before me as to when Ms Tilbury removed those 20 members from the membership roll. Mr Smith's evidence does not identify when she did it and the question Ms Tilbury was asked in cross-examination about the timing of it was ambiguous. It was as follows: Yes. All right. Now, in Mr Smith's supplementary affidavit he says that you told him that you removed from the roll that was sent to the Electoral Commission those persons for whom the union didn't have mailing addresses?---That's correct. 67 It follows that, as the evidence presently stands, I am not satisfied, on the balance of probabilities, that Mr Nimmo has established that this conduct occurred in relation to this election, such that it constituted an irregularity within the terms of the Act. 68 As I indicated earlier in relation to the second category of irregularity, I could resolve this difficulty by reconvening this inquiry and recalling Ms Tilbury to say when it was that she removed these 20 members from the membership roll. However, for the reasons that follow, even if I were to ultimately conclude that this irregularity did occur in relation to this election within the provisions of the Act, I do not consider it could have affected the result of the election. Even if found, these irregularities would not affect the result 69 This brings me to s 206(5) of the Act, which is set out at [8] above. There is ample authority in this Court that the question whether the result of the election may have been affected has to be assessed as a matter of "real not merely theoretical possibilities": see Re Ferguson; Re Inquiry into Election in the Australasian Meat Industry Employees Union, WA Branch (1986) 17 IR 208 ("Ferguson") at 210 per Toohey J, and the cases cited by Gray J in Bailey at 22 and by Weinberg J in Jacomb at [54]. However, Mr Nimmo contended that there was also an accepted principle that where the losing margin is small, as in this case, it is not appropriate to take into account voting patterns. He relied upon the decisions of Keely J in Re Noack; re Vehicle Builders Employees' Federation of Australia SA Branch (1987) 18 IR 100; [1987] FCA 195 ("Noack") and Wilcox J in Re Transport Union of Australia, NSW Branch; Ex parte Edwards (1990) 33 IR 436 ("Edwards"). Mr Clisby responded that there was no such principle and he pointed to the fact that in Jacomb, Weinberg J took into account voting patterns to find that the irregularity in that case would not have affected the result of that election. 70 In Noack, Keely J followed the decision of Toohey J in Ferguson and applied the "real not merely theoretical possibilities" test (at 104). However, since the losing margin in that case was 27 and the total number of votes affected by the irregularities was 67, his Honour concluded that he should not take into account the participation rate in the election of 30% in assessing whether there was a real possibility that the result of the election was affected by the irregularities (at 103). 71 In Edwards, Wilcox J referred to what Keely J had said in Noack (at 457–8) and observed that it was understandable that Keely J had not taken into account the participation rate when the winning margin was "very small". However, immediately after making that observation, his Honour went on to say this: It is one thing to reject reliance upon evidence of the general participation rate in that situation, but it is another thing to say that, when much greater numbers are involved, the Court should shut its eyes to evidence of the participation rate and assume that, against all the probabilities, that a substantial number of members wrongly denied ballot papers would have voted in substantially greater numbers than the members as a whole. 72 Significantly, Wilcox J then observed that Keely J had not propounded any such view in Noack, but, to the contrary, he had followed the "real not merely theoretical possibilities" test described by Toohey J in Ferguson. Accordingly, Wilcox J proceeded to take account of both participation rates and voting patterns in relation to the various facets of the election in that case (see at 459–460). 73 Wilcox J returned to this issue in Parker v Amalgamated Society of Carpenters and Joiners of Australia (1992) 43 IR 248; [1992] FCA 538 ("Parker"). While that case involved an amalgamation ballot, the relevant statutory provisions are similar and the same principles apply. His Honour reviewed some earlier decisions of the High Court and various Federal Court decisions, including Ferguson and Noack (at 252–3). In relation to the decision of Toohey J in Ferguson, his Honour observed that: Of course, in that case, for the election of even the candidates with the lowest margin to have been affected by the irregularity, not only would the ineligible voters have had to participate at a rate markedly above the overall average; they would have needed to have voted overwhelmingly for the unsuccessful candidates having the greatest number of votes. 74 His Honour noted that in Noack, Keely J had applied the test stated by Toohey J in Ferguson "but with a different result". He referred to a decision of Gray J in Re Patterson; Re Association of Railway Professional Officers of Australia (1987) 19 IR 373 and his own decision in Edwards where the "real and not merely theoretical possibilities" test was applied. His Honour then made a number of observations about the countervailing factors involved in applying that test. He said: The application of Toohey J's test to the facts of a particular case involves, not merely a mathematical calculation, but the making of a judgment in the light of a number of factors. The most important factor will always be the relationship between the winning margin and the number of votes infected by irregularity. But the participation rate and the pattern of voting, so far as this may appear from the evidence, will always be material. As it seems to me, the smaller the number of irregular votes, the greater the difficulty in a court feeling confident that the relevant factors acted, or would have acted, in line with the total electorate. The smaller the margin, the greater the difficulty in assuming that it would not have been bridged by atypical voting. 75 Wilcox J added that a further factor to be considered was whether the votes excluded by the irregularity could be said to be typical of the whole voting population, or were atypical in relation to, for example, a particular allegiance, or geographical factor. 76 In addition to these cases, I note that participation rates, or voting patterns, or both, were taken into account in applying the "real and not merely theoretical possibilities" test in the following cases: Re Carter; Re Federated Clerks Union of Australia, Victorian Branch (No 2) (1989) 32 IR 30 at 34 per Gray J; Re Australian Timber and Allied Industries Union; Ex parte Black (1991) 39 IR 106 at 120 per Ryan J (this was an amalgamation ballot but, as I have noted above, the relevant statutory provisions are similar and the principles are the same); and, as Mr Clisby pointed out, in Jacomb per Weinberg J at [54]. 77 Based on these decisions, I consider that, among other things, I should take into account the participation rate and voting patterns disclosed by the evidence in applying the "real and not merely theoretical possibilities" test. However, in doing so, I should not slavishly apply mere mathematical calculations, but I should make a judgment whether, in the light of all the evidence, there was a real possibility that this election result was affected by any irregularity. Finally, in considering the votes excluded by any irregularity, I should look to see if they are typical of the membership as a whole such that the participation rate and/or voting patterns of the broader membership could be fairly applied to them. 78 It follows that my next task in dealing with this issue is to make an assessment as to the number of votes that may have been affected by any irregularity and to consider whether those members are typical of the membership as a whole. For the purposes of this exercise, I shall assume, contrary to the equivocal position I have outlined above, that Mr Nimmo has established the second and third alleged irregularities. 79 At the outset it is convenient to record that 483 members out of a total eligible membership of 1,904 participated in this election. This equates to a participation rate of slightly more than 25%. 80 On the first aspect, viz the numbers of votes affected, the third irregularity is relatively straightforward. Ms Tilbury's evidence shows it involved approximately 20 members. 81 However, on this first aspect, the second irregularity is more complicated. Ms Roper has provided a list of the names and addresses of the 31 members whose ballot papers were received after the ballot closed on 11 August 2010. The vast majority of those members have addresses in the main centres of the Northern Territory: Darwin (14), Alice Springs (3), Tennant Creek (3) and Jabiru (1). While most of these votes would be incidentally included if the election period had been longer, I do not consider their tardiness was brought about by this irregularity. For this reason I do not consider they should be included in the votes affected by it. However, 10 of the 31 members on this list do have addresses which suggest they live in remote parts of the Northern Territory. There are also the eight members Mr Nimmo has identified as having been affected by this irregularity. However, in relation to them, three of them also appear on the list of late received ballot papers. So, excluding this duplication, the total number of votes affected by the second irregularity is approximately 15. 82 Included in this group is Mr Nimmo. As I have already mentioned, he lives in Alice Springs. He is included because his ballot paper was sent to another member in error and he was therefore forced to obtain a replacement ballot paper and he received it too late to cast a ballot. He said in his affidavit that when he became aware his ballot paper had gone astray, "I contacted the AEC, and advised that I had not received my ballot paper. The AEC issued me a 'duplicate' ballot paper, however by the time I received that ballot paper it was too late for me to vote in the Branch Secretary election. If I had been able to vote I would have voted." Nonetheless, as Mr Clisby points out, Ms Roper's evidence discloses that the replacement ballot paper was sent to Mr Nimmo on 30 July 2010 and he therefore had 12 days to receive it, complete it and return it to Ms Roper before the ballot closed. He obviously did not do that, because his name does not appear on the list of late received ballot papers. Despite the fact that Mr Nimmo has filed an affidavit and a statement in the inquiry, he has not given any further explanation as to what happened to his vote. However, in the circumstances of this inquiry, I am willing to infer that his vote was affected by this assumed irregularity. 83 On the second aspect, viz whether the votes affected are typical of the membership as a whole, this second irregularity is less complicated. I know from the list of late received ballot papers that 10 members with addresses indicating they live in remote areas of the Northern Territory did, in fact, submit a vote. I am also willing to accept that the five members identified by Mr Nimmo that are not on that list (including himself) would have submitted a vote if they had received their ballot papers. I therefore conclude that all of this group would have voted if they had received their ballot papers. It necessarily follows that this group is not typical of the 25% participation rate in the membership as a whole. 84 On this second aspect, the third irregularity involves a group of members that is also atypical – it is atypical in the opposite sense. This is so because, despite the fact this irregularity involved a breach of the Union rules, I cannot ignore Ms Tilbury's evidence that she removed those 20 members from the membership roll of the Union because she did not have a current address for them. At least two things follow from this. The first is obvious: it would have been particularly difficult to effect delivery of the ballot papers upon most, if not all, of those 20 members, if their names had remained on the membership roll. Secondly, the fact that those 20 members had not provided current addresses to Ms Tilbury suggests a level of disinterest towards their union membership rights and, therefore, a higher probability that, even if they had received a ballot paper, they would not have cast a vote in this election. 85 If this group of 20 members was typical of the membership as a whole, the 25% participation rate in this election would suggest that five of the group would have voted in this election. However, given the factors I have mentioned above, I consider it is likely that much fewer than five of them would, in fact, have voted. 86 Finally, taking into account the numbers and factors I have outlined above, I need to consider what effect, if any, each of these irregularities may have had on the result of this election. I will do that separately, and then together. 87 First, assuming approximately 15 members were affected by the second irregularity, and assuming that all of them would most probably have cast a vote in this election, given that the winning margin was 22 votes, it is axiomatic that, considered alone, this irregularity could not, even as a theoretical possibility, have affected the result of this election. 88 Secondly, as to the third category considered alone, even if, contrary to the factors I have mentioned above, I were to apply the general participation rate of 25% to the 20 members (approximately) concerned, it is also axiomatic that the five votes involved could not have affected the result of this election, even as a theoretical possibility. 89 Finally, if I were to assume that both irregularities applied together, and making the same assumptions as above, it is also axiomatic that the 20 votes involved still could not have affected the result of this election, even as a theoretical possibility. 90 For these reasons, I do not consider the second and third irregularities, even if it is assumed they affected the votes of certain members of the Union, whether considered separately, or together, could have affected the result of this election as a real possibility. 91 As a postscript, I should add two things. First, because Mr Clisby was due to take office on 17 January 2011 and because various factors, including the flooding in Brisbane, prevented me from finalising these reasons before that date, I reconvened this inquiry on Tuesday, 11 January 2011 and made an order terminating this inquiry. At that time I advised the parties that I would publish my reasons for that order as soon as possible after the Court term commenced on 31 January 2011. Secondly, at the same time, the parties agreed that when I did publish these reasons, in the interests of protecting their privacy, I should not include the names of any of the various members who were involved in this election except, of course, those persons who were parties to this inquiry and/or who gave evidence. I certify that the preceding ninety-one (91) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves. Associate: Dated: 3 February 2011