FEDERAL COURT OF AUSTRALIA Application of the Electoral Commissioner [2014] FCA 588 Citation: Application of the Electoral Commissioner [2014] FCA 588 Parties: THE APPLICATION OF THE ELECTORAL COMMISSIONER File number: NSD 370 of 2014 Judge: FLICK J Date of judgment: 4 June 2014 Catchwords: INDUSTRIAL LAW – error in notification of closing date for nominations – irregularity in election to office – one nomination received after correct closing date but before date notified – election declared void Legislation: Fair Work (Registered Organisations) Act 2009 (Cth) ss 6, 9, 200, 201, 205, 206 Cases cited: Asmar, in the matter of an election for an office in the Victorian No 1 Branch of the Health Services Union [2012] FCA 1242 Bourne v Campbell [1999] FCA 1522, (1999) 93 IR 238 McJannett v Bulloch [2012] FCA 1233 Re Amalgamated Metals Foundry and Shipwrights Union; Ex parte Adamson (1984) 4 FCR 319 Re Election for Office in Australian Institute of Marine and Power Engineers (1973) 20 FLR 407 Re Jarman; Ex parte Cook (No 2) (1996) 136 ALR 233 Re Kelly (No 2) [2011] FCA 490 Re Killesteyn (application for an inquiry in relation to an election in the Australian Salaried Medical Officers' Federation (Qld)) [2009] FCA 1311, (2009) 261 ALR 730 Re McJannet; Ex parte Minister for Employment, Training and Industrial Relations for the State of Queensland (1985) 184 CLR 620 Re Post; Re Election for Offices in Transport Workers Union of Australia, Western Australian Branch (1992) 40 IR 162 Re Gray; in the matter of an application for an inquiry relating to an election for an office in the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing, and Allied Services Union of Australia, Electrical, Energy and Services Division [2012] FCA 1165 Date of hearing: 4 June 2014 Date of last submissions: 3 June 2014 Place: Sydney Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 26 Solicitor for the Applicant: Ms B Griffin of Australian Government Solicitor IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY FAIR WORK DIVISION NSD 370 of 2014 BETWEEN: THE APPLICATION OF THE ELECTORAL COMMISSIONER Applicant JUDGE: FLICK J DATE OF ORDER: 4 JUNE 2014 WHERE MADE: SYDNEY THE COURT DECLARES THAT: 1. The declaration of results for the office of Alternate Chairman of the Suppliers and Subcontractors Council of the Master Builders' Association of the Australian Capital Territory dated 26 February 2014 is void. AND THE COURT ORDERS THAT: 1. The Nomination Form of Mr Anthony Mattar dated 18 February 2014 and received by the Australian Electoral Commission on 3 March 2014 be accepted. 2. The Returning Officer proceed to a ballot for the election of the office of Alternate Chairman of the Suppliers and Subcontractors Council of the Master Builders' Association of the Australian Capital Territory. 3. A copy of the reasons for decision and these orders, should be served by the Applicant upon: (i) The Master Builders' Association of the Australian Capital Territory at 1 Iron Knob Street, Fyshwick, ACT, 2609; (ii) Ms Analisa O'Sullivan at 28 Molonglo Mall, Fyshwick, ACT, 2609; and (iii) Mr Anthony Mattar at PO Box 1002, Fyshwick, ACT, 2609 by no later than midday on 18 June 2014. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY FAIR WORK DIVISION NSD 370 of 2014 BETWEEN: THE APPLICATION OF THE ELECTORAL COMMISSIONER Applicant JUDGE: FLICK J DATE: 4 JUNE 2014 PLACE: SYDNEY REASONS FOR JUDGMENT 1 On 11 April 2014 the Electoral Commissioner filed in this Court an Originating Application. That Application was filed pursuant to s 200 of the Fair Work (Registered Organisations) Act 2009 (Cth) (the Registered Organisations Act). For the purposes of s 200(2), the Electoral Commissioner had formed the belief that an "irregularity" had occurred in respect to an election that had been declared in February 2014. 2 It is concluded that an "irregularity" has occurred and that orders should be made pursuant to s 206 of the Registered Organisations Act. 3 The facts relevant to this conclusion, and the relevant statutory provisions, are within a narrow compass. They can be briefly addressed. The Fair Work (Registered Organisations) Act 2009 (Cth) 4 Section 200 of the Registered Organisations Act provides as follows: Application for inquiry When member of organisation may apply for inquiry (1) If a person who is, or within the preceding period of 12 months has been, a member of an organisation claims that there has been an irregularity in relation to an election for an office in the organisation or a branch of the organisation, the person may make an application for an inquiry by the Federal Court into the matter. When Electoral Commissioner must apply for an inquiry (2) If the Electoral Commissioner believes that the result of an election for an office has been affected by an irregularity in relation to the election, the Electoral Commissioner must make an application for an inquiry by the Federal Court into the matter. When Electoral Commissioner may apply for an inquiry (3) If the Electoral Commissioner believes that there has been an irregularity in relation to an election for an office, the Electoral Commissioner may make an application for an inquiry by the Federal Court into the matter. It is s 200(2) which assumes present relevance. Section 6 defines an "irregularity" 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. Section 9(1) defines the term "office" in relevant part as follows: In this Act, office, in relation to an organisation or a branch of an organisation means: (a) an office of president, vice president, secretary or assistant secretary of the organisation or branch; or (b) the office of a voting member of a collective body of the organisation or branch, being a collective body that has power in relation to any of the following functions: (i) the management of the affairs of the organisation or branch; (ii) the determination of policy for the organisation or branch; (iii) the making, alteration or rescission of rules of the organisation or branch; (iv) the enforcement of rules of the organisation or branch, or the performance of functions in relation to the enforcement of such rules; or … 5 Section 201 provides as follows: Instituting of inquiry Where: (a) an application for an inquiry has been lodged with the Federal Court under section 200; and (b) the Court is satisfied that there are reasonable grounds for the application; the Court must fix a time and place for conducting the inquiry, and may give such directions as it considers necessary to ensure that all persons who are or may be justly entitled to appear at the inquiry are notified of the time and place fixed and, where the Court fixes a time and place, the inquiry is taken to have been instituted. For the purposes of s 201, it may be noted that the Originating Application first came before the Court on 13 May 2014. On that occasion, directions were made to ensure that the Originating Application and the affidavit that had been filed in support were served upon all persons potentially affected by the Application. The matter came back before the Court on 21 May 2014. There was no appearance for any of the persons potentially affected. A copy of the directions was also served on those persons informing them that if the Court was "satisfied that there [were] reasonable grounds for the application", the inquiry would be set down for hearing on 27 May 2014. 6 The holding of an inquiry, it must be recalled, is a "serious" step: Re Jarman; Ex parte Cook (No 2) (1996) 136 ALR 233 at 241 per Kirby J; Re Killesteyn (application for an inquiry in relation to an election in the Australian Salaried Medical Officers' Federation (Qld)) [2009] FCA 1311 at [24], (2009) 261 ALR 730 at 737 per Flick J; McJannett v Bulloch [2012] FCA 1233 at [90] per Barker J. But the requisite state of satisfaction, it must also be recognised, is to be formed at a point of time prior to the holding of any inquiry and at a point of time when the persons affected may not be in the best position to assist the court: Bourne v Campbell [1999] FCA 1522 at [8], (1999) 93 IR 238 at 240 per Einfeld J. The level of satisfaction, it was there said, "will ordinarily be quite low". 7 On 21 May 2014 it was concluded that there was sufficient material before the Court for the view to be formed that the requirements of s 201 had been met and that the "time and place" for conducting the inquiry should be as previously envisaged. It was then concluded that the "irregularity" identified by the Electoral Commissioner was not of a "speculative nature": Re Post; Re Election for Offices in Transport Workers Union of Australia, Western Australian Branch (1992) 40 IR 162 at 166 per French J; McJannett v Bulloch [2012] FCA 1233 at [89] per Barker J. Regrettably, the order as made did not specify the Law Courts Building as the "place" at which the inquiry would be held. The conduct of the inquiry was adjourned to today to ensure that all persons potentially affected by the Application were informed of both the time and place of the inquiry. The Electoral Commissioner has taken steps to ensure that all such persons have been notified of the inquiry being held today. Again, no persons other than the Electoral Commissioner appeared. 8 The task of the Court today is to conduct the "inquiry". When conducting an "inquiry", s 205 of the Registered Organisations Act provides as follows: Procedure at hearing (1) The Federal Court must allow to appear at an inquiry all persons who apply to the Court for leave to appear and who appear to the Court to have an interest in the inquiry, and the Court may order any other person to appear. (2) The persons appearing, or ordered under subsection (1) to appear, at an inquiry are taken to be parties to the proceeding. (3) For the purposes of this Part: (a) the procedure of the Court is, subject to this Act and the Rules of Court, within the discretion of the Court; and (b) the Court is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it considers just. And, finally, s 206 provides as follows: Action by Federal Court (1) 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. (2) For the purposes of subsection (1), the Court must determine whether an irregularity has happened on the balance of probabilities. (3) In the course of conducting an inquiry, the Court may make such orders (including an order for the recounting of votes) as the Court considers necessary. (4) 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 General Manager 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. (5) 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. (6) Without limiting the power of the Court to terminate a proceeding before it, the Court may, at any time after it begins an inquiry into an election, terminate the inquiry or the inquiry to the extent that it relates to specified matters. 9 These provisions have been canvassed in a number of previous decisions: e.g., Re Kelly (No 2) [2011] FCA 490; Re Gray; in the matter of an application for an inquiry relating to an election for an office in the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing, and Allied Services Union of Australia, Electrical, Energy and Services Division [2012] FCA 1165. But no review of these authorities is necessary for the resolution of the present proceeding. The irregularity relied upon – an erroneous notification of the closing date 10 The "irregularity" relied upon by the Electoral Commissioner in the present proceeding arose in respect to the election of Ms Annalisa O'Sullivan to the office of Alternate Chairman of the Suppliers and Subcontractors Council of the Master Builders' Association of the Australian Capital Territory. That Council is an "Ordinary Council" within the meaning of r 11 of the rules of the Association. 11 The facts, in very summary form, were that on 10 February 2014 the Australian Electoral Commission forwarded to members: a letter confirming that the "closing date" for nominations for the office in question closed on 25 February 2014; an Election Notice requiring nominations to be provided by 25 February 2014; and a Nomination Form stating that nominations "must reach the Returning Officer … not later than 4.00 pm on Tuesday, 25 March 2014". The specification of the 25 March 2014 date in the Nomination Form was an error. The date should have been 25 February 2014. 12 On 21 February 2014 a nomination had been received naming Ms Annalisa O'Sullivan. No further nominations were received prior to 25 February 2014. On 26 February 2014 the Electoral Commissioner declared the result of the election, namely that Ms O'Sullivan had been elected unopposed. 13 The difficulty, however, was that on 3 March 2014 the Australian Electoral Commission received by way of e-mail a completed Nomination Form naming Mr Anthony Mattar as nominee for the office of Alternate Chairman. 14 Obviously enough, Mr Mattar's nomination came after the correct closing date for nominations but before the date which had been erroneously notified. 15 For the purposes of s 9(1) of the Registered Organisations Act it is concluded that the Suppliers and Subcontractors Council is a "branch" of the Master Builders' Association of the Australian Capital Territory. Although the term "branch" is not defined in that Act, it is accepted that a determination of what constitutes a "branch" is a question of fact: cf. Re McJannet; Ex parte Minister for Employment, Training and Industrial Relations for the State of Queensland (1985) 184 CLR 620 at 640 per Brennan CJ, Deane and Dawson JJ. Their Honours there observed: A branch of a federal industrial organisation is not a person; it has no existence apart from that of the members of the branch. The word "branch" in that context is no more than a collective noun which, although singular in form, is used with a plural implication. That was made clear in Williams v Hursey by Fullagar J, with whom Dixon CJ and Kitto J agreed, when he pointed out that a branch of a federally registered organisation has no corporate character and no separate existence as a juristic person. He said of the Hobart branch of the Waterside Workers' Federation of Australia that it "is not an 'unincorporated society, fellowship, club or association'. It has no separate identity — no existence apart from the registered organisation, of which it is an integral and inseverable part. Its members are merely a section of the total membership of the federation — locally organised for the sake of convenience, but in no respect independent of the federation, and in all respects subject to the control of the federation." The Suppliers and Subcontractors Council certainly has no separate juristic identity separate from its collective membership. The fact that it constitutes a "branch" of the Association primarily follows from the fact that its membership is comprised entirely of members of the Association. Although the position presently in question of Alternate Chairman is not an "office" of the Master Builders' Association of the Australian Capital Territory, that position is an "office" of an "Ordinary Council" of that Association. For the purposes of ss 9 and 200(2) of the Registered Organisations Act, it is concluded that the election of the position of Alternate chairman is an election to an "office", being an election of a position within a "branch". 16 It is further concluded that the specification of the incorrect date in the Nomination Form constitutes an "irregularity" for the purposes of ss 6, 200 and 206 of the Registered Organisations Act. 17 But the "irregularity" is different to that identified at the outset by the Electoral Commissioner. When forming his "belief" for the purposes of s 200(2) of the Registered Organisations Act, the Electoral Commissioner believed that the irregularity was to be found in: "a breach of the rules of an organisation", within the meaning of paragraph (a) of the definition in s 6. At the time of the hearing, an alternate position was advanced, namely that the irregularity could also be said to be found in: "an act or omission by means of which the full and free recording of votes" had been "prevented or hindered" within the meaning of paragraph (b)(i) of that definition. 18 The "rule" relied upon by the Electoral Commissioner was sub-rule 15(d) of the rules of the Master Builders' Association of the Australian Capital Territory. That sub-rule provides as follows: At least six (6) weeks before the Annual General Meeting in each election year, the Returning Officer shall forward by post to each financial member and life member a nomination form with a notification thereon or therewith of the closing date and time of such nomination. The aforesaid nomination shall also state: (i) That nominations will not be received by them after the closing date so fixed. (ii) The nomination will not be valid unless a written consent of the nominee is received on or before the closing date of nomination. (iii) The address to which the nomination and consents are to be forwarded. (iv) The class of members which the nominee represents in accordance with clause 5. But the simple fact is that there has been no breach of any express provision of that sub-rule. The sub-rule does not fix the time within which nominations are to close or any means whereby such a date could be fixed or determined. Nor does the sub-rule regulate or direct attention in any way to the manner in which members are to be advised of the closing date for nominations. 19 The basis upon which the Electoral Commissioner first believed there to be an "irregularity" is thus rejected. That conclusion, however, does not strip this Court of the requirement to conduct an "inquiry". The requirement to conduct an "inquiry" cannot be denied simply because the belief of the Electoral Commissioner for the purposes of s 200(2) – or the Court's state of satisfaction for the purposes of s 201(1) – is ultimately found to be misplaced. 20 Although the incorrect notification of the closing date for nominations may not be an "irregularity" within the meaning of paragraphs (a) or (b) of the definition, it is nevertheless concluded that such an incorrect notification constitutes an "irregularity" for the purposes of the Registered Organisations Act. 21 The definition of "irregularity" in s 6, as its terms make self-evident, is not an exhaustive definition. The definition is said to "include" the matters set forth. But those matters are not the only manner in which an "irregularity" can occur. An "irregularity", it is concluded, may include conduct falling outside of those matters set forth in paragraphs (a) to (c) of the definition: cf. Re Federated Liquor and Allied Industries Employees' Union of Australia; Ex parte Huxtable (1979) 40 FLR 418. There in issue was the comparable provision formerly found in the Conciliation and Arbitration Act 1904 (Cth). Persons claimed that an "irregularity" had occurred where they had refrained from nominating for an office by reason of advice they had been given as to their eligibility. Northrop J concluded that an "irregularity" could occur in such circumstances. In pointing to the non-exhaustive definition of an "irregularity", his Honour thus said: The issue remaining to be decided on the preliminary issue is whether the facts assumed for the purposes of submission are capable of constituting an irregularity within the meaning of that word when used in s 165 of the Act. The word "irregularity" is defined in the Shorter Oxford Dictionary (23rd ed. 1972 reprint) as "the quality or state of being irregular; something that is irregular". In the same dictionary, the word "irregular" is defined in relation to things as "not in conformity with rule or principle, contrary to rule; disorderly in action or conduct, anomalous, abnormal". In the Act, by s 4, except where otherwise clearly intended, the word "irregularity" has the following meaning: "'Irregularity', in relation to an election or ballot, includes a breach of the rules of an organization or of a branch of an organization, and any act, omission or other means whereby the full and free recording of votes by all persons entitled to record votes, and by no other persons, or a correct ascertainment or declaration of the results of the voting is, or is attempted to be, prevented or hindered." This provision does not give a definitive meaning to the word "irregular" but extends the meaning, if necessary, to include specific matters. In the present case, the facts assumed for the purpose of submission on the preliminary issue cannot constitute an irregularity within the statutory extended meaning of that word. There has been no breach of the rules of the union or its Tasmanian branch. There has been no act or omission whereby the full and free recording of votes by all persons entitled to record votes, and by no other persons, or a correct ascertainment or declaration of the results of voting is, or is attempted to be, prevented or hindered : (1979) 40 FLR at 424-425. 22 There can be no doubt that the correct notification of the closing date for nominations forms an "integral part" of the election process. Thus Joske J in Re Election for Office in Australian Institute of Marine and Power Engineers (1973) 20 FLR 407 at 410 observed: … However, while there is no rule or form prescribed by the rules of the organization which sets out the time for receipt of nominations nevertheless ... the calling for and receiving of nominations are integral parts of an election under the Act. Elections cannot be carried out if such steps be omitted. … 23 An incorrect notification of the closing date for nominations, it is concluded, can constitute an "irregularity" even if there be no breach of the rules of an organisation: Re Amalgamated Metals Foundry and Shipwrights Union; Ex parte Adamson (1984) 4 FCR 319. Gray J there referred (inter alia) to Ex parte Huxtable, supra, as to the definition of an "irregularity" not being exhaustive and continued: … In my view, I should follow the weight of authority and hold that the statutory definition is not exhaustive. In addition, there are grounds for regarding this conclusion as correct in principle. It is not difficult to think of instances not clearly covered by the terms of the statutory definition, which could nevertheless be regarded as irregularities in an election. It is possible to imagine matters which might occur in the process of lodging a nomination, or in the process of acceptance or non-acceptance of a nomination by a returning officer, which could amount to irregularities. These matters may not involve any breach of the rules of the organisation concerned. They might be said to be divorced from the process of recording of votes or the correct ascertainment or declaration of the results of voting. The reference to both of these elements seems to assume that there are candidates for and against whom votes can be recorded, and amongst whom a result can be ascertained. If, for instance, without breach of the rules, a returning officer failed to make available any reasonable facility for the receipt of nominations, so that persons who desired to be candidates were prevented from nominating, it would be reasonable to suggest that there was an irregularity in the conduct of the election, although it was not one concerned with the process of recording votes or ascertaining the results of the voting…:(1984) 4 FCR at 336. It is equally an "integral part of an election" for members to be correctly notified of the date upon which nominations close. 24 The "wrongful rejection of a nomination for office in an organisation constitutes an irregularity": Asmar, in the matter of an election for an office in the Victorian No 1 Branch of the Health Services Union [2012] FCA 1242 per Tracey J at [35]. So, too, is there an "irregularity" where a nomination is received after the correct closing date but before the date erroneously notified. By notifying members of an incorrect date, at least two potential consequences follow, namely: members who may wish to nominate may be misled as to the time within which their nominations should be received; and members may be deprived of an opportunity to vote for members who have sought to nominate. Conclusions 25 For the purposes of s 206, it is concluded that the declaration of the result of the election on 26 February 2014 should be declared void. The result of that election has been potentially affected by the fact that Mr Mattar also sought to stand for the office of Alternate Chairman. His nomination was received after the correct closing date of 25 February 2014 but before the date which had been erroneously notified, namely 25 March 2014. 26 It is further concluded that the nomination of Mr Mattar should be accepted and that the returning officer should proceed to a ballot for the election of the office of Alternate Chairman. THE COURT DECLARES: 1. That the declaration of results for the office of Alternate Chairman of the Suppliers and Subcontractors Council of the Master Builders' Association of the Australian Capital Territory dated 26 February 2014 is void. THE ORDERS OF THE COURT ARE: 1. That the Nomination Form of Mr Anthony Mattar dated 18 February 2014 and received by the Australian Electoral Commission on 3 March 2014 be accepted. 2. That the Returning Officer proceed to a ballot for the election of the office of Alternate Chairman of the Suppliers and Subcontractors Council of the Master Builders' Association of the Australian Capital Territory. 3. That a copy of the reasons for decision and these orders, should be served by the Applicant upon: (i) The Master Builders' Association of the Australian Capital Territory at 1 Iron Knob Street, Fyshwick, ACT, 2609; (ii) Ms Analisa O'Sullivan at 28 Molonglo Mall, Fyshwick, ACT, 2609; and (iii) Mr Anthony Mattar at PO Box 1002, Fyshwick, ACT, 2609 by no later than midday on 18 June 2014. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. Associate: Dated: 6 June 2014