FEDERAL COURT OF AUSTRALIA Electoral Commissioner, in the matter of an election for offices in the Local Government and Shires Association of New South Wales (No 2) [2016] FCA 668 File number(s): NSD 53 of 2016 Judge(s): BUCHANAN J Date of judgment: 3 June 2016 Legislation: Fair Work (Registered Organisations) Act 2009 (Cth) Cases cited: Electoral Commissioner, in the matter of an election for offices in the Local Government and Shires Association of New South Wales [2016] FCA 327 Date of hearing: 3 June 2016 Registry: New South Wales Division: Fair Work Division National Practice Area: Employment & Industrial Relations Category: No Catchwords Number of paragraphs: 7 Solicitor for the Applicant: Ms B Griffin of Australian Government Solicitor Counsel for the Intervener (by leave): Mr R Kenzie QC with Mr J W Nolan Solicitor for the Intervener (by leave): Carroll and O'Dea Lawyers ORDERS NSD 53 of 2016 BETWEEN: ELECTORAL COMMISSIONER Applicant LOCAL GOVERNMENT AND SHIRES ASSOCIATION OF NEW SOUTH WALES Intervener (by leave) JUDGE: BUCHANAN J DATE OF ORDER: 3 JUNE 2016 THE COURT ORDERS THAT: The Court makes the following orders pursuant to s 206(4) of the Fair Work (Registered Organisations) Act 2009 (Cth): 1. Paragraphs 3(ii) and 4 of the Orders of the Court dated 29 March 2016 (reissued in a corrected form on 5 April 2016) be varied as follows: 3.(ii) the Association to provide the Returning Officer with a correct roll of voters as at 13 May 2016 listing the delegates who have been appointed to represent the Ordinary members of the Association not more than 52 days after the date of the issuing by the Returning Officer of the Election Notice; 4. An order that the candidates in the election to be conducted pursuant to Order 3 be restricted to those candidates who stood in the election declared void by Order 1, if still eligible as at 13 May 2016, and any such candidate shall be treated as having nominated for the same office as was the subject of the candidate's nomination in the election declared void by Order 1. 2. Notwithstanding the terms of the Orders of the Court dated 29 March 2016 (reissued in a corrected form on 5 April 2016), including as amended this day, the returning officer is directed to conduct the election in such a manner as will allow the votes cast by delegates whose councils have been dissolved before the scrutiny of the ballot by the returning officer to be identified so that they may be discarded and not included in the count. 3. The following Councillors be removed as candidates: (i) Khaldoun Asfour and Monica Wangmann (candidates for Vice President (Metropolitan/Urban Councils)); (ii) Gregory Matthews (candidate for Vice President (Rural/Regional Councils)); (iii) Darcy Byrne, Julie Hegarty, Rochelle Porteous and Monica Wangmann (candidates for Director (Metropolitan/Urban Councils)); and (iv) Douglas Eaton, David Fahey, David Keegan, Gregory Matthews, Garth Morrison, Margaret O'Connor, and Allan Smith (candidates for Director (Rural/Regional Councils)). 4. As at the date of these Orders, Councillor Bill Pickering be declared elected to the office of Vice President (Metropolitan/Urban). 5. Liberty to apply. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (Revised from transcript) BUCHANAN J: 1 On 29 March 2016, I made orders for reasons which were explained in a short judgment delivered on 5 April 2016 (Electoral Commissioner, in the matter of an election for offices in the Local Government and Shires Association of New South Wales [2016] FCA 327). The orders were republished with some corrections on that day. 2 Those orders declared void a number of (but not all) elections of the Association, which had been declared on 16 October 2015. 3 The orders provided for the conduct of a postal ballot to rectify the deficiencies which had been identified by the parties and to which reference was made in the judgment. 4 The conduct of the ballot is well in hand but it has been affected by two proclamations issued by the Governor of New South Wales on 12 May 2016: the Local Government (Council Amalgamations) Proclamation 2016 and the Local Government (City of Parramatta and Cumberland) Proclamation 2016. Those proclamations (which deal with the amalgamation of various local government bodies) have had the consequential effect of removing from the membership of the Association a number of councils who are the subject of the amalgamations directed by the proclamations. The proclamations have also had the effect of preventing some candidates for office from remaining eligible to be such candidates. 5 It is possible, although not certain, that further amalgamations may be directed by the Government of New South Wales before the ballot is closed. It is possible that further amalgamations may be directed by the Government of New South Wales after the elections are complete. 6 The parties have given attention to the steps which are necessary to address the effect of the proclamations, while leaving the ballot process on foot and allowing it to go to completion consistently with the effect of the proclamations. Those orders involve updating the roll of voters to 13 May 2016, requiring sufficient records to be kept by the returning officer to permit adjustment of the ballot in the event that there are further amalgamations before the ballot closes, directing that named persons be removed as eligible candidates and, in one case, declaring that a person be taken as elected to one of the offices the subject of the elections. That last order addresses the consequence that the election in question had been declared void whereas the person to be declared elected is now the only remaining eligible candidate. Had that been the position at the time of my earlier orders, that election would not have been declared void. 7 The orders proposed by the parties appear to me to be necessary and practical ones in the circumstances. Orders will be therefore made in the terms which the parties have agreed. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan. Associate: Dated: 7 June 2016