In the matter of an application by Anthony Longland for an inquiry into an election for offices in the Victorian Branch of the Public Sector, Professional, Scientific Research, Technical, Communications, Aviation and Broadcasting Union [1995] IRCA 381

IN THE INDUSTRIAL RELATIONS ) COURT OF AUSTRALIA ) VI: 1535 of 1994 VICTORIA DISTRICT REGISTRY ) IN THE MATTER of an application by ANTHONY LONGLAND for an Inquiry into an election for offices in the Victorian Branch of the Public Sector, Professional, Scientific Research, Technical, Communications, Aviation and Broadcasting Union REASONS FOR JUDGMENT 15 August 1995 Keely J. Anthony Longland ("the applicant") is employed as a training officer in the Department of Veteran Affairs and has worked in, or in relation to, that Department since January 1985. He applied under s.218 of the Industrial Relations Act 1988 (Cth) ("the Act") for an inquiry into an election for the four offices of Branch Executive Members ("the four offices") in the Victorian Branch of the CPSU Community and Public Sector Union. By consent he was given leave to change the union's name in the application to the Public Sector, Professional, Scientific Research, Technical, Communications, Aviation and Broadcasting Union ("the union"), which was the name of the union at the time of the election. The applicant was at all material times a Branch Conference Delegate and a financial member of the union, which is the product of six amalgamations that took place between August 1989 and July 1994. The election was conducted by an officer of the Australian Electoral Commission ("the Electoral Commission"), who fixed dates for the ballot to open on 7 February 1994 and to close on 28 February 1994. At the inquiry the applicant was represented by counsel, as were the union and the branch secretary ("the respondents"). During the morning of the first day of the hearing the court invited the Electoral Commission to assist the court either by being represented or by written submissions as to a number of matters that it then appeared might need to be considered by the court. On the following morning Mr. R. Hallowell, solicitor, represented the returning officer, who was given leave to appear. Both the information which he placed before the court and his address, including the authorities to which he referred, were carefully prepared and disposed of a number of the matters which had earlier appeared to the court to require consideration. As to the desirability of the returning officer being represented by a lawyer at election inquiries, the attention of the Electoral Commission and of the parties is drawn to Re Federated Liquor and Allied Industries Employees' Union of Australia; Ex parte Huxtable (1979) 40 FLR 418. In that case Northrop J at the conclusion of the hearing (i.e. some weeks before delivering written reasons for judgment) referred (at 420) - "to the practice in Victoria and New South Wales that the returning officer in matters of this kind appears in court usually represented by a lawyer to assist the court in any material way. Although a party in some respects he is not a party taking sides but is a party in the sense of being there to assist the court in unravelling the facts and saying what in fact did happen." I agree with that statement and add that in my experience, including the conduct of a number of election inquiries in Adelaide, the returning officer's representative has also assisted the court by referring it to relevant authorities and to information as to the manner of conducting elections. It may be noted that Northrop J also said (at 420) that "if the [returning] officer knew of the hearing and did not attend because of no formal notification . . . this could amount to a discourtesy, and possibly could amount to contempt of court." The first alleged irregularity The applicant claimed that an irregularity had occurred in that the rules of the union "insofar as they restrict the eligibility of financial members to nominate for the" four offices contravened s.195(1)(b)(iv) and s.196 (c) of the Act. He contended in his application that: "A number of financial members of the Victorian Branch who supported the applicant could not nominate for the office of Branch Executive Member as they did not hold the office of Conference Delegate. The small number of Conference Delegates in a Branch with over 23,000 financial members imposes such extreme restrictions on the eligibility to nominate for a position on the Victorian Branch Executive as to make the election undemocratic."