In the matter of an election for an office in the Communications Workers' Union of Australia Postal & Telecommunications Branch, NSW [1997] IRCA 291

DECISION NO:291/97 INDUSTRIAL RELATIONS COURT OF AUSTRALIA INDUSTRIAL LAW - ELECTION INQUIRY - no point of principle Workplace Relations Act 1996 s 223 Re Jarman; Ex parte Cook [No 2] (1996) 70 ALJR 550 considered IN THE MATTER OF AN ELECTION FOR AN OFFICE IN THE COMMUNICATIONS WORKERS' UNION OF AUSTRALIA POSTAL AND TELECOMMUNICATIONS BRANCH, NEW SOUTH WALES No. NI 594 of 1994 MOORE J SYDNEY 11 NOVEMBER 1997 IN THE INDUSTRIAL RELATIONS ) General Distribution ) COURT OF AUSTRALIA ) No. NI 594 of 1994 ) NEW SOUTH WALES DISTRICT REGISTRY ) IN THE MATTER OF AN ELECTION FOR AN OFFICE IN THE COMMUNICATIONS WORKERS' UNION OF AUSTRALIA POSTAL AND TELECOMMUNICATIONS BRANCH, NEW SOUTH WALES JUDGE: Moore J PLACE: Sydney DATE: 11 November 1997 ORDER OF THE COURT THE COURT ORDERS THAT: 1. The notice of motion of Mr Quentin Cook is dismissed. 2. The inquiries being proceedings 594 of 1994, 3865 of 1995, 1999 and 2016 of 1996 are terminated. 3. Costs reserved. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS ) General Distribution ) COURT OF AUSTRALIA ) No. NI 594 of 1994 ) NEW SOUTH WALES DISTRICT REGISTRY ) IN THE MATTER OF AN ELECTION FOR AN OFFICE IN THE COMMUNICATIONS WORKERS' UNION OF AUSTRALIA POSTAL AND TELECOMMUNICATIONS BRANCH, NEW SOUTH WALES JUDGE: Moore J PLACE: Sydney DATE: 11 November 1997 REASONS FOR JUDGMENT This judgment deals with a number of notices of motion in an election inquiry (and related inquiries) which was commenced in July 1994. The course the inquiry took can be gleaned from judgments given on 1 June 1995 ((1995) 62 IR 462), 10 May 1996 ((1996) 67 IR 246), 3 June 1996, 22 July 1996, 14 August 1996 and 19 September 1996. The inquiry concerned ballots which were conducted in June and July 1994. The results of the ballots were declared on 11 August 1994. The inquiry, in substance, was heard in two parts. The first involved an investigation of whether irregularities had occurred in the conduct of the elections and, if so, whether they may have affected the result of the elections. This was the subject of the judgment delivered on 10 May 1996. There was then consideration of what orders should be made following those findings. On 21 June 1996 orders were made including orders declaring void the elections that had taken place almost two years earlier. There was further litigation about who might hold office pending the completion of the elections ordered on 21 June 1996. At a hearing on 27 September 1996 counsel for Mr Cook, who had been granted leave to appear in the inquiry pursuant to s 222 filed in Court a notice of motion. It sought, inter alia, the following order: "Order that pursuant to the Industrial Relations Act, 1988 s.223(1) the Court consider and determine the question whether the Australian Electoral Commission, in acting as returning officer in the elections acted contrary to good electoral practice and the public interest and the objects of the Act in failing to comply with its undertaking to the Australian Federal Police, namely to refer the investigation back to the Australian Federal Police if any additional evidence was identified during the hearing of proceedings before the Industrial Relations Court." The notice of motion was listed for directions in October 1996. There was no appearance for the applicant in the motion, Mr Cook, and the application was stood over generally. On 5 June 1997 all parties who had been involved in the inquiry were sent a letter by my associate in the following terms: "In substance, the jurisdiction of the Industrial Relations Court of Australia vested in the Federal Court of Australia on 25 May 1997 and it is desirable to finalise, as soon as possible, matters heard by the Industrial Relations Court. Justice Moore proposes to make orders terminating the inquiry, which was matter NI 94/0594, and the related inquiry, and will do so in 21 days unless any party proposes some other course within that period." This letter elicited a letter from Paul Etherington & Associates, solicitors for Mr Cook, dated 17 June 1997. That letter read: "We refer to your letter of 5 June 1997. We understand that a notice of motion dated 24 September 1996 (copy enclosed) and affidavit of the writer in support (copy without annexures enclosed) was filed in the course of the inquiry. We believe that his Honour in the Judgment of 10 May 1996, paragraph 2 (page 42) dealt with this notice of motion by indicating that ... ...whether in the circumstances, some of these matters constitute inappropriate conduct may be a matter I will consider at a later stage of these proceedings." Accordingly, we formally seek that this matter be relisted to finally deal with the outstanding aspect of the inquiry." The inquiry was relisted and, in the result, a further notice of motion was filed on behalf of Mr Cook seeking the following orders: "1. Order that pursuant to Workplace Relations Act 1996 Section 223(1) the Court consider and determine the following questions: i. Whether an undertaking as alleged in paragraph 4 of the applicant's motion filed 27 September 1996 was given by the Australian Electoral Commission ("AEC") to the Australian Federal Police ("AFP") and whether that undertaking was breached. ii. Whether the AEC in the conduct of the election, the subject of the inquiry ("the election") had a duty to investigate complaints made to it of misconduct and irregularity and if so, whether it failed to comply with that duty. iii. Whether the AEC in the conduct of the election had a duty to forward to the AFP: (a) complaints made to it of misconduct and irregularity; (b) any other information within the knowledge of the AEC obtained throughout the course of the election or the inquiry into the election relating to electoral fraud and/or any other Commonwealth offence(s). iv. Whether the AEC was the appropriate electoral returning officer to conduct the election under the Act and whether some other and if so, which person or authority would have been a more appropriate person or authority to conduct elections. (a) under the Act; (b) industrial elections affecting postal delivery services; (c) and if so, what form such election should take. v. Whether having regard to the conduct of the election the court should make and if so, what recommendations to: (a) the AEC; or (b) the Commonwealth Government regarding the conduct of further elections by the AEC under the Act to ensure that the conduct of such election conforms with the law and best electoral practice. vi. The question raised in paragraph 4 of the Applicant's Notice of Motion filed on 27 September 1996. 2. Such further or other questions arising out or in relation to the matters referred to in paragraph 1 herein as the court considers necessary. 3. Such further or other order that is incidental or supplementary to or consequential on any other order under Workplace Relations Act 1996 Section 223. 4. Further or other orders. That gave rise to a notice of motion of the Australian Electoral Commission seeking an order that the inquiry be terminated. Similar applications were made by the Communications Workers' Union of Australia. Two issues are raised in the proceedings. The first is whether s 223 of what is now entitled the Workplace Relations Act 1996 ("the Act") confers power on the Court to undertake inquiries of the type contemplated in the notice of motion of Mr Cook of 23 July 1997. The second is whether it is appropriate for such an investigation to be undertaken in any event or whether an order should now be made terminating the inquiry. Section 223 of the Act relevantly provides: (1) At an inquiry, the Court shall 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) 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. (3) If the Court finds that an irregularity has happened, the Court may, subject to subsection (4), make one or more of the following orders: (a) an order declaring the election, or any step in relation to the election, to be void; (b) an order declaring a person purporting to have been elected not to have been elected, and declaring another person to have been elected; (c) an order directing the Industrial Registrar to make arrangements: (i) in the case of an uncompleted election - for a step in relation to the election (including the calling for nominations) to be taken again and for the uncompleted steps in the election to be taken; or (ii) in the case of a completed election - for a step in relation to the election (including the calling for nominations) to be taken again or a new election to be held; (d) an order (including an order modifying the operation of the rules of the organisation to the extent necessary to enable a new election to be held, a step in relation to an election to be taken again or an uncompleted step in an election to be taken) incidental or supplementary to, or consequential on, any other order under this section. (4) ..." The critical part of s 223(1) is the words appearing after the comma, following the word "election". The Court is, by those words, invested with a power to inquire into and determine "such further questions concerning the conduct and results of the election as the Court considers necessary." The sub-section contemplates two types of question the Court may inquire into and determine. The first is simply whether an irregularity has happened. That is a specific question that is clearly identified in the sub-section. The second type of question is that referred to in the concluding words of the sub-section. As a matter of structure and language, it is reasonably clear that the "further questions" are questions in addition to the question of whether an irregularity has happened. The nature of the inquiry in relation to "further questions" is constrained by the sub-section in two respects. First, those further questions must concern the conduct and results of the election. Second, it is only if the Court considers an inquiry into those further questions "necessary", that the inquiry and determination can proceed. Before considering the scope of s 223 any further, it is desirable to examine at the nature of the further inquiry proposed on behalf of Mr Cook. Some of the matters may briefly be referred to, simply to demonstrate they are plainly beyond the scope of any inquiry contemplated by s 223(1). Paragraph (iv) of order 1 proposed by Mr Cook involves an inquiry into whether the Australian Electoral Commission was the appropriate electoral returning officer to conduct the election. This is a matter addressed directly by the Act. In the absence of the grant of an exemption under s 213, a ballot is conducted by the Australian Electoral Commission by the combined operation of ss 214 and 215. In the present case there was no suggestion of any exemption having been granted under s 213. Thus the Act dictated the elections would be conducted by the Australian Electoral Commission. It is an untenable contention that the legislature intended to confer a power on the Court to inquire into a matter of this type where the Act had elsewhere dictated it should be dealt with in a particular way. Paragraph (v) of order 1 proposed by Mr Cook was directed to the making of recommendations by the Court to the Australian Electoral Commission or "the Commonwealth Government". Section 223 is concerned with inquiring into and determining questions. It involves the exercise of the judicial power of the Commonwealth: see eg Re Mellor; Re Federated Liquor and Allied Industries Employees Union of Australia,Queensland Branch (1986) 17 IR 398 at 399. In my opinion, it is no part of the Court's task when exercising the power conferred by s 223 to make recommendations, or to commence an inquiry with a view to making recommendations, at least as a discrete undertaking which is opposed by parties to the inquiry on jurisdictional grounds. Paragraph (i) of order 1 and order 2 proposed by Mr Cook concerned an "undertaking" which was said to have been given by Australian Electoral Commission to the Australian Federal Police. Whether any undertaking was given is a contentious issue and I presently assume that such an undertaking was given. In making that assumption I am doing so for the purposes of addressing issues of power. Whether such an undertaking was ever given and, if so, its terms, is a question of fact I have not yet addressed. The terms of the alleged undertaking are said to arise from material annexed to an affidavit of Mr Victor Dominello, a solicitor who has acted for Mr Cook in this inquiry. The affidavit annexes what is described as: "[An Australian Federal Police] draft Minute paper to Minister dated 5 September 1995 indicating that the [Australian Electoral Commission] has undertaken to refer the investigation back to the [Australian Federal Police] if any additional evidence was delivered during the hearing of proceedings before the Industrial Relations Court". The text of what is identified as a draft minute relevantly provides: "The AEC undertook to refer the investigation back to the AFP if any additional evidence was identified during the hearing of proceedings before the Industrial Relations Court. Those proceedings are set down for hearing from 9 to 17 November 1995." The elections that gave rise to the inquiry concluded on 11 August 1994 when various individuals were declared elected to positions to which the elections had related. The ballots in the elections had taken place between 1 July 1994 and 29 July 1994. If any undertaking had been given in the terms referred to in the document annexed to Mr Dominello's affidavit, it related to events after, and in all probability well after, the elections had taken place. The question sought to be raised in paragraph (i) concerns the making and fulfilment of an undertaking in probably early to mid 1995. Even on the most generous view of what the words "concerning the conduct and results of the election" mean in s 223(1) the question raised by paragraph (i) of order 1 and order 2 plainly does not concern either of those matters. The same cannot be said, however, about the matters raised in paragraphs (ii) and (iii). Nonetheless the matter raised by paragraph (iii) is, in my opinion, only tangentially related to the conduct and results of the elections. What, in substance, that paragraph addresses is the role of the Australian Electoral Commission in assisting law enforcement officers in investigating possible criminal conduct manifest during the course of an election. It is not a matter concerning what I view as comprehended by the expression "the conduct and results of the election" in the concluding words of s 223(1). As Kirby J noted in Re Jarman; Ex parte Cook [No 2] (1996) 70 ALJR 550 at 556: "It is true that the powers of the Industrial Relations Court in conducting an election inquiry should not be narrowly construed." After making that observation his Honour went on to discuss the effect of an inquiry and concluded: "In such circumstances, the proper inference is that the Parliament intended that electoral inquiries should not be lightly embarked upon nor extended unnecessarily beyond the subject matter of the particular application." I take his Honour to be indicating that though the provisions of the Act conferring power should not be narrowly construed, nonetheless they should be construed in a way that requires a real and tangible connection between the subject matter of the particular application and any incidental or related matter upon which an ancilliary power might be exercised. In relation to the matter raised by paragraph (iii) there is not that connection. Whether the Australian Electoral Commission forwarded information or material to the Australian Federal Police would not bear upon the process of ascertaining votes cast and candidates elected. Nor, in the context of Part IX, would it bear upon whether an irregularity has happened or what orders should be made if it has. It may be accepted that an investigation by the Australian Federal Police may disclose conduct which evidenced an irregularity. However whether the Australian Federal Police undertook such an investigation is immaterial in the statutory setting in which s 223(1) appears. That setting is one in which the Court is the repository of the power to investigate conduct and determine whether an irregularity has occurred. It would, in my opinion, be a curious result that the Court could embark upon an inquiry as to whether the Australian Electoral Commission had failed to do something which would or might put in train a process of inquiry paralleling the process of inquiry the Court itself had undertaken or must undertake. It is not a result intended by s 223(1). Paragraph (ii) of order 1 proposed by Mr Cook is the only paragraph raising a matter which, in my opinion, is arguably comprehended by the expression "questions concerning the conduct and results of the election". It may be accepted that an investigation by the Australian Electoral Commission of a complaint made during the conduct of an election may disclose information or material which would be relevant in any inquiry subsequently undertaken by the Court. I put to one side, for present purposes, any questions of whether the Australian Electoral Commission has any statutory obligation, or indeed power, to undertake such an inquiry. It was not a matter the subject of submissions. I am prepared to assume s 223(1) might authorise an inquiry into the matter identified in paragraph (ii) without deciding the issue. I do so because I am not of the opinion that it is necessary to inquire into and determine the question posed in paragraph (ii). The Court has long since concluded its inquiry into and determination of whether an irregularity has happened in relation to the impugned elections and has made orders for further elections. Those further elections have been held and the results declared over twelve months ago. They had been declared for a period of over eight months before Mr Cook sought to revive the notice of motion. The inescapable inference is that is that he only acted because of the letter from my associate of 5 June 1997. How long Mr Cook and those representing him would have taken to revive the notice of motion had my associate not written is a matter for speculation. Nonetheless it could be confidentially assumed that it would have taken some further time for the matter to be brought back on, if it ever was. It must be accepted that in my judgement of 10 May 1996 I indicated that the conduct of the Australian Electoral Commission "may be a matter I will consider at a later stage of these proceedings". However my use of the word "may" was deliberate as I did not wish to commit myself to such an inquiry. I also readily accept that it was an issue that counsel appearing for Mr Cook raised on several occasions. However the fact that it was raised on several occasions at hearings during 1996 says nothing about the delay between September 1996 and June 1997. The inquiry contemplated by paragraph (ii) concerns the action that was or was not taken by the Australian Electoral Commission in the months of probably June, July and August 1994. I can see no purpose being served by an investigation of those matters well over three years after the period concerned. Memories of events and reasons for conduct are likely now to be incomplete and, at best, inexact. The scope of any duty in an abstract sense should only sensibly be considered in the context of what in fact occurred. Moreover the circumstances of what was or was not done are now irrelevant in determining whether irregularities occurred and what orders should be made. In these circumstances the inquiry contemplated by paragraph (ii) of order 1 is not necessary. I dismiss the notice of motion of Mr Cook and order that this and related inquires be terminated. Counsel for the Communication Workers Union of Australia asked me to reserve on the question of costs. I do so. I certify that this and the preceding eight (8) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore. Associate: Alexandra George Dated: