Re Collins; Ex parte Hockings [1989] HCA 42

High Court of Australia Brennan, Deane, Toohey, Gaudron and McHugh JJ. Re Collins; Ex parte Hockings [1989] HCA 42

ORDER Order nisi for certiorari, mandamus and prohibition discharged.

Cur. adv. vult.

The following written judgments were delivered:—

Oct. 3 Brennan and Deane JJ.

Gaudron J. has outlined the circumstances and the statutory framework in which the question arose whether a use of union resources to promote a ticket in a union election amounts to an "irregularity in or in connexion with an election" within the meaning of that term in Pt IX of the Conciliation and Arbitration Act 1904 Cth. In Reg. v Gray; Ex parte Marsh [1] , Gibbs C.J. said:

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. (Emphasis added.) As appears from that judgment and its reference to Evans v Crichton-Browne [2] , an irregularity is not "in or in connexion with an election" if the irregularity consists merely in the steps taken to affect voting intention but leaves untouched the processes of nomination, conduct and declaration of the poll. This is such a case. 1. (1985) 157 C.L.R., at p. 368. 2. (1981) 147 C.L.R. 169.

As Gaudron J. points out, if an irregularity which affects merely the formation of voting intentions were capable of amounting to an "irregularity in or in connexion with an election", an inquiry into the effect of the irregularity on the result of the election would involve a very substantial intrusion into the secrecy of the ballot. For these reasons we agree that the view taken by Gray J. in setting aside the subpoenas was correct.

As the order made by Gray J. setting aside the subpoenas was correct in law, there is no occasion to consider whether mandamus under s. 75(v) of the Constitution or certiorari might have been granted had the order been infected by legal error.