Industrial Relations Commission of New South Wales CITATION : Shires Association of New South Wales v State Electoral Office and Others [2004] NSWIRComm 152 APPLICANT: Shires Association of New South Wales FIRST RESPONDENT: State Electoral Office PARTIES : SECOND RESPONDENT: Denise Osborne THIRD RESPONDENT: Tony Quinn FILE NUMBER: IRC 3126 of 2004 CORAM: Schmidt J CATCHWORDS : Declaratory Relief - power to make orders sought under section 154 of the Industrial Relations Act 1996 - eligibility for elections to the Executive Council of the Association - irregularities in election - member council ceased to exist - result, no eligibility for election to nominated office - orders made LEGISLATION CITED : Industrial Relations Act 1996 HEARING DATES: 05/31/2004 DATE OF JUDGMENT: 05/31/2004 APPLICANT: Mr S Coleman of counsel SOLICITORS: Maddocks FIRST RESPONDENT: Mr N Perram of counsel with Mr J Macdonnell, solicitor SOLICITORS: LEGAL REPRESENTATIVES: Crown Solicitors SECOND RESPONDENT: Ms D Osborne THIRD RESPONDENT: No appearance JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Schmidt J DATE: 31 May 2004 Matter Number IRC 3126 of 2004 SHIRES ASSOCIATION OF NEW SOUTH WALES v STATE ELECTORAL OFFICE AND OTHERS Application for interim orders and declarations under section 154 of the Industrial Relations Act 1996 DECISION 1 This application was brought on 31 May 2004, seeking urgent relief in the context of elections for the Executive Council of the applicant, which must be held on 1 and 2 June 2004, under the applicant's rules. The applicant is a State Organisation registered under the Industrial Relations Act 1996 (the Act). A difficulty has arisen in the nominations for the office of President, which may lead to a futility in the election process. 2 There are three nominations for the position in question. Two of the nominees, Ms Denise Osborne and Mr Tony Quinn, were councillors of the former Hume Shire Council. Their nominations were valid under the rules when made. 3 Since then, however, the Council has been amalgamated, by order of the Governor, gazetted on 26 May 2004. Pursuant to s218A of the Local Government Act 1993, the Council then ceased to exist. Thereupon, it could no longer be a member of the applicant. Rule 16 of the applicant's rules deals with the constitution of the applicant's Executive Council and provides in paragraph (b): Any elected member of an ordinary member council shall be eligible for election to the Executive Council. 4 The Electoral Commissioner is conducting the elections. It is aware of the difficulty which has arisen, but cannot take steps to deal with it, for example, by advising those eligible to vote at the election as to what has transpired and its consequence. It acts only as a returning officer. 5 The result of these events is that if the election proceeds in accordance with the nominations made and either Ms Osborne or Mr Quinn are elected President, they cannot take up that office, being ineligible to do so under the Rules. 6 There was an issue between the parties as to what the result would be. On one view, there would then be a vacancy in the office and under Rule 26, the Office will go to the Vice President who achieved the highest number of votes at the last election. On another, the rules make no provision for this situation. There can be no election to the office of a person not eligible to hold it and hence, no casual vacancy could arise. Rule 25 also deals with removal from office in situations where the officeholder has ceased being eligible to hold office. Again, there is a difficulty in application of this rule, given that there has as yet been no election. 7 In these circumstances, I accepted that there was some urgency in the matter being heard. The result of the election proceeding on the basis of nominations for ineligible persons, would plainly be that there would be no proper election conducted in accordance with the spirit and indeed, the letter of the Rules and the Act. 8 As the matter came on for hearing with short notice, the second and third respondents, Ms Osborne and Mr Quinn, had no opportunity to appear. They reside in the country. After hearing the other parties, I concluded that the hearing should be adjourned, in order to give them the opportunity to make submissions, if they wished, given that the orders which were being pressed included a declaration that they were both ineligible for election as President of the applicant. 9 Mr Quinn made no formal submission, but asked that the Court be informed of the comment which he wished to make in connection with the application, namely that 'The process should not be tampered with but should go forward'. 10 Ms Osborne made a submission by telephone. She agreed with Mr Quinn's observation. She emphasised her view that the nominations had been validly made and so the elections should proceed accordingly, with the position which had arisen being put before those voting, so that they could make their decision accordingly. She also emphasised her view of how the rules would operate. They included that the casual vacancy provisions would deal adequately with the situation which had arisen and that this would not unduly affect the position of the other candidate, who could stand for election as Vice President, or could participate on the Executive, as the Immediate Past President. 11 I have taken the views expressed by both Ms Osborne and Mr Quinn into account in my consideration of the application. 12 The Electoral Commission also raised for consideration what the effect of the orders sought would be and sought guidance in this respect. Consideration 13 There can be no doubt that the Court has powers to make the orders pressed under s154 of the Act. The section provides: (1) The Commission in Court Session may make binding declarations of right in relation to a matter in which the Commission (however constituted) has jurisdiction. The Commission in Court Session may do so, whether or not any consequential relief is or could be claimed. (2) Proceedings before the Commission in Court Session are not open to objection on the ground that a declaration of right only is sought. 14 Division 3 - Election of Officers of Part 4, Regulation of State Industrial Organisations, of Chapter 5, Industrial Organisations of the Act, deals extensively with the orders which the Commission may make in connection with irregularities which arise in elections for an office of an organisation such as the applicant. Such irregularities may arise in an election 'that may have effected or may effect the result of the election' (s253(1). An 'irregularity' is defined in s252(2) as: (2) An irregularity in relation to an election for an office includes a breach of the rules of a State organisation and any act, omission or other thing that prevents or hinders or attempts to prevent or hinder: (a) the full and free recording of votes by all persons entitled to record votes and by no other persons, or (b) a correct ascertainment or declaration of the results of the voting, or otherwise adversely and unfairly affects the result of the election. 15 There is no doubt that what has here arisen falls within the definition of irregularity. Without the correct position being put before those voting at the election, there is plainly a real risk that the election for the office of President will be adversely or unfairly affected. I am satisfied that the circumstances are such that the Court has power to deal with them under s154. While attention was drawn to the provisions of s153 of the Act, it does not detract from this conclusion. That section is concerned to identify those matters with which the Court Session alone may deal. Section 154 is not thereby constrained. 16 I am also well satisfied that the circumstances are appropriate ones in which the Court should act to grant declaratory relief. 17 This conclusion accords with the objects of the Act, which include in s3(d): to encourage participation in industrial relations by representative bodies of employees and employers and to encourage the responsible management and democratic control of those bodies, 18 Such an object cannot be achieved, if an election for an important position such as the President of a registered Industrial Organisation, effectively becomes a futility, or is conducted in circumstances where the real position confronting the voters and its consequences is not fully put before them. 19 While I can sympathise with the situation which Ms Osborne and Mr Quinn find themselves in, the realty is that the events which have overtaken them, have consequences of which it is important for those voting in tomorrow's election to be made aware. The matter cannot be determined from the candidates' point of view. It is the position of the organisation and its members which must be considered. 20 Under the Rules of the applicant, there can be no doubt that Ms Osborne and Mr Quinn are not eligible to be elected to the office of President. The Council of which they were elected councillors has ceased to exist in accordance with the provisions of the Local Government Act. Having no existence, it cannot be a member of the applicant Association and, in accordance with Rule 16(b), it follows that while their nomination was valid when made, the events which have intervened have had the result that both Ms Osborne and Mr Quinn are ineligible to be elected to the position for which they nominated. 21 This situation, which has developed between the time of their nomination and tomorrow's election, must plainly be made known to those voting in the elections, in order to ensure that no further, or more serious, irregularity in the election process arises. This can only be ensured by the consequences of the events which have occurred being put before those eligible to vote in the elections, so that they can all take this situation properly into account, in exercising their votes. 22 Those consequences, it seems to me, includes any vote in favour of either Mr Quinn or Ms Osborne being invalid. Such a vote can have no effect, given that they are not eligible to be elected to the position for which they have nominated, despite their names appearing on the ballot paper. The Electoral Commission, it seems to me, would have to treat such a vote in the same way as any other invalid vote which may be cast. Orders 23 For all of these reasons, I make the following declarations and orders: 1. In accordance with Rule 16(b) of the Rules of the Shires Association of New South Wales, despite their nomination, Ms Denise Osborne and Mr Tony Quinn are not eligible to be elected to the Executive Council of the Association at the election due to be held on 1 and 2 June 2004. 2. The Association should take the necessary steps to bring this judgment and these orders to the attention of those voting in the election due to be conducted on those days. ------------------------ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.