Ainsworth v Criminal Justice Commission

RULING 1 Members of the recently elected committee of management of the Victorian Branch of the United Firefighters' Union of Australia seek to appear at the inquiry into alleged irregularities in relation to the election of certain members of the committee. The inquiry was instituted on the application of Mr Churchill, a member of the Union. The alleged irregularities relate to the actions of the electoral official who conducted the elections. The principal allegation is that the electoral official did not count the votes for the candidates in accordance with the rules of the Union. The remaining allegations concern the manner in which the electoral official chose and implemented the method by which he would count the votes. 2 The application for the inquiry identified the election in respect of which the alleged irregularities occurred as the election for all members of the committee. However, the particulars of alleged irregularities that form part of the application (as to which see reg 62(2) and Form 4 in Schedule 1 of the Workplace Relations Regulations (Cth)) show that Mr Churchill sought an inquiry only into the election of those offices where more than one person was to be elected to an office (to adopt the language of the Union's rules). The relevant elections were for the office of Trustee (four persons were to be elected), the office of Officer Representative (two persons were to be elected) and the office of Firefighter Metropolitan Fire and Emergency Services Board (MFESB) Representative (two persons were to be elected). There being no alleged irregularity in relation to the election of any other member of the committee (President, Vice-President, Junior Vice-President, Secretary, Officer Country Fire Authority (CFA) Representative, Firefighter CFA Representative and Representative not being from MFESB or CFA) there is no inquiry into the election of those officials. 3 It is not every person who can appear at an inquiry. Section 222 of the Workplace Relations Act 1996 (Cth) relevantly provides: "(1) The Court shall allow to appear at an inquiry all persons who apply to the Court for leave to appear and appear to the Court to be justly entitled to be heard, and the Court may order any person to appear. (2) The persons appearing, or ordered under subsection (1) to appear, at an inquiry shall be taken to be parties to the proceeding." Thus there must be a standard according to which it can be determined when a person should or should not be allowed to appear. That standard is that the person is "justly entitled to be heard". To satisfy this requirement a person must show that he or she has a sufficient interest in the inquiry. What will constitute a sufficient interest will vary from case to case and will often depend upon the nature of the alleged irregularities. It is therefore inappropriate, if not impossible, to define the outer limits of what would constitute a sufficient interest. Nonetheless, having regard to the nature and purpose of an inquiry a number of general observations about standing can be made. 4 First, any person whose right or interest may be directly affected by an inquiry would be entitled to appear. I have in mind, by way of example, a person who may be directly affected by an order that an election, or any step in relation to an election, be declared void (s 223(3)(a)) or a person who may be the subject of an order declaring that he or she has not been elected and declaring another person to have been elected (s 223(3)(b)). 5 Second, if it is alleged that an irregularity in relation to an election is constituted by what might arguably be the improper conduct of an individual, that person should be given leave to appear. It is inconceivable that an inquiry would consider allegations which may affect the career or reputation of a person without affording that person a right to be heard: Mahon v Air New Zealand Ltd [1984] AC 808 at 820; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564. 6 Third, although an inquiry is in relation to the election for an office in an organisation (as to the meaning of which see s 188) or a branch of an organisation, it would be unusual for the organisation itself to be given leave to appear: Australian Electoral Commission v Hickson [1997] FCA 1182 per Northrop ACJ. The reason is that, in general, the organisation or branch has no interest in the composition of its committee of management or other office holders. The rules of an organisation confer on the members the power to appoint the committee of management: see generally s 197. For the organisation to take an interest in an election is to "invade" the "constitutional rights" of the members: compare Hogg v Cramphorn Ltd [1967] Ch 254 at 268. See also Short v Wellings (1951) 72 CAR 84 where it was held improper for an organisation to expend its funds to support particular candidates who were standing for office. But there will be exceptions. For example, the proper construction of the rules of an organisation may come up for consideration during an inquiry. In such a case the organisation would usually be entitled to be heard because all members may be affected by the result and the organisation can speak on their behalf: Fohmsbee v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (1997) 77 IR 369 at 370. 7 Fourth, often it will be appropriate to grant leave to appear to the electoral official. An election for an office in an organisation or branch is conducted by the Australian Electoral Commission (s 210(1)) unless there is an exemption in force (s 210(2)). When an election is conducted by the Commission, it is, in effect conducted by an electoral official (s 215). The electoral official is required to comply with the rules of the organisation or branch (s 215(1)(a)), but in some circumstances he or she may take certain action and give certain directions as may be necessary to ensure that no irregularities occur in or in relation to the election or to remedy any procedural defects (s 215(1)(b)). Further, there will be cases, as here, where the alleged irregularity concerns the conduct of the electoral official. It may be proper to allow the electoral official to appear at an inquiry for a number of reasons. One is to place before the court all relevant facts, though if that is the sole purpose for seeking leave to appear, it is not likely to constitute a sufficient interest. Another is to explain why particular action was taken or certain directions given. Sometimes the court will be assisted by hearing from the electoral official on matters of practice and procedure in the conduct of elections. It is to be expected, of course, that the electoral official will provide assistance in an impartial fashion, but when the official's conduct is under attack, that conduct may be defended in the usual way. 8 On what basis do the members of the committee seek leave to appear? The ground relied upon is, to say the least, unusual, but that of itself reveals nothing as to its merits. To understand their contention it is necessary first to say something more about the main ground for the inquiry. 9 Mr Churchill was a candidate for the office of Firefighter MFESB Representative. On one construction of the rules of the Union, that for which Mr Churchill contends, the votes for that office and for those other offices where more than one person was to be elected, were to be counted in the following way. Voters are required to indicate a preference for each candidate on the ballot paper. The candidate who first achieved a majority was to be declared elected. All ballot papers containing a first preference vote for that candidate were then to be disregarded. The candidate with the lowest count of first preference votes was then to be declared defeated, and the second preferences on his ballot papers were to be distributed to the remaining candidates. This process was to continue until a candidate achieved a majority, and that candidate was then to be declared elected. If there were more than two officeholders to be elected, the process was to be repeated. But this is not how the votes were counted. The electoral official formed the opinion that there was a "procedural defect" in the rules concerning the method of counting votes when more than one person was to be elected to an office. He counted the votes in the following way. When the first candidate was elected, all ballot papers were sorted back to first preference votes. Then, all ballot papers containing a first preference vote for the first elected candidate were distributed to the remaining candidates according to the second preference vote on each of them. The candidate receiving the majority of votes remaining was elected as the second successful candidate, and so forth until all multiple positions were filled. This method of counting is one of the alleged irregularities. 10 The same members of the committee of management that seek leave to appear in the inquiry have made application under s 208 for an order that the rules governing the election of the committee be declared invalid for being in contravention of s 196. The particular respects in which it is said that the rules are invalid are: (a) the rules fail to make a provision for the control of committees of the organisation and its branches by members of the organisation and its branches, as required by s 195(1)(b)(iv); (b) the rules fail to make a provision for the election of the holder of each office in the organisation, as required by s 197(1)(a); and (c) the rules impose on applicants for membership and members of the organisation conditions, obligations and restrictions that, having regard to the objects of the Workplace Relations Act and the purposes of registration of organisations under the Workplace Relations Act, are oppressive, unreasonable or unjust. 11 By s 208(5), where an order is made declaring that the whole or part of a rule contravenes s 196, the declaration takes effect from the date of the order. If the members of the committee obtain the declaration they seek in the s 208 proceeding, they will not have attained one of their principal objects. What the committee hopes to achieve, in case Mr Churchill's construction of the rules is correct, is to have those rules declared invalid as at the time of the election. In this way they hope to keep Mr Churchill out of office. To bring this about, the committee seeks leave to appear in the inquiry to raise another "irregularity" in the conduct of the elections, namely that they were conducted in accordance with invalid rules. Once an inquiry in relation to an election has been instituted, the court is not confined to considering the irregularity alleged by the applicant; it may consider any other irregularity that has occurred: see Re Amalgamated Metals Foundry and Shipwrights Union; Ex parte Adamson (1984) 4 FCR 319 at 343, and the cases there cited. The committee appreciates the risk that its strategy involves. If it is correct and there has been an irregularity of the type it seeks to raise, the court might, under s 223(3), declare the elections void and require the elections to be held again, or the court might be persuaded to allow the election results to stand, notwithstanding the irregularity, either as a matter if discretion or because of the application of s 223(4). If they are allowed to appear they will urge the latter option. 12 For the purposes of considering the application of the committee members to be made parties to the inquiry, it is convenient to divide those applicants into two groups. The first group comprises those members who might be affected by a determination that there has been an irregularity in the conduct of the elections. If such a finding is made, the court will consider whether there should be a declaration that the elections of Mr Fowler (who won the office of Firefighter MFESB Representative), Mr Kellett (who won the office of Trustee) and Mr Gould (who won the office of Officer Representative) should be declared void. They are the only persons in respect of whom such an order might be made. Clearly, each of them should be allowed to appear at the inquiry. With their appearance there will be persons before the inquiry who will raise the allegation that the voting rules of the Union contravene s 196. 13 The second group are members of the committee who will not be affected in any way by the outcome of the inquiry save, I suppose, that they could be disappointed with the result. Those members, Mr McCluskey, Mr Scully, Mr Hamilton, Mr Ward, Mr Carlson and Mr Marshall, do not propose to take any active part in the inquiry. They do not seek to be separately represented by solicitors or counsel, nor do they wish to call evidence that Mr Fowler, Mr Kellett and Mr Gould will not call. The reason why they join with their colleagues in seeking leave to appear is the doctrine of res judicata, assuming, of course, that this doctrine applies to this type of proceeding. Their object is to ensure that any ruling made by the court will be binding as between themselves and Mr Churchill. At one stage the committee went so far as to ask that the Union be given leave to appear (although the Union itself had made no such a request), so that it would also be bound by any determination that might be made. When I pointed out that the committee could not seek leave for the Union to appear (they indicated that, in any event, it did not wish to appear), the application was withdrawn. I only mention this because it helps to explain the true object of those that I have described as the second group. 14 In my opinion the members of the second group have not shown that they are persons who are justly entitled to be heard within the meaning of s 222. None of them will have their rights or obligations altered by the outcome of the inquiry. Nor will they be deprived of any benefit or advantage. Nor do they wish to provide the inquiry with assistance, whether by way of evidence or submissions, that would not otherwise be forthcoming. A person is not entitled to be given leave to appear under s 222(1) for the purpose of becoming a party to the inquiry by virtue of s 222(2) with the principal object of creating an estoppel against other persons who are taken to be parties. Indeed, none of the persons in the second group actively wish to appear in the inquiry other than in a formal sense. Rather all they hope is to be made parties. That is not the object of s 222. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Ruling herein of the Honourable Justice Finkelstein.