MEANING OF "IRREGULARITY"
25 I make the following observations about the definition of "irregularity" in s 6 of the FWRO Act:
(1) first, the definition is inclusive;
(10) secondly, analysis of this word usually commences with a consideration of R v Gray; Ex parte Marsh (1985) 157 CLR 351, a case concerning former s 159(1) of the Conciliation and Arbitration Act 1904 (Cth) which, like s 206 here, permitted a court of inquiry to be convened where there had been "an irregularity in or in connection with an election." Gibbs CJ said at 367 - 368:
According to the Oxford English Dictionary "irregularity", in its relevant sense, means "want of conformity to rule; deviation from or violation of a rule, law, or principle… deviation from what is usual or normal". 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.
(11) thirdly, the ordinary meaning of the word can also refer to that which is anomalous or abnormal. As Northrop J said in Re Federated Liquor and Allied Industries Employees' Union of Australia; Ex parte Huxtable [1979] FCA 17; 40 FLR 418 at 424:
The word "irregularity" is defined in the Shorter Oxford Dictionary (23rd ed. 1972 reprint) as "the quality or state of being irregular; something that is irregular". In the same dictionary, the word "irregular" is defined in relation to things as "not in conformity with rule or principle, contrary to rule; disorderly in action or conduct, anomalous, abnormal".
Whilst the word "irregularity" can in its ordinary meaning include that which is anomalous or abnormal, in my view, in its statutory context, the ordinary meaning is probably confined in the way described by Gibbs CJ above. The use, by his Honour, of the phrase "in its relevant sense" to qualify the dictionary meanings of the term "irregularity", suggests that other meanings that word may denote are not relevant in the statutory context of elections;
(12) fourthly, in its statutory context, the word "irregularity" does not extend to every breach of an organisation's rules. The irregularity must be "in relation to" an election (s 206). There must be a breach of those rules governing the conduct of an election. As Toohey and McHugh JJ said in Re Collins; Ex parte Hockings (1989) 167 CLR 522 at 526:
While any breach of the rules of an organization may constitute an irregularity in terms of the definition, not any breach will give rise to an "irregularity in or in connection with [an] election", the phrase used in Pt IX of the [Conciliation and Arbitration Act 1904 (Cth) (the "Act")]: see ss. 159(1), 160(1)(a), 165(1). In Reg. v. Gray; Ex parte Marsh [(1985) 157 CLR 351, at p. 368] Gibbs C.J. noted: "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." That is because the Court is concerned, under Pt IX of the Act, with an irregularity in or in connexion with an election; it is not that "irregularity" is itself so circumscribed. Furthermore, the Court is constrained, by s. 165(4), from declaring an election void unless of the opinion that "having regard to the irregularity found, and any circumstances giving rise to a likelihood that similar irregularities may have occurred or may occur, the result of the election may have been affected, or may be affected, by irregularities". Conduct which constitutes a breach of the rules of an organization but which goes no further than supporting the candidature of members of a particular "team" amounts to an irregularity but it does not give rise to an irregularity in or in connection with an election because it does not involve a departure from some rule, practice or principle governing the conduct of the election.
(13) fifthly, the irregularity must be of a kind that has affected, or may affect, the result of an election: see s 206(5) of the FWRO Act. As Siopis J said in Clancy, in the matter of an application for an inquiry in relation to an election for offices in the Australian Nursing and Midwifery Federation [2017] FCA 460 at [26]:
It follows that it is incumbent on an applicant under s 200 of the FW(RO) Act, to satisfy the Court not only that the claim that the irregularity occurred is based on reasonable grounds, but also that there are reasonable grounds to support the making of an order of the kind referred to in s 206(4) of the FW(RO) Act. In other words, in respect of a completed election, such as in this case, that the result of the election may have been affected by the claimed irregularity, if established.
In my view, the foregoing observation probably applies to both completed and incomplete elections.
MEANING OF "RULES"
26 A more difficult issue is whether the reference to the "rules of an organisation" in the definition of "irregularity" refers to the rules applicable from time to time or, as the applicant put it, the rules in force at the time of the alleged irregularity. Absent reg 132, supra, that submission would be accepted. It would make no sense to apply any different set of rules applicable at an earlier date or in the future. However, reg 132 purports to fix upon a version of the rules applicable at a particular date for the purposes of ss 193, 197 and 198 of the FWRO Act. Section 193, it will be recalled, empowers the AEC to give directions to ensure that no "irregularities" occur in relation to an election. Regulation 132 was purportedly authorised by s 359(1) of the FWRO which provides:
The Governor General may make regulations prescribing all matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
27 The applicant did not submit that reg 132 was not authorised by the terms of s 359. Rather, the applicant submitted that reg 132 did not apply to the definition of "irregularity" in s 6. That submission should be accepted. In my view, reg 132 is intentionally confined to three particular provisions of the FWRO Act which concern the functions and responsibilities of the AEC in relation to the conduct of election. It does not refer to s 200 or to s 206. It also does not refer to other provisions in the FWRO Act which deploy the word "irregularity", such as s 332 which addresses irregularities set out in a report of an auditor. By its terms, it is limited to the three provisions it identifies.
28 There may be no necessary practical disconformity between the construction of the phrase "rules of an organisation" in the definition of "irregularity" and the use of that word in ss 193, 197 and 198, as altered by the operation of reg 132. In the ordinary course of events, the version of the Constitution to be applied by the AEC in conducting an election would be the same as the one in existence on the day nominations for that election opened. The circumstances of this case were not, inferentially, predicted by the draftsperson of reg 132. But where, as here, there is a difference between the Constitution in existence on that day, and the Constitution applicable thereafter for the purposes of conducting the election, reg 132 will have the effect of directing the AEC to apply the former version of the Constitution for the purposes of ss 193, 197 and 198. But, reg 132 has no greater reach than this and does not bind this Court for the purposes of ss 200 and 206.
29 It is, accordingly, unnecessary for me to consider whether s 359 authorised reg 132, or whether, reg 132 by its terms, could act as an effective amendment to the definition of "irregularity" in s 6: cf Morton v Union Steamship Co of New Zealand Ltd (1951) 83 CLR 402. In that respect, s 359 is not drafted as a "Henry VIII" clause. It does not authorise the making of regulations which might potentially expand the operation of the primary Act.