28 Further, at 401 Wilcox CJ expressed his own view about the decision in Saint as follows:
With respect to those who have expressed the contrary view, I accept what Dunphy and Evatt JJ said on this point in Saint . Section 195(1) of the Act is concerned with the content of rules. Paragraph (c) permits rules for removal of an elected officer from office, but only under certain circumstances. The envisaged subject matter is different from abolition of an office. Removal from office and abolition of the office have the common consequence that the particular officer no longer holds the office to which he or she was elected. But in the one case the organisation remains structurally unchanged; the office remains and someone else may be elected or appointed to it. In the other case, the organisation is changed; the office ceases to exist. I think s 195(1)(c) was intended to prevent the dismissal, without an objectively valid reason, of an elected officer during the officer's term of office, and the substitution of someone else, perhaps a person more to the liking of a dominant faction. I do not think it was intended to restrict the ability of organisations to amend their rules, in accordance with proper procedures and subject to the protections contained in s 196.
29 My position is that I agree with Wilcox CJ and his Honour's reasoning and, it follows, with the majority in Saint. In Saint, St John J was obviously influenced by the Act's object to "encourage the democratic control of organisations so registered and the full participation by members of such an organisation in the affairs of the organisation" and the fact that this object was inserted by the same amending Act that inserted s 133(1)(f). The object in s 3(d) of the Industrial Relations Act also encourages the democratic control of industrial organisations but, additionally, it encourages the responsible management of those bodies. Ms Howell, counsel for the USU, made the point that it could not be regarded as responsible management if for one reason or another (perhaps because of "market forces") a union's membership declined drastically between elections, but the union was unable to take steps to reduce its elected officers to a level commensurate with the drastically lower level of membership.
30 In Skourdoumbis v Findlay and Others [2002] FCA 638; (2002) 190 ALR 55, Gray J discussed the impact of changes to the objects of the Workplace Relations Act 1996 (Cth) as they affected registered organisations. His Honour referred to the well known decision in McLeish v Kane and Others (1978) 22 ALR 547 and the fact that the Court in that case placed great weight on the objects then found in s 2(e) and (f) of the Conciliation and Arbitration Act. Those objects were in the following terms:
(e) to encourage the organization of representative bodies of employers
and employees and their registration under this Act; and
(f) to encourage the democratic control of organizations so registered
and the full participation by members of such an organization in the
affairs of the Organization.
31 Gray J noted at [43] that among the amendments that produced the Workplace Relations Act was a complete recasting of the objects. There was no longer to be found any equivalent of the former s 2(e). Rather than encouraging the organisation of representative bodies and their registration, his Honour observed that the Workplace Relations Act aimed as part of the "principal object" in s 3, at:
(f) ensuring freedom of association, including the rights of employees and employers to join an organisation or association of their choice, or not to join an organisation or association.
32 His Honour also observed that the "principal object" contained no reference to "democratic control". The equivalent provision was directed to:
(g) ensuring that employee and employer organisations registered under this Act are representative of and accountable to their members, and are able to operate effectively.
33 At [46] Gray J observed:
[46] Section 196(c) [not materially different from s 235(1)(c)] still requires that regard be had to the objects of the WR Act in assessing whether a rule or rules contravene s 196(c). It makes no reference to the additional objects of Pt IX. Instead of encouraging democratic control, the emphasis in applying s 196(c) is now on the organisation being representative of and accountable to its members and on its effective operation. In many cases, the differences may be subtle, but it seems no longer possible simply to apply the McLeish v Kane principles in a simplistic way. Regard must now be had to the changed emphasis in the objects of the WR Act.
34 At [48] Gray J stated:
[48] Relative to other comparable countries, Australia has a history of a high level of external control of the internal affairs of trade unions. The provisions of the WR Act relating to the content of rules, and the jurisdiction given to the Court by ss 208 and 209, and earlier corresponding provisions, are significant aspects of that high level of control. The price of being given a pre-eminent role in the system of conciliation and arbitration was that organisations were required to bring their rules into a state of conformity with the legislation, and to maintain them in that state. They were liable to have their rules enforced at the suit of individual members, often aided by legal aid under a special scheme under which aid was granted significantly more generously, both as to means testing and as to the nature of the cases aided, than was the case with legal aid for most other forms of legal proceeding. With the change in the role of organisations since 1996, the case for such stringent regulation is less persuasive. If trade unions are to be regarded as service providers, competing with other entities in a marketplace for the provision of negotiating and other skills, and if membership of them is to be truly voluntary, there is a stronger case for the control of the internal affairs of organisations by market forces. A potential member can decline to join an organisation, or a member can leave, if the rules of the organisation are thought to be too restrictive, or the management of the organisation is conducted in a manner that does not earn their approval.
35 I note, of course, that in respect of the Workplace Relations Act the "principal object" contained no reference to "democratic control" (although it was referred to in s 187A of that Act), whereas in the Industrial Relations Act "democratic control" still features in s 3(d). Nevertheless, the observations of Gray J in Skourdoumbis v Findlay reinforce the view I have taken that there has to be a proper balance struck between "democratic control" and "responsible management" in circumstances where, as Gray J opines, if trade unions are to be regarded as service providers, there is a stronger case for the control of the internal affairs of organisations by market forces.
36 This view is further reinforced by what the Full Bench said in McLeish v Kane at 556:
The Court in exercising its present jurisdiction is concerned with all the objects of the Act and clearly it is fundamental to these objects that there be not only democratically controlled organizations but that these organizations should be viable. In other words, we must take care to ensure not only that democratic control is encouraged but also that the organization remains viable. This means that questions of balance must arise.