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[2000] FCA 307
Federal Court of Australia
2000-05-23
Marshall J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 Ms Beitsen has applied for an inquiry into the election for office of three delegates to the Victorian State Council ("the State Council") of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union ("the Union") representing the Food and Confectionery Division of the Union ("the Division"). 2 The election for the three positions was conducted on 14 April 2000 by Mr Clapton who was appointed as Returning Officer by the Victorian State Conference of the Union ("the State Conference"). The election was a one tier collegiate election. Candidates for the offices were required to be elected by and from those delegates to the State Conference who were elected from the Division. 3 When nominations closed on 10 April 2000 there were five nominations for the three offices. The electorate consisted of the 12 persons who were eligible to vote. Mr Clapton prepared ballot papers which listed the names of candidates in the following order: · C. Frizziero · R. Matthews · C. Anevski · D. Quarrel · S. Poposki 4 The back of the ballot papers carried instructions to voters to indicate a preference for at least the number of candidates required to be elected and it was optional to indicate a preference beyond the number of persons required to be elected. Each of the 12 ballot papers which were filled in by the eligible voters were marked such that a preference was not expressed for more than three candidates. 5 The following table reveals the number of votes recorded in favour of each candidate: Candidates 1st Preference 2nd Preference 3rd Preference No. of Primary Votes Name C. Frizziero 6 - 1 7 R. Matthews 2 4 6 12 C. Anevski - 3 3 6 D. Quarrel 3 2 - 5 S. Poposki 1 3 2 6
6 After the votes had been counted Mr Frizziero and Mr Matthews were declared elected. No issue in this inquiry was taken with the election of those two candidates. Mr Clapton then eliminated Ms Quarrel and distributed her preferences. The three voters who gave their first votes to Ms Quarrel allocated their second votes to Mr Poposki. Those three votes were allocated to Mr Poposki who was then declared elected, notwithstanding that he received the same number of primary votes as Mr Anevski. 7 Rule 4 Part B, 13 of the rules of the Union provides as follows: "(a) Where in a ballot under this rule, one candidate is to be elected to an office, voting shall be on a preferential basis, namely, the successful candidate shall be: (i) Where any one candidate received more than one half of the primary votes cast, that candidate; or
(ii) in any other case, the candidate who first received more than one half of the primary votes cast after the elimination of the candidate or candidates receiving the least or lesser number of primary votes cast and the distribution of the votes cast in favour of that candidate or those candidates in accordance with the next preference of the vote concerned. (b) Where at a ballot under this rule, more than one candidate is to be elected to offices bearing the same name, voting shall be on a preferential basis, namely the successful candidate or candidates shall be the candidate or candidates who receive the higher number of primary votes cast after the elimination of the candidate or candidates receiving the least or a lesser number of primary votes cast and the distribution of the first preference cast in favour of that candidate or those candidates in accordance with the next preference of the voter or voters concerned. A member voting shall indicate preference in order at least up to the number required to be elected to cast a valid vote. The indication of preference beyond the number required to be elected is optional." 8 In an election where one candidate is required to be elected to an office, preferences are required to be distributed when not one candidate has received more than half of the primary votes cast. When that occurs, the first step is to eliminate the least successful candidate by distributing her or his votes in accordance with the next preference recorded in each such vote. 9 In an election where more than one candidate is required to be elected to office there is no requirement for any candidate to receive at least half of the primary votes cast. The successful candidates are those who receive the highest number of primary votes cast. It sometimes may not be possible to arrive at who the successful candidates are until, as the concluding words of the first paragraph of sub-rule 13(b) say: "… after the elimination of the candidate or candidates receiving the least or a lesser number of primary votes cast and the distribution of the first preference cast in favour of that candidate or those candidates in accordance with the next preference of the voter or voters concerned." 10 In the elections the subject of this inquiry, each voter cast three primary votes. No preferences were allocated by the voters beyond those three primary votes. The persons who received the highest number of votes were the following: · R. Matthews - 12 · C. Frizziero - 7 · C. Anevski - 6 · S. Poposki - 6 11 As a tie occurred for the third position, it was not appropriate for Mr Clapton to declare anyone to be elected to that office. The words in Rule 4 Part B, 13(b) commencing with, "after the elimination…", as quoted from above, had no relevant operation in the context of this election. There was no requirement to eliminate any candidate and distribute the first preferences of such a candidate given that no first preferences were allocated by any voter. The voters complied with the requirement to indicate at least the number of preferences which conformed with the number of vacancies. Each such vote was a primary vote for each such candidate, notwithstanding that the vote was recorded by the marking of the numbers 1, 2 or 3 beside the names of various candidates. It would have been appropriate to distribute the preferences of any first eliminated candidate if such candidate had received the lowest number of primary votes and had received a fourth preference vote from a voter. But that did not occur in this election. 12 In my view the intention of Rule 4 Part B, 13(b) is to accord primary vote status to all votes cast up to the required number of persons needed to fill the relevant multiple offices. It is only if a voter records a preference beyond that number that such a vote can truly be said to be a "preference cast" in accordance with paragraph (b) of sub - rule 13. 13 Consequently I find that an irregularity has happened in relation to the election for the office of three persons as delegates to the State Council representing the Division. The irregularity is constituted by the declaration of the Returning Officer of Mr Poposki as a successful candidate after the purported distribution of preferences of the least successful candidate in circumstances where the rules did not permit or require the distribution of any votes recorded for the least successful candidate. 14 It is appropriate to order pursuant to s223(3) of the Workplace Relations Act 1996 (Cth) that the Returning Officer's declaration and the election of Mr Poposki as the delegate to the State Council from the Division is void. It is also appropriate to grant consequential relief to facilitate the filling of the vacancy for the office of a State Council delegate representing the Division. This can be best done by ordering the Returning Officer, as soon as is reasonably practicable, to conduct a special meeting of the delegates to the State Conference from the Division at which an election shall be held to fill the relevant vacant office.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.
Associate: Dated: 25 May 2000 Counsel for the Applicant: Ms M Richards
Date of Judgment: 23 May 2000 (ex-tempore as revised from the transcript)