The irregularity relied upon - an erroneous notification of the closing date
10 The "irregularity" relied upon by the Electoral Commissioner in the present proceeding arose in respect to the election of Ms Annalisa O'Sullivan to the office of Alternate Chairman of the Suppliers and Subcontractors Council of the Master Builders' Association of the Australian Capital Territory. That Council is an "Ordinary Council" within the meaning of r 11 of the rules of the Association.
11 The facts, in very summary form, were that on 10 February 2014 the Australian Electoral Commission forwarded to members:
a letter confirming that the "closing date" for nominations for the office in question closed on 25 February 2014;
an Election Notice requiring nominations to be provided by 25 February 2014; and
a Nomination Form stating that nominations "must reach the Returning Officer … not later than 4.00 pm on Tuesday, 25 March 2014".
The specification of the 25 March 2014 date in the Nomination Form was an error. The date should have been 25 February 2014.
12 On 21 February 2014 a nomination had been received naming Ms Annalisa O'Sullivan. No further nominations were received prior to 25 February 2014. On 26 February 2014 the Electoral Commissioner declared the result of the election, namely that Ms O'Sullivan had been elected unopposed.
13 The difficulty, however, was that on 3 March 2014 the Australian Electoral Commission received by way of e-mail a completed Nomination Form naming Mr Anthony Mattar as nominee for the office of Alternate Chairman.
14 Obviously enough, Mr Mattar's nomination came after the correct closing date for nominations but before the date which had been erroneously notified.
15 For the purposes of s 9(1) of the Registered Organisations Act it is concluded that the Suppliers and Subcontractors Council is a "branch" of the Master Builders' Association of the Australian Capital Territory. Although the term "branch" is not defined in that Act, it is accepted that a determination of what constitutes a "branch" is a question of fact: cf. Re McJannet; Ex parte Minister for Employment, Training and Industrial Relations for the State of Queensland (1985) 184 CLR 620 at 640 per Brennan CJ, Deane and Dawson JJ. Their Honours there observed:
A branch of a federal industrial organisation is not a person; it has no existence apart from that of the members of the branch. The word "branch" in that context is no more than a collective noun which, although singular in form, is used with a plural implication. That was made clear in Williams v Hursey by Fullagar J, with whom Dixon CJ and Kitto J agreed, when he pointed out that a branch of a federally registered organisation has no corporate character and no separate existence as a juristic person. He said of the Hobart branch of the Waterside Workers' Federation of Australia that it
"is not an 'unincorporated society, fellowship, club or association'. It has no separate identity - no existence apart from the registered organisation, of which it is an integral and inseverable part. Its members are merely a section of the total membership of the federation - locally organised for the sake of convenience, but in no respect independent of the federation, and in all respects subject to the control of the federation."
The Suppliers and Subcontractors Council certainly has no separate juristic identity separate from its collective membership. The fact that it constitutes a "branch" of the Association primarily follows from the fact that its membership is comprised entirely of members of the Association. Although the position presently in question of Alternate Chairman is not an "office" of the Master Builders' Association of the Australian Capital Territory, that position is an "office" of an "Ordinary Council" of that Association. For the purposes of ss 9 and 200(2) of the Registered Organisations Act, it is concluded that the election of the position of Alternate chairman is an election to an "office", being an election of a position within a "branch".
16 It is further concluded that the specification of the incorrect date in the Nomination Form constitutes an "irregularity" for the purposes of ss 6, 200 and 206 of the Registered Organisations Act.
17 But the "irregularity" is different to that identified at the outset by the Electoral Commissioner. When forming his "belief" for the purposes of s 200(2) of the Registered Organisations Act, the Electoral Commissioner believed that the irregularity was to be found in:
"a breach of the rules of an organisation", within the meaning of paragraph (a) of the definition in s 6.
At the time of the hearing, an alternate position was advanced, namely that the irregularity could also be said to be found in:
"an act or omission by means of which the full and free recording of votes" had been "prevented or hindered" within the meaning of paragraph (b)(i) of that definition.
18 The "rule" relied upon by the Electoral Commissioner was sub-rule 15(d) of the rules of the Master Builders' Association of the Australian Capital Territory. That sub-rule provides as follows:
At least six (6) weeks before the Annual General Meeting in each election year, the Returning Officer shall forward by post to each financial member and life member a nomination form with a notification thereon or therewith of the closing date and time of such nomination.
The aforesaid nomination shall also state:
(i) That nominations will not be received by them after the closing date so fixed.
(ii) The nomination will not be valid unless a written consent of the nominee is received on or before the closing date of nomination.
(iii) The address to which the nomination and consents are to be forwarded.
(iv) The class of members which the nominee represents in accordance with clause 5.
But the simple fact is that there has been no breach of any express provision of that sub-rule. The sub-rule does not fix the time within which nominations are to close or any means whereby such a date could be fixed or determined. Nor does the sub-rule regulate or direct attention in any way to the manner in which members are to be advised of the closing date for nominations.
19 The basis upon which the Electoral Commissioner first believed there to be an "irregularity" is thus rejected. That conclusion, however, does not strip this Court of the requirement to conduct an "inquiry". The requirement to conduct an "inquiry" cannot be denied simply because the belief of the Electoral Commissioner for the purposes of s 200(2) - or the Court's state of satisfaction for the purposes of s 201(1) - is ultimately found to be misplaced.
20 Although the incorrect notification of the closing date for nominations may not be an "irregularity" within the meaning of paragraphs (a) or (b) of the definition, it is nevertheless concluded that such an incorrect notification constitutes an "irregularity" for the purposes of the Registered Organisations Act.
21 The definition of "irregularity" in s 6, as its terms make self-evident, is not an exhaustive definition. The definition is said to "include" the matters set forth. But those matters are not the only manner in which an "irregularity" can occur. An "irregularity", it is concluded, may include conduct falling outside of those matters set forth in paragraphs (a) to (c) of the definition: cf. Re Federated Liquor and Allied Industries Employees' Union of Australia; Ex parte Huxtable (1979) 40 FLR 418. There in issue was the comparable provision formerly found in the Conciliation and Arbitration Act 1904 (Cth). Persons claimed that an "irregularity" had occurred where they had refrained from nominating for an office by reason of advice they had been given as to their eligibility. Northrop J concluded that an "irregularity" could occur in such circumstances. In pointing to the non-exhaustive definition of an "irregularity", his Honour thus said:
The issue remaining to be decided on the preliminary issue is whether the facts assumed for the purposes of submission are capable of constituting an irregularity within the meaning of that word when used in s 165 of the Act. 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". In the Act, by s 4, except where otherwise clearly intended, the word "irregularity" has the following meaning: "'Irregularity', in relation to an election or ballot, includes a breach of the rules of an organization or of a branch of an organization, and any act, omission or other means whereby the full and free recording of votes by all persons entitled to record votes, and by no other persons, or a correct ascertainment or declaration of the results of the voting is, or is attempted to be, prevented or hindered."
This provision does not give a definitive meaning to the word "irregular" but extends the meaning, if necessary, to include specific matters. In the present case, the facts assumed for the purpose of submission on the preliminary issue cannot constitute an irregularity within the statutory extended meaning of that word. There has been no breach of the rules of the union or its Tasmanian branch. There has been no act or omission whereby the full and free recording of votes by all persons entitled to record votes, and by no other persons, or a correct ascertainment or declaration of the results of voting is, or is attempted to be, prevented or hindered : (1979) 40 FLR at 424-425.
22 There can be no doubt that the correct notification of the closing date for nominations forms an "integral part" of the election process. Thus Joske J in Re Election for Office in Australian Institute of Marine and Power Engineers (1973) 20 FLR 407 at 410 observed:
… However, while there is no rule or form prescribed by the rules of the organization which sets out the time for receipt of nominations nevertheless ... the calling for and receiving of nominations are integral parts of an election under the Act. Elections cannot be carried out if such steps be omitted. …
23 An incorrect notification of the closing date for nominations, it is concluded, can constitute an "irregularity" even if there be no breach of the rules of an organisation: Re Amalgamated Metals Foundry and Shipwrights Union; Ex parte Adamson (1984) 4 FCR 319. Gray J there referred (inter alia) to Ex parte Huxtable, supra, as to the definition of an "irregularity" not being exhaustive and continued:
… In my view, I should follow the weight of authority and hold that the statutory definition is not exhaustive. In addition, there are grounds for regarding this conclusion as correct in principle. It is not difficult to think of instances not clearly covered by the terms of the statutory definition, which could nevertheless be regarded as irregularities in an election.
It is possible to imagine matters which might occur in the process of lodging a nomination, or in the process of acceptance or non-acceptance of a nomination by a returning officer, which could amount to irregularities. These matters may not involve any breach of the rules of the organisation concerned. They might be said to be divorced from the process of recording of votes or the correct ascertainment or declaration of the results of voting. The reference to both of these elements seems to assume that there are candidates for and against whom votes can be recorded, and amongst whom a result can be ascertained. If, for instance, without breach of the rules, a returning officer failed to make available any reasonable facility for the receipt of nominations, so that persons who desired to be candidates were prevented from nominating, it would be reasonable to suggest that there was an irregularity in the conduct of the election, although it was not one concerned with the process of recording votes or ascertaining the results of the voting…:(1984) 4 FCR at 336.
It is equally an "integral part of an election" for members to be correctly notified of the date upon which nominations close.
24 The "wrongful rejection of a nomination for office in an organisation constitutes an irregularity": Asmar, in the matter of an election for an office in the Victorian No 1 Branch of the Health Services Union [2012] FCA 1242 per Tracey J at [35]. So, too, is there an "irregularity" where a nomination is received after the correct closing date but before the date erroneously notified. By notifying members of an incorrect date, at least two potential consequences follow, namely:
members who may wish to nominate may be misled as to the time within which their nominations should be received; and
members may be deprived of an opportunity to vote for members who have sought to nominate.