The effect of rule 5.5
10 Although it uses the word 'election' in the singular, it seems very clear that r 5.5 is intended to apply to cases in which elections for a number of different offices within the Union are conducted concurrently, a practice which is apparently common in the Union. Because of the use in the media of the word 'election' to refer to a general election, ie the concurrent conduct of elections in various constituencies to return members to Parliament, the word 'election' has come to be used as signifying the concurrent conduct of a number of elections for different positions. Counsel for Mr Reid and Mr Wisniewski attempted to argue that r 5.5 was applicable only to those elections in which more than one position is available (of which state organisers in a particular State branch may be an example). Such a construction would certainly give r 5.5 some work to do, but it would deprive the rule of the effect it is obviously intended to have. The rule is clearly designed to facilitate the conduct of concurrent elections for a range of offices in the Union. If members were able to nominate for, and potentially to be elected to, more than one office entitling them to sit on the National Conference, further elections would be necessary to fill the vacancies created by each of those members either choosing the one position he or she would occupy, or by the operation of some legal principle, such as the doctrine of incompatible offices, imposing that choice on them. Plainly, as a deliberative body, the National Conference could not have a person exercising more than one vote in its deliberations. Once it is understood that this is the purpose of r 5.5, effect can be given to it without undue strain on the language, by construing the word 'election' as applicable to the concurrent conduct of elections for various offices.
11 Three competing contentions were advanced as to the effect of r 5.5. As I have said, the returning officers adopted the 'first in time' view, namely that it is the first nomination received from a person that is effective, all subsequent nominations being rendered ineffective by the lodging of the first nomination. Counsel for the Union and counsel for Mr Nicolaides (who also appeared by leave for various other candidates for the relevant offices, including those declared elected unopposed to the offices to which I have referred in [9]) contended for a 'nothing valid' position, namely that if there were multiple nominations of one person for offices caught by r 5.5, none of those nominations could be valid. By way of amendment to their applications, made at the hearing of the inquiries on 14 March 2007, Mr Reid and Mr Wisniewski argued for a 'last in time' position, namely that by lodging a second or subsequent nomination, necessarily inconsistent with the first because of r 5.5, the candidate was taken to have elected to have treated the earlier nomination as withdrawn, in favour of the second or subsequent. The consequence of this view, according to counsel for Mr Reid and Mr Wisniewski, was that Mr Reid should be treated as a candidate for the office of National Secretary, and Mr Wisniewski as a candidate for Assistant State Secretary (Metals and Engineering Members), Victoria, on the basis that their earlier nominations had been withdrawn or surrendered impliedly by the lodging of the later nominations. It is necessary to examine each of these contentions, for the purpose of determining which is correct, as they appear to exhaust the logical possibilities for the effect of r 5.5.
12 The 'first in time' view is said to find some support in Re Thomas and South Australian Branch of the Australian Workers' Union (unreported, Federal Court of Australia, Keely J, 11 June 1992). The relevant rule of the organisation there in question was r 74(g). It provided that no member should be eligible to nominate for or hold at any one time more than one salaried office. There was also a provision that candidates, with the consent of their nominators, might withdraw their nominations for any positions. In the course of his reasons for judgment, Keely J said:
'I am not prepared to accept the applicant's submission that each of the nominations lodged (i.e. before any withdrawals) was necessarily contrary to r.74(g). However I accept that each of any multiple nominations was contrary to r.74(g) if those multiple nominations were either lodged by the candidate at the same time or lodged in such a way that the returning officer is unable to determine which one (if any) was lodged first; in each of those two sets of circumstances I accept that all of the nominations so lodged are contrary to r.74(g).'
13 His Honour then rejected the submission that a candidate could lodge as many nominations as he or she liked provided that sufficient of them were withdrawn to comply with the substantive part of r 74(g) by the time the returning officer considered the final nominations, after the period for nominations had closed. His Honour took the view that the submission flew in the face of the plain meaning of r 74(g), the purpose of which was to prevent multiple nominations. In his Honour's view, the provision of the rules of the organisation permitting candidates to withdraw their nominations was not intended to give a candidate who had lodged multiple nominations in breach of r 74(g) an opportunity to overcome the effect of the breach by withdrawing one or some.
14 In the paragraph I have quoted from Thomas, it is not clear that Keely J was of the view that, if it were possible for the returning officer to determine which of a candidate's nominations had been lodged first in time, then the first in time should prevail. All that his Honour said was that, only if nominations were lodged simultaneously, or it was impossible to determine which of them had been lodged first, could it be said that all were invalid. It is true that there is some attraction in the simplicity of the reasoning that it is only the existence of the nomination that is first in time that brings about any conflict between a rule such as r 5.5 and any nomination subsequently received by a returning officer. This reasoning suggests that the second nomination does not invalidate the first, but it is the presence of the first that causes the second to be invalid. It is not necessarily reasoning that is supported by authority.
15 Counsel for the Union, whose submissions on this point were adopted by counsel for Mr Nicolaides and other candidates for whom she also appeared by leave, suggested that the 'nothing valid' contention found support in two authorities. In Campbell v Bogar (unreported, Full Court of the Industrial Relations Court of Australia, Ryan, Moore and North JJ, 3 July 1996), the Court referred to what is in effect the current r 5.5 of the Union's rules, which was then numbered as r 3(7). The Court's examination of this rule was in the context of transitional rules that were designed to facilitate the amalgamation of earlier registered organisations to become the Union. At issue was the question whether the office of Federal Secretary, Food and Confectionery Division, was a full-time office. The Court's examination of r 3(7) was in the context of determining this question. In the course of setting out its reasoning as to the relationship between provisions of a transitional rule and provisions that were of more permanent duration, the Court said: "the combined effect of r 3(7) [and other provisions of rule 3] is to prohibit a person nominating for the office of both Regional Secretary and Assistant National Secretary Food and Confectionery Division." This was simply a statement of the effect of r 3(7), in conjunction with other provisions of the Union's rules. The Court did not deal at all with the consequences of a person nominating for more than one office, in contravention of r 3(7).
16 Counsel for the Union also argued that the 'nothing valid' view drew support from the judgment of North J in Re Bogar and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, Food and Confectionery Division (unreported, Federal Court of Australia, North J, 28 August 1998). In that case, his Honour dealt with the provisions of what appear by then to have become r 3(8) of the rules of the Union, which were the same as the relevant provisions of the current r 5.5. It appeared that one candidate had been nominated for both Tasmanian Regional Secretary and Federal Secretary of the Food and Confectionery Division of the Union. The candidate had been declared elected unopposed as Tasmanian Regional Secretary. The inquiry before North J was solely into the election for the office of Federal Secretary of the Food and Confectionery Division. The question was whether the candidate's nomination for that office should have been accepted. In the course of his reasons for judgment, North J referred to the judgment of the Full Court of the Industrial Relations Court of Australia in the earlier Bogar case, quoting substantial passages, including the passage I have quoted above. His Honour went on to say:
'The decision of the Full Court is clear authority that r 3(8) prohibits a person nominating for the offices of Federal Secretary of the Division and Regional Secretary of the Division outside the transitional period.'
17 North J then held that the nomination of the relevant candidate for the position of Federal Secretary of the Food and Confectionery Division had been accepted in breach of r 3(8), and that this was an irregularity in the election. His Honour does not appear to have made any finding as to the order in which the two nominations had been received by the returning officer. It is not clear that the conclusion was based either on the assumption that the 'first in time' view should prevail, or that the 'nothing valid' view was correct. His Honour did not attempt to deal with the question of the validity of the candidate's election to the position of Tasmanian Regional Secretary. In other words, what his Honour said simply restated the effect of what is now r 5.5, but did not deal in any way with the consequences of a contravention of that rule, other than to hold that the acceptance of the one nomination relevant to the proceeding before him amounted to an irregularity. The result is explicable on the basis that it was unclear whether there was any difference in the time of lodging of the two nominations but, having been declared elected as Tasmanian Regional Secretary, the candidate must have been taken to have elected to treat the nomination for that office as valid, which necessitated that the nomination for Federal Secretary of the Food and Confectionery Division was invalid.
18 It can be seen that the 'nothing valid' argument gains no real support from either Bogar judgment. Each did nothing more than state the effect of what is now r 5.5. No conclusion can be drawn that, in all circumstances, every nomination received for an office to which r 5.5 applies will be invalid. The contention, put by counsel for the Union, that the Union has organised its affairs on the basis of this interpretation, which has become settled, cannot be accepted. It is an unattractive contention, because rules of organisations ought to be construed in favour of eligibility to stand for election, if that be possible. This approach is consonant with all of the learning relating to the participation by members in the conduct of the affairs of an organisation, and the democratic control of organisations, both ends to which the legislation aspires in its terms. There is no particular reason why every one of multiple nominations should be treated as invalid, in circumstances in which it is possible to identify one that would be the cause of the others being in contravention of r 5.5. If anything, at least where the order in which nominations have been lodged can be determined, the 'nothing valid' argument is inconsistent with the assumption that appears to have underlain what Keely J said in Thomas, and the result in the second Bogar case.
19 The 'last in time' argument is novel. It has not been considered expressly by any court previously. It is based on the principle of surrender by implication. That principle has been applied as the doctrine of incompatible offices in cases such as Egan v Maher [No. 2] (1978) 35 FLR 252 at 263, Mellor v Horn (1988) 25 IR 157 at 159 - 161 and Johnson v Beitseen (1989) 41 IR 395 at 412 - 413. In Re Cholosznecki; Re Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union [2006] FCA 452 (2006) 151 IR 218, the principle of implied surrender was applied in determining that a member of an organisation had surrendered her membership of one of its branches by applying to become, and being accepted and treated as, a member of another branch, where membership of more than one branch was expressly prohibited by the rules. The principle operates by implication of law, rather than by implied intention. The intention is imputed to a person, as a result of the assumption of a second position incompatible with the first, to relinquish the first position. The principle is subject to the express provisions of the rules, but not easily displaced by them, because it has been held to apply even where there were express, mandatory provisions about resignation. The principle of implied surrender is analysed in Cholosznecki at [29] - [34]. In the present case, counsel for Mr Reid and Mr Wisniewski contended that r 5.5 does nothing more than to bring forward the operation of the doctrine of incompatible offices to the stage where nominations for offices occur. He argued that, just as the assumption of a second office, incompatible with one already held, is taken to be an implied resignation of the first office, so the lodging of a second nomination, incompatible with one already lodged, is taken to be the implied withdrawal of the first nomination.
20 Having considered the arguments and the available authorities, I am of the view that the 'last in time' argument is correct. The doctrine of incompatible offices is but an example of the broader principle of surrender by implication. This was made clear by Willes J in the case to which the doctrine of incompatible offices has been traced, Iron Ship Coating Co Ltd v Blunt (1868) LR 3 CP 484 at 488. The principle itself is related to the common law doctrine of election between inconsistent rights. This relationship was explored in the judgment of Northrop J (with whom Evatt J agreed) in Egan at 263 - 264, where his Honour referred to Tropical Traders Ltd v Goonan (1964) 111 CLR 41 and Sargent v ASL Developments Ltd (1974) 131 CLR 634. In Tropical Traders at 55, Kitto J (with whom Taylor and Menzies JJ agreed) said:
'not that election is a matter of intention. It is an effect which the law annexes to conduct which would be justifiable only if an election had been made one way or the other'.
This view was followed by Stephen J in Sargent at 646. Also in Sargent, at 656, Mason J said:
'in some instances election may take place as a matter of conscious choice with knowledge of the existence of the alternative right and in other cases it may occur when the law attributes the character of an election to the conduct of a party.'
21 There is therefore no reason not to apply the principle of implied surrender and, to the extent necessary, its related principles about election between inconsistent rights, beyond the acquisition of another office, or of membership of another branch, to matters such as the lodging of nominations in circumstances where two or more nominations cannot stand alongside each other, because of the existence of a rule such as r 5.5. Indeed, such an extension could provide the key to the situation to which Keely J alluded in Thomas, namely that multiple nominations arrive at the same time, or in circumstances in which it is impossible for the returning officer to determine which arrived first. In such cases, the returning officer might require the candidate concerned to elect expressly as to which of the nominations he or she wished to retain. In cases such as the present, when it is possible to determine in which order the nominations were lodged, the law attaches to the lodging of a later nomination the consequence that the candidate concerned can no longer rely on the former. The later nomination is an implied withdrawal of the earlier nomination, not by way of implied intention to withdraw, but by way of imputed intention to withdraw.
22 It is no answer to this line of argument to say that, at the time when it arrives, the later nomination is invalid because of the former. As Northrop J (Evatt J agreeing, Smithers J dissenting on this point) made clear in Egan at 262, the inconsistent assumption of rights does not have to be valid in order to constitute an implied surrender of the original right. In that case, the holder of the office of National Assistant Secretary of an organisation accepted appointment to the office of National Secretary-Treasurer, on the assumption that there was a vacancy in the latter office. The Court held that in law there was no vacancy in the office of National Secretary-Treasurer, but the officer concerned was nonetheless taken to have resigned impliedly from his position as National Assistant Secretary. In any event, in a case such as the present, there is no particular ground for holding that a second or subsequent nomination is invalid. When it is received, all that can be said is that there have been two acts of the candidate which cannot stand together, because of the operation of r 5.5. As a logical proposition, it is equally open to say that the second nomination invalidates the first as it is to say that the first nomination invalidates the second. I have come to the conclusion that the principle of implied surrender requires that the law take the view that it is the first nomination that is surrendered impliedly by the lodging of the second. The first becomes invalid, not the second. The adoption of such a proposition does not offend on policy grounds. Policy is blind to the relative importance of the two or more positions for which nominations have been received, and to the personalities of those who have been nominated. No greater inconvenience is caused to a returning officer who must determine, at the date of closure of nominations, which of the nominations is the one that can be treated as valid. 'Last in time' is a simple rule to apply.
23 Keely J in Thomas did not consider any of these issues. His Honour's reasoning is sparse, to the point where it is not even possible to assume that his Honour did adopt the 'first in time' option, from the fact that his Honour made reference to the problem of simultaneous receipt of nominations, or receipt of nominations in circumstances in which it is unclear in which order they have been received. In my view, if it had been necessary, his Honour might well have taken the view that the principle of implied surrender operated, so that the last nomination received would prevail, and that the problem of simultaneous nominations would be resolved by applying the doctrine of election between inconsistent rights. As I have said, the result in the second Bogar case is explicable on the basis that North J was dealing only with one of the two nominations, there was no evidence of the timing of the two nominations, and the case may simply have been one of the candidate's election between inconsistent rights. No authority stands in the way of the adoption of the 'last in time' view. The authorities to which I have referred about previous applications of the principle of implied surrender support the argument that it applies to a situation such as that of multiple nominations, when only one can be valid. I accept that argument. It remains to apply the principle to the facts of the case.