Egan, Barry Thomas v Maher, John Bernard & Ors [1978] FCA 39

R.W. BRIAN HARRADING, KENNETH J. BENNETT, MORRIS REED, LEO WALSH, JOHN DALE, H. LESLIE KELLY, RAYMOND J. McCART, FRANK A. CURRIE, FJ. KEPPELL, K.G. ADDISON, J.L. McPHIE, JOHN M. BOAG and D.S. KILLICOAT

Respondents ORDER JUDGES MAKING ORDER: SMITHERS, EVATT and NORTHROP JJ. DATE OF ORDER: 8 December 1977 WHERE MADE: Melbourne.

That until a new election shall have been held for the office of National Assistant Secretary the respondent, Edward John Goldsworthy, cease to hold himself out as National Assistant Secretary of the Shop Distributive and Allied Employees Association and that the remaining respondents cease to recognise him as National Assistant Secretary of the Shop

OF_ AUSTRALIA formerly B. No. 295 of 1975 INDUSTRIAL DIVISION ) in the Australian Industrial Court

iN THE MATTER of the Conciliation and Arbitration Act 1904

AND: JAMES BERNARD KAIER, WALTER F, MAJOR, FDWARD J. GOLDSWORTHY, R.W. BRIAN HARRADINE, KENNETH J. PENWETT, MORRIS REED, LEQ WALSH,

JOUN DALE, H. LESLIE KELLY, RAYMOWD J. McCART, FRANK 4. CURRIE, F.J. KEPPEL, K.G. ADDISON, J.L. McPHIE, JOuN |, BOAG and D.S. KILLICOAT

In this case the Court made orders on 8th December 1977 that specified officers of the Shop Distributors and Allied Employees' Association should cease to recognise the respondent Edward Goldsworthy as the National Assistant Secretary of that organisation and that the respondent Edward Goldsworthy ccasc to hold himself out as the Naticn2] Assistant Secretary of cine organisation. At the time of the making of these orders I

intimated that I was unable to concur therein. The basis upon

which the orders were made was the office of National Assistant Secretary theretofore held by Mr. Goldsworthy was terminated by

There is no Federal rule of the organisation containing express provisions on the subject of resignation from office by 4 national officer. Rule 14 as in force at the relevant date was

shall mean only those persons holding the following positions:- National President, National Vice- President, National Secrelary-Treasurer and

be elected by and from tne National Council and, if

delegate from any Branch whilst holding their respective positions, At the expiration of their term of office they shall be eligible for re-election.

The term shall not include any person holding office of Branch only.

No person shall hold at any one time more than one of the offices mentioned in this Rule."

"In the event of any vacancy occurring on the National Executive, National Council shall arooint another member from amongst the members of National Council to f2111 the vacancy. Any member so aorpointed shall hold office for the remaining portion of the retiring member's term of office."

At the biennial meeting of the National Council held in October 1972, Mr. Egan was elected to the office of National

Secretary~Treasurer and Mr. Goldsworthy was elected to the office

of National Assistant Secretary. Each was to hold office until

the biennial meeting of National Council to be held in October 1978 ard each was ex officio a member of the National Executive.

At its biennial meeting 1n October 1974, the National Council purported to remove Mr. Egan from his office of National Secretary- Treasurer. Subsequently at the same meeting National Council

registered office of the Association be establsihced

Getermined by National Council." Following the passing of these motions Mr. Goldsworthy, although not expressly resigning his office of National Assistant Secretary, purported to hold the office of Nationel Secretary- Treasurer. He performed the duties and exercised the powers imposed and conferred by the Federal Rules on the holder of that office. He held himself out as and acted as if he was the National Secretary-Treasurer of the S.D.A. At no time did he purport to exercise these powers pursuant to the power con- -

ferred on the National Assistant Secretary by Rule 19(b)

"419. DUTIES AND RIGHTS OF NATIONAL ASSISTANT SKCRBETARY

The duties of the National Assistant Secretary shall be to:-

the National Secretary-Treasurer." Immediately prior to the passing of these motions, Mr. Goldsworthy received legal advice that Mr. Egan might be able to challenge successfully the validity of the motion purporting to remove him from office and in that event the appointment of Mr. Goldsworthy to the office would be invalid and therefore Mr. Goldsworthy should

not resign his existing office. /Mr. Goldsworthy formed the intention not to resign from his office of National Assistant Secretary but

after the passing of the motions he held himself out as holding

On 25th August 1975 in the matter of Egan v. Harradine

(1975) 25 FLR 336 the Australian Industrial Court ordered that the respondents therein should obey the rules of the organisation by recognising Mr, Egan as National Secretary-Treasurer. From the reasons of the Court it is apparent that these orders reflected a finding by it that a motion * of the National Council dismissing Egan fron/otfice of National Secretary-Treasurer was null and void

because it was carried in circumstances in which natural justice

had not been extended by the National Council to him. It follows that Egan was not removed from office and has at all times material continued to be the National Secretary - Treasurer of the organisation. It is a consequence of this that the recital in the motion of the National Council in October 1974 purporting to appoint Goldsworthy National Secretary-Treasurer that there was a casual vacancy in

the office of National Secretary-Treasurer was contrary to fact.

There was no casual vacancy and as a result the motion appoint-

ing Goldsworthy National Secretary-Treasurer could not and did not have any effect. He never did hold that office and in purporting to hold it he was erroueously claiming an office

The question is, however, whether by his actions he lost his office of National Assistant-Secretary. In the circumstances referred to above, that part of Rule 14 which provides that "no person shall hold at any one time more than one of the offices mentioned in this Rule" had no application in relation to Goidsworthy's occupancy of the office of National Assistant Secretary. At no time did he hold eny office other than the latter. Of course Goldsworthy purported

to take up the office of National Secretary-Treasurer and asserted that he held that office. But Rule 14 does not operate upon a situation in which a member having one office in the Branch mistakenly claims another. The situation might weil be different if the resolution appointing Mr. Goldsworthy to the office of National

Secretary-Treasurer had been valid. Thus in the/Iron Shin Costang Company Ltd. v. Blunt (1868) 3 LR Comm. Pleas 484 where the articles of a goint stock company provided that any director who should accept or hold any office under the company other than manager shculd thereupon cease to be a director, a person who held the office of Secretary of the company was elected as a director. It was held that the resolution appointing him a director "involved" his resig- - nation of the office of secretary. Eut 1t does not appeer that the

same result would have followed had the election and resolution been

Accoraiungly, Mr. Goldsworthy could lose his office of Nationel Assistant Secretary only if he resigned expressly

or impliediv. or if he vere denrived of the nosition bv operation of

Jaw. I do not think that on the facts disclosed an inference arose that Goldsworthy resigned from the position of Nationel Assistant Secretary. His conduct was compatible with an appreciation by him of the likelihood that Mr. Egan would challenge his appointment and an attitude on his part that his continued occupancy of the position of National Assistant

Knowing that his appointment as National Secretary- Treasurer might be challenged Goldsworthy did not resign at the time of or as a condition of that appointment. It was contended that although Goldsworthy had no intention of resigning his position of National Assistant Secretary unless at any rate, his appointment as National Secretary Treasurer was legally valid, nevertheless a resignation by him happened by operation of law.

It was contended that the conduct of Goldsworthy which was critical in causing this situation was that of purporting to act as

It is no doubt a sound view that an act perfermed by a person consistent only with a determination or election by him that he has given up some existing right or adopted a particular stand concerning his legal relations with another may operate, whatever his intention, to bind him to that determination or election. As soon as he performs acts or ommissions "justifiable only if he has made that determination or clection" then the law annexes to that conduct, the legal consequences of tht election disclosed by it, per Kitto J. in Tropical Trades Ltd, v. Gooran (1964)/C.L.R. 41 at 56. In that case, 1t was pointed out by

Kitto J, that the operation of the doctrine of elecvion does not

depend upon intention rather - "It is an effect which the law annexes to conduct which would be justifiable only if an siection had

been nade one way or the other", ((1964) 111 CLR 4,55).

I think it is difficult to apply those words to the situation in which Mr. Goldsworthy found himself. His only duty was to obey the rules of the organisation. His conduct could be ""Sustifiable" only if it was in accordance with that duty. As it turned out his purported occupancy of the position of National Secretary-Treasurer was contrary to the rules because his appointment was invalid. According to the rules therefore he never was National Secretary-Treasurer. It follows that his ostensible occupancy of the position was not legally justifiable at all. To my mind just as the validity of his occupancy of the posation of National Secretary~ Treasurer was to be determined by reference to the rules so was his

occupancy of the position of National Assistant Secretary.

The only "election" which Goldsworthy really made was to act, on the basis, that according to the rules, he had been appointed National Secretary-Treasurer, If the basis was sound then he was National Secretary-Treasurer and Rule 14 would operate. If not Rule 14 was not involved. The words of Kitto J. in Tropical Trades Ltd. v. Goonan (supra) were spoken in particular, in relation to cases of contract where the rights of the parties will vary accord- ing to their conduct. They are apt to describe the situation where one party to a legal transaction adopts one or two courses legally open to him, gains the benefit of that course and is thereafter bound thereby. The rights and duties of the parties are thereafter determined by reference to that conduct. But that does not happen where, whatever the conduct of the parties, 1t is the rules which govern the legal rights and liabilities of the orgunisation aud its

members, not what they assert and not what offices they may wrongfully

The sentence quoted from the gudgment of Kitto J. assumes that the position taken up by the party electing 1s one which, on the basis according to which it 1s justifiable, is legally open to him. In this case the position taken up by Mr. Goldsworthy, namely that he was National Secretery - -Treasurer was never legally open to him. It was pointed out by Mason J. in Sargent v. ASL Development (1974) 131 C.L.R. 634,641. et seq that a person is said to have a right of election when events occur which enable him to exercise alternative and inconsistent rights i.e. when he has the right to determine an estate or terminate a contract for breach of convenant or contract and the alternative right to insist on the continuation of the estate or performance of the contract. But in the events which had occurred Goldsworthy did not have alternative and inconsistent rights concerning the offices of National Secretary- - Treasurer and National Assistant Secretary of the orgenisation. He had no rights at all in relation to the office of Natzonal Secretary-

Support for this view may be found in a number or decisions of United States Courts. Thus Mr. Justice Holmes in delivering the opinion of the Supreme Court in Bierce v. Hutchins (1907) 205

U.S. 340 summarised the law relevant to this question as follows:-

"Election 1s simply what its name imports; a choice, shown by an overt act, between two 1nconsistent rights, either of which may be asserted at the will of the chooser alone...

The fact that a party, through mistake, attenpts to exercise a right to which he is not entitled, does not prevent his afterwards exercisiug one wnick he had and still has unless barred by the previous attempt." (205 U.S. 340, 346-3477)

Similarly in Doyle v. Hamilton Fish Co. (1916) 234 F.A7 where the Circuit Court of Appeals dismissed an appeal from a decision of Learned Hand J. it adopted in its entirety his Honour's judgment which contained the following statement :-

"As to the defence of an election, based upon the unsuccessful effort to disposess . the lessee upon allegations that there was no leuve it is enough to say that a party has an election only between existing not supposed rights. Bierce v. Hutchins 205 U.S. 340. The plaintiff could not destroy his rights under the lease by mistakenly following other supposed rights which turned out not to exist. That would be to put him, not to election, but to a correct estimate of his right under pain of forfeiture."| (234 P.47, 51)

See also Asher v. Pegg (1909) 123 N.W. 739 and American Jurisprudence {2nd Ed. 1966) volume 25 p.652

It 1s possible to contemplate that 1m the situation in issue action might have been taken to appoint some person to the position of National Secretary~Treasurer, Had this happened questions of estoppel might have arisen. But this did not happen, On /evidence, it is reasonable to infer that such action was not taken by the National Council because a significant portion of its members understood the basis upon which Goldsworthy was acting. His conduct was "justifiable" in law only if he were validly appointed National Secretary-Treasurer. But it is another question whether in the relevant sense it was justifiable only if he had also resigned from the position of National Assistant Secretary. I do not think it was. The claim by Goldsworthy to the position of National Secretary - Treasurer was justifiable, af at all not by reference to any resignation by him of has nosition

of his position of National Assistant Secretary. It was

justifiable or ctherwise by reference to the validity of his

appointment as National Secretary-Treasurer, His occupancy

of the office of National Assistant Secretary was something aliunde the justification of his claim to be National Secretary~ Treasurer. If he were validly appointed as National Secretary- Treasurer, then the resignation from the other office was involved as an incident or consequence thereof. But otherwise it was irrelevant to his assertion that he was the National Secretary~Treasurer, If he had previously actually resigned from the position of National Assistant Secretary that would not have made his assertion that he was National Secretary-Treasurer

In cases of contract such as discussed in Tropical Trades Ltd. v. Goonan (supra) where the conduct of one party to the contract exhibits an intention for example to refrain from rescinding a contract although entitled to do so and thereby affirms that the contract is one still on foot, 1t is reasonable to say that such conduct is justifiable only on the basis that an election has been made to keep the contract on foot. In such case each party has the benefits and burdens of the contract

The doctrine of election at common law differs from that of election in equity. The latter operates to fasten upon the conscience of a person taking under a dced or will by refusing to allow him to take the benefit of the disposition in his

favour except upon satisfaction of certain conditions, But at

common law election rests upon a basis of what is thought to be

fair as between the parties. Cf. per Mason J, 1n Sargent's Case

(supra) at page 654. When a party has elected to exercise one

of his inconsistent alternative legal rights and thereby crystallascs his legal relations with another the basis of fairness in his

being held thereto is apparent. But in the present case it is

hard to see the fairness 1n Goldsworthy being deprived of his

office of National Assistant Secretary and failing every to have

had that of National Secretary-Treasurer. If he had been in a position to elect between being National Secretary- - Treasurer

or being National Assistant Secretary that would have been one

No other party is shown to have altered his position on the basis that Goldsworthy was thought to have resigned as National Assistant Secretary. The National Council did not teke or refrain from any action on that basis. The evidence suggests that the National Council was aware of the likelihood of a challenge by Egan to his dismissal and the appointment of Goldsworthy as National Secretary-Treasurer and understood that Goldsworthy's position depended in all respects on the validity

Accordingly I am unable to concur in the order made herein.

I certify that this and the 10 preceding pages are a true copy of th Reasons for Judgment herein of his Hone

IN THE FEDERAL COURT OF AUSTRALIA ) ) formerly B. No. 295 of 1975 INDUSTRIAL DIVISION ) in the Australian Industrial Court

IN THE MATTER of the Conciliation and Arbitration Act 1904

AND: JAMES BERNARD MAHER, F. MAJOR, EDWARD J. GOLDSWORTHY, R.W. BRIAN HARRADINE, KENNETH J. BENNETT, MORRIS REED, LEO WALSH, JOHN DALE, H. LESLIE KELLY, RAYMOND J. McCART, FRANK A. CURRIE F. J. KEPPEL, K.G. ADDISON J.L. MCPHIE, JOHN M. BOAG and D.S. KILLICOAT

I have had the opportunity of reading the reasons for judgment herein of Northrop J. I agree with those reasons and have nothing to add.

Industrial Law - interpretation of rules ~ validity of election of officers of an organisation - time of commencement of an clection - effect of rules of an

organisation which are in contravention of the Conciliation

and Arbitration Act 1904 ~- effect of rules ceasing to

contravene the Act due to repeal of legislation. Conciliation

and Arbitration Act 1904 s. 133(1), (3), (4A), 140(1)

CORAM: Smithers, Evatt and Northrop JJ. 8 June 1978

IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGTSTRY 5 No. 23 of 1977 INDUSTRIAL DIVISION )

AND: JAMES BERNARD MAIER WALTER FRANGIS MAJOR KENNETH JOUN BENNET LEO WALSH MORRIS REFD SHOP _DISTRIBUTIVE 6 ALLIED EMPLOYEES ASSOCIATION

JUDGES MARKING ORDER : SMITHERS, EVATT and NORTHROP JJ.

THE COURT ORDERS:That the rule nisi herein be discharged.

IN THE FEDERAL COURT OF AUSTRALIA INDUSTRIAL DIVISION N.S.W. No. 23 of 1977

IN THE MATTER of the Conciliation and Arbitration Act, 1904

AND: JAMES BERUARD MAHER WALTER FRANCIS MAJOR KENNETH JOHN BENNETT LEO WALSH MORRIS REED SHOP DISTRISUTIVE & ALLIED

The question for decision in this matter is whether at elections conducted at the biennial mecting of the National Council of the Shop Dastributive and Allied Employces' Assoc- iation (S.D.A.) which commenced 1n November 1976 and after adjournment concluded in July 1977 the respondent Maher was elected National President, the respondent Magor was elected National Vice President and the respondents Bennett Reed and Walsh

or any of them were elected members of th: National Executive of

the Association. This question arises in an applicetion under s.1/+4

of the Conciliation and Arbitration Act 1904 (the Act) for orders

requiring each of the respondents to obey the rules by cezsang to hold himselfout as being the holder of the office to which he

The claimant Parry Thomas Egan alleges that none of the respondents was elected to the offices aforesaid at the elections conducted at the meeting of the National Council because the rules appearing in the S.D.A. rule book according to whicn the elections were conducted were not valid rules of the S.D.A. at the time of

The elections for the office of National President and National Vice-President were conductcd pursuant to Rules 14 and

following positions:- National President, National Vice-President, National Secretary-Treesurer end National Assistant Secretary. Such Officers shall

if a delegate, upon election shall cease to be a delegate from any Franch whilst holding their respective positions. At the expiration of their term of office they shall be eligible for re-election.

The term shall not include any person holding office of Branch only.

No person shall hold at any one time more than cne of the offices mentioned in this Rule."

and "45, FLECTION OF OFFICERS AND EYPFCUTIVE MIBERS

(a) Nominations for the positions of National President National Vice-President ard three (3) National Executive Members shell be

called for by notification to all members of National Council by the Returning Officer at least fourteen (14) days prior to each bi-ennial meeting of the National Council,

Nominations shall close at the opening of the ba-ennial meeting of the National Council.

Should more than the required number of nominations be received for any position a secret bailot of all membcrs of National Council shall be conducted by the Returning Officer without delay.

The ballot shall close upon the return of all ballot papers but in no case shall it close later than fourteen (14) days after the ballot papers have been distributed.

(b) Prior to every third bi-~ennial meeting of National Council nominations for the positions of National Secretary-Tress- urer and National Assistant Secretary shall be called for at the same time and in the same manner as the nominations referred to in paragraph (a) hereof and the ballot for these positions shail proceed in the same manner and at the same time as for the positions of National President, National Vice-President and the three (3) National Executive Members,"

Rule 15A provides that the conduct of the elections shall be in the hands of the Returning Officer who (inter alia) calls for nomi-~ nations by giving notice to each member of the National Council (r.154 (1)). Rule 15A (8) provides that "successful candidates shall assume office on the declaration of the poll and subject to the rules shall hold office till their successors are elected, and shall be eligible for re-election,"

The election of members of the National Executive was conducted pursuant to Rule 15 set out above. Actording to Rule 12(a) such members are elected by and from the members of National Council, Rule 47(e) empowers each branch of the S.D.A. to elect its own delegates to National Council, At the material times delegates of some branches had been elected at a branch election in which all financial members of the branch were entitled to vote, while delegates of other branches had been elected by and from the members of the Branch Committee of Management who had been elected to that Commitrec pursuant to an election in which all financial menbers of the

According to these rules the National Council which elected the National officers and National Executive members was comprised of the four National Officers and branch delegates elected as mentioned above, The National Officers had been clected at a previous election by a National Council similarly constituted, By s.133 of the Act as amended by s.52 of the Conciliation and

Arbitration Amendment Act 1972 (Act No. 138 of 1973) whach came anmto

operation on 13 November 1973 it was provided as follows:-

"433,{1) In addition to the conditions referred to in sub-section (2) of section 132, the conditions to be complied with by ... organisations include

(a) shall provide for the clectzron of the holder of each office within the association or organisation at an election at which 311 fanancial members, or all financial mepbers included in such brench, section or ovher division, or in such class, as is appropriate, having regard to the nature of the office, are subject to reasonable provisions with respect to enrolment eligible to vote;

(1A) Where, immediately before the commencement of this sub-section, the rules of an orgeunisation provided for the filling of an office, being en office the holder of which is a member of the commiitee of management of the organisation but the duties of which are of a part-time nature, otherwise than by election directly by the members of the org2rmsation who would be entitled to vote if the rules were in accordance with paragraph (a) of sub-section (1) but by a proucedure an which those members elect delegates to a conference or council of the organisation and those delegatcs elect a person to hold that office from amongst them- selves, those rules shall not, by reason only of that provision be taken to fail to comply with paragraph (a) of sub-section (1).

(3) An association which was registered as an organisation on the date on which th? Conciliation and Arbitration Act 1973 received the Roy. 1 Assent is allowed ea period of twelve months aiter that dace, or such longer period as the Industrial keristrar determines, within which to bring its rules into

conformity with the requirements of sub-section (1),

(4A) Notwithstanding sub-sections (3) and (4), where, immediately before the commencement of this sub-section, the rules of an organisation provided

orgenisation otherwise than directly by the members

of the orgenisation who would be entitled to vote if

members indirectiy take part, the organisation is ellowed

a period of three years after that date within which

to bring its rules, so far as they relate to that office,

anto conformity with paregraph (ay of sub-section (1)."

Acting on the view that the rulcs of the S.D.A. referred to above were not in conformity with the requirements of s.133(4)(a)as amended by Act No. 138 of 1973, tne s.T.A, recuected the Industrial Registrar to determine a longer period pursuant to S$. 133 (3). But tnat longer period expired on 31 October 1975. The result was that on 1 November 1975 unless s.133(1A) or s.133(4A) of Act No. 138 of 1973 were applicable to the rules of the 8.D.A. as they stood immediately before the commencement of such sub-sections namely on 12 November 1973 the ruies in question did not conform with the requirements of s.133(1)(a) and purported

to provide for elections otherwise than as provided for in s.133

It would dearly appear that s.133(1A) was not applicable to the rules of the organisation because the offices with which the elections in question were concerned were part-time offices and the procedure of election provided by the rules was that of a collegiate system of more than "one tier", Section 132(1A) contemplates a collegiate system of "one tier" only, but s.143(4A) apparently applied to elections for part-time offices as well as for full-time offices and applied where the procedure of election was thet of a collegiate system which might involve mulli ticrs. But it was 2 condition of the application of s.133(4A) that the election procedure

provided by the rules should be one in which the members of the

organisation who would be entitled to vote 1f the rules provided for an election at which all fanencial wmbers were, subject to reasonable provisions with respect to entitlement, eligible to vote, indirectly take part. In such case the organisation was allowed a period of three years nemely until 13 November 1976 within which to bring 1ts rules into conformity with paragraph (a) of sub-section (1) of s.133 as enacted by Act No. 138 of 1973. The question 1s whether the procedures for election of the National President, National Vice-President and National Executive members were procedures in which the members specified in s.133(4A) andirectly take part within the meaning of that sub~ section. The Elective Structure

The rules provided for the National President, National Vice-President, National Secretary-Treasurer and National Assistant Secretary to be elected by and from the National Council (Rule 14). Nataonal Council was constituted by the National President, National Vice-Presadent, National Secretary-Treasurer National Assistant-Secretary and a number of delegates of Branches. The delegates would ordinarily considerably outnumber the four officers. (Rule 8) 'The National Council meets biennially. Nominations for the positions of National President and National Vice-President and National Executive members were called for by notification to all members of National Council by the Returning Officer at least 14 days prior to each biennial meeting of the National Council. Nominations for the positions of National Secretary-Treasurer and National

Assistant Secretary were called for 14 duys before every

third biennial meeting of National Council. In respect of all

the positions mentioned nominations closed at the opening

of the relevant National Council meeting. Were a ballot necessary it was to be conducted by the Returning Officer without delay (Rule 15). But the declaration of the poll took place as the second last item of business of the meeting. (Rule 10(14)).

Thus at any biennicl meeting of National Council the National President and National Vice~President and the three Executive

members here in issue were elected by a number of persons made up of:~

(i1) the persons who were elected as National President and National Vice-President at a National Council meeting two years earlier by delegates of branches and the then National President and National Vice-President who were elected as such two years earlier according to the same routine; and

(i2i) the National Secretary-Treasurer and National Assistant Secretary who were elected according to the same routine at a meeting of National Council which took place, according

The National Secretary - -Treasurer and National Assistant Secretary

Council constituted as mentioned above. Accordingly it could

oceur and normally would occur that the National Secretary - Treasurer ad National Assistant Secretary voting at a biennial mecting had

been elected at a meeting of National Council two, four or six

years earlicr by a Council including a Rational Sevretary--T-casurer end National Assistant Secretary elected two, four or six years earlier

than that and themselves elected according to the same routire.

the After 8 July 1976 by virtue of s.2 of /Concilietion and Arbitretion

Amendment Act 1976 (No. 64 of 1976) the maximum term for which an officer may be elected is 4 years, but on 13th November 1973 the

Accordingly. the rules provide for the election of officers and €xecutive members at an election at which the rank and file members of the organisation who would have been eligible to vote af the election had been conducted in accordence with s.133 (1) (a) indirectly took part and in which the four officers took a direct part. It was said that because of the mothnd by which the four officers had become members of the National Council their votes at an election of officers by National Council at any biennial meeting cannot be considered as the indirect votes of rank and file members who would have voted had the election been conducted in accordance with s.133 (1)(a). They were too remote from the rank and file who would vote at such an election and in any ovent, if any section of rank and file could be considered as voting indirectly through the officers at a particular election they would be a section of rank and file members of long ago, many of whom vould inevitably not be persons entitled to vote at the election if it had been conducted in accordance with s.133(1)(a). It is common knowledge that an this particular organisation the turnover of

members is extremely high cf. Levoridge v. SDAEA (1977) 17 ALR 145.

The contention for the claimant wos that the electoral system was one in which the office holders were elected not only by the persons who would have voted et an election conducted an accordance with s.133(1)(a) but by them an congunction with other

persons. It was said that the election contemplated by s.173(1)(a)

js one in which the rank and file and no other persons elect the officers and do so by direct vote. each person having a vote

of equal value. It is to be noted that if this be not

so then the apparent purpose of s.133 (1)(a) was subject to easy frustration. And support for the view that 1t is so is found both in s.133(1A) and s.133(4A) whicr assume that the situation

where an election 1s conducted in accordance with the provisions of s.133(1)(a) is that the election so conducted is an election of officeholders directly "by" the "members who would be entitled to vote if the rules were in accordance with" s.133(1)(a), and not by them and other persons. On this view s.133(4A) provides for cases in which "those members" take part indirectly rather than

by direct vote and not for cases where those members participate indirectly in the election alongside other electors. In support of these views reliance was placed by the claiment on my published reasons for judgment in Clarke v. Maynes (B. No. 55

of 1976 Australian Industrial Court 23 December 1976).

The rules described above provided for an electoral system very similar in structure to that considered by the Australian Industrial Court in Clarke v. Maynes. Dealing in that case, with that set of rules, I expressed the view that on 28 September 1976 the rules there in question contravened s.140(1)(a) of the Conciliation and Arbitration Act 1904 because they did not conform with the provisions of s.133(1)(a) of the Act as then in force and were not such that s.133(4A) was applicable thereto. The actual rules attacked in that case were sub-Rules 16(1) and 16(7) of the

Federated Clerks' Union of Australia which were in the following

(1) Subject to the provisions of Rule 32 the supreme control of the Union shall be vested 1n a Council, the

members of which shall be the Federal President, the Federal Deputy President, The Federal Secretary

and the Assistant Federal Secretary and the Councillors elected by each Branch on the following basis:-

Branches having 1500 or less members Branches having 1501 to 3500 members Branches having 3501 to 6500 members Branches having 6501 to 9500 members Branches having 95071 to 12500 members Branches having12501 and over members

2 Councillors; 3% Councillors; 4 Councillors; 5 Councillors; 6 Councillors;

but no Branch shall elect more than 6 Councillors."

"46(7) The Federal President, the Federal Deputy President, the Federal Secretary and the Assistant Federal Secretary shall not be entitled to be elected by any Branch as a Federal Councillor."

So far as material my reasons for judgment in Clarke v. Maynes (supra) were in the following terms:~

"The method of election of the four Federal Officers is dealt with in Rules 23, 23A, 24 and 25.

be elected by and from the members of the Federal Council in accordance with Rule 22 and that the person elected shall hold offace until his successor has been duly elected or until the occurrence of an extraordinary vacancy in the position.

Rules 23A, 24 end 25 contain similar provisions with respect to the Federal Deputy President, Federal Secretary and the Assistant Federal Secretary respectively. Rule 22 provides that at mectings of Federal Council each member present shall be entitled to one vote. A biermial meeting was held in October 1976 and Federal Council purported to elect a Federal President, Federal Deputy President, and it would seem, other officers.

The claimant pointed out that the procedure for election of such officers was what is known as a multi tier collegiate system, that is a system under which renk and file members in certain Branches elected a Council which in tur elected delegates to Federal Counc2l which an turn elected the officers, It appears that certain Branches of the Union elect Federal Councillors by direct membership vote, but that in other Branches the members elect a Council which then elects the Branch delegates to Vederal Council,

The claimant argued that having regard to the presence of the multi tier procedure 3.133(1A) was not applicable to the Union Federal elections, The respondent did not contend to the contrary. The claimant contended also that s.133(4A) was inapplicable to the Federal election procedure of the Union. The respondents did contend to the contrary of this proposition.

The respondents said that the procedure obtaining under the rules was one in which the members of the Union indirectly take part. Accordingly, so it was said, the organisation was allowed until 1%th November 1976 to brang its rules into conformity with paragraph (a) of sub- section (1) of s.13%.

The problem raised is one of interpretation of s.133(4A) in the light of the whole of the provisions of 8.133, That section enacted by sub-section (){a) that in addition to the conditions referred to in sub-section (2) of s.132 the conditions to be complied with by organisations include a condition that the rules of the organisation shall provide for the election of the holder of each office within the organisation at an election at which all financial members are entitled to vote.

By sub-section (3) it was provided that an organisation already registered should be allowed a period of twelve months after the date of Royal Assent to the Act (namely 13th November 1973) or such longer period as the Industrisl Registrar might determine within which to bring its rules into conformity with the requirements of sub~section (1).

The requirement of the procedure referred to in sub-section (44) is that it is one in which members described as "those members" take part. Those members are "the members who would be entitled to vote if the rules were in accordance with paragraph (a) of sub-section

established by sub-Rule 16(1) and Rules 23, 23A, 24 and 25 is a procedure in which the financial members take part indirectly. He points out that by electing directly or indirectly 32 of the 36 collegiate members 111 financial members have taken part in the election of (aay er Council, and that that satisfies sub-section

However in my opinion that is not enough. Such a construction of sub-section (4A) would mean thet it would be satisfied by a procedure by which five or six collegiate members out of 37 or more were clected arrectly or indirectly by the financial members. This would be out of harmony with the thrust of sub-section (1) (a) which clearly contemplates that the electors of officers are to be all relevant financial members and no other persons and they are to act directly.

Clearly erough sub-section (4A) is intended to give time for the bringing of the rules into conformity where

the existing election procedure provides for election

by the financial members indirectly rather than directly. But it is another question whether it is intended to

give that time where the participants are not only the financial members as such but members voting directly in the college not as delegates of financial members but deriving their voting entitlement from a rule authorising officers to vote, It 1s to be noted of course that in

a case like the present each officer has the voting power of a delegate representing between 1500 and 3000 financial members. The answer depends on the meaning

of the expression "in which those members indirectly

take part". Mr. Keely argued that if it had been intended to indicate that the procedure must be one in which the top college was comprised only of delegates

of financial members the legislature would have employed expressions such as are found in sub-section (1) (A)

which speaks of a procedure in which the members elect delegates to a conference or Council and those delegatcs elect the person to hold the office.

But there is good reason for the change in language. Sub-section (1A) relates only to a one tier collegiate system. Sub-section (4A) deals with a multi tiered system,

It has to be remembered that sub-section (4A) 1s specifying a set of circumstances which will give relief from the requirements of s.132(1)(a). It 1s saying this relief will be given if "those members" take part. If the procedure 1s one in which other people also take part an additional element not specified in the relief provision has been added.

Assistance is to be gained by spelling out sub- section (4A) in full. So stated it would read -

'Notwithstanding sub-sections (3) and (4), where immediately before the commencement of this sub-section, the rules of an organisation

provided for the election of the holder of an office in the organisation otherwise than dzrectiy by the members of the organisation who would be entitled to vote if the rules were in accordance with paragraph (a) of sub-section (1), but provided for the election of the holder of an office in the organisation by a procedure in which the financial members of the organisation indirectly take part, the organisation is allowed a period of three years...'

The period of three years 1s only allowed where the procedure is that described. If the procedure is one in which other persons take part 1t 1s not the procedure described and the condition of the allowance 1s not fulfilled.

If one looks at s.133 more generally the approach is confirmed. What the legislature was basically seeking

was election of officers by financial members wathout any college.

A one tier college was to be acceptable for part time officers. A multi tier collegiate system was temporarily acceptable for full time officers, But the injection into the ultimate colloge of officers as such who would vote directly and otherwise than as delegates is something which would be a totally new idca, foreign to the basic purposes of the section, and acceptable only on there being some clear indication in the words used.

It is clear therefore that sub-rule 16(1) and rules 23, 23A, 24 and 25 between them set up a procedure which does not conform with the requirements of s.133(1) and that the Union did not within 12 months of 13th November 1973 bring its rules into conformity therewith.

Accordingly, if the view of the majority of the Court in The Queen v. Commonwealth Industrial Court,(1950) 103 CLR 468 (Shearer's Case) 18 applied the offending rule or rules were, as from 14th November 1974, void, because of failure to provide for election of Federal Councillors in accordance with s.133(1)(a).

On 14th November 1974 the situation was that the rules of the organisation not only failed to make a provision required by the Act, but contained provisions directly in conflict with the provisions which the rules ought, according to the Act, to have contained.

Since Shearer's case, s.140 has been amended and the legislature has donc nothing to suggest that tke view expressed by the majority in the cese is erroncous, In addition in Cameron v. Duncan, (1965) 8 FLR 148, I andacated that I felt Bound by that view and Spicer, C.J. at page 149 was inclined to the same opinion. It 1s said thet the view that the effect of s.140 is to render void, as from the date of the operation of s.140, a rule in conflict with the standards there laid down, is obiter dicta. If so it is ebiter dicta so closely related to the actual grounds of the decision reached that it must carry the greatest weight. In The Gueen v. Gough & Anor ex_parte Australasian Meat Industry smployees Union, (1965), 39 ALJR 240 at 243, the Chief Justice, speakiry or tne rules of an urganisation of employees, said "until the rules of the organisation are dealt with by the Court they remain the rules of the organisation and a member is bound by them". His Honour was speaking of rules which ne did not regard as ex facie oppressive, unreasoneble or unjust but which might become so if some particuler course of conduct thereunder were pursued by the organisation. But the view expressed appears prima facie at least to be at variance with that of the majority view expressed in Shearer's case,

The views of the majority in Shearer's case were not shared by Windeyer, J. but that learned Judge was responsive to the difficulties which arise if a rule which offends s.140 remains cffectual es a rule until it 18 declared to be in contravention of that section by this Court. It was his view that the question of whether or not a rule contravened the section was to be determined by considering whethcr it did so at the date in relation to which its observance was challenged. In this case the validity of the rule was challenged when the rule nisi herein was sought and made, namely September 1976.

As to a challenge as at a particular date there is therefore a majority of judges of the High Court whose expressed opinions support the view that the relevant date is not later than the date of challenge.

In view of the legislative treatment of s.140 since Shearer's case was decided, I think it is my duty to apply the view of the majority expressed shortly by Menzies J. at pp.387~388:-

"In the first place, sub-s.(1) does lay down mandatory - although in some respects general - standards to which each rule of an organisation must conform as a condition of its validity. The language is imperative and I find it impcssible to treat the sub-section as nothing more than a direction to the registrar or to anyone else about what rules must not contain if they are to be acceptable as rules; the sub-section is a statement that the rules of an organisation shall not be of a character specified and any infringement of the prohibition therein contained must, it seems to me, result in invalidity from the time of the coming into force of the section,"

Accordingly, on 14th November 1974 the rules of the organisation were such that they farled to make a provision required by a provision of the Act, namely thet enjoined by $.133(1) (ay and the same would be true as at the date of the rule nisi herein if the view of Windeyer J. were to prevail.

On the question of the election of officers, the relevant provision in the rules is to be found 1n sub-Rule 16(1) and Rules 23, 23A, 24 and 25 read together, Taken together they not only fail to make provision for election of the Federal Officers 1n accordance with s.143(1) (a) but make @ provision contrary thereto. Looking at 5.134% as a whole 1t would appear that not only does it allow an organisation until 14th November 1974 to bring its rules into conformity with sub-section (1) but impliedly 1t imposes upon the organisation an obligation, by that dcte, actually to amend its rules to introduce the reauired provisions, There is a contraventior of the obligation imposed by the Statute if rules not in conformity with s.133(1) are thereafter left extant. In this sonse therefore on and after 14th November 1974 rules previding

for an election procedure of full time officers other than that specified in s.133(1) (a) were contrary to an implied provision of the Act.

The provision of s.133(3) empowering the Industrial Registrar to take remediil action in the case of an organisation whose rules on 14th November 1974 had not been brought into conformity with the requirements of s.133(1) does nothing to weaken the view that there is a statutory obligation on the organisation itself to take remedial action within the time allowed, rather the reverse.

In these proceedings the claimant does not attack Rules 23, 243A, 24 and 25, His attack is limited to sub- Rules 16(1) and 16(7}. Ik is said that sub-Rule 16(1) is unobjectionable standing by itself and therefore cannot be said to be contrary to the provisions of the Act. The same might be said of Rules 23, 23A, 24 and 25, The better approach appears to me to be to consider all the rules dealing with the election of officers as a single provision.

Looked at in this way it is sub-Rule 16(1) which introduces the factor, but for which, the organisation would have been allowed until 13th November 1976 to bring its rules into conformity with s.133(1). That factor was to introduce the officers as such into the elective college. While Rules 23,23A, 24 and 25 stand, the introduction ot the officers as such into the Federal Council for all purposes including elections under those rules is a provision which is contrary to a provision cf the Act.

But on 12th November 1976 s.133 took a d:fferent forn consequent upon the mectnent of the Conciliation and srbitration Amendment Act(No.2) of 1976. By s.4 of this Act paragraph (a) of sub-séction (1) of s.133 was omitted and the

"(a) shall provide for the election of the holder of each office within the association or organisation either by ~

(141i) a collegiate electoral system being, in the case of an office the duties of which are of a full-time nature, a one-tier collegiate electoral system;"

It 1s said that the collegiate system established by sub-Rule 16(1) and Rules 23, 23A, 24 and 25 is a system in conformity with the requirements of s.133 as so amended.

But unless it satisfies the provisions of s.4 of the Act

as amended by s.3(d) of the Amending Act of 1976 it is not

a collegiate system within the meaning of s.135(1) (a)

of the Concaliutioa end Arbilration act as amondcd, Section 3

"(5) For the purposes of the application of the of the definition of 'collegiate clectoral system' 1m sub-section (1) in relation to an election for an office in an organisation an electoral system that otherwise complies with that definition shall be deemed to comply with that definition notwithstanding that the persons comprising a body of persons vy and from whom persons are elected at any stage subsequent to the first stage included persons (not exceeding in number 15 per centum of the total number of the body) who are the holders of offices entitling the holders to membership of that body (which may anclude the office to which the election relates) but are not members of that body by virtue of an election 1n accordance with that derinition, being persons each of whom has held such an office (whether the one office or not) at all times since be1ng elected to such an office uuder a collegiate electoral system, or a direct voting system, as defined in sub-section (1)."

A collegiate electoral system as defined in sub-section (1) of s.4 of the Conciliation and Arbitration Act as

",,. a method of election comprising a first stage, at which persons are elected to a number of offices by a direct voting system, and a subsequent stage

or subsequent stages at which persons are elected by and from the persons elected at the next preceding stage... "

The critical question is whether the four officers are persons who have held an office at all times since being elected to "such an office" under a collegiate clectoral system as defined in sub-section (1). All Federal officers elected under Rules 23, 23A, 24 and 25 and sub-Rule 16(1) in the form in which those rules now stand or hereinbefore have stood are officers who were elected to the officcs currently held by them or the Federal offices which they previously held, under a system in which they were elected otherwise than "by and from persons who themselves were elected at the next preceding stage of the then relevant collegiate electoral system".

It was argued by Mr. Dalton that there was discovereble in the section an intention that the critical words should be interpreted in a manner which would accommodate officers elected according to the procedure established by the rules in question, I am unable to find any such intention express or implied. On the contrary it would appear that the legislature was prepared to accept officers to the extent of fiftcen per centum of total electing body if those officers had originally been elected as officers under

a system strictly as defined in sub-section (1). This would be because such officers had a legitimate claim to have commenced their period of office by the type of election approved by the legislature for ecneral application,

But there renains for consideration sub-section (4) of 5.133 as substituted by the Amending Act of 1976.

By the omission of paragraph (a) of sub-sections (1) and (3) of s.133 as they stood before 12th November 1976 the Act of 1973 so far as it 1s imposed an obligation on the organisation to bring its rules into conrormity with sub-section (1) (a) of 5.133 as theretofore in force ceased to speak,

The question therefore arises whether the rules which had become void by reason of s.133 1n November 1974 were restored to operation by the omisszon of s,133(1)(a) and s.133(3), together with the enactment on that date of s.4(c) of the Amending Act of 1976.

It appears to me that by reason of s.133(3) of the Act as it now stands an organisation 1s not required to bring its rules dealing with elections of officers, whatever they might be on 12th November 1976, into conformity with the provisions of s.133(1) (a) which came into force on that date, until 12th November 1978,

However, so far as rules which were extant on 13th November 1974, but became void on that day for non-compliance with s.140 are concerned, there appears to te nothing in the Amending Act to restore them to overation. In the absence of apparent legislative intention to revive rules which had become, and possibly had been declared, void, it would appear that the effect of the Amending Act hes nothing to say. And there is nothing in ¢.i140 itself to suggest that the condition of being void under that section 1s 4 condition which may cease to exist 1f the law by reason of which it became or was declared void should cease to exist; of Windeyer, J. in Shearer's case (supra) at p.389.

It would appear therefore that in September 1976 when these proceedings were commenced an election of Federal officers carried out between 13th November 1397/4 and 12th November 1976 by the Federal Council as constituted by sub-Rule 16(1) would be invalid, and that officcrs "elected" thereunder would not take office.

It is to be observed that sub-Rule 16(1) provides not only for the composition of the body which is to elect the Federal Officers, it takes such officers as have been elected as such by that body and declares that thc persons so elected shall without other election be members of the Federal Council.

The Federal Council itself is a body for the election of which Regulation 115 (1)(d)(1) requires that the rules shall provides. Whether to declare persons elected to a perticular office to be members of a Committee of Management, admission to which is required to be Ly election, satisYies

the Regulation, may be a question. But however that may

be, it is clear that the farlure to provide for the election according to law of such persons as officers was at the same time a failure to provide for their election according to law as Councillors.

So far as the inclusion in the membership of Council of the four officers is concerned it 1s sub-Rule 16(1) and sub-Rule 16(7) which accomplish that.

In so far as that rule purports to appoint those persons to the Council it was in contravention of s.123(1) as it eperated from 13th November 1974 until 12th November 19°76,"

However, since the hearing of the instant case the order of the Australian Industrial Court in Clarke v. Maynes has been the subject of a successful application in the High Court by the

respondentstherein for a writ of prohibition. By reason of the

judgment of the High Court R_ v. Dunphy and Others ex parte Moynes and Others in that matter delivered on 19 May 1978 the

contentions of the claimant in this case and the reasoning set

out in my reasons for judgment in Clarke v, Maynes cannot be regarded as valid.

The invalidity results from the statement in the judgment of Mason J. (at p.6 of the judgment of the High Court) with which Barwick C.J.,Stephen and Aickin Jd. agreed that:

"At this point it is convenient to observe that the electoral system provided for by Rules 16(1) and (7) is one which provides for the election of office holders by a procedure in which members indirectly take part. It was therefore a case to which s.133(4A) applied with the consequence that the Union had until 13 November 1976 to bring its rules into conformity... Accordingly a departure from the requirements of 5.133(1)}(a) docs not fall within s.140/1) so long as tho time prescribed by s.133(4A) hag not oxpared...

For my part then, I am unable to perceive that on tne material before 1t the Court could ecrrectly cor.clude that the two rules infringed s.140(1) (2} py viriue of diseer- formity with s.133(1)(s) as at ?Slh Gevtember 1970, Nor is my task facilitated by the Court's tailure to cxpress ats reasons for that conclusion,"

Having regard to the discussion in the published reasons set out above of the question whether the rules, of which Rule 16(1) was a critical part, were such as to make the case one to which s.133(4A) applied, the foundation for this last

Mason J. as applicable to the electoral system under discussion in Clarke v. Maynes is authority for the view that the electoral system provided by the rules under consideration in this case is one to which s.133(4A4) applies. Accordingly the request made by the Association to the Registrar to extend the time pursuant to s.133(4) was unnecessary. The Association had until 13th November 1976 to bring its rules into conformity with s.133(1)

(a) and by virtue of s.4 (c) of the Conciliation and Arbitration

Amendment Act (No. 2) 1976 which came into operation on 12 November 1976 the Association was given a further two years for this purpose. It follows that the election of the respondents Maher as National President, Major as National Vice-President

and the respondents Bennett, Reed and Walsh as National Dxecutive members was conducted during the period from July 1976 to November 1977 and did not contravene s.140(1)(a) by reason of non-conformity

with s,133 of the Conciliation and Arbitration Act 1904.

It may be observed that it is only in a particular sense that Rules 16(1) and (7) of the Federated Clerks' Union may be said to provide an electoral system which provides for the election of office holders. Standing alone they do not do so, Rule 16(1) assumes that office holders have already been elected and Jt purports to

appoint them as members of the Council. The relationship of

Rule 16(1) to the electoral system which provides for the

election of office holders is that it identifies the persons

who operate as an electoral college at one stage of the

procedure for electing the relevant officers /the organisation and who are nominated for that purpose under the description

"the members of Federal Council" in rules 23, 23A, 24 and 25 referred to above. The possible effect of Regulation 115(1)(a)(i)€)} does not appear to have been raised in Clarke v. Maynes and

Having regard to the foregoing the rule nisi should be

As indicated above, the election in question in the instant case was conducted pursuant to Rule 15 which is set out above. Unless s,133(4A) as inserted by Act No. 138 of 197% was applicable to it, that rule was in contravention of s.140(1)(a) for lack of conformity with s.133(1) (a) on 1st November 1975. However, by

s.4(c) of the Conciliation and Arbitration Amendment (No. 2) Act 1976

(No. 117. of 1976)a period of two years from 13th November 1976 was allowed to the organisation to bring its rules into con-

It is now established that s.133(4A) was applicable to Rule 15. Accordingly it never has been out of accord wilh the

If however, that had not been the case, then on 1st November 1975, the provisions of Rule 15 would have been in contravention

If the result of that were that it was rendered unenforceable or inoperative as a provision creating or affecting legal rights or duties but nevertheless remained in existence as a rule of the S.D.A., then, when its provisions ceased to be in contravention of s.140(1)(a) they would regain their legal effectiveness, In such a case the election conducted under Rule 15 would have been conducted pursuant to a valid and legaliy

On the other hand, if it were the result of Rule 15 being in contravention of s.140 (1)(a) on 1st November 1975, that Rule 15 ceased to be a rule of the S.D.A., so that the situation was the same as if its provisions had been repealed, then on 12th November 1976 those provisions were simply not part of the rules of the Association and Act No. 117 of 1976 would not

Argument in support of each of these alternatives was submitted during the hearing of this case as it was not then established that s.133(4A) was applicable to Rule 15. But in view of the decision of the High Court in k v. Dunohy « Ors Fx Parte . Maynec (sunra) it is umnecessary to decide which 1s the correct view expressing and I refrain from / a concluded opinion in the matter. Never-

theless the circumstances are such that it may be useful to

draw attention to considerations relevant to the issue. The

issue may well arise with respect to rules which offcnd not only

s.140(1)(a) but also those which offend 140(1) (b), (c) and (d).

It may be that it would be beneficial to union government that a rule which becomes inoperative because it offends s.140(1) by reason of particular circumstances such as imbalance between the numbers of members in various branches should if and when a tolerable balance were restored, become operative again without being re-enacted by the organisation or by Statute. As at present advised I see no disadvantages in the law being to that effect. But there is a real question whether this is the state of the

By s.80 of the Conciliation & Arbitration Act 1904-1955 it was provided that "the Court"might disallow any rule which in its opinion was contrary to law or to an award, which was tyrannical or oppressive, which prevented or hindered members frou observing the law or any award, or which imposed unreasonable conditions on membership upon applicants for membership and that any rule so disallowed should be void. The Conciliation & Arbitration Act 1956 renumbered that section as s.140. That section provided for the exercise by the Commonwealth Industrial Court, of the power of disallowance and enacted that rules disallowed by 1t should be void. In Rv. Spicer ex varte Australian Bu1rlders' Labourers' Federation (1957)100 CLR 277 it was held that the power of disallow- ance was a non judicial power and accordingly one which could not be conferred upon the Commonwealth Industrial Court. In 1958 after that

decision, Parliament repealed s.140 as then in force and

enacted s.140 in terms which sufficiently for current purposes,

were in line with these of the section as now in force.

This present discussion and indeed the existence of the issue under discussion depends on the validity of the view that s.140(1) operates of its own force upon the rules of organisations independently of any declaration by the Court being made pursuant to subsequent sub-sections. On this basis, which has been accepted by the Court (see Leveridge v, SDAFA (1977) 17 ALR 145) it is clear that when a rule comes into collision with the provision of s.140(1) it immediately suffers some change in its legal status, The relevance of the provisions of s.80 (supra) and s.140 as first enacted is that the consequences to a rule,of being disallowed,was simply that 1t became void. It cannot be thought that it was intended that such a rule remained in existence in any sense as a rule of the organisation; the rule was simply void. Under those provisions the section did not operate upon a rule until the Court haddisallowed it, Under the 7958 provision Parliament, for the purpose of achieving by gudicial process the substance of what it had unsuccessfully sought to achieve by 8 non judicial process, itself laid down criteria non compliance witn which, would constitute a contravention of the section. The ultimate consequence of such a contravention was that the rule on and from a declaration being made with respect to it was void. But as s.140(1) operates oa an offending rule of its own force and independently of ary declaration by the Court a question immediately arises as to the nature and effect upon an offending rule of s.140(1) so operating.

The question is whether Parliament intended that the consequences

of unlawful contravention attaching to a rule by reason of the operation upon it of s.140(1) of its own force should be different in nature from the consequences flowing from a declaration that the rule was in contravention of s.140(1). Whatever those consequences are 1c is without doubt that the rule becomes inoperative. For

the purposes of the issue presently under discussion it is necessary to keep in mind the special purposes of s.140(5). As to this reference may be made to Shearer's Case (supra) per Fullagar J.

at 379 and per Menzies J. with whom Taylor J, agreed, at pp 388 and 385 and inferentially, per Kitto J. with whom Dixon C.J. agreed, at the end of his judgment at p.385. Reference may also be made to Leveridges Case (supra). Having regard to that special purpose it is reasonable to think that in s.140(5) Parliament

was not enacting that the consequences to a rule of a decision that it contravened s.140(1) should be different in nature, from the consequences inevitably suffered by an offending rule under s.140(1) itself. Rather it was enacting, that once a declaration that a rule contravened 3.140(1) had been made by the Court as between parties, the same consequences of such a contravention

as would occur under s.140(1) itself without any such declaration, should thenceforth be established as binding on all the world.

Of course the basis of all this is that the view of the majority in Shearer's Case (supra) is correct end it 1s to

be noted that there is no hint in the decision of the High

Court in R_v. Dunphy & Ors Ex Parte Maynes & Ors (supra) that

Having regard to these considerations it is not easy to identify any factor indicating that Parliament had in mind a distinction between the state of being void which it had persistently imposed upon an offending rule in s.80 and s,.140 as first enacted, and still provides for a rule declared void, and the condition which it intended to impress upon an unlawful and contravening rule on which it intended s.140(1) to operate of its

The Justices in Shearer's Case (supra) who considered the basic questions whether s.140(1) operated upon rules of its own force used different words to describe the consequences offending the rule if s.140{1) had so operated. Fullager J. expressed the

"Apart from sub-section (5)the position is simply that sub-section (1 makes unlawful,aad therefore void ,any rule having any of the specified characteristics..."

"Sub-section (1) of section 140 forbids an organisation to have any rule which possesses one or more of certain specified characteristics (some rules prohibited would be unlawful without express enactment), Rules which fall within the forbidden classes are void. This as it seems to me,must be soy I cannot accept the view that such rules are treated by the section as valid until they are pronounced invalid. If they contravene sub-section (1)they are invalid and void."

Menzies J. with whom Taylor J. agreed, speaking of s.140(1) said:~

"In the first place ,sub-section (1) lays down mandatory- although in some respects general standards to which each rule of an organisation must conform as a condition of its validity. The language is imperative and I

nothing mcre than a direction to the Registrar or to anyone else about what rules must not coutain if they are to be acceptable as rules; the sub-section is a statement that the rules of an organisation shall not be of a character specified and any infringment of

the prohibition therein contained must 1t seems to ms result in invalidity from the time of the coming

Court has made an order declaring that there is a contravention of sub-section(1)it as sought by the section to effect the consequential result i.e.., by the provision of sub-section (5) that wnen the Court makes an order there 15 a contravention of sub-section (1) the rule or that part of the rulc,as the case may be shall be deemed to be void from the date of the longer order, so that the question of its future validitv is no / a question open in any proceedings before any Court. What is attempted, as I understand it, is not to give an order of the Court inter partes a binding effect

of invalidating rules for the future whether or not the order was correctly made". (103 CLR at 3&7 )

"Tt follows from the mandatory language of Section 140 (1) that any rule of an organisation which 1s contrary to the provisions of the sub-section is unlawful and for that reason is not enforceable in any Court... The wider purpose of section 140 1s to rid an organisation of a rule which contravenes sub-section(1)."(107 CLA at 374)

Although Kitto J. took the view that s.140(1) did not operate of its own force upon a rule which contravened its provisions he did refer to what would be the consequences to such a rule if it did so operate. His Honour spoke of the provision in s,.140(5) that where the Court by order declared that a rule contravenes s. 140 (1) the rule is deemcd to be vo1d as from the date of the order, and said that from that provision "the implication seems 1o mc to be clear that until that date the rule (or part )

is not intended to be void for contravention of sub-section (1)".

. Honour But his/added "no doubt if that sub-section were to be ccnsidercd by itself ,it might well be understood as intending to muke void for illegality rules contravening its provision."(See 103 CLR

With these expressions Dixon GJ. stated his agreement (see 103 CLR at 372). It seems clear that Kitto J. and Dixon CJ. considered that the possible alternative constructicns of s.140 were either that a rule in contravention of s.140(1) became void in the sense of null and void only as a consequence of an order declaring it to be 1n contravention of s.140(1) made by the Court, or that such a rule was "void for 1llegality" as soon as 1t contravened s.140(1), They preferred the first of these alternatives and to my mind did not consider that there was a third possibility, namely that contravention of s.140(1) by itself and before the making of an order pursuant to s.140(3) or 140(5) may operate on a rule and may render it unenforceable but not affect its

Such a possibility sits uneasily with statements that a rule which contravenes s.140(1) is void for illegality, void or invalid. And in this respect the words of Kitto J, and Dixon C.Jas I understand them support the view of Fullagar J. that if, as I consider I must accept, s.140(1) does operate per se upon the validity of a rule which contravenes it, Lhat

It is to be noted also that in discussing the factors which led him to conclude that s.140(1) did not operate per se upon an offending rule,the remarks of Kitto J. indicate that he took into account that it was not to be thought that a rule

might by reason of the operation of s.140(1) become invalid

by reason of some temporary circumstance and become valid again when that circumstance ceased to exist. It would appear to me

that his Honour having dismissed the possibility that rules

which had become invalid could later tecome valid regarded the situation before him as one in which rules offending s.140(1)

would be totally and permanently void by one of two avenues, either by the direct operation of s.140(1) or the making of an order

under s.140(3) or 140(5) declaring the rule to be in contravention of s.140(1). It appears to me that his Honour was saying that as the cause of a contravention of s.140(1) might be some temporary circumstance occurring, perhaps almost without being noticed,

it was unsatisfactory that a state of voldness of a rule should arise except by some overt arid prominent act, such as an

order of the Court declaring the rule to be in contravention of s.140(1). If this be a correct assessment of his Honour's remarks it establishes that in the view of Kitto J. and Dixon C.J, there was no question of a ruie on which invalidity had once descended ever becoming valid at a later stage, and that by the operation of 5.140 a rule offending against s.140(1) would ultimately become permanently and totally void either by direct operation of s,140(1) itself or by the operation of s.140(5). If therefore, the ultimately preferred view 1s that of the majority,of the High Court namely that invalidity is the result of tne direct oncrat-

views of aon upon a rule of s.140(1) itself, then the/Kitto J. and Dixon C.J.

combine with those of Fullagar J, to describe the effect of that operation as creating a statc of total and permanent voldness in

The passage containing the relevant remarks of Kitto J. which should be read in conjunction wath the passage from his

"No doubt if that sub-section were to be considered hy itself, it might well be understood as intending te

make void for illegality rules contravening its provisions. But the section considered as a whole appears to tie to embody a coherent plan for which the whole {function of sub-section (1) is to take an essential preliminary step. The step 1s to lay down propositions in relation tc which the rest of the section is to operate. propositions in the form ef prohibitions to be observed by every rule on

pain of liability to tnvalidation by the operation of sub-section (5) upon the non-obdservanee being judicially declared 1n proceedings brought for the purpose

by a member rather than to enact absolute prohibitions intended to have a separate and independeut invalidating effect. If the contrary had been intended, the cuimi- nation of a proceeding under the section would suicly

have been a declaration of the pre-existing invalidity

of the inconsistent rule, instead of being an order which says nothing at all about invalidity but fulfils a condition which the @ction prescribes for the stetrutory avoidance of the rule for the future. The view I have expressed seems to me to find support in the neture of sone of the prohibitions themselves. 1 necd refer only to the provision of par. (b), that a rule shall not be such as to prevent or hinder members from observing the provisions of an award. Whether a particular rule contrevenes this paragraph is a question which may require different answers at different times, having regard to the terms of the awards in force for the time being and the industrial situations to which they relate. The invention can hardly be that invalidity shall attach to a rule as soon es a situation arises in which the rule fills the description shall endure while the situation lasts, and shall cease when the situation comes to an end. It 1s a much more likely intention that when the Court fiuds a contravention of sub-section (1) existing at a particular time, and the organisation, if given an opportunity to alter the contrs~ vening rule, has not altered it the rule shell thereunon become void." (103% C.L.R. at 480-381)

Support for the notion that the state of unlawfulness caused by the operation of sub-section 140(1) is to render a rule unenforceable but not void may possibly be found iu the words of McTiernan J. at p.373 quoted above, but it is not apparent that his Honour was directing himself to that distinction. However, there is support in the judgment of Windeyer J. for the view that a rule which had at some stage in its history contravened sub-section 140(1) could by reason of a change in circumstances become a valid rule, and the same is true in

respect of possible implications from the remarks of Mason J.

in his judgment inR. v. Dunphy & Crs Ex Parte Maynes & Ors (supra

"In this context, despite the contrary view of Windeyer J. expressed in Shearer's case. at p. 389, it 1s my opinion that the court's order in accordance with s.140(2) and (3) speaks as to the rules as at the date of the order. An order should not be made by the court unless it is satisfied that the relevant contravention exists at the date of the order. It is from then that a rule declared to contravene s.140 (1) 1s deemed to be void and it 1s from then that time runs under s.140(7).

It would be strange indeed if the court could make an order that a rule contravened s.140(1)(a) unless it was satisfied that the contravention persisted to the date

of the order. For if the contravention has been rectified or has been terminated between the commencement of the proceedings and the date of the order, it would nevertheless be deemed to be void by vartue of s.140(5) as from the date of an order declaring the contravention.

Expressions such as "void" and "invalid" and even "void for illegality" may be used in a context in which it would be correct to construe them as indicating a condition of less than

total nullity. But in the case of tne use of those expressions by

the Justiccs who used them in Shearer's cace it is certainly

a serious question whether in so describing a rule which

contravened s.140(1) they had in mind any qualitative difference

between what they were describing and a condition which may,

inelegantly but accurately, be called voidness in the full sense.

It seems clear that one factor influencing Windeyer J, in Shearer's case (supra) to conclude that an order made by the Court under s.140 might properly be made to speak as at the date of the rule nisi was that it might not otherwise be possible for a union member against whom action were taken under a rule which contravened 5.140(1) to obtain the protection of the Court. The kind of situation contemplated is exemplified by the events which occurred in the Australian Workers'Union in 1965 which were before the

Commonwealth Industrial Court in Cameron v. Duncan (1965) 8 FLR 748.

The situatior is described at p. 24Gof the report as follows:~

"Turning to the action of the executive council against

the claimants under r.36, Miss Mitchell relied on the

order of this Court made on 11th June, 1965, in which it declared that r.36 contravened the provisions of 2.140(1) of the Conciliation and Arbitration Act 1904-1965, By virtue of s.140(5) the rule 1s deeméa Void as from that date for all purposes and bctween all parties. But Miss Mitchell submitted that the reasons which induced the

Court to make the declaration were applicable to r.36

at all mater1al times prior to the decleration by this Court on 11th June, 1965, With this I agree. She submitted, therefore, that the rule was void in May 1965 when the branch executive members were superseded, For this last step she relied upor. the view of the majority

of the members of the High Court in The Cuecn V. Cainmon- wealth Industrial Court; ex parte The Sw Leamay O sapaleering Une Australien Section R355 to tae eifect tict a union rule which contravenes s.740(1) is void from the tame when s,740(1) came into operation. Mr. Ludeke contended that the expressions of the mombers os the Court to this effect were not essential to their decision ard that the matter is therefore not finally concluded so far as this Court is concerned, He submitted that a rule contrary to

s.140(1) was valid until a declaration to the contrary was made by this Court.

The view for which Mr. Ludeke contended would enable a branch executive or the executive council to discipline or expel members under rules obnoxious to the legislature provided that 1t could carry its proccedings to a conclusion before the accused could obtain a declaration from the Court under s.140 or relief under s.141. In this case Wright, having been charged by lettcr dated 8th April 1965, calling upon him to appear before the executive council on 3rd May, 1965, moved with reasonable promptness. He obtained a rule to show cause in this metter under s.140 on 28th April, 1965. It was heard on 18th and 19th May, 1965, and the declaration was made on 11th June, iC65. But the supersession occurred on 6th May, 19€5. The other claimants relied upon the outcome of Wright's application but they were also dealt with on 6th May, 1965, the executive council having refused apnlications for an adjournment pending judgment by this Court. If a rule contrary to s.140(1) 1s good until a declaration of invalidity is made under s.140 persons charged under a union rule, in fact contrary to s.140(1) but not so declared, are, to say the least, in a difficult position, and might well suffer pains and penalties in circumstances where, subgect to procedural requirements, 1t was not so intended by the legislature."

It is quite likely that situations would occur in which the protection of the Court could not be invoked in time even if the view of Windeyer J. had been held to be correct. However the practicalities are resolved by implementation of the view of the majority in Shearer's case that s.140(1) operates upon rules of organisations of its own force, in the procedure provided

for in s.141 and in other proceedings, c.f. Leveridyes case (supre) / Thereby effect is given to the principle enunciated by Windeyer d. in Shearer's case (supra) at page 389 that the status of a rule as enforceable or otherwise,in the light of the provisions of s.140 of the Act, should be determined by considering whether

it contravened s.140(1) at the date in relation to which itz

observance is challenged. The important thing is that through

the operation of s.141 and other proceedings justice may be extended in accordance with the view of the majority and the principle enunciated by Windeyer J. where there has not been time to obtain reliaef by an order under s.140, The principle enunciated by Windeyer J. is of course fully applicable whether the effect upon a rule of s.140(1) of its own force is to render

By reason of the effect of 5.133(4A) of the Conc .liation end Arbitration Act 197% (No,138 of 1973) it has not been shown thst the electoral system provided by Rules 12(a) and 14 of the S,D.A. contravene s.140(1). Accordingly the rule nisi here:zn must

I eertify that this and the 3 until he became an officer within the meaning of r.14 in 17368,

(xav)that the Respondent Mr Major hao been farst elected National Vice-President in accordance with r.14 by and from the fational Council in October 1970 and had been so re-clected to that office in 1972 and 1974,

(yev)that Mr Major since 1970 attended each ordinary biennial meeting of the Natioral Council as an officer within the meaning of r.14 and not as an elect:d Gelegate of a Branch.

(xvi)llhat Mr Major when first clectec Vace-Presidont by and from the National Council in 1970 had attended that Council as a delegate from the Qucenslend branch having been clected as such delegate by and from the Comnittse of Management of that Branch. The maibers of that coumittece had been elected purssuant to an election jn which all financ1al memb23s of the Branch were entitled to vote. lie had been previously clected in accordance wath tha Queensland Brauch rules as such delegate over a perioa of many years.

(xvis )that che Respondent Mr Bennett had bocn elected a National Executive Member jn accordance with r.12(a) by and from the Yational Council at its ordinary biennial meoting in October 1474,

(xviii)that at all material times since 1969 I'r Bernete had been a Geleygate to National Council from the Tasmanian Branch, heving been elected in accordance with that Branch's rules by a ballot at which all

(xix)that the Respondents Messrs. Reed end Walsh wore never officers of the org@nization within the meaning of r.l4 and until their purported celcction as Natzronal Exccutive membsars in November 1976 ne1tho: had held such positions. Both were delegates to National Council from the Victorian Bronuch cuch having kcen so elected by and from the Committeoa of Management of that Branch, the members of which had been clected thcrétec pursuant to an election in which financial] mombers of

Further 1t was conceded by the claimant for the purpose: of this proceeding that the rules set out herein were the rules of the oigenization immediately bofore the coming into operal1on on 13 November 1972 of s.52 of Act. No. 138 of 1973 which amended s.132 of the

Act, the relevant purts of which are set out later.

In proceedings such as the present brovght pursuant to s.141 of the Act the Court has to determine the validity of rules at a particular antecedent point of tame. This will involve a determination whether a relevant rule was contrary to a provision of the Act or Regulations at that point of time. If such was the case, then s.140(1) by 1ts own Loree anvalidates the rule and any act or thing then done under or dependent upo: such rule was

unvalidly done and of no effect. R.v. The Judccvs of the

Commonwyalth Trndustriel Court Ty narte th Anatoenated

Fnginceving Mnicn (1960) 103 C.L.R. 366 (Shearer's Case). So where a purported election is held under a rule cr rules which the Court subsequently determines was or were contrary

to the Act or the regulations at the pounl of tame yen sich

Clection wes held, then the clectionvwas invelid end of no effect

and th. Court should subjcet to a gencral discretion make an order acco? dingly unless prolibited by sub-sections (6) oF (7)

or unless 1t postpones its acttenmanalicn in acco: dunce

with sub-section (&). It should bo notud that sub-section

1s through the effluxion of time spent while sub-section (70)

provides that "clection" within the moaning cf s.141 includes

In my view the question. for determination hy the Court 1n such prececedings are (1) the relevant anteccdent date, (112) the provisions of the Act or Regulations at that date; and (111) whether the relevant

In the present case, I am of the opinion that the relevant antecedent date is 8 Novembe: 1976, the date when nominations for the five positions under challenge were first called. In my view an election of the kind with which the Act 1s concerned comvences net Later than the opening date of the poriod during wnich the neminatiroue of candidates may be lodged and the rutes of an oxganizution at that date are the rules which control the conduct of

for nominations. In [ricnd v. Barnes (1969) 15 FLL.R. 1&4

Spicer C.d. and Smithers J. an a joint judgment said at p.201:

"That the calling for and receiving of noninations are integral parts of the conduct of an cje stion ef the hind with Which the ConciJsation and Arbitraticen Act is concerned 1g not to be doubled. Elections in organizations of thevisands of inclubors can not be carried ort if such stops be ompritted.

sbury's Law of Fngland, 3rd ed., vol. 14, Pt.2, ss.4 and 5, and to May's Parliomentary Practice cenfirms that the concept of couducting an election extends to the initiating process such as the assuao of the writ, the calling for noarnations and their scrutiny, as well és the oc tual process of arranging tor and 1cceiving the votes end declaring tho poll."

the deteripination of the tunes and dates of the ccamensemont

and the closing of the period for lodying nominations of candidates, the scrutiny and determination by the returning officcr of the validity of such nominations, the determination and preparation of the roll of voters, the determination of the electoral system under which the ballot 1s to be conducted and of the period a1 the ballot, the deteimination of the methecd of issuing and the return of ballot papers, the Gel.ormination whether duplicate Lallot papers should be issued, the ccunting and scrutiny of the ballot and the declaration thereof.

Tach step 1s am integral part of the election and determinaticn involves formal decisions arrived at by rules which should be known and accepled in advance. It is the essence of a democratic cloction that such rules are so known and remain unaltered after the electicn

In my view this principle epplies to an election of the kind with wiich the Conciliation end Arbitration Act 18 concerned and, 21f after such an election has commenced, amendincnts to rules governing such elections are certificd such amenced rules will not apply to that clection unless clearly expressed toa do so and then only if the Act or regulations clearly permit that such amendments are to apply to an clection which has conmenced (cf. Boesor_v. Tlayucy & F.L.R. 292). In my view this principle also applies where during th currency of an clection of officers of an organization the Act 1s amended so as to remove or negate conditions which, prior to such amendment, had resulted in rolevant rules boing 1n contravontion of the previsions of ihe

The Act does make provision for "officially conducted" (£.141(9)) elections. In Part 1X ~ Disputed Elecvcions in Organizations - the Act empowers the Court to make certuin orders which could have the effect cf altering such rules (s.165). Again s.l70h empowers the returning cfficer conducting elections under either s.165A or s.17UA to take such action and give such dzrect.ons as he considors necessary 1n order to ensure that no irregularities (as defined) occur in or in conncx.cn with the election or to remedy any procedural defecis in the rules of a particular oryanization notwithstanding

Further, since 1976 the Act has made provision that where the rules of an organization provide fo. electicns by a direct voting system for offices in that organization then the result of such elections shall b= determired ly secret postal ballot (s.133 (AA)). where such rules do not provide for such a ballot in such elections then regulations under Part. V AA (reg. 146 AA - 146 AI) aprly. In my view such regulations clearly recognise that all tire steps referred to therein are integral parts of an clecLlion with which the Act is concerned and, 3n my view, ace bat a legislatist Ponovncertntof what have long been recogniscd as basic stops in or ain connexion with any democratic election.

Having determined that the relevant aniccedent date in tho present matter is 8 Novembe:» 1976, consideration must then be made as to the previsions of the Act ox the Regulations at that date and a determination maas as to whether or not the rules under which the clccticns vere

"193.(1) In addition to the conditions ref_rred to an sub-section {2) of section 132, the conditions to be complied with by .......... organizations include a condition that the rules of .......... Organizations -

(a) shall provide for the clectaicn of the holder ef each office within the association or erganization at an eiecticn ab wuich ald financial momb2rs, or all f2nancial mewbe) s included in such branch, secticn or clher division, or an such class, as is approp: iat, having regard to the nature of the office, ure subject to reasonable provisicns with rosp:cl to enrolment, cligible tu vote;

(1A) Where, inanediately before the crumeneawut 7 this sub-section, the rules of an orgqanination provided for the filling of an office, boing an office the holder of which is a member of the counties of management of the cigeuirzation but the dutic; of which are of a part-time nature, othory by electicn directiy by the moubers of 7 who would be entatlead to vote if the rules wer accordance with paragzeon (a) cf sub-section (

but by a procedure in which those manb-1s ele Gelegates to a conference cr council] of the erganization and thore aticoates clect 4a porson to hold that office from emonjget. themsclies, those rules shall not, by reason only oc thet provision, be taken to faz1 to ceorwply with paragraph (a) of sub-section (1).

(3) An Association which vas registered as an organization on the @ate ou whoch the Conciliation and Arbitration Act 1973 received the Royw] Assent is allowed a period of twelve months arter that date, or such lornge?: nevried az the Inaustrial Registrar determinzs, within vaich to bi ing rules anle confocmity with the requirements sub-section (1).

(4A) Notwithstanding sub-csctions (3) and (4), where, imrediately bofore the caommencen ml of 1s sub-section, the rules of an orcvuntoutien pre det for the clection of the holder of an office an the

organization otherwise than directly vy the members of the orp wni7ation wo would De eniil.ed to vace if the rules were in accordance wiih paregre7h (4) of sub-scction (1), bul Ly a proceture in Wuich these menbers indirectly trke part, The orgenizatlica is allowed a period of three youre after thet cate within which to bring its rules, so Tor ans they IL

relote to that office, anto conformicy with paragraph (a) of sub-section (1)."

The above provisions were isnsertcé into the Act by s.52 of Act No. 158 of 1973 which cao anto operation on 13 November 1973. Further, s.3(c) of that Act addec an additional object (Lf) to s.2 of the Act. This object reads it~

(f£) to encourage the denmociatie centro] of orgenizebions ... ard the full pirticinaticn of members ... in the affairs of the orgaricctsi on.

The claimant argued that rules 12(e) and 14, the rules under which the challenged elections were held, clearly were contrary to s.133(1){a) at the date of the commencement of Act 138 of 1973 (namely 135 NovertLor 1972) and, if sub-s. (1A) of s.133 did nol epoly, thoce rules were invalid on 8 November 1976 unless protected Ly extensions granted under sub-s.(3) or, if sub-s.(4A) vas applicable, saved by the period of grace referred to therein. It is clear that even though the clecticns vere for the filling of positions on the "committee of me unygeucnu" of the organisation and the duties of those holding cuch positions were of a part-time nature only the rules under

which such élections were conducted did not amne before 13 November 1973, the date when sub-

system reivrred to therein, namely a one-tier collegiate

Further, pursuant to 5.133(4) the Industrial Registrar had 1n 1974 and 7°75 allowed the orsent. ation

extensions of tare within which to bring 1ts rules into conformity with the requirements cf s.133(1)(a). The last extension expired on 31 Octuber 197). A question was raised wietber such extensicus vere valid extencious undcr the sub-section as it was not clear that they vere continuous from a point of time Le:ore 13 November 197 up until 31 October 1975. But for the puvpeses of the claimant's argurent in this regard this wos immalteria]

as it was sufficient under such argument to show inaé at sore point of time prior to the disputed elections being commenced the extensions of time grented under sub-section had expired with the result thal the rules under wich the elections were in fact conducted had become invalid at that pointe or time and had remained so thereavter up until the

commencement of the elections unless protectod by sih-section

(4A) of 5.133. The claimant su.mitted that such invalidity extended beyond the date of such commencemoenc but for the purvoses cf the present argument it is urnecessary to

Rules 1?(a) ane 14 clearly prov.de for the election of officers in the organizetion by a procedure other than by the direct vote of "those marboars" rcferred to in s.133(1)(a). In my view such rules do not previde for the election of such officers ty a procedure witch 1s proviced for in sub-section (4A). namely a proceaure in which oly "those members" referrec to in the sub-sect+on indirectly take part. Under those rules rh: persons entitled to vote at such elections are (2) the Ce'egates elected e1ther directly or indirectly by membcrs who probably would have been enLitled to vote at the cleclion

of the officials if the clectoral syst-m edoptedi wes a direct

voting system and (i1) the offiacere of the oreanizatiLon vho vote diroctly as officers and nol indareclly on belili of

"those members" referred to in the sub-section, That lhe vece

of an officer 1s such a direct vote 18 aydustratca by

• 14 considering the vote of the Nationcl Secre vary-Troasurer at a perticular Council meeting. If he hed been clectcd for @ second term of office he may have atvended prior

Nations1 Council meecings for up to twelve years rout

a delegnte but «s an officer, Further af he hed been che holder of the office of Acsistant National Secretary- Treasurer immediately prior to his election to the offices of Secretary then this period of twelve years would bu ancreased by the period that he hud held the cerlicr office. It 1s well Inown thet in the organizetion there is +. heavy

turnover cf members particularly since 1970 (ef. Leveriife +.

Shop Dittvitvitive and Allicd Erntcyeos feeociotion (17 ALL-R.

145). 'The 1llustration given cleerly show. thet the rules in question permit a situation to occur which in my view is contrary to that which the Legislature by the emvicndment to s.133 1n 1973 intended.

8.132(4A) which permits the vote of = person in 21 olection

of the hcider of an office who hac been elcctea a celecete to Council by the direct or indizrect votes of an appropriate section of the rembership of the organizetiorn at a time many years privur to the casting of the seid vote and who nad at that ecerlicr point of tire teen elcctee en officer by end

from the Council to which he was clected erd who theircaficenr continucd to be an officer within the meaning of r.74 ec a result of his re-election by and from cech successive biennr71

Council to be an indirect vote of "t2rose rcmbers" referred to

in the sub-section. The p2rticulai members who Cirectly or indirectly voted for such person to f121i the position of dclegate to Council may not be and, becuarc of the a turnover of membership in this organization, probally vould not be "Lhose members" referred to in sub-s. (4A).

Such a construction in my view, would bo contrary to the thrust of the 1973 amendments to s.123(1)(2) of the Act whach effectively meant that the filling of officcs within orgenizations was to be cairiecd out urder an electoral systen where each financial member wes entitled to ercreise his frenchise by his darect vote. In other woreés, clecblions conterpleted by s.1233(1)(a) were to be elections under wineh the officers of organizations were to be electeé by the direct votes of the rank ard file finiuncial menzber's.

An exception to this basic principle was the election of a part-time officer (sub-s. (iA4)). If the rules of an orgenizaticn at the tine of the commencement of the amending Act provided for a one-tier collegiate electoral system for the election of such nert-time officer then such procedure complied with the Act and the orfanzzation was not required to atend its rules in this regard. Again vhere tne rules of an organization at the time of the commonacenert of the amencing Act provided for the election of its full-tinc officers by any collegiate electorel system or 1ts officers by a multi-tier collegiate electoral system, then such organization vas given a period of gerece of 3 yerrs in which to bring its rules into conforvity vith s.137(1)( , fet, conditions of cligabality - 1s greatly to be fed,

preferred to some different rule that would always hceow open to cxamination the capacity of an organization, a party to the dispute, to represent some of those who are its members accoidiryg to ils conditions of eligibility by reason of the particular description of the industry in or in connexion with 1t when it became registered, Industrial tribuna]s

Mr. Handley did not submit that the rule nisi under s.140(2) and (3) of the Act should be made absolute. He conceded, rightly in my opinion, that Rule 12(a) and Rule 14, if currently rules of the S.D.A., do not contravene s.140({1) of the Act since the S.D.A. has two years from 12th November, 1976 within which to bring thein into conformity with the requirements cf s.133(1) {a) of the Act. H1s main argument, however, was that on lst November, 1975, the two rules ceased to exist and therefore are not now rules of the $.D.A. and therefore could not be subject to any order or deciarution

under s.140 of the Act. I have already expressed my opinien that

that argument should be rejected, but the submission made on th s aspect of the matter illustrates a further reason why the argument should be rejected. In most, 1f not all, applications to the Court under s.140 of the Act, the challenged rules of necessity must have contravened s.J40(1) prior to the hearing by the Court. If the rules had ceased to exist at the time they first contravened the sub-section, rarely, 1f at all, would there be in existence rules which could be made subject to an order and declaration uncer s.140(2) and (3). This could not have been the intention of the

The particular rules under cnallenge are Rule 12(a) aud Rule 14. Rule 15 and Rule 15A provide the procecure by which the election 1s te be conducted. An cssential part oF any election 15 the calling of nominations and here the nominations were called fer on 8th November, 1976, four days prior to the amendments cffectec by Act No. 117 of 1976. Mr. Handley subnittecd therefore, on tho authority of Friend v. Barnes (1969) 15 F.L.R. 184, thut the election

Was invalid. In Friend v. Barnes, Spicer C.J. and Snitacrs J., >

"That the calling For and receiving of nominations are integral purts of the corduce of at clecticn of the Kind with whick the Cener1liation ard

Elections in organizations ox thousands of members ean not be carried out 1£ such steps be ommitted,

vol.14, Pt.2, ss.4 and 5, and to May's Parliamentary Practice confirms that the concept of conducting an @lection extends to the initzating process such as the issue of the writ, the calling for uominatious and their scrutiny, as well as the actual process of arranginy for and receiving the votes and docluring

In the present case, s.133{1)(a) of the Act, in force on 8th November, 1976, required that the rules provide for the relevant election to be an election at which all finencial wembers were eligible to vote. Before the closing of nominations that requirement had been repealed and different requirements applied. In fact all persons who were entitled under the rules of the S.D.A. to nominate and to vote at the election received a notice calling for nominations. After the new sub-section came into operation, there still remained some 11 days before the close of nominations.

These facts are very different from those in Friend v. Barnes and

an my opinion the election held to f1]1 the specified citfices in the present case are not invalidated by reason of the principles enunciated in that case.

In view of the opinions already expressed, I do not find it necessary to express any opinion on other submissions made by Mr. Shaw concerning the nature of s.133 of the Act and the effect of certain sub-sections of that section.

. On 19th May 1978 the Haigh Court delivered judgment in R._v. Dunphy and Others ex parte Maynes. The reasons for jucgment

given therein by Mason J. and agreed in by Barwick C.J. and Stephen and Aickin JJ., support the expressions of opinion set out earlier in my reasons for judgment. In particular Mason J. said:

"In this context, despite the contrary view of Windeyer J. expressed in Shearer's cas2, at p.289, at 18 my opinion that the court's order in accordance with s.140(2} and (3) speaks as to the rules as at the date of the order. An order should not be made by the court unless it is satisfied chat the relevant contravention exists at the date of the order. It is from then that 4 rvle declarc? to contravene s.140(1) is deemed to be void and it

unless it was satisfied that the cortravention persisted to the uate of the oruur. For 2f the contravention has been rectiftod or kas been terminated between the commencement of the procecdings and the Ante of the order, it would revecitheless be deemed to be void by virtue of s.140(3) as frou the date of an order declaring the contravention."

In my Opinion the rule nisi herein should be dischascrd.

On 29th March 1978, the three proceedings adjourned to that date came on for further nearing and the other nine procecdings were listed for mention. On that occasion Mr. Kenzie appeared with Mr. Geoffrey Shaw for those persons previously represented by Mr. Handley 9.C. and Mr. Kenzie. The outstanding assue in Matter VY No. 27 of 1977 was argued and on che 5th 7pril] 19/8 the Court reserved its decision on that issue. Turrcher incerin orders having been made, the remaining 11 proceenings were scjyourned

Matter V_No. 27 of 1977 - O'Neill and Others v,. Egan and Others

The outstanding issue in this proceeding relat:s to the orders sought by the claimants pursuant to s.141 of the Act. The claimants seek orders that the respondenrs to the rule nisi, other than the S.D.A., perform and observe the rules of the C.O.A. by treating as null and void and of no cffect a notice comening a meeting of the Branch Coyncil of the New South Wules Branch of the s.D.A. issued in the name of the claimant Turmire for 10.30 a.m. on Friday, 16th september 1977 and further by treating as null and void and of no effect any meeting held pursuant to the said notice. The meeting in fact was held on the 16th September 1977 prrsuant to the said notice. The only issue raised ny the ruie nasa relares to the validity of the corvening of that meeting and neochiny tlas 1S said in these reasons ics to be taken as dealing with the vuladi ef resolutions passed at that reeting anc which war be opca to challenge on other grounds.

In my opinion fer the reasons expresses! an Lhe ceusanis

for judgment hy Smithers J. the acetiag of the ranch Counce.) cho une

a a! sRew Sonth W.les Branch held on 16th September 1977 wus validly F

onvenp:d and I have nothing further to add. Accordivoly in my

opinion thc cule nisi herein ansofer as it relates to the orders

sought. pursuant to s.141 of the Act should ke @isch-rged.