The significance of the closure of the roll
85 The Electoral Commissioner submitted that the date the roll closed determined who was eligible to vote and to nominate or be nominated. The National Executive, on the other hand, insisted that the date the roll closed was irrelevant for the purpose of determining whether a candidate was eligible to stand for election. According to the National Executive, eligibility to nominate was determined as at the date nominations closed.
86 The Electoral Commissioner submitted that the National Executive, including Messrs Hunt-Sharman and Gellatly, failed to note the significance of the date the roll closed, either when compiling the register in the first place or later when amending it. It is difficult to accept this submission at face value. Mr Gellatly, at least, was apparently aware as at 22 July 2015 when the second register was delivered to the AEC that the roll should contain those members who were financial as at 25 May 2015. But the register also listed the zones in which the members were eligible to vote and stand for election. It is not entirely clear from the evidence whether the allocation of zones in the second register reflected the position as at 25 May 2015 or at one or various dates thereafter but, for the following reasons, it seems likely that, while it contained details of financial members at that date, the second register did not accurately reflect the zones to which all those members had been allocated by 25 May, when the roll closed.
87 First, on 22 June 2015 Mr Gellatly asked Ms Mayo and her offsider, Ms Norman, to send an email to members who had not been allocated to a zone asking that their zone allocations be updated. No instruction was apparently given to either of them to check zone allocations as at 25 May 2015.
88 Second, the News Update sent to members on 23 June 2015 noted that nominations for delegate positions would close on 1 July 2015, advised them that it was essential that their profiles be accurate and urged them to immediately update their profile if they had not "recently" been updated. Once again, however, there was no indication that the profile should be accurate as at 25 May 2015.
89 The News Update sent to members on 1 June 2015 included the following warning:
It is important to note that you can only nominate or be nominated according to the Zone indicated in your AFPA Profile. To ensure your nomination counts, please verify your eligibility with the AFPA, HERE.
It did not, however, advise that it was eligibility as at 25 May 2015 that counted.
90 On 23 June 2015 a further News Update was sent, asking members to update their profiles for the purposes of the elections, by providing their "current AFP Functional Stream" (emphasis added).
91 On 1 July Dave Turner, "Coordinator People Strategies" with the AFP, emailed Mr Hunt-Sharman with the AFP organisational structure as at that day. In the covering email he pointed out:
Note it is a moving feast however, the roles are pretty set - it's just the people in them that keep changing!!
92 Mr Hunt-Sharman was taken to this email in cross-examination (at ts 103). In the course of that cross-examination the following exchange took place:
MR MARKUS: Yes. But it does indicate, does it not, that where people might end up within that structure is not settled even as at 1 July, which is the date on which the reorganisation, in fact, is meant to take place? - - - It does imply that, but I don't know how much needed to be changed from that point, because my - certainly, my understanding, for example, from Mr Collingwood was that he was aware of his area in early July when he wrote to the AFPA.
Yes. Well, is it not the case, Mr Hunt-Sharman, that it wasn't until 22 June that you, for example, had been alerted to the fact that a particular work area was moved from one zone to another in its entirety? - - - Yes, that's - that's correct; that's the chief information officer's zone, yes.
Yes, that's what I - - - Yes.
- - - was referring to. And you would accept that that change is likely to have occurred after 25 May? - - - Yes.
- - - otherwise you would have been informed of that earlier? - - - That's correct.
93 Despite the National Executive's protestation that none of this was relevant, any inquiry into the irregularities that attended the elections must begin with a consideration of the state of affairs at the time the roll closed and the allocation of members to zones after 11 May 2015. If nothing else, these two matters were at the root of the confusion that spawned the queries and complaints by AFPA members.
94 The 11 May resolution, it will be recalled, established six new zones reflecting the restructure of the AFP, and directed the AFPA's CEO:
to immediately allocate all members in accordance with this National Executive Policy decision and notify the AEC (and if necessary FWA), of the changes to the AFPA Zones for the purpose of the 2015 Delegate elections.
(Emphasis added.)
95 This direction contained an inherent difficulty. On the one hand, the allocations were to take place immediately. On the other, the allocations were to be in accordance with the AFP's new structure, which was not to take effect until 1 July 2015. Indeed, at the time the resolution was passed, the AFPA did not know precisely where different "business areas" would fit in the new structure. That was why the Resolution Note was simply a "working estimate". Indeed, it seems that even at 25 May when the rolls closed the picture remained unclear.
96 The difficulties inherent in allocating members to zones on the basis of a structure that did not yet exist and was not yet known did not escape all of those involved in the allocation process. Mr Gellatly, for one, was concerned about the problem and raised it with Mr Hunt-Sharman, who insisted that the zone changes nevertheless had to proceed. Mr Hunt-Sharman wished them to proceed, so he said, because he thought the uncertainty attending a pre-emptive zone change was the lesser of two evils. His evidence was that the alternative (retaining the status quo) would result in Zone Coordinators and Workplace Delegates being elected in August 2015 for a period of two years in zones that would already have ceased to reflect the AFP's organisational structure.
97 In the event, the resolution was passed and Ms Mayo proceeded to allocate members to their new zones. No evidence touched upon precisely when or how this occurred, but the best evidence of what allocations had occurred by 25 May is the contents of the USB drive that the AFPA provided to the AEC the following day. The drive contained six Microsoft Excel spreadsheets, labelled "ACT Policing", "AFP Capability Zone", "AFP Capacity Zone", "AFP Executive Zone", "AFP National Security Zone" and "AFP Operations Zone". Inside each spreadsheet was a column headed "Zone (of Member)", which showed that each member had been allocated to one of the six new zones. There was one exception, being a member whose name appears in the "ACT Policing" spreadsheet but whose zone is listed as "Aviation" (one of the sixteen former zones). Presumably she was allocated to the ACT Policing Zone but her entry in the "Zone (of Member)" column was not updated.
98 Of course, many of the members were allocated to zones that did not reflect their ultimate position within the new AFP structure. That would seem to have been inevitable. But the significance of that fact to the elections appears to have been misunderstood by many (perhaps most) of the people involved. The common view seems to have been that if a member's position in the AFP structure turned out to be different from that to which he or she was allocated by 25 May, then a change could and should be made to the member's zone allocation appearing in the roll. As the Electoral Commissioner submitted, that view is incorrect. It is incorrect because it fails to grasp the significance of the closing of the rolls. It also reflects a misunderstanding of the process of allocation to zones contemplated by the Rules.
99 In oral argument, counsel for the National Executive submitted that the close of the rolls on 25 May did not prevent members being added to or removed from the roll for a zone for the purposes of the election. He contended that there was no rule "that the roll must be promulgated on a particular date and no one can be added to the roll between when the roll settled and when the election commences". He described the close of the rolls as "the starting point for the process" after which "people come forward", who might say "'Hang on a minute, I was left off the roll' or 'I've joined the - I've now joined'". He submitted that the returning officer was given the power by s 193 to add people to the roll at any time until the ballot papers were distributed.
100 It is true, to a certain extent, that there is nothing in the Rules expressly providing that the close of the roll marks the point where new voters cannot be added for the purpose of the election. The only reference to the close of the roll is the sentence at the end of r 96(e)(v), which reads: "The roll of voters for the ballot is to be closed 7 days before the day on which nominations for the election open". The Rules are silent as to the meaning, implications, or consequences of the close of the roll, perhaps because these matters were thought to be self-evident.
101 Rule 96(e)(v) appears to have been made in satisfaction of s 143 of the FW (RO) Act, which relevantly requires that:
(1) The rules of an organisation: …
(e) must provide that, where a ballot is required, it must be a secret ballot, and must make provision for:
(i) in relation to a direct voting system ballot (including a direct voting system ballot that is a stage of an election under a collegiate electoral system) - the day on which the roll of voters for the ballot is to be closed
…
(3) The day provided for in the rules of an organisation as the day on which the roll of voters is to be closed (see paragraph (1)(e)) must be a day no earlier than 30 days, and no later than 7 days, before the day on which nominations for the election open.
102 Accordingly, the meaning of the expression "roll of voters for the ballot is to be closed" in r 96(e)(v) is the same as the meaning of the expression in s 143(1)(e)(i). If the meanings were not the same, then that section would not be satisfied, and the Rules would be invalid. A construction of union rules that renders them valid is to be preferred to one that would render them invalid: Amalgamated Society of Engineers v Smith (1913) 16 CLR 537 at 566-7 (Isaacs J).
103 Like the Rules, the FW (RO) Act does not contain any explication of what is meant by the close of the roll. The meaning of the relevant words in s 143(1)(e)(i) must therefore be discerned from their text, context and purpose: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] (McHugh, Gummow, Kirby and Hayne JJ).
104 Before the enactment of the FW (RO) Act, unions and employer organisations were regulated under the Workplace Relations Act 1996 (Cth) (WR Act). Section 143 first appeared (in precisely the same terms) in a schedule to the WR Act, following the passage of the Workplace Relations Amendment (Registration and Accountability of Organisations) Act 2002 (Cth) (2002 Act). Until that time, the WR Act contained provisions for the conduct of elections by organisations, but the provisions were less detailed and did not include, at least expressly, a requirement for the close of the roll. The Explanatory Memorandum to the Bill explains (in para 5.12) that the clause that was to become s 143 "contains measures to prevent irregularities in elections, including a new requirement that the roll close at least 7 days (but no more than 30 days) before the opening of nominations for an election (subclause (3))". It was therefore the actual or apprehended occurrence of irregularities in elections that was the mischief this new requirement was intended to combat.
105 Section 143 does not appear to have had any direct statutory predecessor. But it was not created in a vacuum. The concept of a roll for an election closing is one that has existed for as long as elections have been conducted on the basis of electoral rolls, that is, since 1832, when in England and Wales the roll-based election was first introduced by the Representation of the People Act 1832, 2 & 3 Will IV, c 45 (1832 Act). Roll-based elections replaced an apparently cumbersome procedure whereby entitlement to vote was proved at the poll itself, by the production of land tax receipts (for it was then a property-based franchise): see G Orr, The Law of Politics (Federation Press, 2010) at 83; Rowe v Electoral Commissioner (2010) 243 CLR 1 at [12] (French CJ). The creation of a cut-off point before an election at which a voter's franchise was established was precisely the point of the roll system. It was designed to shorten the poll, prevent disorder and reduce expense: see C Seymour, Electoral Reform in England and Wales (Yale University Press, 1915) at 107. The 1832 Act referred to the list of voters as a "register", not a "roll", and there was no mention of it "closing", but the mechanism was the same. Lists of county and borough voters were to be produced by 31 July in an election year. Though a procedure was available after 31 July for the removal of names incorrectly added to the roll and the insertion of names incorrectly omitted, those corrections were determined on the basis of the person's entitlement to vote as at 31 July, not at the time of the correction: see Seymour at 109-14; 1832 Act, ss 37, 38, 41, 42, 46, 49.
106 As French CJ noted in Rowe (at [16]), at the time of Federation, elections in the Australian colonies operated on the basis of electoral rolls and the electoral laws "provided for closure of the Electoral Rolls to new enrolments or transfers prior to polling day". The laws to which his Honour referred had a mechanism of that nature but still did not speak in terms of closure of the rolls. That terminology appears to have been introduced in Australia in 1983, by amendment to the Commonwealth Electoral Act 1918 (Cth).
107 Among other things, the Commonwealth Electoral Legislation Amendment Act 1983 (Cth) repealed s 45 of the principal Act and inserted ss 43(4) and 61A. Section 45 had read:
Notwithstanding anything contained in either of the last two preceding sections -
(a) claims for enrolment or transfer of enrolment which are received by the Registrar after six o'clock in the afternoon of the day of the issue of the writ for an election shall not be registered until after the close of the polling at the election; and
(b) except by direction of the Divisional Returning Officer no name shall be removed from a Roll pursuant to a notification of transfer of enrolment received by the Registrar after six o'clock in the afternoon of the day of the issue of the writ for an election and before the close of the polling at the election.
108 Sections 43(4) and 61A respectively provided:
43. …
(4) A claim … by a person to have his name placed on the Roll for a Subdivision received during the period commencing at 6 o'clock in the afternoon of the day on which the Rolls for an election to be held in the Subdivision close and ending on the close of polling at the election shall not be considered until after the expiration of that period.
61A. The date fixed for the close of the Rolls shall be 7 days after the date of the writ.
109 Similar provisions are contained in the current version of the Commonwealth Electoral Act: ss 102(4) and 155. Current State and Territory electoral legislation also speaks in terms of "closure of the roll", with such closure having a similar effect: Electoral Act 1992 (ACT) s 80; Electoral Act 1985 (SA) ss 32B(2), 48; Electoral Act 2002 (Vic) ss 29, 63; Electoral Act 1907 (WA) ss 53, 69A.
110 Thus, the context in which s 143 of the WR Act was introduced was one in which the closure of an electoral roll had a clear and well established meaning in the field of electoral law. There is every reason to suppose that the words in s 143(1)(e)(i) and s 143(3) of the FW (RO) Act should be taken to have been used in that legal sense: see Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249.
111 Moreover, there is no indication in the text, context or purpose of the provisions that they should be taken in the way the National Executive contends. Such a reading would not even be consonant with the ordinary meaning of the words. A thing is "closed" if it is no longer open to alteration. That is true of a closed mind, a closed chapter in one's life, or a numerus clausus (meaning a closed or restricted number, for example, to places in educational institutions). If the National Executive were correct, and the closing of the roll were no more than a "starting point", then "closed" is an odd choice of word. The more natural term would be "produced", "prepared" or "established".
112 At one stage the National Executive sought to rely on s 143(6) of the FW (RO) Act, which states:
The rules providing for the day on which the roll of voters for a ballot is to be closed are not to be taken to prevent the correction of errors in the roll after that day.
113 But this provision is designed to correct error, for example by adding to the roll those who were entitled to vote as at 25 May but were left off the roll. Adding to the roll for a zone someone who was not allocated to that zone at the close of the roll would not be a "correction"; it would merely be an alteration. How could a roll that has closed be said to be "incorrect" because of a later change to a member's allocation?
114 The next proposition advanced on behalf of the National Executive was that s 193 empowered the returning officer to add people to the roll at any time until the ballot papers were distributed. That argument may be disposed of shortly.
115 Section 193 relevantly provides:
(1) If an electoral official is conducting an election, or taking a step in relation to an election, for an office or other position in an organisation, or branch of an organisation, the electoral official:
(a) subject to paragraph (b), must comply with the rules of the organisation or branch; and
(b) may, in spite of anything in the rules of the organisation or branch, take such action, and give such directions, as the electoral official considers necessary:
(i) to ensure that no irregularities occur in or in relation to the election; or
(ii) to remedy any procedural defects that appear to the electoral official to exist in the rules; or
(iii) to ensure the security of ballot papers and envelopes that are for use, or used, in the election.
116 I have already referred to the requirement in the Rules for the closure of the rolls and to what that entails. None of the items in sub-paragraph (b) entitles the returning officer to depart from the rules to add a person to a roll after the roll has closed. For the reasons already given, that would not prevent an irregularity or remedy a procedural defect; it would create one.
117 Nonetheless, the National Executive submitted that "[d]irections under s 193 can include directions to update the roll" and that "[s]upplementary rolls are commonplace in union elections and will be prepared to ensure that members get an opportunity to vote". In the absence of evidence to support it, a submission of this nature is unhelpful. In any case, even if I were to accept that supplementary rolls are commonplace, that does not mean that they commonly include people who were ineligible to vote at the time the rolls closed. Furthermore, even if they did, that would not prove that the directions were lawful.
118 In its written submissions on the point I was referred to three cases. None of these cases provided any support for the National Executive's position.
119 The first was In the matter of an application by Pullen for an inquiry into elections in the Federated Liquor and Allied Industries Employees Union of Australia (NSW Branch) (1990) 98 ALR 699; [1990] FCA 471. There, Gray J mentioned the preparation of supplementary rolls to include members who were left off the first roll provided to the AEC. But the members added by the supplementary rolls demonstrated their qualifications to vote in the elections as at the same cut-off date as the members on the first roll. The supplementary rolls were therefore a true case of "correction" of the roll, not alteration of it.
120 The second was Re Application for an Inquiry into an Election for Office in the Transport Workers' Union of Australia, Western Australian Branch [1990] FCA 113, a decision of Lee J. This case concerned a number of irregularities in relation to an election, including the submission of forged ballot papers by some members and the failure to provide other members with ballot papers at all. While a submission was made that the roll of members was inaccurate, no evidence was called to support the submission (see [23]) and the judgment makes no reference to a supplementary roll.
121 The third was Lovell v Federated Liquor and Allied Industries Employees' Union of Australia (1978) 35 FLR 72. This was a case about the validity of union rules purporting to set qualifying periods for offices in the union. It says nothing about electoral rolls, the composition of, or alteration to them, or the production of supplementary rolls.
122 In its written submissions, the National Executive also advanced the narrower submission that the date the roll closed was simply irrelevant for the purpose of determining whether a member was eligible to be nominated for election. According to the National Executive, eligibility to nominate was determined by the member's status at the date nominations closed. It submitted that the rules regarding nomination are silent about the "settlement" of any roll; rather, to be eligible to nominate as a workplace delegate in a particular zone it was only necessary to show that you were a financial member (r 96(c)) and a member of the relevant zone at the time of the nomination (relying on r 96(e)(ii)).
123 I accept that union rules are required to be construed "broadly and liberally", rather than "technically or narrowly": the TWU case at 253 (French J). Nevertheless, I do not accept that a financial member of the AFPA is entitled to nominate as a candidate in a zone election if he or she is a member of the relevant zone at the time of the nomination but was not on, or eligible to be on, the roll of voters for a ballot for elections in that zone when the roll closed.
124 Rule 96(e)(i) requires the Returning Officer to call for nominations from "eligible members of the Zone". Rule 96(e)(ii) requires that the nominators be financial members of the same zone. While the rules do not expressly provide for the time eligibility to nominate (or be nominated) is to be determined, r 96(e)(v) stipulates that the roll of voters for the ballot must close seven days before the day on which nominations are open. The plain intention is that only those members who were members of the zone at the time the roll closed could stand as, or nominate a candidate for, election. There is no reason to suppose that, whereas the voters in a particular zone are fixed as at the date the roll closes, a different (and later) cut-off date applies to nominees and nominators for positions in that zone, who, after all, are required by the rules to be members of the same zone as the voters. Indeed, there is every reason to think otherwise.
125 The register of voters provided on 26 May, reflecting the allocation of the members to zones at the time the roll closed, was the roll on which the elections were to be conducted. The zone to which a member was allocated at that date was the zone in which he or she could vote, nominate and be nominated. If, for example, a member were transferred to a different zone after 25 May because it transpired that the allocated zone did not reflect the member's ultimate destination in the AFP's restructure, that transfer could have no effect on the zone in which the member could nominate, be nominated, or vote in the election. Importantly, too, the Rules required that the number of delegates' positions be based on the number of financial members in each zone at 25 May.