Gaudron J. has outlined the circumstances and the statutory framework in which the question arose whether a use of union resources to promote a ticket in a union election amounts to an "irregularity in or in connexion with an election" within the meaning of that term in Pt IX of the Conciliation and Arbitration Act 1904 Cth. In Reg. v Gray; Ex parte Marsh - [1989] HCA 42 - HCA 1989 case summary

High Court of Australia|1989-07-01|Before: McHugh JJ, Deane JJ, Gaudron J, As Gaudron J, Gray J

High Court of Australia Brennan, Deane, Toohey, Gaudron and McHugh JJ. Re Collins; Ex parte Hockings [1989] HCA 42

ORDER Order nisi for certiorari, mandamus and prohibition discharged.

Gaudron J. has outlined the circumstances and the statutory framework in which the question arose whether a use of union resources to promote a ticket in a union election amounts to an "irregularity in or in connexion with an election" within the meaning of that term in Pt IX of the Conciliation and Arbitration Act 1904 Cth. In Reg. v Gray; Ex parte Marsh [1] , Gibbs C.J. said:

The notion of an irregularity, in relation to an election, involves the idea of some departure from some rule, established practice or generally accepted principle governing the conduct of the election. (Emphasis added.) As appears from that judgment and its reference to Evans v Crichton-Browne [2] , an irregularity is not "in or in connexion with an election" if the irregularity consists merely in the steps taken to affect voting intention but leaves untouched the processes of nomination, conduct and declaration of the poll. This is such a case. 1. (1985) 157 C.L.R., at p. 368. 2. (1981) 147 C.L.R. 169.

As Gaudron J. points out, if an irregularity which affects merely the formation of voting intentions were capable of amounting to an "irregularity in or in connexion with an election", an inquiry into the effect of the irregularity on the result of the election would involve a very substantial intrusion into the secrecy of the ballot. For these reasons we agree that the view taken by Gray J. in setting aside the subpoenas was correct.

As the order made by Gray J. setting aside the subpoenas was correct in law, there is no occasion to consider whether mandamus under s. 75(v) of the Constitution or certiorari might have been granted had the order been infected by legal error.

We agree with Gaudron J. that the order nisi should be discharged and we agree substantially with her Honour's reasons for reaching this decision. We wish to add a few observations, lest the actual decision be thought to foreclose matters which it necessarily leaves open.

A starting point must be the definition of irregularity in s. 4(1) of the Conciliation and Arbitration Act 1904 Cth ("the Act"), now repealed. There is no reason why the use of a comma after the words "breach of the rules of an organization or of a branch of an organization" should be discarded or thought to serve no purpose in the construction of the definition: see the discussion in Pearce and Geddes, Statutory Interpretation in Australia, 3rd ed. (1988), par. 4.37. It is said that Sir Roger Casement was hanged by a comma. Nothing so drastic follows from paying regard to the comma in the legislation now before the Court. Rather, in a definition which does not purport to be exhaustive, one can see why "a breach of the rules" should be placed in a different category to "act, omission or other means", a phrase which clearly requires some substantial qualification to be meaningful in the context of the Act. The structure of the definition of irregularity in s. 4(1) of the Industrial Relations Act 1988 Cth puts the matter beyond doubt for that statute.

While any breach of the rules of an organization may constitute an irregularity in terms of the definition, not any breach will give rise to an "irregularity in or in connection with [an] election", the phrase used in Pt IX of the Act: see ss. 159(1), 160(1)(a), 165(1). In Reg. v Gray; Ex parte Marsh [3] Gibbs C.J. noted: "The notion of an irregularity, in relation to an election, involves the idea of some departure from some rule, established practice or generally accepted principle governing the conduct of the election." That is because the Court is concerned, under Pt IX of the Act, with an irregularity in or in connexion with an election; it is not that "irregularity" is itself so circumscribed. Furthermore, the Court is constrained, by s. 165(4), from declaring an election void unless of the opinion that "having regard to the irregularity found, and any circumstances giving rise to a likelihood that similar irregularities may have occurred or may occur, the result of the election may have been affected, or may be affected, by irregularities". Conduct which constitutes a breach of the rules of an organization but which goes no further than supporting the candidature of members of a particular "team" amounts to an irregularity but it does not give rise to an irregularity in or in connexion with an election because it does not involve a departure from some rule, practice or principle governing the conduct of the election.

While the objections to any intrusion into the secrecy of a ballot of the members of an organization are obvious, this is not a yardstick by which to measure whether conduct amounts to an irregularity in or in connexion with an election; nor is it a yardstick by which to determine the operation of s. 165(4) of the Act. It is conceivable that, in a particular case, conduct said to have hindered the full and free recording of votes by certain members of an organization cannot be assessed without some inquiry into the votes cast by those members: see, for instance, Re Amalgamated Metals Foundry and Shipwrights Union; Ex parte Adamson [4] . In cases of alleged bribery or coercion it may be unnecessary to go so far; it may be enough that conduct aimed at bribing or coercing union members took place, especially if on a large scale.

But we would wish to leave open, until the occasion arises, the question whether, in order to determine whether there has been an irregularity in connexion with an election for office in an organization, an inquiry may ever be made into votes cast by particular members of the organization.

This is the return of an order nisi for writs of prohibition, mandamus and certiorari directed to a judge of the Federal Court of Australia (Gray J.). The order nisi was granted following the making of an order setting aside two subpoenas and parts of a third subpoena in an inquiry into a union election pursuant to s. 161 of the Conciliation and Arbitration Act 1904 Cth ("the Act"). The Act was repealed by the Industrial Relations (Consequential Provisions) Act 1988 Cth with effect from 1 March 1989 but, by s. 55(2) of that Act, the proceedings are to be treated as if instituted under s. 218 of the Industrial Relations Act 1988 Cth. It is necessary to recount the relevant facts.

The prosecutor, Mr. Hockings, was an unsuccessful candidate for the office of Branch Organizer in an election for offices in the Victorian Branch of the Building Workers' Industrial Union of Australia ("the B.W.I.U."). It appears that, save for one independent candidate, the candidates fell into two separate groups. One group was identified as the "B.W.I.U. Official Leadership Team"; the other was identified as the "B.W.I.U. Reform Group". Mr. Hockings was a member of the latter group.

After the election Mr. Hockings claimed that there had been irregularities in or in connexion with the election and applied for an inquiry into the matter pursuant to s. 159 of the Act. Pursuant to s. 160 of the Act, the Industrial Registrar granted his application and referred the matter to the Federal Court. One of the claimed irregularities was identified in the points of claim filed in the Federal Court in this way:

The B.W.I.U. improperly used officials, staff, offices and union resources in support of the B.W.I.U. Official Leadership Team where these were denied or would be denied to the B.W.I.U. Reform Group candidates.

From the particulars given in the points of claim and from further and better particulars later provided on behalf of Mr. Hockings it appears that the claimed irregularity is, in essence, that B.W.I.U. officials actively advocated the election of those candidates who were members of the B.W.I.U. Official Leadership Team, that B.W.I.U. funds and resources were used to promote and publicise advocacy in support of those candidates and that like assistance was not provided, and would have been denied, to the opposing candidates.

The subpoenas, so far as they were set aside, required the production of documents which were relevant only to the claimed use of B.W.I.U. personnel and resources. On the return of notices of motion to set aside the subpoenas Gray J. held that the claimed use of personnel and resources was incapable of constituting an irregularity as defined in s. 4(1) of the Act.

The prosecutor no longer seeks an order for prohibition, but seeks an order for mandamus directing that the notices of motion to set aside the subpoenas and the application referred by the Industrial Registrar be heard and determined according to law. As ancillary thereto, he seeks an order for certiorari quashing the order setting aside the subpoenas.

There is considerable difficulty in the notion that the setting aside of the subpoenas amounts to a refusal to exercise jurisdiction which will ground the grant of mandamus. However, taken in the context of ss. 159 and 160, s. 161 of the Act confers jurisdiction on the Federal Court to inquire whether there has been an irregularity in or in connexion with an election in respect of which an application under s. 159 has been referred to the Court by the Industrial Registrar. If the claimed use of union personnel and resources is capable of constituting an irregularity the ground upon which the subpoenas were set aside amounts to a prospective refusal to inquire into a claimed irregularity. The claim for mandamus may be considered on this basis.

Section 4(1) of the Act defined "irregularity" as follows:

"Irregularity", in relation to an election or ballot, includes a breach of the rules of an organization or of a branch of an organization, and any act, omission or other means whereby the full and free recording of votes by all persons entitled to record votes, and by no other persons, or a correct ascertainment or declaration of the results of the voting is, or is attempted to be, prevented or hindered.

The matters complained of by the prosecutor are said to constitute an irregularity on the basis that they constitute a breach of the rules. In particular, it was accepted that those matters neither hindered nor prevented "the full and free recording of votes", for those words, as used in the definition, refer to the processes involved in obtaining, marking and returning a ballot paper and not the process by which a voter decides for whom to vote: Reg. v Gray; Ex parte Marsh [5] . That being so, the matters complained of cannot constitute an irregularity within the ordinary meaning of that word (which meaning is not excluded by the definition) for, as was said by Gibbs C.J. in Ex parte Marsh [6] , "[t]he notion of an irregularity, in relation to an election, involves the idea of some departure from some rule, established practice or generally accepted principle governing the conduct of the election".

(1985) 157 C.L.R. 351. 2. (1985) 157 C.L.R., at p. 368.

The prosecutor's argument involves two propositions. The first is that the matters complained of are capable of constituting a breach of the rules of the B.W.I.U. or of the Victorian Branch of the B.W.I.U. The second is that, notwithstanding that the matters complained of were capable only of influencing voters in reaching a decision for whom to vote, they are capable of constituting an irregularity as defined in s. 4(1) of the Act. To that end it was argued that the words "breach of the rules" in the definition are not qualified by the words "whereby the full and free recording of votes is, or is attempted to be, prevented or hindered."

It was not disputed by the B.W.I.U. and the successful candidates who appeared in opposition to the grant of mandamus and certiorari that, even in the absence of a specific rule, the use of union resources or funds to support a candidate or candidates in an election when the resources or funds are or would be denied to an opposing candidate or opposing candidates may constitute a breach of a prohibition implicit in the rules. See Re Penhallurick [7] ; Scott v Jess [8] ; Tanner v Maynes [9] ; Darroch v Tanner [10] . The issue for decision is thus confined to the question whether the matters complained of are capable of constituting an irregularity as defined.

(1983) 51 A.L.R. 589. 2. (1984) 3 F.C.R. 263. 3. (1985) 7 F.C.R. 432. 4. (1987) 16 F.C.R. 368.

The punctuation in the definition of irregularity in s. 4(1) of the Act certainly suggests that the qualifying words in the last part of the definition apply only to the words "any act, omission or other means". The changed format and punctuation in the definition of irregularity in s. 4(1) of the Industrial Relations Act make it clear that in that definition the words "a breach of the rules of an organisation or branch of an organisation" are unqualified by anything that follows. Even so, not every breach of union rules is capable of constituting an "irregularity in or in connection with [an] election", as that expression is used in s. 159(1) and s. 160(1)(a)(i) of the Act, that being the subject matter of an inquiry instituted under s. 161 of the Act. For example, there may be no election in progress or in prospect. And, it may be that the breach of some union rules could not in any way bear upon an election within that union. Accordingly, it is necessary to ascertain from the Act as a whole whether the expression "irregularity in or in connection with an election" encompasses those activities, commonly referred to as electioneering, by which candidates or persons acting in their interests seek, by their advocacy or by promoting or publicising such advocacy, to influence voters in reaching a decision for whom to vote.

The Act contains no definition of the word "election". The definition of "irregularity" contains the expression "in relation to an election or ballot", thereby reflecting the different provisions of the Act requiring elections (ss. 133 and 133A) and ballots (s. 158K) and also suggesting that "election" is used in a wider sense than the holding and declaration of a ballot. That wider meaning of the word "election" was discussed in Hodge v The King [11] . In that case the word "election", in the particular statutory setting there considered, was said to refer to "the whole proceeding from the first step taken to the day of the return of the candidates " (per Griffith C.J. [12] ), "the whole process of an election" (per Barton J. [13] ) and to "a continuous process, consisting of a number of steps ending in the election of some representatives" (per Isaacs J. [14] ). However, the fact that the word "election" may, and perhaps ordinarily does, encompass the various formal steps from the calling of an election through to the declaration of the results provides no basis for saying that it encompasses those activities involved in electioneering.

(1907) 5 C.L.R. 373. 2. (1907) 5 C.L.R., at p. 379. 3. (1907) 5 C.L.R., at p. 383. 4. (1907) 5 C.L.R., at p. 387.

Certain provisions of the Act suggest that the word "election", when used in the Act, is used in a sense which does not encompass the activities involved in electioneering. Section 165A provides that, where an order has been made by the Federal Court for a new election, arrangements shall be made "for the conduct of the new election by an Australian Electoral Officer or a member of the staff of the Australian Electoral Commission". Similarly, s. 170(5) provides that, following a request in accordance with that section, "the Industrial Registrar or Deputy Industrial Registrar may conduct the election or may make arrangements with the Electoral Commissioner for the conduct of the election by an Australian Electoral Officer or a member of the staff of the Australian Electoral Commission". These provisions, in speaking of "the conduct of [an] election", contemplate the machinery processes or the formal steps involved in the holding of an election. Within this context it may be noted that s. 170(1) speaks of a request "that an election be conducted under this section with a view to ensuring that no irregularity occurs in or in connection with the election", thus suggesting that, bribery, intimidation and coercion aside, irregularities are directly associated with the machinery processes or formal steps involved in an election.

Significantly, s. 165(4) limits the powers of the Court in an inquiry pursuant to s. 161 of the Act by providing:

The Court shall not declare an election, or any step taken in or in connection with an election, to be void, or declare that a person was not elected, unless the Court is of opinion that, having regard to the irregularity found, and any circumstances giving rise to a likelihood that similar irregularities may have occurred or may occur, the result of the election may have been affected, or may be affected, by irregularities.

The sub-section recognizes that an act or omission constituting an irregularity may be such that, ex post facto, it can be seen that it has not or will not affect the election result. But, it also impliedly recognizes that an irregularity is constituted by an act or omission which has a tendency to affect an election result and the impact or likely impact of which can be ascertained in the course of an inquiry. Assuming that it is possible to ascertain whether or not advocacy in favour of a particular candidate or particular candidates had a causative influence on the voting decisions of electors or some of them, the question whether there was an impact or likely impact on the election result could only be ascertained by a very substantial intrusion into the secrecy of the ballot. The Act, in ss. 133 and 133AA, contained detailed provisions for secret ballots in union elections, and, in my view, there is nothing to be found in the Act permitting of an inference that an inquiry might be conducted so as to require an elector to disclose for whom he or she voted or for whom he or she would have voted but for the advocacy which led to his or her decision. Unless such could be done, an inquiry into matters of electioneering would, at least in the ordinary course of events, be an inquiry lacking any purpose relevant to the orders which may be made by the Federal Court in consequence of a finding that there was an irregularity in or in connexion with the election. For this reason, I conclude that the expression "irregularity in or in connection with an election", as used in the Act, does not encompass those activities by which candidates or persons acting in their interests seek, by their advocacy or by promoting or publicising such advocacy, to influence voters in their decision for whom to vote. Accordingly, the matters complained of are not capable of constituting an irregularity in or in connexion with an election.

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