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[2012] FCA 1165
Federal Court of Australia
2012-10-25
Toohey J, Flick J
Original judgment source is linked above.
Re Nimmo [2011] FCA 38 at [28], 192 FCR 111, applied Re Post; Re Election for Offices in Transport Workers Union of Australia Western Australian Branch (1992) 40 IR 162, applied
Date of hearing: 5 October 2012
Place: Sydney (via video link to Melbourne)
Division: FAIR WORK DIVISION
Category: Catchwords
Number of paragraphs: 41
Counsel for the Applicant: Mr H Borenstein SC
Solicitor for the Applicant: Maurice Blackburn Lawyers
Counsel for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing, and Allied Services Union of Australia: Mr R C Kenzie QC with Mr T J Dixon and Mr A Searle
Solicitor for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing, and Allied Services Union of Australia: NEW Law Pty Ltd
Counsel for Mr A Hicks: Mr W L Friend SC
IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY FAIR WORK DIVISION NSD 2159 of 2011
Gray, in the matter of an application for an inquiry relating TO an election for an office in the communications, electrical, electronic, energy, INFORMATION, postal, plumbing, and allied services union of australia, electrical, energy and services division TROY GRAY
JUDGE: FLICK J DATE OF ORDER: 25 OCTOBER 2012 WHERE MADE: SYDNEY (VIA VIDEO LINK TO MELBOURNE)
IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY FAIR WORK DIVISION NSD 2159 of 2011
Gray, in the matter of an application for an inquiry relating TO an election for an office in the communications, electrical, electronic, energy, INFORMATION, postal, plumbing, and allied services union of australia, electrical, energy and services division TROY GRAY
JUDGE: FLICK J DATE: 25 OCTOBER 2012 PLACE: SYDNEY (VIA VIDEO LINK TO MELBOURNE)
REASONS FOR JUDGMENT 1 The Applicant in the present proceeding, Mr Troy Gray, is a member of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia ("the Federal Union"). He is currently the Branch Assistant Secretary of the Victorian Branch of the Electrical, Energy, and Services Division ("the Electrical Division") of the Federal Union. The Federal Union is comprised of that Division, as well as the Plumbing Division and the Communications Division. 2 This application is concerned with an election for two national offices in the Electrical Division of the Federal Union which is a registered organisation under the Fair Work (Registered Organisations) Act 2009 (Cth) (the Registered Organisations Act). Within the Electrical Division there are divisional branches established in the States of New South Wales, Victoria, Queensland, Western Australia, South Australia and Tasmania. In addition, there are a series of autonomous State unions that are registered pursuant to the industrial relations legislation of their respective states. The Federal Union, the Electrical Division of the Federal Union, the New South Wales Branch of the Electrical Division, and the Electrical Trade Union of Australia, New South Wales Branch ("the State Union") presumably all operate according to rules peculiar to their respective organisations. 3 On 1 December 2011 Mr Gray filed in this Court an Originating Application for an inquiry relating to an election pursuant to s 200 of the Registered Organisations Act. He seeks an inquiry into an election held in the period July-September 2011. In very summary form he alleges that there were "irregularities" in the conduct of that election by reason of the inclusion of two groups of people on the roll of eligible voters whom he contends are not entitled to vote, namely: 1. members of the Electrical Division in New South Wales who paid their contributions to the Electrical Trades Union of Australia, New South Wales Branch (the State Union) and not to the Federal Union; and 2. members of the Electrical Division who are "life members" or "honorary members" who are no longer employed in the industry over which the Federal Union has coverage and who pay no contributions. The only rules which were before the Court were: the rules of the Federal Union; the rules of the Electrical Division of the Federal Union; and the rules of the New South Wales Branch of the Electrical Division. The "irregularities" that Mr Gray asserts centre upon a consideration of the rules of the Electrical Division of the Federal Union, in particular rr 5.2.6, 5.5.5 and 5.8. The application is supported by two Affidavits affirmed by Mr Gray. 4 The present application follows upon an earlier proceeding in which Mr Gray also sought a declaration that r 5.2.6 of the Rules of the Electrical Division was (inter alia) "oppressive, unjust or unreasonable". His Honour Justice Perram heard that application and ordered that the proceeding be "adjourned pursuant to s 163(5) of the Fair Work (Registered Organisations) Act 2009 (Cth) to permit the respondent to alter its rules so as to comply with s 142(1)(c) of that Act": Gray v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2012] FCA 380. An appeal from that decision was heard by a Full Court on 17 August 2012. The Full Court reserved its decision. The application presently before this Court has been stood over from time to time to await the final outcome of this other proceeding. Mr Gray now seeks to have his application for an inquiry into the election heard and resolved - notwithstanding the fact that the Full Court has not yet given judgment. 5 The present application is opposed by the Federal Union and by one of the successful candidates in the election, Mr Allen Hicks. Both the Federal Union and Mr Hicks were represented at the hearing on 5 October 2012. Mr Hicks adopted the submissions of the Federal Union. 6 It is concluded that "there are reasonable grounds for the application" for the purposes of s 201(b) of the Registered Organisations Act and that, accordingly, the Court must fix "a time and place for conducting the inquiry".
THE REGISTERED ORGANISATIONS ACT 7 Section 200 of the Registered Organisations Act identifies those persons who may make an application for an inquiry as follows: Application for inquiry When member of organisation may apply for inquiry (1) If a person who is, or within the preceding period of 12 months has been, a member of an organisation claims that there has been an irregularity in relation to an election for an office in the organisation or a branch of the organisation, the person may make an application for an inquiry by the Federal Court into the matter. When Electoral Commissioner must apply for an inquiry (2) If the Electoral Commissioner believes that the result of an election for an office has been affected by an irregularity in relation to the election, the Electoral Commissioner must make an application for an inquiry by the Federal Court into the matter. When Electoral Commissioner may apply for an inquiry (3) If the Electoral Commissioner believes that there has been an irregularity in relation to an election for an office, the Electoral Commissioner may make an application for an inquiry by the Federal Court into the matter. Section 6 defines an "irregularity" as follows: "irregularity", in relation to an election or ballot, includes: (a) a breach of the rules of an organisation or branch of an organisation; and (b) an act or omission by means of which: (i) the full and free recording of votes by all persons entitled to record votes and by no other persons; or (ii) a correct ascertainment or declaration of the results of the voting; is, or is attempted to be, prevented or hindered; and (c) a contravention of section 190. Section 201 sets forth the circumstances in which an inquiry is to be conducted and provides as follows: Instituting of inquiry Where: (a) an application for an inquiry has been lodged with the Federal Court under section 200; and (b) the Court is satisfied that there are reasonable grounds for the application; the Court must fix a time and place for conducting the inquiry, and may give such directions as it considers necessary to ensure that all persons who are or may be justly entitled to appear at the inquiry are notified of the time and place fixed and, where the Court fixes a time and place, the inquiry is taken to have been instituted. 8 These provisions were considered in Re Killesteyn [2009] FCA 1311, 261 ALR 730. The analysis there undertaken need not be repeated. It is sufficient for present purposes to note a number of the propositions there set forth, namely: the power conferred by s 201 is constrained by the requirement that the court be "satisfied that there are reasonable grounds for the application". Grounds which provide no more than a speculative basis for a suspicion will not suffice: Re Post; Re Election for Offices in Transport Workers Union of Australia Western Australian Branch (1992) 40 IR 162 at 166 per French J (as his Honour then was). His Honour there also concluded that the Court "will not be so satisfied if the grounds relied upon could not, even if made out, constitute 'an irregularity in relation to an election for an office in the organisation'"; to invoke this Court's jurisdiction and to conduct an inquiry is a "serious matter": Re Jarman; Ex parte Cook (No 2) (1996) 136 ALR 233 at 241 per Kirby J; and although it may be accepted that the holding of an inquiry is a "serious matter", the statutory precondition to the holding of such an inquiry has been set by the legislature at a "low" level: Bourne v Campbell [1999] FCA 1522 at [8], 93 IR 238 at 240 per Einfeld J. It may also be accepted that: the person who "claims there has been an irregularity in relation to an election" bears the onus of producing evidence to satisfy the Court that those "irregularities" have occurred: Re Nimmo [2011] FCA 38 at [28], 192 FCR 111 at 117-118 per Reeves J; Re Kelly (No 2) [2011] FCA 490 at [15]. None of these propositions were put in issue in the present application.
THE 2011 ELECTIONS 9 The elections which are the subject of the present application for an inquiry took place in mid-2011. 10 In June 2011 the Federal Union lodged an application with Fair Work Australia for the conduct of an election for the following offices within the Electrical Division: Divisional Secretary; and Divisional Assistant Secretary. Fair Work Australia was satisfied that such elections were required. Nominations opened in early July 2011 and closed one week later at which time there were two nominations for each position. 11 Voting for these two positions took place in August 2011. 12 In September 2011 the Australian Electoral Commission declared that: 56,652 ballot papers had been issued (including duplicates); and 26,948 ballot papers had been admitted to scrutiny. The Commission further declared that with respect to the position of Divisional Secretary: Mr Peter Tighe had received 14,573 votes; and Mr Howard Worthing had received 12,148 votes. For the position of Assistant Divisional Secretary: Mr Allen Hicks had received 14,687 votes; and Mr Greg Wilton had received 11,985 votes. Both Messrs Worthing and Wilton have written to the District Registrar of the Court indicating that they support Mr Gray's application but do not wish to appear in the proceeding. 13 In the first of his two Affidavits, Mr Gray maintains that the Annual Return of the Electrical Division of the Federal Union lodged with Fair Work Australia for the calendar year ended 2009 recorded membership of the Electrical Division as follows: New South Wales: 21,750; Victoria: 17,872; Queensland: 11,527; South Australia 4,141; Western Australia: 5,778; and Tasmania: 1,794. He further maintains that Financial Statements lodged by the New South Wales Branch of the Electrical Division do not record that Branch as receiving any income by way of membership fees and subscriptions. He apprehends that the Returning Officer treated members of the New South Wales Division as financial members by reason of r 5.2.6 of the Rules of the Electrical Division. 14 The second of Mr Gray's two Affidavits is more directed to his claim that life members and honorary members are not entitled to vote but were probably included on the roll of eligible voters. Although he acknowledges a discrepancy in membership numbers, the second Affidavit sets forth the following table of membership data: 2011 State Asserted total members as at 31 Dec 2011 Members on Electoral Roll as at 27 June 2011 Financial Members as per 31 Dec 2011 NSW 22231 17432 11614 VIC 18671 15353 15328 QLD 14705 12636 12,283 SA 3819 3189 3,211 WA Not provided 5892 Not provided TAS 1794 1622 Not provided
Mr Gray repeats his belief that "significant numbers of persons who were included in the electoral roll were not financial". He goes on to state his apprehension "that the difference arises by the application of the Divisional Rules and New South Wales Branch Rules relating to honorary and life members …".
ELECTIONS, FINANCIAL MEMBERS & RULE 5.2.6 15 Rules 5, 6, 9 and 15 of the Rules of the Electrical Division establish a scheme which provides that elections for the positions of Divisional Secretary and Assistant Divisional Secretary are to be held and that only "financial members" may vote in those elections. 16 Rule 5 addresses "Entrance Fees and Contributions". Within that rule, r 5.2.6 addresses those circumstances which arise where a member of the Electrical Division has paid fees or contributions to the State Union, namely the Electrical Trades Union of Australia, New South Wales Branch. Rule 5.2.6 provides as follows: Provided that any person who has paid contributions, subscriptions, fines, levies, fees or dues to the Electrical Trades Union of Australia, New South Wales Branch, an organisation of employees registered under the NSW Industrial Relations Act 1991 whether before or after its registration, shall be exempt from payments of contributions, subscriptions, fines, levies, or dues under these rules to the extent of his payment to the said trade and industrial Union in any year. 17 Although the Rules do not contain any definition of a "financial member", r 6 addresses "Unfinancial Members". Rule 6.1.2 thus provides as follows: Any member who fails to pay the entrance fees, or contributions, levies or fines imposed in accordance with the rules of the Union or this Division, shall be deemed to be unfinancial in accordance with the rules of this Division unless the default in payment arises through a banking or other technical or clerical error caused through no fault of the member. A member who becomes unfinancial for this reason will not be considered unfinancial for the time it takes to rectify the problem. Rule 6.2 provides as follows: Loss of benefits for Unfinancial Members Unfinancial members, whilst not relieved of the obligations of membership, shall not be entitled to any of the benefits and privileges of membership. 18 Rule 9 of the Rules of the Electrical Division address "Divisional Executive Officers". Rules 9.4 and 9.5 provide respectively for the establishment of the offices of Divisional Secretary and Assistant Divisional Secretary and that elections for the positions will be "by secret ballot of the whole of the financial members entitled to vote". 19 Rule 15 addresses "Elections". Rule 15.3.1 reiterates that the elections for the offices of Divisional Secretary and Assistant Divisional Secretary shall be "by secret ballot of the whole of the financial members entitled to vote". Rule 15.19.8 provides as follows: Every member of the division or branch as the case requires who is financial at the date 7 days before the opening of nominations shall be eligible to vote. 20 The written Outline of Submissions relied upon by Mr Gray refer to r 5.2.6 and contend that "Perram J has held that the rules are invalid in this respect with the result that NSW members are not relieved from the obligation to pay their contributions to the [Electrical Division]". That submission, with respect, significantly overstates the conclusion reached by Perram J. His Honour's conclusion was that, whilst the rule was "unjust" ([2012] FCA 380 at [53]), the proceeding should be adjourned "to give [the] organisation an opportunity to alter its rules": [2012] FCA 380 at [60]. 21 In reaching that conclusion, his Honour rejected an argument that r 5.2.6 contravened s 142(1)(a) of the Registered Organisations Act. A second argument was that r 5.2.6 imposed a "condition" which was "oppressive, unreasonable or unjust" and thereby contravened s 142(1)(c). In the course of resolving this argument, Perram J concluded that membership fees paid by those members in New South Wales were paid to the State Union and not the Federal Union and that such payment "discharged any obligation to pay the fee to the Federal NSW Branch, for this was the effect of r 5.2.6": at [51]. His Honour further noted that the Court was "not called on to grant any relief in respect of the finding that the members pay their dues to the State Union. It is … just a fact whose finding was necessary to resolve part of Mr Gray's claims": at [58]. His Honour referred to the "difficulty … that the Federal Union [had] proceeded on an erroneous understanding that it [had] received dues" and went on to observe: [59] On the other hand, the latter difficulty with r 5.2.6 does directly arise. Mr Kenzie QC argued that the difficulty contended for by Mr Gray may be solved in ways apart from invalidating that rule and in this he is, with respect, correct. The problem is not r 5.2.6 in isolation: it is the effect of r 5.2.6 when the plebiscite and Divisional Secretary and Assistant Secretary electoral provisions fail to exclude from voting persons who are exempt from paying dues. There are two possible solutions. The first is to abolish r 5.2.6, thereby bringing to an end the existence of that class of person. The second is to amend the rules to prevent persons exempted by r 5.2.6 from voting in a plebiscite or in the election of the Divisional Secretary or Assistant Secretary. Put another way, the problem may be resolved by ensuring either that those who vote pay or, alternatively, that those who do not pay do not vote. Mr Kenzie QC's point is that the Federal Division should be given the chance to make this choice. Although the written Outline of Submissions may thus overstate the conclusion in fact reached by Perram J, there nevertheless remains a legitimate concern as to whether those members who took advantage of r 5.2.6 were nevertheless "financial members" of the Electrical Division of the Federal Union and hence entitled to vote in the 2011 elections. 22 Given the opportunity extended by Perram J in adjourning the proceeding before him "to give [the] organisation an opportunity to alter its rules", it is understandable that the present application was deferred pending the outcome of that litigation. Notwithstanding his Honour's findings, a legitimate question nevertheless remains as to whether all of those members who may have voted in the 2011 elections were "financial members" for the purposes of the Rules. 23 For the purposes of s 201(b) the Court has reached a state of satisfaction that "there are reasonable grounds for the application…". "The eligibility of persons to vote", it has been said, "is not a merely formal matter": Re Conciliation and Arbitration Act 1904; Re An Application By Glenn William Ferguson of An Inquiry Into An Election In The Australasian Meat Industry Employees Union, Western Australian Branch (unreported, Toohey J, 10 July 1986).
LIFE AND HONORARY MEMBERSHIP 24 Separate from any claim founded upon members who were not "financial members" possibly having voted in the 2011 elections, Mr Gray also relied upon an "irregularity" said to have arisen by reason of the inclusion of "life members" or "honorary members" on the roll of eligible voters. The written submissions filed on behalf of Mr Gray contend that these members are what is there referred to as "the second ineligible group". 25 Although submissions were advanced by other interested parties opposing the application that this alternative claim was raised belatedly, if the claim has any substance it should nevertheless be considered. 26 Rule 4 of the Rules of the Electrical Division deals with "Membership". Within r 5, which otherwise deals with "Entrance Fees and Contributions", rr 5.5.5 and 5.8 address "Life Membership" and "Honorary Membership". Rule 5.5.5 provides as follows: Life Membership shall be the highest honour the Union can confer on a member for services rendered. Life membership may only be conferred by the Divisional Council either on its own motion or on recommendation by the Divisional Executive or a Divisional Branch Executive or Divisional Branch State Council or Divisional Branch Conference. A member on whom life membership is conferred and who has retired from gainful employment shall not be required to pay contributions and shall be entitled to all the benefits of membership. Rule 5.8 addresses "Honorary Membership" as follows: 5.8.1 When a financial member reaches the age of fifty-five (55) years, and ceases to work in industry or is forced to permanently retire through ill health or accident before reaching fifty-five (55) years, he or she shall be eligible to apply to have his or her name retained on the records of the Division as an honorary member. Upon honorary membership being granted, he or she shall be entitled to all the rights of membership. 5.8.2 A Divisional Branch State Council may determine that Honorary Members pay an amount of fees or contributions in order that all the rights of membership are provided to Honorary Members including access to union distress and mortality benefits, discount purchasing services, affiliations and lobbying and the supply of union journals. Rules 5.5.5 and 5.8.1, Mr Gray expressly submits, embrace people who have "retired from gainful employment" or who have "cease[d] to work". Rule 10 of the Rules of the New South Wales Branch of the Electrical Division substantially replicates the exemptions in rr 5.5.5 and 5.8.1 of the Federal Electrical Division Rules. 27 Mr Gray nevertheless submits that neither "honorary members" nor "life members" are entitled to vote for either of two reasons. 28 First, it is submitted that s 171A of the Registered Organisations Act has the effect that a person's membership ceases if he is no longer an "employee". Section 171A provides in relevant part as follows: Cessation of membership if member is not an employee etc. (1) If a person is a member of an organisation and the person is not, or is no longer: … (b) if the organisation is an association of employees--a person of a kind mentioned in paragraph 18B(3)(a), (b), (c) or (d); or … the person's membership of the organisation immediately ceases. … Section 18B of the Registered Organisations Act provides in relevant part as follows: Federally registrable employee associations … (3) An association of employees is not federally registrable if it has a member who is not one of the following: (a) an employee; (b) a person specified in subsection (4); … (4) The persons specified for the purpose of paragraph (3)(b) are persons (other than employees) who: (a) are, or are able to become, members of an industrial organisation of employees within the meaning of the Industrial Relations Act 1996 of New South Wales; or (b) are employees for the purposes of the Industrial Relations Act 1999 of Queensland; or (c) are employees for the purposes of the Industrial Relations Act 1979 of Western Australia; or (d) are employees for the purposes of the Industrial and Employee Relations Act 1994 of South Australia. … Section 171A, when enacted in 2009, "… had the effect of imposing on all organisations a statutory 'purging rule'": Australian Education Union v General Manager of Fair Work Australia [2012] HCA 19 at [14], 86 ALJR 595 at 602 per French CJ, Crennan and Kiefel JJ. The Revised Explanatory Memorandum for the Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 at [800] stated that the intended legislative effect of the provision was to terminate "a person's membership of a registered organisation if the person is not or is no longer a person of a kind mentioned in" s 18B(3)(b). 29 Alternatively, Mr Gray submits that rr 5.5.5 and 5.7 contravene s 142(1)(c) of the Registered Organisations Act in that they impose on members conditions that are oppressive, unreasonable or unjust by allowing large numbers of persons who no longer work in the industry to vote in elections. 30 Neither submission relied upon by Mr Gray in respect to "life members" or "honorary members" is accepted. 31 As to the first of these submissions, as a factual matter, it is unknown how many members in New South Wales are either "life members" or "honorary members". The only indication of any percentage of members who may fall into those categories is that which can be gleaned from the Committee of Management Operating Report for 2010 provided by the Queensland and Northern Territory Divisional Branch. That report discloses a total membership of 13,720 with 1,034 "Honorary and Life members". 32 But within New South Wales, Senior Counsel on behalf of the Federal Union submitted that whatever the number of "life members" and "honorary members" who voted, such members are nevertheless entitled to vote. Those members are said to be "captured by s 18B(4)(a)". Clearly enough, s 18B(4) distinguishes between "persons" in New South Wales on the one hand and those in Queensland, Western Australia and South Australia. Section 18B(4)(a) refers to "persons … who are, or are able to become, members of an industrial organisation of employees within the meaning of the Industrial Relations Act 1996 of New South Wales …". Section 18B(4)(b), (c) and (d), by way of contrast, refer to "employees for the purposes of" the relevant State industrial relations legislation of Queensland, Western Australia and South Australia. For the purposes of s 18B(4)(a), Senior Counsel on behalf of the Federal Union then relied upon s 260(1) of the Industrial Relations Act 1996 (NSW) which provides as follows: An employee who is eligible to become a member of a State organisation of employees under the rules of the organisation that relate to the relevant industry in which members are to be employed is entitled: (a) to be admitted as a member of the organisation, and (b) to remain a member so long as the employee complies with the rules of the organisation and remains eligible to be a member under those rules. In reliance on this provision, it was submitted that members who were previously "employees" but who had ceased to be employed in the industry were nevertheless entitled "to remain a member" of the Federal Union (and thus, the Electrical Division) as a "life member" or as an "honorary member". Mr Gray did not explore the question of whether, for the purposes of s 260, "the rules of the organisation" (namely the rules of the State Union), recognised life or honorary members. He did not seek to adduce or rely upon any provision of (or absence of any provision in) the rules of the State Union which may have denied any entitlement to vote to "life members" or "honorary members". Whether they could or could not vote was, in short, a matter of "speculation". The onus remained on Mr Gray to provide the factual basis upon which the Court could be satisfied that there may have been an "irregularity". That factual basis, at the end of the day, was not established. 33 Focussing upon the remaining States, Senior Counsel on behalf of the Federal Union submitted that the Court would not be satisfied that the numbers of people who may have been ineligible to vote in Victoria (15,353 members on the roll of eligible voters less the 15,328 financial members of the Branch, ie. 25 persons); Queensland (12,636 members on the roll of eligible voters less 12,283 financial members of the Branch, ie. 353 persons); and South Australia (3,189 members on the roll of eligible voters less 3,211 financial members of the Branch, ie. negative 22 persons) could not have affected the result of the elections for the position of either Divisional Secretary or Assistant Divisional Secretary given the respective margins in each case. Whilst the Court must consider whether any alleged "irregularity" affected the result of an election before declaring an election void (s 206(5)); that consideration may also be taken into account when forming a state of satisfaction for the purposes of s 201(b) that there "are reasonable grounds for the application …". If there are no prospects that the alleged "irregularity" has affected the outcome of an election, the Court could not be satisfied that an application is brought on "reasonable grounds". 34 The alternative claim advanced on behalf of Mr Gray is that "the rules of the [Electrical Division] offend s 142(c) of the [Registered Organisations] Act by allowing life members or honorary members who are no longer in the industry of the union, to participate in the election of officers of the union". Why that should be so was not further developed in oral submissions. 35 For the purposes of s 201(b) of the Registered Organisations Act no state of satisfaction can be reached that any "irregularity" has occurred by reason of "life members" or "honorary members" possibly having voted. With respect to members in New South Wales, no state of satisfaction can be reached that any "life members" or "honorary members" who have voted were not entitled to vote; and any "life members" or "honorary members" who may have voted in the other States were not sufficient in number to have affected the outcome. In the absence of any substantive submission in support of the claimed contravention of s 142(c) of the Registered Organisations Act, the requisite state of satisfaction cannot be reached in respect to that argument.
THE COURT MUST FIX A TIME AND PLACE 36 Section 201 of the Registered Organisations Act permits no discretion to the Court to not "fix a time and place for conducting [an] inquiry" where a state of satisfaction has been reached that "there are reasonable grounds for the application …". 37 But s 201 does not expressly address when the inquiry is to be conducted. The duty imposed upon the Court to "fix a time and place for conducting [an] inquiry" cannot be subverted by fixing a "time and place" so far in the future as to be tantamount to a refusal to discharge that duty. Nor can the duty be subverted by not "fixing" any "time and place". Subject to the need to discharge the duty imposed, the "time and place for conducting [an] inquiry" is otherwise left to Court to determine. 38 Although it may be accepted that it is a "serious matter" for a Court to order that an inquiry is to be conducted, it may equally be accepted that: elections are to be conducted in the manner provided for in the rules of the relevant organisation, those rules providing for the "democratic process" whereby those who hold office are selected by the members qualified to vote; and where there is outstanding a prospect that those rules may be altered, whether pursuant to an order of the Court or otherwise, the Court may await any such alteration or revision (at least for a reasonable period of time). In fixing the "time and place" for an inquiry it is further concluded that the Court may take into account: the cost and expense to be incurred in conducting an "inquiry"; and also the length of the term of office for which a person has been elected - an inquiry could thus (for example) not be deferred until after the term of appointment has expired and thereby deny to an applicant for an inquiry any realistic or practical relief. In the circumstances of the present case, it may also take into account: the time between the filing of the application by Mr Gray in December 2011 and the date upon which he ultimately sought to have that application heard. These factors, obviously enough, are not exhaustive. Each application is to be resolved by reference it its own facts and circumstances.
CONCLUSIONS 39 For the purposes of s 201(b) of the Registered Organisations Act it is thus concluded that there are "reasonable grounds" for being "satisfied" that an irregularity may have occurred in respect to members who are not "financial" having voted in the elections. 40 A "time and place" for an "inquiry" must accordingly be fixed. Appropriate "directions", it is further concluded, should also be given to ensure the "inquiry" is brought to the attention of those who may wish to participate. Those directions need not address the Federal Union or Mr Hicks as both had participated in the hearing set to ascertain whether there was sufficient basis for bringing the present application. 41 The "fixing" of the time and place for the inquiry, it is considered, can be deferred for a limited time to permit an opportunity to the Full Court to give judgment in the appeal from the decision of Perram J. If there is an unexpected delay in the Full Court's decision, the Applicant and other persons with a sufficient interest should be given liberty to have the present proceeding re-listed to seek that a certain date be fixed for the inquiry.
THE ORDERS OF THE COURT ARE: 1. A copy of the application filed on 1 December 2011, together with the affidavits (and annexures) of Mr Troy Gray affirmed on 29 November 2011 and 18 September 2012 are to be served upon: (a) the Australian Electoral Commission; (b) the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing, and Allied Services Union of Australia, Electrical, Energy and Services Division; (c) the NSW Branch of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing, and Allied Services Union of Australia, Electrical, Energy and Services Division; (d) Mr Peter Tighe; (e) Mr Howard Worthing; and (f) Mr Greg Wilton. 2. A copy of these orders, together with the reasons for decision delivered on 25 October 2012, are to be served upon those persons and entities identified in order 1, on or before midday on 1 November 2012. 3. The proceeding is stood over to 9 November 2012 at 9.30 am for directions and to fix a time and place for conducting an inquiry. 4. Liberty to have the present proceeding relisted on 48 hours' notice in writing is reserved to: (a) Mr Troy Gray; (b) the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing, and Allied Services Union of Australia; (c) Mr Allen Hicks; and (d) any of the persons to be served in accordance with Order 1. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.
[2012] HCA 19
(1996) 136 ALR 233
(1992) 40 IR 162