Health Services Union of Australia and the Health Services Union of Australia no 1 Branch, in the matter of an Inquiry Relating to an Election for an Office [2000] FCA 160

3 The concern of the AEC is that the judgment of Ryan J, viewed with his Honour's reasons, could be taken to indicate that if a direction is given by a returning officer under s 215(1)(b) of the Act which had, as a direct result, an election not being conducted within a time frame prescribed by the rules of the affected organisation, an application particularising as an irregularity that fact alone enlivens the Court's jurisdiction under Division 5 of Part IX of the Act. 4 The submissions of the returning officer assume that the applications of both Elliott and Gillespie raise for consideration the bare question of whether an irregularity arose from the direction of the returning officer, contained in a letter of 20 May 1999, to "postpone the election". The direction was made under s 215(1)(b)(i). It is apparent from an earlier letter of the returning officer that this comprehended not calling for nominations on 1 June 1999 nor taking any subsequent steps in the election. It is not entirely clear from the material before us when and by what means a roll of voters would be prepared for the 1999 elections or whether it had been prepared or commenced to be prepared by 20 May 1999. 5 It may be accepted that the application of Elliott only raises the bare question of whether an irregularity arose from the returning officer's direction "postpon(ing) the election". However, the application of Gillespie is not limited in this way. Regulation 62 of the Workplace Relations Regulations 1996 (Cth) ("the Regulations") requires an application to be in accordance with Form 4. Form 4, in terms, requires an applicant to identify particulars of the alleged irregularities. The application of Gillespie generally accords with that form. The particulars provided are: "PARTICULARS OF ALLEGED IRREGULARITIES Elections Due But Deferred Unnecessarily 1. The Rules of the Union [Rule 29(e)(i)] and the Branch [Rule 51(e)(i) require that nominations for elections be made between the 1st day of June and the last Friday in June. 2. There is an Inquiry into the 1997 election being conducted by this Honourable Court in matter VG 46 of 1998. The person who requested the Inquiry has alleged that the roll of electors included persons who were ineligible to vote on the grounds that they were unfinancial within the meaning of the Rules. It is alleged that payment of subscriptions by way of direct bank account debit is not provided for in the rules and that persons who pay their subscriptions by that method are not financial and therefore any votes cast by them are invalid. It is further and alternatively alleged that some members may have commenced payment by bank account debit more than 13 weeks after their payments by way of payroll deduction were stopped. Therefore by the operation of Rule 10(a) and (b) any votes cast by them would be invalid. 3. The application for an inquiry was filed on 16th February 1998 and served on the Union and the Branch. The inquiry is not completed and the Branch claims that the need to check which, if any, members fall into the class of persons deemed unfinancial by the operation of Rule 10(a) will take it at least another two months. 4. The returning officer appointed by the Australian Electoral Commission has declined to allow nominations to be called for the elections of the officers listed in this application whilst the election inquiry VG 48 of 1998 is continuing. 5. Despite having known since February 1998 of the possibility that the electoral roll may be defective the Union and the Branch have taken no steps to amend the rules or other action to ensure that the electoral roll is representative of persons entitled to vote. 6. This failure by the Union and the Branch is the direct cause of the breach of the Rules occasioned by the failure to call for nominations for the offices listed in this application on the dates required by the Rules. 7. As a consequence of this failure the elections for important office bearers of the Union and the Branch have not been held in accordance with the requirements of the rules." 6 The particulars refer to an allegation, in paragraph 2, that deficiencies exist in a roll prepared for the 1997 election. They also refer to the fact, in paragraphs 1 and 4, that nominations in the 1998 election should be made or occur between 1 June and the last Friday in June and that the returning officer has postponed the calling of nominations. They also refer to the failure of the Union or Branch to take steps to amend the rules or take other action to ensure that the electoral roll is representative of persons entitled to vote. 7 Even accepting that the giving of the direction of the returning officer postponing the election in exercise of the powers conferred by s 215(1)(b)(i) could, of itself, not be an irregularity, it does not follow that the application of Gillespie does not particularise conduct which, arguably, constitutes an irregularity in relation to an election. If the roll prepared for the 1997 election was defective and no steps have been taken by the HSUA or the branch to remedy the defects then that may lead to a situation where it would be necessary to rely, in whole or in part, on that defective roll to conduct the 1999 elections. The existence of the defective roll and the non-existence, at present, of an order of the Court or direction of the returning officer (assuming power to give such a direction) to overcome the defects may arguably be an irregularity. Thus the application of Gillespie raises, in the particulars, the existence, actual or potential, of the defective roll as an arguable irregularity which founds the Court's jurisdiction to embark on the inquiry. It is not apparent that the learned primary Judge's conclusion that he had jurisdiction at least to undertake the inquiry instituted by Gillespie (V 540 of 1999) is attended by sufficient doubt to warrant the grant of leave. 8 Moreover we do not see how any material prejudice is occasioned to any party by refusing leave to appeal. As the inquiry instituted by Gillespie effectively subsumes the issue sought to be raised by Elliott's application, no substantial injustice arises by virtue of Ryan J continuing to deal with V 528 of 1999 and V 540 of 1999 simultaneously. More generally it is not apparent that Ryan J will conduct the two inquiries to which these applications for leave relate together with the earlier inquiry in a way which will unjustly burden the parties to them. 9 We would refuse leave to appeal. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Moore & Marshall.

KIEFEL J: 10 On 23 and 27 September 1999 respectively, Mr Elliott and Mr Gillespie filed applications for an inquiry into the election of officers in the Health Services Union of Australia and its Victorian (No 1) Branch pursuant to s 218 Workplace Relations Act 1996 (Cth) ("the WRA"). The elections were due to be held in 1999 and nominations were to open on 1 June of that year pursuant to the rules of the union. A dispute had earlier arisen concerning the eligibility of persons to participate in the 1997 election, because of the cessation of the practice of direct deduction and payment to the union of dues. That dispute will be resolved in other proceedings (No. VG 46 of 1998). The outcome of it will most likely provide the basis for determining candidature or eligibility to vote in the following elections. With that in mind, the Australian Electoral Commission ("the Commission") advised that it had decided to postpone both sets of elections in 1999 pending that determination. 11 Sections 218 and 219 WRA provide: "SECTION 218 APPLICATION FOR INQUIRY 218 Where 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 Court into the matter. SECTION 219 INSTITUTING OF INQUIRY 219 Where: (a) an application for an inquiry has been lodged with the Court under section 218; and (b) the Court is satisfied that there is reasonable ground for the application; the Court shall 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 shall be taken to have been instituted." 12 Section 223(1) further provides: "223(1) [Inquiry into irregularity] At an inquiry, the Court shall inquire into and determine the question whether an irregularity has happened in relation to the election, and such further questions concerning the conduct and results of the election as the Court considers necessary." 13 It is also necessary to refer to s.223(5): "223(5) [Termination of inquiry] Without limiting the power of the Court to terminate a proceeding before it, the Court may, at any time after it begins an inquiry into an election, terminate the inquiry or the inquiry to the extent that it relates to specified matters." 14 The holding of an inquiry was not a point reached in the present case. Each of the two applications referred to above contained a part entitled "Particulars of Alleged Irregularities", following the form for such an application. Much of what appears is a narrative or a matter of complaint. The only "irregularity" which may clearly be identified in each case is that, contrary to the union rules, nominations were not called by the date fixed, because of the decision of the Commission or the returning officer. Mr. Gillespie's application also speaks of failures on the part of the union to take steps to ensure the roll reflected those persons entitled to vote, but it is not entirely clear what is meant by these particulars. I shall refer to this again below. 15 Section 4(1) defines "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." 16 When the matter first came before his Honour the primary Judge, the question as to whether the Court had jurisdiction to entertain the applications was raised and his Honour ordered that it be determined as a preliminary question. It would appear that the Commission was made a party to the proceedings. It is the Commission who made the submissions on the application for leave to appeal and on the appeal, though some clarification was sought from the appellants of their position. No other party sought to make submissions to the contrary, beyond adopting his Honour's reasons as correct. 17 Before his Honour, the Commission relied upon s 215(1) and (2) of the WRA which provide: "215(1) [Duties of electoral official] Where an electoral official is conducting an election, or taking a step in relation to an election, for an office in, or in a branch of, an organisation, the electoral official: (a) subject to paragraph (b), shall 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. 215(2) [Election not invalid] An election conducted by an electoral official, or step taken in relation to such an election, is not invalid merely because of a breach of the rules of the organisation or branch because of: (a) action taken under subsection (1); or (b) an act done in compliance with a direction under subsection (1)." 18 It was contended that, notwithstanding the union rules, the returning officer had power to postpone the election to avoid an irregularity occurring. The Commission's submission was that the returning officer acted pursuant to s.215(1)(b)(i). There was, on this argument, no irregularity which had occurred in connection with the election. Any breach of the rules could not be relied upon as an irregularity, as it was authorised by the section and could not have the effect of invalidating the election (see Re Carter; Federated Clerks Union of Australia, Vic (No 1) (1989) 32 IR 1, 4). It was not sought to challenge the making of the decision as invalid. His Honour, however, held that the jurisdiction of the Court to proceed to an inquiry into an election depends, "not on the existence of an irregularity, but on a claim by a qualified applicant that there has been an irregularity and on the Court's being satisfied, at the time of fixing the time and place for the conduct of the inquiry, that there is reasonable ground for the application". His Honour went on to point out that the Court is not confined to inquiring into, and determining, the existence of the irregularity alleged and that it would not be without jurisdiction at the point where it determined that the inquiry should be terminated under s 223(5). His Honour said: "By virtue of s 223(1) of the Act, the Court, once it is seized of an inquiry, is required to "inquire into and determine the question whether an irregularity has happened in relation to the election" (emphasis added). It is significant that the Court is not confined to inquiring into and determining the existence of the irregularity alleged by the applicant. If the Court, at any stage, concludes that there is no basis for finding that a particular irregularity has occurred, it can give expression to that conclusion, as Gray J did in Re Carter (No 1) (supra) in relation to the departure from the timetable laid down by the rules for the conduct of the election. In those circumstances, the Court will, if there are no other arguable irregularities, terminate the inquiry pursuant to s 223(5) of the Act which provides: 'Without limiting the power of the Court to terminate a proceeding before it, the Court may, at any time after it begins an inquiry into an election, terminate the inquiry or the inquiry to the extent that it relates to specified matters.' However, the attainment of satisfaction that a particular irregularity has not occurred, even if that be the sole irregularity claimed by the applicant, does not entail that the Court has acted without jurisdiction. In the present inquiries, even if (as I doubt), the irregularities to which the applicants have pointed are confined to the deferral or postponement of elections which should have been held in July 1999, it is arguable that there is an anterior or underlying irregularity to which the returning officer has pointed as justifying his decision not to conduct the elections in accordance with the rules. That is the uncertainty which the returning officer perceives will attend any attempt by him to strike a roll of voters comprising all members of the Victorian Branches of the HSUA entitled to vote and no members of those branches who are disqualified from voting because they are unfinancial". 19 His Honour later went on: "In the present case, what I have referred to as the arguable anterior, or underlying, irregularities constituted by the inability of the returning officer to strike a satisfactory roll of voters and the deferral for more than five months and continuing of the relevant elections are irregularities as defined in s 4(1) of the Act." 20 His Honour concluded: "It is true that action has been taken in good faith by the returning officer to minimise the adverse consequences of one of the apparent irregularities to which I have drawn attention, namely the unsatisfactory state of any roll of voters which can be struck at present. However, as I perceive it, that action cannot be regarded as eliminating the irregularity. Rather, it seems to involve a choice by the returning officer of what he has regarded as the lesser of two evils, the deferral of the election rather than conducting it in circumstances in which a sustainable challenge could almost certainly be mounted to the roll of voters. In taking that course, what is arguably a different irregularity, the deferral of the election well beyond the dates ascertainable pursuant to rule 29(e), has been brought into existence. The fact that an electoral official is empowered by s 215(1) of the Act to take action to ensure that no irregularities occur and can do so "in spite of anything in the rules of the organisation," cannot, in my view, preclude the exercise by this Court of jurisdiction to inquire into whether an irregularity has in fact happened. "Irregularity" in the sense used in the Act is not confined to a breach of the rules of the organisation. Moreover, action taken by an electoral official does not conclusively eliminate all irregularities. All it does by force of s.215(2) is preserve the election from invalidity "merely because of a breach of the rules of the organisation" because of action taken by the electoral official or an act done in compliance with his or her directions." 21 I have earlier referred to the Commission taking the position, effectively, of appellant. It is the Commission which is concerned that his Honour's reasons stand as a de facto adjudication upon the competency of the decision to postpone the elections, that not being an issue which was or could have been raised before his Honour. In the Commission's submission, that action was taken to prevent an irregularity occurring, namely errors in the identification of those eligible to participate, absent guidance from the determination of VG 46 of 1998. The appellant adopted those submissions. 22 The Commission's concerns are relevant to the question whether leave to appeal should be given. Its expressed concern is that the effect of his Honour's order is to have an inquiry into the returning officer's authorised decision, and to read down the provisions of s.215. The appellant and the Commission also submitted, in connexion with the grant of leave, that they would be put to the expense of a further two inquiries, but whilst I was unable to come to a firm view about what additional time and cost was likely to be involved, given that VG 46 of 1998 seems likely to determine the principal questions, I was left unconvinced that substantial injustice in those respects was likely to result if leave were refused. That is not, however, the only basis upon which I consider leave should be refused. 23 The principal reason why I consider leave should not be granted to appeal his Honour's decision is that the application proceeds upon a misunderstanding. In my view, his Honour did not make a determination or finding about the decision made by the returning officer. In the first paragraph of the conclusion set out above, his Honour was not attacking the decision of the returning officer as correct or valid; nor is the second paragraph concerned to read down the operation of s 215(1). His Honour was, in my view, giving full effect to a decision under s 215(1) but considered that it did not provide the answer to what might ultimately be found to be the relevant irregularity, namely an irregularity which was in existence or arose before the decision was made. If such an irregularity existed then s 215 would not operate to correct it. The irregularity adverted to by his Honour was that which brought about the decision - the officer not being able to determine eligibility in a way likely to be accurate. That state of affairs, or the cause of it, was the irregularity. The irregularity pointed to was not the mistake which the decision sought to avoid. 24 His Honour did not conclude the question whether there was an irregularity which antedated the returning officer's decision. That question remains to be determined. It is of some relevance also that the inquiry may be terminated under s 223(5) at any time, if the question is able to be determined at an earlier point. The irregularity does not appear to me to have been identified with precision. It was not clear whether his Honour considered that some possible antecedent irregularity was to be found in the reference to the union's actions or inactions in Mr Gillespie's application. One observation by his Honour suggests this might be the case. His Honour also appears to have been of the view that an irregularity might later be identified in the inquiry. If that was his Honour's approach to the preliminary questions of jurisdiction, I could not, respectfully, agree. In my view the inquiry process had not commenced and the question for his Honour was whether there was an irregularity which could found the basis for an inquiry. It may well be that his Honour considered that its precise identification was not however necessary at this point because all that was required was that there be shown to be reasonable grounds for the application (s 219(b)). The jurisdictional question did not require a determination, as a matter of law, as to whether any action or inaction came within the definition of "irregularity". In any event these matters were not ventilated on the application for leave, since the Commission's perception was that the irregularity of which his Honour spoke was in the returning officer's decision which, as I have said, seems to me to have been mistaken. 25 I would refuse leave to appeal. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.

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