Hodge v The King

1. The name of the Applicant is amended to "Electoral Commissioner".
2. Pursuant to s 206(4)(c)(ii) of the FW(RO) Act, the Registered Organisations Commissioner is directed to make arrangements for the following steps in the election to be taken again: (a) the provision by the Australian Electoral Commission (AEC) to the South Australian Branch of the AEU of a proposed timetable for the close of the roll of voters and the nomination and voting period; (b) the preparation and submission to the AEC of the roll of voters for the election; (c) issuing of an election notice inviting members of the South Australian Branch of the AEU to nominate for the office of Branch Executive Officer (Female) in the South Australian Branch of the AEU; (d) the processing of nominations; and (e) if there is more than one nomination, the conduct of a secret postal ballot by the AEC in accordance with rr 48(14) and 52 of the Federal Branch Rules for the South Australian Branch of the AEU.
3. Pursuant to s 206(4)(d) of the FW(RO) Act, within five business days of this order: (a) the South Australian Branch of the AEU is to publish these orders on its website; and (b) the Electoral Commissioner is to notify the nominees in the election of these orders.
4. The Inquiry is otherwise terminated. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

WHITE J: 1 Between May and July 2018, the Electoral Commissioner (the Commissioner) conducted an election to fill a casual vacancy in a position of Branch Executive Officer in the South Australian Branch of the Australian Education Union (the AEU). The Rules of the AEU relating to the SA Branch had the effect that that position had to be filled by a female. 2 The Commissioner received two nominations for the position. These were from Ms Clark and Ms Mincham-Trowbridge. Following the conduct of a ballot, the Commissioner declared, on 6 July 2018, that Ms Clark was the successful candidate. 3 On receiving the declaration of the ballot, Ms York, who is the Secretary of the South Australian Branch of the AEU, raised with the Commissioner a concern about the number of persons who had voted in the election as it seemed that more members had voted in the election than had had an entitlement to do so. 4 Subsequently, on 17 August 2018, the Commissioner filed an application under s 200 of the Fair Work (Registered Organisations) Act 2009 (Cth) (the FW(RO) Act) for an inquiry into alleged irregularities in the election. 5 On 18 September 2018, the Court made an order, pursuant to Pt 3 of the FW(RO) Act for an inquiry. Orders were made for the AEU to be a party to the inquiry and, further, for the participation by the two candidates in the inquiry, if they wished. The AEU did participate in the inquiry but neither of the two candidates chose to do so. 6 Following the completion of the inquiry, I am satisfied that there was an irregularity in the election in that several persons, who had no entitlement to vote, had done so; that there is a real possibility that the outcome of the election was thereby affected; and that there should be a new ballot. My reasons for these conclusions follow.

Background matters 7 The AEU is an organisation registered under the FW(RO) Act. Its rules are governed by Ch 5 of that Act. Appendix A of its rules contain the Federal Branch Rules for the South Australian Branch. 8 Clause 1 of the South Australian Branch Rules provides for members of the AEU to be assigned to one or other of two divisions: the General Division or the TAFE Division. It also provides for the assignment of certain members to two sub-divisions within the General Division. Those members who are employed pursuant the Children's Services Act 1985 (SA) are assigned to the Children's Services Sub-Division (CS Sub-D). Those School Services Officers who are employed pursuant to the School Services Officers Award are assigned to the School Services Officer Sub-Division (SSO Sub-D). 9 Clause 7 provides that the Branch Executive be comprised of four office holders, one member elected by and from each of the SSO Sub-D, the CS Sub-D, the TAFe Division, one Aboriginal or Torres Strait Islander member and 12 Branch Executive Officers. Clause 7(5) provides that the 12 Branch Executive Officers shall include at least six women. 10 Clause 48(5), (6) and (7) provide that the SSO member, the CS member and the TAFE member be elected by and from financial members of the SSO Sub-D, the CS Sub-D and the TAFE Division, respectively. 11 Clause 48(8) provides: The 12 Branch Executive Officers shall be elected by and from financial members of the General Division other than members in the CS Sub-Division and the SSO Sub-Division. (Emphasis added) 12 The effect of these clauses is that members in the SSO Sub-D, members in the CS Sub-D and TAFE members are not eligible to vote for the election of Branch Executive Officers. 13 Clause 48(15) has the effect (relevantly) that, when a casual vacancy in a position of Branch Executive Officer arises and the unexpired term of office of the position to be filled exceeds three-quarters of the term, an election must be conducted to fill the position.

Arrangements for the election 14 On 11 April 2018, Ms York wrote to the Registered Organisations Commissioner (the ROC) informing him that an election was required for "One Female Ordinary Branch Executive Officer". By s 189(3) of the FW(RO) Act, the ROC arranged for the Commissioner to conduct the election. 15 On 7 May 2018, the officer within the Commission appointed as Returning Officer wrote to Ms York informing her of the timetable for the election and providing certain other information. The letter stated that: The Roll of Voters for the above election will be those members who are eligible to vote on 14/06/2018. 16 The Returning Officer then made the following request: As Returning Officer conducting elections for your Organisation, I request you supply the following listings of members of the AEU - South Australian Branch by the dates that are specified. The officer identified the listings of members which she sought as follows: Name and member information (identified below), of every member who was financial at 8 May 2018 in accordance with the rules of the Organisation. 17 Ms York responded on 9 May 2018, stating (relevantly): I certify that the accompanying listing submitted electronically contains the name and member information of every member who was financial as at 8 May 2018 in accordance with the rules of the organisation. I further declare that the register of members has been maintained as required by Section 230(2) of the [FW(RO) Act]. The total number of eligible members listed is 13,005. I confirm that the above listing is to be treated "in confidence" for [the] purposes of this particular election only and is not for general distribution pursuant to Regulation 131 of the Regulations under [FW(RO) Act]. 18 The listing provided by Ms York showed the Division or Subdivision to which each member was assigned.

The conduct of the ballot 19 When the Returning Officer issued the ballot papers for the election, she did so to all of the AEU members on the listing. She did not exclude members in the CS and SSO Sub-Ds nor the members in the TAFE Division. 20 The evidence indicates (and I find) that 278 members in the CS and SSO Sub-Ds returned ballot papers which were included in the scrutiny for the election. It also indicates that 40 members in the TAFE Division returned ballot papers which were included in the scrutiny for the election. That is to say, 318 persons, who had no entitlement to do so, voted in the election. These 318 votes comprised about 34% of all votes cast in the election. 21 The Returning Officer's declaration of the results of the ballot on 6 July 2018 stated (relevantly): Total number of persons on the roll of voters 12,956 Total ballot papers issued 12,956 Ballot papers/envelopes returned for scrutiny 958 Ballot papers rejected at preliminary scrutiny 13 Total ballot papers 945

Ms Clark 477 votes Ms Mincham-Trowbridge 365 votes Total votes 842 Informal ballot papers 103

22 As a result, the Returning Officer declared Ms Clark elected.

The inquiry 23 As previously noted, the Commissioner applied for the inquiry under s 200 of the FW(RO) Act. Section 200 provides (relevantly): 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. Note: This section relates only to elections for office. It does not apply to elections for positions other than offices (which can also be conducted under Part 2). 24 Neither the Commissioner's application nor the supporting affidavit indicated whether the application was made under subs (2) or subs (3). 25 Section 206 of the FW(RO) Act governs the conduct of the inquiry by the Court. By subs (1), the Court "must 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". 26 The Court is to determine factual questions on the balance of probabilities (subs (2)). 27 Section 206(4) provides for the Court's powers should it find that an irregularity has occurred. (4) If the Court finds that an irregularity has happened, the Court may, subject to subsection (5), make one or more of the following orders: (a) an order declaring the election, or any step in relation to the election, to be void; (b) an order declaring a person purporting to have been elected not to have been elected, and declaring another person to have been elected; (c) an order directing the Commissioner to make arrangements: … (ii) in the case of a completed election - for a step in relation to the election (including the calling for nominations) to be taken again or a new election to be held; 28 Section 206(5) provides: The Court must not declare an election, or any step taken in relation to an election, to be void, or declare that a person was not elected, unless the Court is of the opinion that, having regard to the irregularity found, and any circumstances giving rise to a likelihood that similar irregularities may have happened or may happen, the result of the election may have been affected, or may be affected, by irregularities. 29 The term "irregularity" is defined in s 6 of the FW(RO) Act to include: 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. 30 The term "election" in s 200(2) and (3) is not defined. It was common ground, however, that the term is not confined to the ballot itself and that it encompasses all of the steps taken in preparation for the ballot: Hodge v The King (on the relation of O'Sullivan) (1907) 5 CLR 373 at 379, 383, 387.

Consideration 31 In my opinion, there is no difficulty in concluding that an irregularity occurred in relation to the election of the Branch Executive Officer. That is because the issue of ballot papers to persons who were not entitled to vote, and the inclusion in the scrutiny of votes from those persons, constituted a breach of the Rules of the South Australian Branch of the AEU. More specifically, there was a breach of r 48(8) of the Rules of the South Australian Branch of the AEU because the casual vacancy was not filled by a person "elected by and from financial members of the General Division other than members in the CS Sub-Division and the SSO Sub-Division". 32 Counsel for the AEU submitted that each of the acts of the Returning Officer in sending ballot papers to AEU members who were not entitled to vote, and in recording the votes cast by 318 ineligible persons constituted an act by means of which the full and free recording of votes by persons entitled to record votes and only those persons was prevented, in the manner contemplated by subpara (b)(i) of the definition of "irregularity". He also submitted that the fact that 318 ineligible persons cast votes was an act by means of which the full and free recording of votes by all persons entitled to record votes, and by only those persons, was hindered. In support of this submission, counsel referred to Kelly v Amalgamated Metal Workers' and Shipwrights Union (1981) 56 FLR 124. In that case, Sheppard J held in respect of the analogue of the current definition of "irregularity" contained in s 4(1) of the Conciliation and Arbitration Act 1904 (Cth) that "the following of the proper procedure, including the giving of proper notice, the nominating candidates is fundamental to there being a full and free recording of votes", at 146. Later, Sheppard J said: If nominations were not called in accordance with the relevant regulations and the union's rules, there could be no full and free recording of votes. 33 As, in my view, it is plain that there was a breach of the rules of the AEU in relation to the election, it is not necessary for the disposition of the inquiry to determine whether the inclusion of votes in the ballot from persons who were not eligible to vote was "an act … by means of which the full and free recording of votes by all persons entitled to record votes and by no other persons" was prevented or hindered. It is preferable to reserve consideration of that question until it arises directly for consideration. 34 Counsel for the AEU submitted that the inclusion of 318 ineligible votes meant that there was a real and not merely theoretical possibility that the result of the election was affected by the irregularity. 35 In my opinion, the conclusion that the result of the election may have been affected by the identified irregularity is inescapable. Some 318 persons voted who were ineligible to vote. The margin between Ms Clark and Ms Mincham-Trowbridge was only 112 votes. It cannot reasonably be concluded that the 318 votes could not have been cast in such a way as to have eliminated altogether the margin between Ms Clark and Ms Mincham-Trowbridge. 36 Accordingly, I am satisfied that it is appropriate for the Court to make an order pursuant to s 206(4)(a) declaring the election to be void. 37 The Court should also order a new election to be held. 38 Counsel for the Commissioner submitted that, as there was no irregularity in the nomination process, it would be open to the Court to declare void only the steps taken by the Returning Officer after the acceptance of nominations and then to direct the ROC to make arrangements for a new postal ballot on the same nominations. 39 I do not consider it appropriate to accede to that submission. The Court should adopt the course which seems most beneficial to the AEU and its members having regard to the statutory object of providing for the democratic functioning and control of organisations: Electoral Commissioner, in the matter of an Inquiry Relating to Elections for Offices in the Australian Federal Police Association Branch of the Police Federation of Australia [2016] FCA 469 at [151] (Katzmann J). Two considerations indicate that object will be best achieved by having the new election conducted with fresh nominations. 40 First, the Court has not been provided with any information as to whether Ms Clark and Ms Mincham-Trowbridge will wish to be a candidate in the new election. I do not consider that it should be assumed that they will wish to do so. Some seven months have now elapsed since they nominated and it may well be that their interest in standing, or their personal circumstances, have changed in the interim. If either or both decide not to stand again, difficulties, with consequential delays are likely to occur. 41 Secondly, the day on which nominations are opened is an integer in the determination of the electorate entitled to vote in the election. That is the effect of r 52(1A) of the South Australian Branch Rules: The roll of voters for any election to be conducted pursuant to these rules is to be closed seven days before the day on which nominations are opened in relation to all elections by a direct voting system for offices in the Branch. 42 Accordingly, if the Court acceded to the Commissioner's suggestion, the franchise would be limited to those persons who were eligible at 8 May 2018. Allowing for the time which may elapse before the new election is held, that will be a date approximately eight months before the date of the election. In my view, it is preferable for the new election to be conducted by reference to a current franchise. That is more consistent with the democratic functioning of the AEU.

Conclusion 43 For the reasons stated above, I am satisfied that there was an irregularity in relation to the election, and that the election should be declared void. There will be an order for the conduct of a new election together with consequential orders. The inquiry is otherwise terminated. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White.