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[1984] FCA 380
Federal Court of Australia
1984-11-02
Gray J
Original judgment source is linked above.
Industrial law ~- registered organisations - inquiry into election
relied on constitute an irregularity - misleading of voters.
Conciiiation and Arbitration Act 1904 s. 1°5., ©. i118C., 5s. 4., s. 137 AA
Re Applications by ©" Dowd and Zuilivan fer Inquiraes inte an
Court of Australia, Gray J., ¢th Sertember 1934, unreported
State of Victoria v. Australian Building Construction Empiocyecs'
and Builders Labourers' Federation (19827) 41 A.L.R. 71
Re Federated Liquor and Allied Industries Employees' Union of
Re Australian Postal and Telecommunications Union; ex parte
Pe Federated Clerks Union of Australia, Re Callaghan (1964) 6
Fe Election tor Offace in Australian Institute of Marine and
Consandine v. Strathfield Municipal Council (1981) 44 L.G.R.A.
Re ADAMSON : APPLICATION FOR INQUIRY INTO AN ELECTION LN THE
IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N.S.W. No. 28 of 1984 INDUSTRIAL DIVISION
AND IN THE MATTER of an Application by ROBERT McCOLL
ADAMSON for an Inquiry into an Election for an Office in the
JUDGE MAKING ORDER: GRAY J. DATE OF ORDER: 2ND NOVEMBER 1984
IN _THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N.S.W. No. 28 of 1984
IN THE MATTER OF the Conciliation and Arbitration Act, 1904
AND IN THE MATTER of an Application by ROBERT McCOLL ADAMSON for an Inquiry into an Election for an Office in the AMALGAMATED METALS FOUNDRY & SHIPWRIGHTS UNION
Between 23rd January and 17th February 1984, a ballot was conducted for the election of one person to hold the office of National Organiser-Division 4, within the Amalgamated Metals Foundry and Shipwrights Union ("the Organisation"). The candidates were Robert McColl Adamson and Charles Karoly Bali. The election was conducted by an officer of the Australian
Electoral Commission pursuant to a request made under s. 170 of
the Conciliation and Arbitration Act 1904 ("the Act"). Upon the
declaration of the ballot, Mr. Bali was the successful candidate.
Before the result of the ballot was declared, Mr. Adamson filed with the Industrial Registrar a purported application pursuant to Part IX of the Act, for an inquiry into the election. The Industrial Registrar purported to refer that application to the Court on 27th February 1984. It became matter N.S.W. No. 7 of 1984 in the Court. Thereafter, various documents were filed, and various interlocutory steps were taken, upon the footing that an inquiry had been instituted, or was deemed to
have been instituted, pursuant to s. 159(4)(a) of the Act.
In particular, subpoenas were issued, directed to Mr. Bali, and to one Ralph Benson Marsh, calling upon them to produce documents. Each of Mr. Bali and Mr. Marsh applied to the Court by notice of motion to set aside the subpoena directed to hir, and to seek to have the purported inquiry terminated, on the basis that no reasonable ground existed for the application. Argument was heard on these matters, and the Court reserved its
It then came to the attention of the Court, and the parties, that the statutory declaration which accompanied that application to the Industrial Registrar had been made pursuant to the Oaths Act 1900, an Act of the Parliament of New South Wales. Doubt arose as to whether this was a sufficient compliance with the requirement of s. 159(2)(d) of the Act that an application "be accompanied by a statutory declaration". This doubt was
subsequently confirmed by the decision in Re Applications by
O'Dowd and Sullivan for Inquiries into an Election in the
Commonwealth Bank Officers' Association, Federal Court of
Australia, Gray J., 4th September 1984, unreported.
On 30th August 1984, a further application was lodged with the Industrial Registrar. It was referred to the Court by him on 5th September 1984, and forms the basis of the present inquiry. Counsel for Mr. Bali argued that this new application was lodged with the Industrial Registrar outside the relevant limitation period laid down by s. 159(5) of the Act. This argument was rejected ina judgment delivered on 5th October
New subpoenas have been issued and served on Mr. Bali and Mr. Marsh, bearing the number of the present matter. A notice of motion dated 17th September 1984 has been filed in the present matter. It seeks the determination of a preliminary question whether the facts relied on by the Applicant constitute an irregularity within the meaning of the Act, a determination that there 1s no reasonable ground for the application for an
inquiry, and the setting aside of the subpoena directed to Mr.
On 23rd October 1984, after hearing the parties, I formally dismissed the purported application in matter N.5.W. No. 7 of 1984, for reasons similar to those given in the O'Dowd and Sullivan case, referred to above. By consent of the parties, I made the following orders in the present matter, which are
similar to those purportedly made in matter N.S.W. No. 7 of 1984:
' - 4- irregularities occurred in the election for the position of National Organiser-Division 4 in the Amalgamated Metals Foundry & Shipwrights Union, the results of which were declared on or about lst March 1984: (i) Four ballot papers in South Australia and two ballot papers in Western Australia were wrongly rejected by the Returning Officer on the basis that the number on the rear of the envelope addressed to the Returning Officer containing the ballot papers could not be read whereas the numbers could be read. (ii) One completed ballot paper in New South Wales was wrongly rejected by the Returning Officer on the basis that 1t was returned to the Returning Officer in an envelope which contained another ballot paper which was unmarked. (1ii) Eight ballot papers in New South Wales, two ballot papers in Victoria, three ballot papers in Queensland and two ballot papers in Western Australia were wrongly rejected by the Returning Officer on the basis that a tick marked
-5 - the other candidate did not evidence a preference for a candidate.
the irregularities set out 1n paragraph 1 of this Order
did not nor were likely to affect the results of the
On the same day, I dispensed with the need for Mr. Marsh to f1le a notice of motion, the position being that if the subpoena directed to Mr. Bali is to be set aside, it 15s apppropriate that the subpoena directed to Mr. Marsh should meet the same fate. By consent of the parties, I also directed that the documents filed in matter N.S.W. No. 7 of 1984 be treated as if they had been filed in the present matter, and that the evidence and submissions on the notices of motion in matter N.S.W. No. 7 of 1984 be treated as evidence and submissions on the notice of motion dated 17th September 1984 in the present
"Ll. The conduct, including advertisements, on behalf of a candidate in the election was misleading and misled voters in the election and thereby caused them to alter their votes, or refrain from voting, which change in voting intention affected the result of the election.
-6- the voting and/or which constituted an irregularity.
declaration of the results of the voting and/or which constituted an irregularity."
In the Application, reliance was placed upon three pamphlets allegedly distributed by or on behalf of Mr. Bali as part of his election campaign. In addition, reference was made to newspaper advertisements in mass circulation daily papers, supporting Mr. Bali. Copies of the pamphlets and one newspaper advertisement were annexed to the application. One pamphlet showed a photograph of Mr. Bali, together with Mr. Marsh and the Prime Minister, Mr. Hawke. It bore the words "Vote: FOR BALI -
AND GENUINE LABOR LEADERSHIP" ain large type. In smaller type
were the words "Vote: Aqainst Adamson - and Carmichael's Control". The pamphlet urged voters to vote now and showed a How to Vote card with a first preference for Mr. Bali. The second
pamphiet contained no photograph; its text was largely directed to allegations that the Organization was led by communists, particularly Mr. Carmichael, the Assistant National Secretary.
"As a member of the A.M.F.S.U. Rank-and-File Committee, I have set out to give a lead to A.L.P. members and
supporters in our Union to change the present Communist
and pro-Communist leadership. It is time for a change." The pamphlet urged voters to vote for Mr. Bali. At its foot, in larger type appeared the words "AND RETURN THE A.M.F.S.U. TO GENUINE LABOR LEADERSHIP". The third pamphlet was quite a
-7- lengthy document. On its front was a large photograph of Mr. Bali shaking hands with Mr. Hawke. The next page was largely devoted to allegations about Mr. Adamson's record as a member of the Communist Party. It contained an exhortation to vote for Mr. Bali "FOR GENUINE LABOR LEADERSHIP"; these words appeared in large type. The third page was devoted to the history and qualities of Mr. Bali. It contained, 1n large type, the words "A RECORD OF GENUINE LABOR LEADERSHIP", and details of Mr. Bali's history within the Australian Labor Party. The fourth page bore three photographs, one of Mr. Marsh, one of Mr. Bali and one of
Mr. Hawke. Most of the text was in the form of a message from
"Australia has a mew Federal Labor Government under Bob Hawke. We also need genuine Labor union leaders who can work in harmony with the Government for economic recovery and job creation. The Communist influence in the leadership of the A.M.F,S.U. 1s responsible for the worst unemployment our members have ever faced. I believe that Bob Hawke can turn the tide, but only if we elect union leaders who will give hima fair qo. This 1s why I strongly urge you to vote for Charlie
Underneath the quote were the words in large type 'VOTE FORA LABOR UNION LEADER TO BACK A LABOR GOVERNMENT".
The newspaper advertisement contained the same photograph of Mr. Bali shaking hands with Mr. Hawke as did the
third pamphlet. Underneath the photograph was the text:
"There are two candidates: Charlie Bali, a labor man with a long history of service to the A.L.P. and Bob
Adamson, former Newcastle District President of the Communist Party and National Committeeman."
"IF YOU'RE A LABOR SUPPORTER YOU'LL VOTE FOR BALI".
With respect to these pamphlets and the advertisement,
the following allegations were made in the Application:
"8. The effect of annexures "A", "B", "C" and "D" was to mislead voters, or intending voters, into the belief that Robert McColl Adamson, as part of the leadership of the Amalgamated Metals Foundry and Shipwrights Union was opposed to the election of the current Federal Government under the leadership of RJ L Hawke.
also that Robert McColl Adamson, as part of the leadership of the Amalgamated Metals Foundry and Shipwright Union was opposed to the agreement between the Trade Union Movement and the Federal Government known as the "A.L.P./A.C.T.U. Accord".
ll. It is not true that any candidate whose candidature was supported by the abovementioned annexures was endorsed, either officially or unofficially, by the Australian Labor Party or by Mr. R
and Shipwrights Union were opposed to the election of
the incumbent Federal Government, nor is it true that they were opposed to the "A.L.P./A.C.T.U. Accord".
The Application was 1n the same terms as that in matter N.S.W. No. 7 of 1984. By letter dated 27th March 1984, the solicitors acting for Mr. Bali requested further and better particulars of the application in that earlier matter. So far as
1s relevant, this request was in the following terms:
"l. In respect of the alleged irregularities cited in
the Application, is it alleged that there has been a breach of the Rules of the Organisation?
If the answer to 1. above is in the affirmative, specify the Rule or Rules which are alleged to have been breached.
If the answer to 1. above is in the affirmative, what facts and matters are relied upon in the Application and the Annexures thereto to support such an allegation?
To the extent that it is not particularised in the reply to paragraph 3. above, please specify what part of each Annexure 18S relied upon to support the allegation of a breach of the Rules of the Organisation.
In respect of the alleged irregularities cated in the Application, 15 it alleged that there has been any act, ommission 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 result of the voting is, or is attempted to be, hindered or prevented?
If the answer to 5. above is in the affirmative, what facts and matters are relied upon in the Application and Annexures thereto to support such allegations?
To the extent that it 1s not particularised in the reply to 6. above, please specify what part of each Annexure to the Application is relied upon to support the allegation of such irregularity.
Is 1t alleged that any other irreqularity occurred im or ain connection with the subject election other than the irregularities alleged in the Application?
If the answer to 8. above ais in the affirmative, what 1s the nature of such further irrequilarities?
If the answer to 8. above ais in the affirmative, please specify the facts and matters relied upon in the Application and Annexures to establish such irregularity.
To the extent that it is not particularised in the reply to the preceding paragraph, please specify what part of each Annexure is relied upon to support the allegation of such an irregularity."
for Mr. Adamson supplied the following particulars:
"lL. No. 2. Not relevant. 3. Not relevant. 4. Not relevant. 5. Yes.
(i) Mr. Bali distributed election material which was misleading and was likely to mislead members of the AMFSU voting in the
(1i) In particular, Mr. Bali or his agent caused to be posted to members of the AMFSU voting in the election two pamphlets which were misleading and was likely to mislead members of the AMFSU voting in the election.
(iii) Voters were induced by the advertisement into voting for Mr. Bali in the mistaken belief that Mr. Bob Hawke was supporting Mr. Bali.
(iv) Mr. Bali or his agent or agents spent in excess of an estimated ninety thousand dollars distributing the material referred to in (11) above.
(v) Prior to the election the subject of this Application, the National Civic Council and/or the membership of that association or part of ait have provided financial support for candidates in elections in the
AMFSU. (vi) The funds referred to in paragraph (iv) above or part of them were provided by the National Civic Council and/or the membership of that association or part of it. 7. It is not possible to isolate any part or parts of
are irregularities as defined in the Act in addition to being irregularities of the type referred to in that part of the
definition commencing with the word "includes" and concluding with the word "hindered".
(ii) It ais also alleged that the following irregularities occurred:
(a) Ballot papers on which a vote had already been recorded were received by the members of the AMFSU who were entitled to vote;
{b) More' than one ballot paper were received by individual members of the
(c) The Returning Officer failed to conduct the election in accordance
with the rules. In particular, he failed to comply with rule 7(f) (1) by
using more than one private post box at a post office;
{d) Further, the Returning Officer failed to comply with rule 7(q) by failing to forward an envelope clearly addressed
No. 7 of 1984 Points of Claim in the following terms:
"1. The Applicant 1s a member of the Amalgamated Metals Foundry and Shipwrights Union ("the A.M.F.S.U.").
-~13- person to fill the position of National Organizer, Division 4. The candidates in the election were the Applicant and Charles Bali. During the course of the election, pamphlets were distributed by post to all or virtually all members of the A.M.F.S.U. eligible to vote. The election pamphlets referred to in point 4 above were misleading in that: (i) (a) They suggested Bali had the personal support or endorsement of Mr. Hawke; (b) They suggested that Bali had the support of the A.L.F.;
(c) They suggested that Bali was an endorsed A.L.P. candidate; or (d) They suggested Bali's political allegiances were to the A.L.P. and his policies were to be those of the A.L.P.; (e) They suqgested that a vote for Bali was a vote in support of the A.L.P. WHEREAS : (ii) (a) Bali did not have the personal support or endorsement of Mr. Hawke; (b) Bali did not have the support of the
(e) Bali was a candidate supported by and whose campaign was substantially funded by the National Civic Council, its members and supporters, and that the objectives of that organization are contrary to the interests of the A.L.P.
(i) Some eligible voters received more than one ballot paper.
were sent to voters on which the post box return address was overstamped with another number so that some or all of such envelopes (with the enclosed ballot paper) were not or may not have been returned to the Returning Officer.
ll. Having regard to the irregularities referred to in point 9 above and that similar irregularities may have occurred, the results of the election may have been affected.
(1) The Court declare that irregularities referred to above have occurred; (1i) The Court declares the election void and Mr.
Mr. Adamson also swore and filed in matter N.S.W. No. 7 of 1984 an affidavit on 10th May 1984. Exhibited to that affidavit were copies of the same three pamphlets and the newspaper advertisement as were annexed to the application. The
"3, From inquiries made by me of my supporters in various State branches of the Organisation I believe that the pamphlets were sent to all, or nearly all members of the Union in Australia and that each member was sent two pamphlets hy separate mail during the conduct of the ballot in
trade union movement, that it is not the practice or policy of the Australian Labor Party to interfere 1n the conduct of trade union elections by selecting or endorsing candidates.
unacqainted with either candidate in the election would cast their votes principally on the basis and in the mistaken belief that one candidate was
-17 - Labor Party just as in a Federal or State Government election they would vote for whichever
I was informed by officers of the Organisation that inquiries had been made by them of office holders of the Australian Labor Party seeking information as to the attitude of the A.L.P. to the support by the A.L.P. of candidates in an election in the Organisation. I was informed by such officers that office holders of the A.L.P. have stated that the Party had not endorsed any candidates and was not supporting any candidate in
Annexed to the affidavit were telex messages and letters from various officials of the Australian Labor Party to the effect that that party did not endorse candidates in elections within trade unions, and disavowing any endorsement by the Australian
"ll. I believe that the following resolution was passed at the 1963 A.L.P. conference in the following terms: -
"Conference believes that industrial legislation should provide for Trade Unions to. properly determine their own internal policies in accordance with their rules and constitutions, and deplores interference in Trade Union activities by
taken ain circumstances where the Prime Minister was aware that they were to be used in the said
Also annexed to the affidavit were several newspaper articles
supporting the propositions put forward in the last-mentioned
"13. In or about January 1984 I became aware that the election material disseminated for or on behalf of the candidate Mr. Bali had become a matter of debate within the Australian Council of Trade Unions. I am informed and verily believe that the Secretary of the A.C.T.U., Mr. Bill Kelty, was, as
attitude of the Australian Council of Trade Unions to the use of
the photographs by Mr. Bali. The affidavit continued:
"14. Prior to the election in January and February 1984 I had become aware that the National Civic Council May be ainvolved in the Organisation through a group calling itself the "Reform Group".
A bundle of documents purporting to show the activities of the National Civic Council, its members and supporters, within trade unions, including the Organization was annexed to the affidavit.
"16. I say that to the best of my knowledge and belief the National Civic Council is a body proscribed by the Australian Labor Party. I believe that this proscription means that no person who is known to be a member of the National Civic Council may hold membership in the Australian Labor Party.
-~ 20 - Prime Minister and the Australian Labor Party, that this conduct is likely to have affected the result of the election and that the extent of the deception achieved by the said conduct would be aggravated should the inquiry herein establish as a matter of fact that the funds used to perpetrate the deception upon voters were provided by members or supporters of a body proscribed by the
The subpoena directed to Mr. Bali seeks production of
"il. All letters or like documents or copies thereof from the Australian Labor Party or any Branch thereof or any officer or representative of the Australian Labor Party or any Branch thereof relating to your candidature in the election the subject of this application received by you before the close of the ballot in the election.
All letters, telexes or like documents or copies thereof to or from the National Civic Council, its officers or representatives:-
(i) which relate in whole or in part to the election the subject of this application;
(il) those which relate in whole or in part to funds from which money was expended on the said election by you or on your behalf.
All books of account relating to the funds from which monies were expended on your campaign in the election for an office in the Amalgamated Metals Foundry and Shipwrights Union being National Organiser, held in early 1984.
In particular, all cheque books (including butts), ledger books, bank statements and like document recording or noting income received for and expenditure made on the said campaign.
All invoices, receipts and like documents relating to moneys expended on the said campaign.
All receipts or copies thereof or receipt butts relating to the receipt of money which became funds or part of funds from which money was expended on the said campaign.
All lists or ilike records listing or recording amounts being contributions of money and/or persons making contributions of money which became funds or part of funds from which money was expended on the said campaign.
All letters, telexes or like documents or copies thereof to or from the National Civic Council, its officers or representatives which:-
(1) relate in whole or in part to the = said campaign;
(ii) without limiting the generality of the foregoing relate to the funds from which money was expended on the said campaign.
Any retained originals or copies of any leaflet, broadsheet, standard form letter or like document sent by you or on your behalf or at your request soliciting money which would have or may have
become funds or part of funds from which money Might have been expended on the said campaign.
or like document of the type referred to in paragraph 7. above would or could be sent."
The subpoena directed to Mr. Marsh seeks production of
"1. All books of account relating to the funds from which moneys were expended on the campaign of Charles Bali in the election for an office in the Amalgamated Metals Foundry and Shipwrights Union being National Organiser, held in early 1984.
In particular, all cheque books (including butts), ledger books, bank statements and like documents recording or noting income received for and expenditure made on the said campaign.
All invoices, receipts and like documents relating to moneys expended on the said campaign.
All receipts or copies thereof or receipt butts relating to the receipt of money which became
funds or part of funds from which money was expended on the said campaign.
All lists or like records listing or recording amounts being contributions of money and/or persons making contributions of money which became funds or part of funds from which money was expended on the said campaign.
All letters, telexes or like documents or copies thereof to or from the National Civic Council, its officers or representatives which:-
(i) relate in whole or ain part to the said campaign;
(ii) without limiting the generality of the foregoing relate to the funds from which money was expended on the said campaign.
Any retained originals or copies of any leaflet, broadsheet, standard form letter or like document sent by you or on your behalf or at your request soliciting money which would have or may have
become funds or part of funds from which money might have been expended on the said campaign.
Any list or like records prepared, received or retained by you or on your behalf for the purpose of listing or recording people to whom a leaflet
or lake document of the type referred to in paragraph 7. above would or could be sent."
In accordance with the direction made by consent, I treat as filed in this matter the letter dated 27th March 1984, the letter dated 30th March 1984, the Points of Claim and the affidavit of Mr. Adamson dated 10th May 1984, to all of which I have referred. In the original argument before me in matter N.S.W. No. 7 of 1984, which was on 6th and 16th July 1984, Mr. Trew Q.C., with Mr. McCarthy, appeared for Mr. Bali to move the Court; Mr. Moore of Counsel appeared for Mr. Adamson, and Mr. Ryan Q.C. with Mr. Shaw appeared for the Organisation. I treat their submissions as having been made to the Court in the present
I have set out as fully as is possible the material which was before the Court on the hearing of these motions. Ona preliminary motion such as this, in which an attempt is made to bring about the end of a proceeding without the hearing of full evidence, it is important that a full examination be made of the applicant's allegations. At this stage, the question is whether those allegations, assuming them to be true, constitute an arguable case. The equivalent in an ordinary proceeding isa motion to strike out on the ground that no cause of action is shown. In substance, Mr. Trew conceded that if an arguable case exists, the inquiry must continue. He did, however, invite me to consider for myself the question whether persons voting or likely to vote in the election would actually have been likely to he misled by the pamphlets and the newspaper advertisements. I do not regard 1t as appropriate at this stage that I should reach any conclusion about this matter. Any finding that the Court ultimately makes as to whether voters were, or were likely to have been, misled may depend upon evidence from persons claiming to have been misled in fact. Without hearing any such evidence, or assessing its weight, the Court cannot and should not attempt to form any view as to the effect of the propaganda. Accordingly, for the purpose of dealing with the motions before the Court, I adopt the assumption that the material concerned was capable of misleading and likely to mislead persons voting or likely to vote in the election. The crucial question is whether
it is arguable that such misleading amounted to an irregularity.
Fundamental to the submissions put by Mr. Trew on behalf
of Mr. Bali is the proposition that the definition of the word
These issues arise before me in two ways. In the first place, Mr. Bali's notice of motion dated 17th September 1984 seeks to terminate the inquiry, on the basis that no proper allegation of an irregularity 1s raised by reference to the allegedly misleading nature of Mr. Bali's election propaganda. The powers given to the Court by order 29 rule 2 of the Federal Court Rules and by s. 159(4)(b) of the Act are invoked. In the second place, Mr. Bali applies by way of notice of motion to set aside the subpoena directed to him upon the footing that the documents sought cannot be relevant to any issue properly before
It is clear that s. 118C of the Act would give me power to refer the whole of the inquiry to a Full Court. Despite the important nature of the issues raised, I am reluctant to take
this step. If the inquiry does proceed beyond this stage, it may
The question then arises whether I should state a case on the particular issues for determination by a Full Court. The power of a single judge of this Court to state a case for determination by a Full Court 1s found in s. 25(6) of the Federal
Court of Australia Act 1976. Under that provision, a case may be
stated or a question reserved "concerning a matter with respect to which an appeal would lie" from a single judge to a Full Court. By virtue of s. 118B(1)(a) of the Act, an appeal does not lie to a Full Court from a judgment or order of a single judge of this Court in proceedings under Part IX of the Act. This inquiry is, of course, conducted pursuant to Part IX. No power exists,
therefore, for me to state a case or reserve a question for the
It was then argued by Mr. Trew, in written submissions forwarded by him after the close of argument on 16th July 1984, that an application by notice of motion to set aside a subpoena 1S a separate matter or proceeding from the inquiry, and therefore it does not arise under Part IX of the Act. Mr. Trew pointed to the powers of the Court in relation to practice and procedure under s. 38 and the powers given to the judges to make
rules under s. 59 of the Federal Court of Australia Act 1976, as
well as to the provisions of order 27 of the Federal Court Pules.
Reference might also be made to the general power of the Court to grant orders and to direct the issue of writs in matters within
its jurisdiction, given by s. 23 of the Federal Court of
Australia Act 1976. Order 27 rule 2 of the Federal Court Rules
gives the Court express power "in any proceeding" to issue a subpoena. Order 27 rule 9 provides for the setting aside of a subpoena on motion by the person named in it, after notice of motion. Despite these provisions, there 1s some support for the view that the issue of a subpoena, and hence any motion to set it aside, is a separate "proceeding", within the definition of that
word given by s. 4 of the Federal Court of Australia Act 1976.
By that definition, "proceeding" includes an incidental proceeding in the course of, or in connection with, a proceeding. The issue of a subpoena, particularly against a person who is not a party to any proceeding before the Court, might be said to be incidental to or in connection with the proceeding before the Court. A subpoena was, of course, originally a writ issued by a court, commanding the attendance before the court of a person to give evidence or to produce documents. See the passage from the
judgment of Jordan C.J. in Commissioner for Railways v Small
in Bank of New South Wales v Withers (1981) 35 A.L.R. 21 at page
with which it is issued, and any motion to set 1t aside, 1s a separate proceeding from that to which it is incidental or
Reliance was also placed upon the decision of the High
Court of Australia in State of Victoria v_ Australian Building
Construction Employees' and Builders Labourers' Federation (1982) 41 A.L.R. 71. In that case, an injunction had been granted by
the Full Court of the Federal Court of Australia, exercising its appellate jurisdiction, to restrain what was found by it to bea threatened contempt of the Court. One of the questions which arose before the High Court of Australia on appeal was whether any right of appeal was barred by s. 118B(2)(a) of the Act, which prevents any appeal to the High Court from an order of a Full Court of the Federal Court of Australia in a matter arising under, among other provisions, Part VIII of the Act. There was before the Federal Court of Australia, a proceeding under s. 143, which 1s found in Part VIII of the Act. It was in respect of this proceeding that the alleged contempt was threatened. The High Court held that the injunction was not an order in a matter
arising under Part VIII of the Act. It is true that there is a
difference in language between s. 118B(1)(a) and s. 118B(2)(a) of
Act, and those given by the Federal Court of Australia Act 1976.
See, for instance, the judgments of Gibbs C.J. at pages 77-78, Stephen J. at page 109, Mason J. at page 110, Aickin J. at page
135, Wilson J. at page 155 and Brennan J. at page 179.
If the motion to set aside the subpoena is a proceeding separate from the election inquiry, then an appeal will lie to the Full Court in respect of that motion, pursuant to s. 24(1)(a)
of the Federal Court of Australia Act 1976, and it would he
possible for me to state a case for determination by the Full Court pursuant tos. 25(6). It is, however, unnecessary for me to reach a conclusion on this point. I am of the view that, even if I have power to state a case, in the circumstances of this proceeding, I should not do so. In part, I have reached this conclusion as a result of my examination of the authorities on
the guestion whether the definition of "irregularity" in s. 4(1)
of the Act is exhaustive or not. Upon examination, those authorities seem to me to lead in one direction; they include the views of two members of a Full Court on the issue. My
examination of the authorities is set out below. I have also been influenced by the probability that delay would result in the conduct of the inquiry if I were to state a case for the
determination of any issue by a Full Court. Already, a
Court, I decline to exercise that discretion by stating a case.
I therefore proceed to an examination of the issues raised by the motion of Mr. Bali. It 1s appropriate that I
should set out the definition of "irregularity" as it appears in
s. 4(1) of the Act: ""Trregularity", 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 1s, Or 1S attempted to be, prevented or hindered;" This definition applies except where otherwise clearly intended, but, as it was obviously inserted for the purposes of Part IX of the Act, it 1S unlikely that an intention to oust the statutory definition will be found in that Part. Mr. Trew's argument was that, notwithstanding the use of the word "includes" in the definition, the definition was itself exhaustive. He argued that the express definition contained all of the elements which could
reasonably be imagined as giving rise to irregularities. I shall
return to this argument after an examination of the authorities.
The starting point of any review of what the Court has
judgment of Northrop J. ain Re Federated Liquor and Allied
Industries Employees' Union of Australia; ex parte Huxtable
(1979) 40 F.L.R. 418. In that case, His Honour was required to deal with claims by two persons that they had refrained from nominating for office after receiving advice from the returning officer conducting elections within the Tasmanian Branch of the Federated Liquor and Allied Industries Employees Union of Australia to the effect that they were not eligible to stand. The issue arose whether this advice, which was incorrect,
constituted an irregularity. At page 424, His Honcur said:
"The issue remaining to be decided on the preliminary assue is whether the facts assumed for the purposes of submission are capable of constituting an irregularity within the meaning of that word when used ins. 165 of the Act. The word "irregularity" is defined in the Shorter Oxford Dictionary (23rd ed. 1972 reprint) as "the quality or state of being irreqular; something that is irregular". In the same dictionary, the word "irregular" is defined in relation to things as "not in conformity with rule or principle, contrary to rule; disorderly in action or conduct, anomalous, abnormal."
His Honour then set out the statutory definition and continued
"This provision does not give a definitive meaning to the word "irregular" but extends the meaning, if necessary, to include specific matters. In the present case, the facts assumed for the purpose of submission on the preliminary issue cannot constitute an irregularity within the statutory extended meaning of that word. There has been no breach of the rules of the union or its Tasmanian branch. There has been no act or omission 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 voting is, or is attempted to be, prevented or hindered."
Mr. Trew relied upon this paragraph to arque that, although
"In the present case, on a finding of facts most favourable to them, the applicants, relying on advice given by the returning officer and which in the result was wrong, did not nominate for any of the offices for which the elections were to be held. In support of his submission, counsel for the applicants submitted that the word "irregularity" shouid be construed as meaning "any action that has the clear effect of depriving a person of his right to nominate for an office in an election". Even if this meaning 1s adopted it cannot be said that the advice given by the returning officer via the agency of the branch secretary, deprived the applicants or any of them cr any member cf the Tasmanian branch cf the union of his right to nominate for an office."
As this passage shows, what Northrop J. said about the nature of the statutory definition of "irregularity" may properly be said to have formed part of the reasoning which led to His Honour's
The next case in point of time was Re Australian Postal
and Telecommunications Union; ex parte Wilson (1979) 28 A.L.R.
330, decided by Sheppard J. almost eight months after Huxtable, but apparently without the benefit of the citation of Huxtable. Wilson was relied on by Mr. Trew as authority for the proposition that the statutory definition of "irregularity" is exhaustive.
At page 336, Sheppard J., after quoting the statutory definition,
"The definition, by reason of the use of the word "includes", may not be an exhaustive one, but it 1s adifficult to think of any other type of irregularity that would not be within the definition. The words "any
act, omission or other means" are very wide, notwithstanding they are qualified by the words that follow them. No submission was made based on the fact
that the definition was an inclusive one and I put that matter aside."
His Honour found that a breach of the Rules had occurred. It is proper, therefore, to regard the comments on the nature of the definition as not essential to His Honour's reasoning. It 1s also clear from what His Honour said that he did not have the benefit of full argument on the point. Possible situations, which may amount to irregularities without falling within the terms of the statutory definition do not seem to have been drawn to his Honour's attention. Some examples of such situations are
In Re Rayner (1983) 5 I.R. 170 at page 171, Northrop J.
referred to and adhered to what he had said in Huxtable, in the context of determining that the Court has jurisdiction to conduct an inquiry into an election conducted under purported rules which have not been certified by the Industrial Registrar in accordance with s. 139(4) of the Act. Because such an election cannot be regarded as having been conducted in breach of any rules, in the sense of enforceable rules, His Honour's remarks may be regarded
In Re Penhallurick (1983) 51 A.L.R. 589 at page 596,
Fitzgerald J. referred to Huxtable and Rayner, as well as to Re
Application by Bath for an Inquiry into Elections in the
Federated Clerks' Union of Australia, Taxation Officers' Branch
(1982) 1 I.R. 217 and Re Application by Hibbert for an Inquiry
into an Election in the Federated Clerks' Union of Australia
(unreported, Evatt J., 28th June 1983), in the context of a discussion of another controversy arising out of Wilson, namely the question whether the reference in the statutory definition of "irregularity" to the full and free recording of votes and the correct ascertainment or declaration of the results qualifies so much of the definition as relates to a breach of the rules, as well as the other elements of the definition. His Honour said: "In part at least, the solution seems to me to be found in a recognition that, as was pointed out in Huxtable's case, the definition of "irregularity" in the Act 1s not exhaustive but expansive (F.L.R. at 425). Thus, any breach of the rules will be an irregularity, as will be any act, omission or other step which prevents or hinders the full and free recording of votes by all persons entitled to record votes er the correct ascertainment or declaration of the results of the voting. But conduct which may not meet either description may also be an irrequiarity." This passage might be said to be part of the reasoning leading to His Honour's conclusion that a breach of the rules of an Organization 1s an irregularity, without regard to its effect on
the recording of votes or the ascertainment or declaration of the
The most recent case is the decision of the Full Court
in Re Federated Clerks Union of Aust.; Re Callaghan (1984) 6
I.R. 258. In that case, at page 9 of the joint judgment of
Northrop and Lockhart JJ., their Honours said that the statutory
definition of "irregularity" is mot ina definitive form. Their
of Northrop J. in Huxtable which contained His Honour's reference
to dictionary definitions. It might be said that the comments of Northrop and Lockhart J.J. in Callaghan were not essential to their Honours' reasoning in that case, but those comments are nevertheless of high authority. Nothing said by the third member of the Full Court, Kirby J., detracts in any way from those
That completes an examination of the manner in which this Court has dealt with the question whether the statutory definition of "irregularity" 1s exhaustive or extensive. There 1s one earlier decision of the Commonwealth Industrial Court to which reference should be made. In Jutte v Amaigamated
Engineering Union, Australian Section (1967) 10 F.L.R. 195 at
page 199, Dunphy J. said "The definition of "irregularity" ins.
It will be seen that the authorities lean heavily in favour of the proposition that an irregularity for the purposes of the Act is not limited to the matters appearing in the definition ins. 4(1). The only authority which runs counter to this proposition is the statement of Sheppard J. in Wilson. As I have said, this was a passing statement, not crucial to His Honour's reasoning, and without the benefit of a consideration of the decision of Northrop J. in Huxtable. In my view, I should follow the weight of authority and hold that the statutory
In addition, there are grounds for regarding this conclusion as correct in principle. It is not difficult to think of instances not clearly covered by the terms of the statutory definition, which could nevertheless be regarded as
It is possible to imagine matters which might occur in the process of lodging a nomination, or in the process of acceptance or mon-acceptance of a nomination by a_ returning officer, which could amount to irregularities. These matters may not involve any breach of the rules of the organization concerned. They might be said to be divorced from the process of recording of votes or the correct ascertainment or declaration of the results of voting. The reference to both of these elements seems to assume that there are candidates for and against whom votes can be recorded, and amongst whom a result can be ascertained. If, for instance, without breach of the rules, a returning officer failed to make available any reasonable facility for the receipt of nominations, so that persons who desired to be candidates were prevented from nominating, it would be reasonable to suggest that there was an irregularity in the conduct of the election, although 1t was not one concerned with the process of recording votes or ascertaining the results of the voting. An example of this kind of irregularity is provided by
the decision of Joske J. in Re Election for Office in Australian
Institute of Marine and Power Engineers (1973) 20 F.L.R. 407. In
that case, the rules of the relevant organization contained no provision as to the period of time which should elapse between
the calling of nominations and the closing of nominations. There
"It was contended on behalf was no irregularity in the breach of the organizations' silent as to candidates allowed for Irregularities in May occur whether or not have been broken. Where matter, airregularities can where there 1s no. provis submission of nominations. the Act that the court, if has occurred with nominations, may deal with This contention, therefore,
It was also contended tha usual in the evidence. However, while
of the intervener that there election since there was no s rules, they being entirely
notification of calling for nominations of and putting in nominations
as to the period to be after notification. conducting an election an organization the rules are silent on a easily occur, for example 1on in the rules for the It is clear from s. 165 of it considers an irregularity to the submission of the matter by its order.
t the evidence of what was irrelevant and not there 1s no rule or form
out the time for receipt of nominations nevertheless, as
shows, the calling for and integral parts of cannot be carried out if
person under s. 170 all concept of conducting that him. How then is he, rules, to determine the elapse between
seems to be only one answer must fix a reasonable time. 1s a reasonable time? Th
in the absence length of the date of calling for nominations and
omitted. Once devolves upon a involved in the must be taken by
There as to this, and that is he How does he ascertain what
the organization was to allow seven nominations and that the practice was objected to,
In some cases, it 1s necessary for the court to consider the effect of s. 140(1) of the Act in the context of an election inquiry. A nomination may have been rejected on the basis that the person the subject of it failed to comply with some condition laid down in the rules for the acceptance of nominations. That person may then contend that, at the date when his nomination was rejected, the rule laying down the condition was in contravention of s. 140(1). In such acase, i1f the rule ais found to have contravened, there will be held to be an irregularity. This was the very situation which occurred aun Leveridge v_ Shor
Distributive and Allied Employees' Association (1977) 31 F.L.F.
which were before the Full Court, Smithers J. at pages 420-1
"Accordingly, if rr. 5 (c) (11) and 36 (b) were invalid on 4th March, 1977, Mr. Webster was entitled to nominate
and the action of the returning officer in rejecting them was taken in error, although of course
understandably so. There can be no doubt that such erroneous action would be an irregularity ina step in each election. Although such action may not be one of
the items of conduct specified in the definition of "irregularity" in s. 4 of the Act as Leing included in
the relevant meaning of that expression, it was an action inconsistent with the provisions of the rules as
they really were. As such, it was an irregularity within the natural meaning of that word in the relevant context."
"Being of the opinion that the part of r. 5 (c) (11) and the part of r. 36 (b) (in so far as they relate to the positions of division delegate to branch conference and branch delegates to national council referred tocinr. 36 (a) (2) and 36 (a) (111) referred to in my judgment in V 4 of 1977 contravene s. 140 (1) of the Act, and being satisfied on the evidence that such contraventions occurred on and immediately before 4th March, 1977, the date on which nominations for election to the said positions closed, I am of the opinion that lrreqularities within the meaning of s. 165 of the Act occurred in a step in the subject election. Such irregularities were the rejection by the returning officer of the applicants' nominations for election to the said positions on the basis that the applicants had not at the date of the closing of nominations been financial members of the federation for a period cf two years immediately preceding that date as apparently then required by Eranch rr. 5 (c) (i1}, 36 (a* (1) and 36 (a) (1i1)."
T.B. Sweeney J. agreed generally with the reasons for judgment of both Smithers and Evatt J.d. Mr. Trew also argued that this situation could be seen as a breach of the rules. It 1s true that, 1f the rule which is found to have been in contravention of s. 140(1) 1s treated as having been void, and therefore as not having existed at the relevant time, the failure to accept a nomination in such a situation might be said to be in breach cf the rules. This was certainly not the view expressly taken by the Court in Leveridge, and is too narrow a view. It is possible to envisage situations in which, once a rule is held to have contravened s. 140(1), there are no other relevant rules of the organization concerned to which reference may be had. If that
were to occur, it would be strange 1f the Court were obliged to
Since the definition of "irregularity" was inserted into s. 4(1) of the Act, by Act No. 28 of 1949, the Parliament has made provision in s. 133AA(2) for regulations to govern the conduct of certain elections 1n organizations, where the rules of an organization do not provide for a secret postal ballot. These
regulations are found in Part VAA of the Concilation and
Arbitration Regulations. They contain provisions governing the
process of receiving nominations, as well as the processes of recording votes and ascertainment of the results of voting. Naturally, when it inserted the definition of "irregularity", the Parliament cannot be taken to have contemplated these particular regulaticns. Nevertheless, 1t would be a strange result if a breach of those regulations which did not involve a breach of the rules cf an organization, or any part of the process of recording votes or ascertaining the results of voting, was to be held not to constitute an irregularity. The court should not lean towards a construction of the definition which would exclude such a breach of the regulations from the field which can be covered by
Some assistance in the construction of the definition of "irregularity" is to be derived from a comparison of that definition with others which existed in s. 4 of the Act at the time when Act No. 28 of 1949, which inserted the definition of "irregularity", was passed. Such an examination discloses that
some definitions used the word "means", some used the word
"includes", and some used "means...and includes...". It must be
definition which followed was not intended to be exhaustive.
Further assistance is to be derived from the context in which the word "irregularity" 1s used in Part IX of the Act. As was pointed out by Mr. Moore in argument, the duty of the Court under s. 1651) of the Act ais to inquire into and determine whether any irregularity has occurred "in or in connection with" an election. This is some indication that the Court 1s required to take a broad view. The powers of the Court under s. 165(3) are extensive. Reference might also be made to s. 170A, which gives a returning officer conducting an election under s. 165A or s. 170 power to take action and give directions to ensure that no
irregularities occur "in or in connection with" the election. Again, 1t is obvious that these powers are intended to be broad. So far as the Court 18 concerned, its power to make orders is confined by s. 165(4) to a situation in which the result of the election may be or may have been affected by irregularities which the Court has found to exist or to have existed. This provision 1s at the same time broadening and limiting. It is an indication that the field of potential irregularities is very wide; the Court's inquiry may range over a large area, but it may only
alter the course of or overturn the result of an election where
there is a likelihood of an unwarranted effect on the result. At
the same time, s. 165(4) is an indication that an irregularity is
some way connected with the result of an election; the concept of
an irregularity, and the concept of its effect on the result of
an election, are difficult to divorce. The intention of the
legislation seems to be that the Court should have few fetters on
its power to inquire into matters where the possibility exists
that an election will be or has been improperly interfered with,
but that the Court should only have power to make orders in
relation to such an election where the result may be, or may have
For these reasons, JI hold that the definition of "irregularity" in s. 4(1) of the Act 1s not exhaustive.
Upon the footing that the statutory definition is nox exhaustive, Mr. Trew put two arguments as to the meaning of "irregularity". To begin with, he directed attention to the various definitions of ""arregular" in the Oxford Englist Dictionary. One of these 1s said to be an ecclesiastical definition, chiefly in use in relation to the Roman Catholic Church. It is in the following terms:
"Not in conformity with the rule of the Church or of
some ecclesiastical order; or for exercise of clerical
Mr. Trew submitted that this connection with church law, expression in the Act' than
use of the word "irregular" in was closer to the use of the some other senses of the word
term, would have refrained from defining it exhaustively if the
intention had been to restrict the matters the court could laok at to those which were contrary to law. There is nothing in the provisions of Part IX of the Act, or in the context of the Act as a whole, to suggest that regard was had tc a special, technical meaning of the word "irregular", rather than to the more common meanings referred to by Northrop J. ain Huxtable. In my view, no ground exists for confining the meaning of "irregularity" in the
Mr. Trew's second contingency argument was that, if the statutory definition of ""irregularity" 1s not exhaustive, the word is only intended tc import what has been described as the "common law of elections". Reliance was placed ona well known
passage in Woodward v_ Sarsons (1875) L.R. 10 C.P. 733 at page
743, followed by the High Court in Bridge v Bowen (1916) 21
",..we are of opinion that the true statement is that an election is to be declared void by the common law applicable to parliamentary elections, if it was so conducted that the tribunal which 1s asked to avoid it 1s satisfied, as matter of fact, either that there was no real electing at all, or that the election was not really conducted under the subsisting election laws. As
to the first, the tribunal should be so satisfied, i.e., that there was no real electing by the constituency at all, if it were proved to its satisfaction that the constituency had not in fact had a fair and free opportunity of electing the candidate which the majority might prefer. This would certainly be so, if a majority of the electors were proved to have been prevented from recording their votes effectively according to their own preference, by general corruption or general intimidation or by being prevented from voting by want of the machinery necessary for so voting, as, by polling stations being demolished, or not opened, or ty other of the means of voting according to law not being supplied or supplied with such errors as to render the voting by Means of them void, or by fraudulent counting of votes or false declaration of numbers by a returning officer, or by other such acts or mishaps. And we think the same result should follow if, by reason of any such or Similar mishaps, the tribunal, without being able to say that a majority had been prevented, should be satisfied that there was reasonable ground to believe that a majority of the electors may have been prevented from electing the candidate they preferred. but, if the tribunal should only be satisfied that certain of such mishaps had occurred, but should not be satisfied either that a majority had been, or that there was reascnable ground to believe that a majority might have been, prevented from electing the candidate they preferred, then we think that the existence of such mishaps wold not entitle the tribunal to declare the election void by the common law of Parliament."
This passage was also quoted by Q'Mara J. in Hay _v Australian
Workers Union (1944) 53 C.A.R. 108 at pages 125-6. In that case, His Honour was faced with the difficult task of resolving complaints about misconduct in an election, before the Act contained any of the provisions which are now found in Part IX. Mr. Trew contended that, i1f it did not intend tc restrict the meaning of "irregularity" by defining that word, the Parliament intended to do no more than import the "common law of elections" into the area of elections in organizations. By reference to the authorities to which I have referred, and to an extract from
Parker's Conduct of Parliamentary Elections, Mr. Trew sought to
say that the concentration of the common law of Farliament was on
the purposes of the Act, outside the statutory definition, was
There are two difficulties with this proposition. In
the first place, it is not clear from Woodward v Sarsons, and the
cases in which it has been followed, to what extent the courts would go in saying that there has been "no real electing at all". No court has endeavoured exhaustively to define such a situation, much less to confine it to breaches of the law. Indeed, breaches of the law are referred to as a separate category from that which
An aspect which 1s perhaps more important arises from an examination of the terms of the Act as they relate to elections, and a comparison of the provisions of the Act with those of other legislation relating to elections. It is quite common to find very detailed provisions governing the conduct of parliamentary
elections. See, for instance, the Commonwealth Electoral Act
1918, especially Part XVII, which deals with electoral offences.
By contrast, 1n Part IX of the Act, there are few specific provisions governing the conduct of elections in organizations. In addition, there are the provisions in Part VAA of the Regulations, which only apply in the absence of a provision for a secret postal ballot in the rules of an organization; see s. 133AA(2) of the Act. The aintention of the legislature in enacting Part IX appears to have been to leave it to the court to decide what are irregularities, subject to the overriding
restriction found ins. 165(4). The ingenuity of persons who
the act Gr ommission on the result of the electicn concerned.
For the purposes of the inquiry with which the Court is presently concerned, the crucial question is whether, in the context of the Act, the word "irregularity" in its ordinary and natural meaning includes the making to persons entitled to vote in the election concerned of statements which are likcly to mislead or deceive those persons or some of them. I have already referred to the passage in the decision of Fitzgerald J. in Re Penhallurick, in which His Honour held that conduct falling outside the statutory definition of "irregularity" may be an irregularity for the purposes of the Act. Immediately following
the passage which I have quoted above, His Honour said:
"For example, it seems to me that it may well be that
relevant to an issue which 15 likely to arise in the inquiry.
It ais not at all impossible to imagine situations in which the misleading of potential voters could have an effect on the result of an election. A wrongful claim to he the present holder of the office for which the election is being conducted, in a situation in which the actual incumbent does not seek re-election, might have a significant effect on the minds of many voters. So might the impersonation of a candidate fcr the purpose of presenting his or her policies in an absurd or extremely unattractive manner. The widespread claim that voters should not waste their votes on a particular candidate because he or she had died or withdrawn since the close of nominations, if untruthful, could also affect significantly the numbers voting for that candidate. These are, perhaps, stark examples, but they do indicate that there is force in the observations of Fitzgerald
J. in Re Penhallurick to the effect that the misleading of
This is not to say that every piece of possibly misleading information given to voters or potential voters will be enough to persuade the Court to declare void an election. it is well known that election propaganda, in organizations as elsewhere, is commonly expressed in extreme language. Candidates and their supporters go tc great lengths to denigrate their opponents, and to put themselves forward as superior, both generally and in specific respects. Promises are made in general terms, often in situations where any real ability to perform them will be unlikely. Clearly, 1t 1s not the intention of Fart IM of the Act that the Court should be forced to try the truth of every claim made in an election, or every insult projected by one side against the other, much less the genuineness of promises mace as to performance after the election. Apart from anything else, the familar nature of election propaganda leads to the conclusion that electors generally are well equipped to withstand its excesses and to discriminate amongst candidates despite its presence. In most cases, 1t will be unlikely that the Court would hold that a statement by or on behalf of one candidate, alleged to have misled voters, would be such as to have affected the result of an election. It must be recognised, however, that the possibility exists that the Court would hold that a sufficient number of voters may have been induced to change their voting intentions by some misleading statement or statements and
that the result of an election might have been affected.
A large part of Mr. Trew's argument was devoted to an
irregularities alleged by the Applicant. See ke Elections for
Offices in Australasian Meat Industry Employees Union (1963) 5
F.L.R. 260 at page 265, Jutte v Amalgamated Engineering Union, Australian Section (1967) 10F.L.R. 195 at pages 201-2, Re
Australian Postal and Telecommunications Union; ex parte Wilson (1979) 28 A.L.R. 330 at page 333, and Re Applications by Braqq
and Ors. for inquiries into Elections in the Australasian Society
of Engineers, South Australian Branch (Federal Court of
the process of deciding for which candidate to vote.
In any event, if that distinction were examined, extreme care must be taken in the use of the authorities relied upon. The most significant of those authorities was the decision of the
High Court of Australia in Evans v Crichton-Browne (1981) 147
C.L.R. 169. In that case, the High Court rejected the proposition that advertisements which portrayed the policies of the Australian Labor Party ina misleading fashion amounted to a
contravention of s. 1l16l(e) of the Commonwealth Electoral Act
"If the words of s. 161 (e) are considered alone, and given their natural meaning, they do nct have the effect for which the petitioners contend. The words forbid the printing, publishing or distributing of the electoral advertisements and other documents of the kind mentioned in the paragraph only if they contain any untrue or imcorrect statement which is intended or likely to mislead cr improperly interfere with any elector in the manner to which the paragraph refers, i.e. "in or in relation to the casting of his vote". The phrase "cast a vote" has awell defined meaning - "to deposit (a voting paper or ticket); to give (a vote)" (Oxford English Dictionary); "to deposit (a ballot) formally or officially; give a vote" (Websters International Dictionary). It does not include "to decide for whom to vote". The use of this phrase ins. 161 (e) suggests that the Parliament 1s concerned with misleading or incorrect statements which are intended or likely to affect an elector when he seeks to record and give effect to the judgment which he has formed as to the candidate for whom he intends to vote, rather than with statements which might affect the formation of that judgment. Certainly par. (d) of s 161 1s concerned only
with a particular instance of a misleading or incorrect statement of that kind, namely a statement contained in a document representing, or apparently intended to represent, a ballot-paper. For example, a document in the form of a ballot-paper, which contained directions that a ballot-paper must be marked in a manner different from that provided by the Act, or 1n a manner that would favour a particular candidate, would, 1f the other conditions were satisfied, fall within the prohibition of s. 161 (d). It seems reasonable to conclude that s. 161 (e) was intended to deal with misleading or incorrect statements of a similar kind, even though not contained in a representation of a Lallot-paper. For example, a statement contained in a newspaper advertisement that a ballot-paper should be marked in @ way that would not conform to the requirements of the Act and which would render the vote invalid might mislead or improperly interfere with an elector in the casting of his vote. The same might be true of a statement that a person who wished to support a particular party shouid vote for a particular candidate, when that candidate in fact belonged toa rival party. An erroneous statement as to the hours or place of polling which had the result that an elector (pernaps in a remcte country district) fazled to get to a polling Booth in time to vote would have misled that elector in relating ta the casting of his vote, although it would not have misled him in casting his vote, since in the case imaginei no vote was cast. Th. insertion cf the proviso to s. 1€1 at the same time as pars (d) and (e) confirms the construction suggested.
It was submitted by Mr. Masterman, who appeared for the petitioner incase No. 148, that the casting of a vote cannot be limited to the physical act of putting the ballot-paper in the ballot-box, and that it embraces the mental decision accompanying the act - the making of the choice by the elector of the candidate in wnose favour he will mark the paper. However, the words used in the section are not apt to refer to the rental process of decision or choice which precedes the formal expression of that opinion or choice by the casting of a vote. Ta say, "I have cast my vote for X" does not mean the same as, "I have made up my mind to vote for X". It is only to the act of formal expression that the words
Mr. Trew sought to argue that the phrase "recording of votes" in
the statutory definition of "irregularity" 1s the equivalent of
"the casting of his vote" ins. 1l6l(e) of the Commonwealth Electoral Act 1918, and that, accordingly, any information which
may mislead a voter in an election within an organization in
The process of casting a vote in a parliamentary election or local government election is broader than the simple act of inserting the ballct-paper into the ballot box. It comprehends the filling out of the ballot-paper in such a way as to express the true choice of the voter as between the candidates. This follows from some of the examples given by the
High Court of Australia in Evans v Crichton-Browne in the passage
which I have quoted. It also follows from certain other cases.
In Bray v_ Walsh (1977) 15 S.A.S.R. 293, Mitchell J. held that a How to Vote Card using the name of a particular party, but directing the voter to express his or her preferences in ua manner different from that urged by the party concerned was likely to mislead an elector who wished to vote for that party in the casting of his or her vote. In Consandine v_ Strathfield Municipal Council (1981) 44 L.G.R.A. 435, the New South Wales Court of Appeal held that a How to Vote Card of a candidate who had been expelled from the Australian Labor Farty, which could have led to the conclusion that he was still a member of that party, amounted to misleading or improper interference with electors in relation to the casting of their votes. At page 441,
"An elector coming into the polling booth with the intention of casting a vote for, say, Mr. O'Donnell, or any one of the other four Australian Labor Party candidates numbered three to six in the appellant's "how to vote" card, knowing for certain that the candidate of
his choice was a member of the Australian Labor Party, could well have concluded from the appellant's "how to vote" card that the seven persons listed in the righthand column were all Australian Labor Party candidates. It 15 by no means fanciful to conclude that a substantial number of individual electors would not have been aware of the political alliances of all twentyfour candidates. It 1s by no means fanciful to conclude that a substantial number of aundividual electors might have known one or more of the five Australian Labor Party candidates but have been ignorant of the appellant's comparatively recent estrangement from that party. It is by no means fanciful to conclude that a substantial number of individual electors falling within the category described in the preceding sentence, recognizing the name of their favoured Australian Labor Party candidate or candidates in the favoured positions number two to six on the appellant's how to vote card, would have assumed that the seven names in that column which the appellant had identified as a group were at least associated together in the pursuit of Australian Labor Party policies 1f not actually officially candidates sponscred by that party. This would amount to a misleading or ar improper interference with such electors in relation tc the casting of their votes. It was likely to influence directly the actual numbering of the squares. The recommendation put forward Fy the appellant was in terms aimed at the manner in which the squares would be numbered, that is to say at the manner in which the vote would be cast. It was misleading in that it conveyed ar impression of affinity in policy and association in political identity as between the appellant and the other six persons where no such affinity or identity existed. Electors could thereby have been misled ain relation to the casting of their votes."
The process of casting a vote in a parliamentary or local government election is, generally, by attendance at a polling booth, the filling out of the ballot-paper and the insertion of 1t into a ballot box. In an election within an organization, the process of recording a vote 1s generally different. In most cases, the Act now requires that elections within organizations be by secret postal ballot. This requires that a voter fills out a ballot-paper received by him or her in the post, places it in
an envelope addressed to the returning officer, and posts it.
Whereas a parliarentary or government election will take place in
If a How to Vote card of the kiné dealt with in Bray v
Walsh or Consandine is to be regarded as misleading or
interfering with voters in or in relation to the casting of their votes, then a document with a similar effect inan election within an organization must be regarded as an act whereby the full and free recording of vetes 1s hindered, and therefore as an 1rreqularity within the statutory definition. Thus, to mislead a person who has decided to vote for a particular group, faction or political interest that, by filling out a ballot-paper in a particular way he will be voting for that group, faction or political interest, may be an irregularity within the statutory
Applicant, that the material published in support of Mr. Bali
argument as to the effect of that evidence. At the present tire, 1t seems to me to be appropriate that I should do no more than to hold that the proposition put forward on behalf of the Applicant
Upon the analysis which I have undertaken, it seers clear that to mislead electors in the way in which Mr. Bali s propaganda arguably did could amount to an irregularity. If, as I have held, the statutory definition of "irregularity" 1s not exhaustive, and misleading of voters can amount to ar irregularity, it seems to me that this is the sort of misleading which might come within the concept of something which may affect the result in an illegitimate way. Not only 1s it alieged that Mr. Bali falsely claimed to have the support or backing of the Australian Labor Party, 1t 1s also alleged that in fact he was supported, and his campaign was funded, Ey the National Civic Council, a body alleged to be proscribed the Australian Labor Party. If those allegations turn out to be correct, it is possible that voters in the election who had made a decision to record their votes in favour of candidates representing what
might be described as an Australian Labor Party position or
viewpoint could have been misled into recording their votes for
Even if the statutory definition of "irregularity" is exhaustive, 1t is arguable that the full and free recording of votes wat hindered by Mr. Bali's election camraign, when viewed
Mr. Trew drew my attention te certain provisions of English statute law dealing with 2lections, and to some Enalisn decisions cr them. The effect of these decision was to explore
the distinction between a personal reflecticn or defamatcry
™ G ra Hu a B ® wn o rh co ww 1] it i) oy "y fs be fu tT co fa) to Q aq fl) c tn Ww ip) rh cr ry D HW w Pt i ig) ir t4 Tv pw ct m4 a
On the view which I have taken, it 18 impcssible fo
fo hold that there 1s no reasonable ground for the applicatic
for an inquiry in the present case. Section 159(4)(b)} does not,
therefore, apply. I propose to qive directions as to th
I also propose to dismiss the motion by Mr. Bali te set aside the subpoena directed to him. It follows that the subpoera directed to Mr. Marsh will stand also. Because of the way in which the Applicant puts his case, and the nature of the irregularities alleged, the terms of these subpoenas are nct so
Proad as tc require me to set them aside, in whole cr in parc.
I therefore propose to dismiss the application for the relief sought in so much of Mr. Bali's notice of motion dated
17th September 1984 as seeks to terminate the inquiry and set
aside the subpcena directed to Mr. Bali, and to adjourn the
inquiry to a date to be fixed, for the return of subpoenas, and
fer the giving of any further directions which may be necessary