REASONS FOR JUDGMENT
NORTHROP ACJ
The matter before the Court involves the proper construction and application of the Rules of the Food, Metals, Engineering, Printing and Kindred Union ("the AMWU"). The AMWU is an organisation of employees under the Workplace Relations Act 1996 ("the Act"). In conformity with Part IX of the Act, the affairs of the AMWU are conducted under Rules made by the AMWU. A reference to ss 195, 196, 197, 198 and 199 of the Act illustrates provisions which may or must be included in the rules of an organisation but it must be remembered that the rules of an organisation are made by the organisation itself. As a result, the rules of organisations are in many different forms. Section 196 is of importance. The section is set out:-
"196. The rules of an organisation:
(a) shall not be contrary to, or fail to make a provision required by, this Act or an award or certified agreement, or otherwise be contrary to law;
(b) shall not be such as to prevent or hinder members of the organisation from:
(i) observing the law or the provisions of an award, an order of the Commission or a certified agreement; or
(ii) entering into written agreements under an award, an order of the Commission or a certified agreement; and
(c) shall not impose on applicants for membership, or members, of the organisation, conditions, obligations or restrictions that, having regard to the objects of this Act and the purposes oppressive, unreasonable or unjust."
Under s 208 a member of an organisation may apply to the Federal Court for an order that the whole or a part of a rule of an organisation contravenes s 196 or that the rules of an organisation contravene s 196 in a particular respect. The matter before the Court does not involve an application under s 208.
In other types of proceedings before the Court, questions may arise as to whether the whole or a part of a rule of an organisation contravenes s 196 or that the rules of an organisation contravene s 196 in a particular respect.
In an application under s 196, or in another type of proceeding where the same question arises, the Court is required to consider whether there is a contravention of s 196. This involves a consideration of the relevant statutory requirement, a consideration of the relevant rules and a determination of whether the rules, as properly construed, contravene the relevant statutory requirement, as properly construed, and a determination of the question. Appropriate orders are then made.
This limited exegesis has been necessary since the appellant's submissions were based on a misunderstanding of the nature of Part IX of the Act, the nature of Rules and the nature of the proceedings before the Court. Further, the proceeding before the Court was not commenced in conformity with the provisions of the Act, the Workplace Relations Regulations ("the Regulations") or the Rules of Court. Reference will be made to these matters later in these reasons. At this stage it is sufficient to say that as a result difficulties and confusions arose which made difficult what is, in essence, a short and simple matter.
The matter before the Court involves an inquiry under s 218 of the Act into an election of officers within the AMWU. Sections 197, 198 and 199 specify many provisions relating to the election of officers within an organisation. It is not necessary to refer to these provisions in detail. It is sufficient to say that the provisions require that the rules provide for the election of officers, provide for the conduct of each election, including the acceptance or rejection of nominations, by a returning officer (s 197(1)(b)), and provide for the manner in which persons may become candidates for election, the duties of returning officers and the declaration of the result of an election (s 197(1)(d)). The Rules of the AMWU make provision for all of these matters. There is no suggestion that these provisions of the Rules of the AMWU contravene s 196 in any way.
The confusion and misunderstanding arise from the effect of s 197(1)(c) and (4). Those provisions are set out:-
"197 (1) The rules of an organisation:
(a) ......
......
(c) shall provide that, if the returning officer conducting an election finds a nomination to be defective, the returning officer shall, before rejecting the nomination, notify the person concerned of the defect and, where practicable, give the person the opportunity of remedying the defect within such period as is applicable under the rules, which shall, where practicable, be not less than 7 days after the person is notified;
(d) ......
(4) The reference in paragraph (1)(c) to a nomination being defective does not include a reference to a nomination of a person that is defective because the person is not qualified to hold the office to which the nomination relates."
Rule 2 of the Rules of the AMWU is headed "Elections and Voting". Part A of Rule 2 applies to the election to specified offices within the organisation including the office of State Secretary. The inquiry in this matter relates to the election of the State Secretary NSW. At the centre of the inquiry is the proper construction and application of Sub-rules 10 and 11. They appear to have been included in the Rules of the AMWU in order that the Rules comply with the requirements of s 197(1)(c) of the Act. The two rules are set out in full:-
"10. Where the Returning Officer finds a document purporting to be a nomination of a person as a candidate at an election under this rule is defective, the Returning Officer shall:-
(a) notify the person by notice in writing sent by telegram, facsimile or other means whereby the notice can be delivered to the candidate as soon as practicable of particulars of the defect or defects; and
(b) advise him/her that if he/she remedies the defect or defects he/she should so advise the Returning Officer by notice in writing forwarded to the Returning Officer at the place determined by him/her under this rule so as to reach him/her no later than 7 days after the date of sending the notice referred to in the previous paragraph.
11. (a) Where at the expiration of the closing date for lodging nominations or, in the case where the Returning Officer has under sub-rule (10) notified a person of particulars of a defect or defects in his/her nomination as a candidate, at the expiration of seven days after the sending of the notice referred to in paragraph (10)(a), only one candidate is nominated for election to the office, the Returning Officer shall declare that candidate elected unopposed to the office by issuing a statement in writing to the National Council or State Council as the case may be to this effect.
(b) Subject to paragraph (a), the Returning Officer shall conduct a secret postal ballot for the office in accordance with the succeeding provisions of this rule and may, subject to the rule, give such directions and take such action as he/she considers necessary for ensuring the secrecy of the ballot and for ensuring that no irregularities occur in or in connection with the ballot."
One fact is clear. No one has suggested that either Sub-rule 10 or Sub-rule 11 is invalid. No one has suggested that the Rules of the AMWU fail to make the provision required by s 197(1)(c) and (4) of the Act. As a result, the Court is required to consider the proper construction of Sub-rules 10 and 11. A reference to and consideration of s 197(1)(c) and (4) of the Act will not assist in the construction of the sub-rules. The sub-rules must be construed having regard to their terms and their context within the Rules of AMWU.
Before turning to the relevant facts, it is necessary to make reference to the provisions of the Act and the rules relating to elections. Division 4 of Part IX of the Act is headed "Conduct of elections for office". The provisions in this Division make it clear that normally elections for office in an organisation are to be conducted by the Australian Electoral Commission. Under s 214 the Registrar of the Australian Industrial Relations Commission is required to arrange for the conduct of the election by the Australian Electoral Commission. In the present case, on 2 January, a Deputy Industrial Registrar made a decision under s 214 of the Act directing an election to fill offices within the AMWU, including the office of State Secretary, NSW, to be conducted by the Australian Electoral Commission and directed that the Commission make the necessary arrangements. That Commission is established under s 6 of the Commonwealth Electoral Act 1918. The Commission is not a body corporate. One of its functions is to perform such other functions as are conferred on it by or under any law of the Commonwealth; s 7(1)(3). One such function is conferred upon the Commission by s 210 of the Act. In conducting an election under s 210, the Commission appoints an electoral officer, as defined in s 4 of the Act, to conduct the election. This is made clear by s 215 of the Act. In the present case, by instrument dated 2 January 1997, the State Director for the Australian Electoral Officer for NSW appointed Lee Jones, a member of the staff of the Commission, to conduct the election. The appointment was said to be under s 214 of the Act. The appointment was to conduct the ballots in the election including the ballot for the office of State Secretary NSW. Mr Jones is an electoral official under the Act. This is important since, by reason of s 215 of the Act, when he is conducting the election he must comply with the rules of the AMWU. In other words, by reason of this provision, in conducting the election Mr Jones was required to comply with the Rules of the AMWU. This position is recognised by the Rules of the AMWU. Rule 2, Part A sub-rule 2 provides that a reference in Part A to the State Returning Officer is to be read as a reference to the person appointed by the Australian Electoral Officer for the purpose of conducting a ballot in accordance with the provisions of the Rules. As a result, in the matter before the Court, Mr Jones is the returning officer for the elections, and is under a duty to comply with the Rules.
Under Sub-rule 4(a) the State Returning Officer, once every four years, must conduct an election for a number of offices including the office of State Secretary. In conformity with Sub-rules 9 and 12, Mr Jones determined the crucial dates for the election. The dates included the time for advertisements for nominations, the date nominations opened (3 February 1997) the date nominations closed (4 March 1997 at 12 noon), the date the ballot, if necessary, opened (28 April 1997) and the date any ballot closed (20 May 1997 at 10.00 am). Under this timetable, by reason of Sub-rule 12(y) the person elected to the office of State Secretary would have taken up office on 1 July 1997.
The respondent David Hickson nominated as a candidate for the office of State Secretary, NSW. He was qualified to hold that office in that he satisfied the requirements of Sub-rule 4(b). Under Sub-rule 4(e), ten nominators were required for the nomination of a candidate to the office of State Secretary. That sub-rule relates to nominations, not to the qualification of a person to hold office.
Under Sub-rule 8, a nomination had to be in writing in a form described in the Rules. In conformity with the Rules, Mr Hickson delivered a nomination form to the Returning Office before 12 noon on 4 March 1997 in which he was named as a candidate for the office of State Secretary, NSW. The nomination was signed by ten nominators as required by Sub-rule 4(e). One of the 10 nominators was Mr Mark A O'Brien. Sub-rule 8(d) provided that a nominator of a candidate for an office, including State Secretary, had to be a financial member of the AMWU at the closing date for lodging nominations. In the present case this was 12 noon on 4 March 1997. From information received, the Returning Officer, to use a neutral term, formed the opinion that Mr O'Brien, although a relevant member of the AMWU, was not a financial member on 4 March 1997, the day nominations closed. As a result, he formed the opinion that the nomination of Mr Hickson as a candidate for the office of State Secretary NSW was not in conformity with the Rules and in particular with Sub-rule 8(d).
In purported compliance with Sub-rule 10, by notice in writing dated 5 March 1997, the Returning Officer wrote to Mr Hickson as follows:-
"Your nomination for the office of State Secretary is defective as the organisation's records show that one of your nominators, Mark O'Brien, is not a financial member of the Union as required by the rules of the organisation.
Unless you can produce evidence to the contrary by not later than 12 Noon on 12 March 1997, I will be obliged to reject your nomination."
In the events which happened, it is not necessary to determine whether this notice complies with the obligation imposed on the Returning Officer by Sub-rule 10. In view of the opinion of the Returning Officer, he should have advised Mr Hickson that if he remedied the defect he should so advise him within 7 days. To adapt the provisions of the sub-rule to the facts of this case, Sub-rule 10 provides:-
"10 Where the Returning Officer finds a ...... nomination of a person as a candidate at an election under this rule is defective, the Returning Officer shall:-
(a) notify (the candidate) by notice in writing ......... of particulars of the defect or defects; and
(b) advise (the candidate) that if he remedies the defect or defects he should so advise the Returning Officer in writing .......... no later than 7 days after the sending of the notice ........."
On receipt of the notice, Mr Hickson did a number of things which need not be referred to in detail. By letter dated 11 March 1997 he claimed that Mr O'Brien was a financial member on 4 March and provided material to support that claim; he forwarded a further nomination form signed by a financial member, and he enclosed a letter from Mr O'Brien in which Mr O'Brien claimed he was financial. On 7 March 1997 Mr O'Brien paid what were claimed to be arrears in his dues. Mr Hickson did not notify the Returning Officer that the "defect" referred to in the notice had been remedied by Mr O'Brien paying the arrears within the 7 day period. It is clear, however, that the Returning Officer knew the dues had been paid. No issue was raised regarding the strict non-compliance by Mr Hickson with Sub-rule 10(b).
The Returning Officer rejected the nomination of Mr Hickson as a candidate for the office of State Secretary NSW. By a letter to Mr Hickson dated 18 March 1997, he explained his reasons:-
"I have rejected your nomination for the office of State Secretary as your nominator, Mr Mark O'Brien, was not a financial member of the Union, as required by the rules of the organisation, at the time of the close of nominations.
A nomination which is defective for the above reason can only be remedied if the 'unfinancial' nominator is proved to have been financial at the close of nominations. It can not be remedied after the close of nominations by having the nominator becoming financial or by substituting the nominator with another member who is financial.
Although Mr O'Brien appears to have paid his outstanding dues on 7 March 1997, this does not change his financial status at 4 March 1997 which was the date of the close of nominations. Mr O'Brien's financial status at 4 March can not be altered retrospectively.
I note that you have also supplied me with a second nomination form which has been signed by a further nominator, Robin Rahill. As advised above an unfinancial member can not be replaced by a new nominator."
The Returning Officer had received two nominations only for the office of State Secretary NSW namely from Mr Hickson and Mr Paul Bastian. At that time Mr Bastian was the acting State Secretary NSW. Upon rejecting the nomination of Mr Hickson, on 18 March 1997, pursuant to Sub-rule 11(a) the Returning Officer declared Mr Bastian elected unopposed to the office of State Secretary NSW by issuing a statement in writing to the State Council.
Section 218 of the Act enables a person, being a member of an organisation who claims that there has been an irregularity in relation to an election for an office in an organisation, to make an application for an inquiry by the Court into the matter. In this section, the word "irregularity" is to be given its ordinary meaning but by definition contained in s 4 of the Act, "irregularity" includes, among other meanings, "a breach of the rules of an organisation". In the present case, the Returning Officer is under a duty to comply with the Rules of the AMWU. If he wrongfully rejected a valid nomination, that action could constitute an irregularity within the inclusive meaning of that word in the Act. Likewise, if he wrongfully accepted an invalid nomination, that action could constitute an irregularity. This aspect will be mentioned further later in these reasons. Likewise, if he wrongfully declared a candidate elected unopposed, that action could constitute an irregularity.
Section 219 of the Act is of importance. The section prescribes the method by which an application for an inquiry is to be instituted. On one view, no valid inquiry was instituted by Mr Hickson. Section 219 is set out:-
"219 Where:
(a) an application for an inquiry has been lodged with the Court under section 218; and
(b) the Court is satisfied that there is reasonable ground for the application;
the Court shall fix a time and place for conducting the inquiry, and may give such directions as it considers necessary to ensure that all persons who are or may be justly entitled to appear at the inquiry are notified of the time and place fixed and, where the Court fixes a time and place, the inquiry shall be taken to have been instituted."
It is noted that an inquiry is instituted after the Court is satisfied there is reasonable ground for the application. This requirement is designed to prevent spurious applications. It is noted that the Court determines who should be given notice of the application.
At the time the application in this case was issued on 1 April 1997, O 48 of the Industrial Relations Court Rules regulated the procedures to be followed with respect to inquiries under, among other provisions, s 218 of the Act. Order 48 r 2 provided that applications under s 218 were to be in accordance with the form prescribed by Regulation 62 of the Industrial Relations Regulations, now called the Workplace Relations Regulations. They are in the same form. Regulation 62 imposes time limits on the commencement of applications for an inquiry under s 218 and provides that the application shall be in accordance with Form 4 of the Regulations and shall be accompanied by a statutory declaration made by the applicant verifying the facts set out in the application. Form 4 is not a Court document. It does not specify the naming of parties. It requires the applicant to be named and certain other information to be included. It is a document to be put before the Court to enable the Court to determine whether an application for an inquiry under s 218 should be instituted. In the present case, no application under Regulation 62 or Form 4 was made. No statutory declaration or affidavit was made. The Court did not fix a time and place for conducting the inquiry. The Court did not give directions to ensure all persons who were or may have been justly entitled to appear at the inquiry be given notice of the inquiry.
In the present case, an application for an inquiry dated 1 April 1997 was issued on 4 April in the Industrial Relations Court of Australia, but has been transferred to the Federal Court. This application was a Court document issued in conformity with O 4 and Form 5 of the Court Rules. It named Mr Hickson as applicant and Mr Jones and Mr Bastian as respondents. It gave notice that a directions hearing on the application would be heard by the Court on 10 April 1997 and that if the respondents did not appear judgment might be given in their absence.
The Court does not take any action on this matter. It was a procedure which hindered the proper consideration of the application and to some extent led to confusion. It is important that the proper procedures for an election inquiry should be followed. The procedures could affect the entitlement of an application for costs to be paid by the Commonwealth. Reference should be made to the Act for provisions relating to costs of an inquiry into an election. Generally see s 342 and in particular s 342(1), s 342(2)(d) and (f) and s 343(1). In addition s 346 and s 347 may be relevant.
In the event, the persons named in the application appear to be the proper persons to appear at the inquiry. It is not clear what happened thereafter. At the request of the parties, the Australian Electoral Commission was substituted for Mr Jones. There was no justification for this. The Returning Officer was the proper party. He was bound by the Rules of the AMWU. The Commission is not a corporation. Further, the AMWU was added as a party and was represented by senior counsel. It is difficult to see any valid reason for the organisation being made a party. Normally the organisation should not be made a party to the inquiry; generally see s 219, s 222 and s 209(6) and (7) of the Act. In proceedings under s 208 and 209(7) the organisation should be a party. The issue was between the two candidates for the one position. At the inquiry Mr Bastian was represented by a solicitor who, the Full Court was informed, was a member of the firm of solicitors instructing counsel for the organisation.
The Returning Officer had to be a party to assist the Court and to be bound by any order made by the Court. The Court could not make orders against the organisation.
At the inquiry, Mr Hickson sought to establish three irregularities based on three different grounds:
1. His nomination was valid in that at the date of the closing of nominations Mr O'Brien was in fact a financial member.
2. If Mr O'Brien was an unfinancial member at that date, this constituted a defect or deficiency which was remedied within the 7 day period as provided in Sub-rules 10 and 11.
3. That Sub-rules 4(e) and 8(d) offended s 196(c) of the Act and thus could not be relied upon to render the nomination invalid.
At the inquiry, the Court found the ground referred to in (2) had been established and as a result did not consider the grounds referred to in (1) and (3). The Court determined that two irregularities had occurred being the wrongful rejection of the nomination of Mr Hickson and the wrongful declaration that Mr Bastian had been elected unopposed. There could be no doubt that these irregularities affected the election to the office of State Secretary NSW; generally see s 223 of the Act and in particular s 223(4). As a result on 19 August 1997 the Court declared the rejection of the nomination and the declaration to office were each void. The Court directed that the Industrial Registrar make arrangements for an election to that office at which Mr Hickson and Mr Bastian were to be the candidates and directed times for the ballot to be conducted. The Court ordered further that Mr Bastian continue to act as State Secretary NSW until the declaration of the ballot. On 25 August 1997, pursuant to s 421 of the Act, the Court granted leave to the Australian Electoral Commission to appeal against the orders of 19 August 1997. The notice of appeal was filed on 1 September 1997.
On the hearing of the appeal, that Commission appeared by Counsel, Mr Hickson appeared by Counsel and the AMWU appeared by Counsel. Mr Bastian did not appear. The AMWU supported and added to the submissions made on behalf of the Australian Electoral Commission. The issue before the Court was the proper construction and application of Sub-rules 10 and 11 and their application to ground 2 only. The other grounds were not argued on the appeal.
Sub-rule 10 comes into operation where the Returning Officer "finds a ...... nomination of a person as a candidate - is defective". This constitutes a condition precedent to the performance of the obligation imposed on the Returning Officer by Sub-rule 10. Here the Returning Officer made such a finding but having regard to the submissions made at the hearing, this matter should be discussed further. In the condition precedent the word "find" is not used in the sense of finding something that had been lost. The word is used in the sense of making a determination or forming an opinion, like a jury finding an accused person guilty or not guilty, or a Court finding facts. Here the finding is that the nomination is defective. Normally the defect which makes the nomination defective is of a kind which, in the opinion of the Returning Officer, justifies the rejection of the nomination. In other words the Returning Officer determines that the nomination is invalid or ineffective. The words "defect" and "defective" are in common use. In its content in Sub-rule 10 the word "defect" is to be given its normal meaning of a lack or absence of something essential or necessary to completeness. There is no need to qualify the word "defect" by any adjective such as "serious", "formal" or even "fundamentally flawed". The only requirement is that the Returning Officer would, because of the defect, reject the nomination. Here, the Returning Officer has said he would do that. Implicit in this is that the nomination was not rejected on 4 March 1997.
Having formed such an opinion, the Returning Officer must follow the procedure prescribed in Sub-rule 10. The purpose of the Sub-rule is obvious. If the defect can be remedied, the result is that nomination can no longer be treated as being defective. The ballot should continue although in due course, the question of whether the nomination is valid or not could be determined by the Court in an election inquiry.
Here, having formed the opinion that the nomination was defective, under Sub-rule 10(a) the Returning Officer had to notify Mr Hickson in writing of the particulars of the defect or defects. The Returning Officer did this. In addition, the Returning Officer had to advise Mr Hickson that if he remedied the defect or defects he should so advise him by notice in writing no later than 7 days after the sending of the notice referred to in Sub-rule 10(a). The Returning Officer did not comply with this requirement. In his notice to Mr Hickson he said that the nomination was defective "as the organisation's records show that one of your nominator's, Mark O'Brien, is not a financial member of the Union as required by the rules of the organisation. Unless you can produce evidence to the contrary by not later than 12 Noon on 12 March 1997, I will be obliged to reject your nomination".
The last sentence of this notice from the Returning Officer is completely misleading. It is not in conformity with Sub-rule 10(b). It is not for the Returning Officer to tell the candidate what to do; cf Re Federated Liquor and Allied Industries Employers Union of Australia; ex parte Huxtable (1979) 40 FLR 418 commencing at 426. The whole of the reasons for judgment in that case are of assistance in understanding the nature of an election inquiry. Further, the last sentence illustrates the error made by the Returning Officer. Mr O'Brien was a nominator, that was a fact accepted by the Returning Officer. From material given to him from another source, the Returning Officer had formed the opinion that at the close of nominations Mr O'Brien was not a financial member. The notice called upon Mr Hickson "to produce evidence to the contrary". This notice was directed to the question of whether there was a defect in the nomination, not to remedying any defect that might or might not exist. Mr Hickson accepted the invitation to produce evidence to show that Mr O'Brien was financial at the close of nominations. The Returning Officer did not accept that evidence. As a result, he could only find that the nomination was defective at the later time when he did not accept the evidence. In his view actions taken before that date could not go to remedying any defect.
It is for the candidate who has received a notice giving particulars of the defect or defects to seek to remedy the defect or defects. In some cases, it may be impossible for the candidate to remedy the defect. A defect may be capable of being remedied in a number of different ways. The Returning Officer must wait until the expiration of seven days and thereafter determine whether the remedies applied have the effect of making the nomination effective or valid at the later date. In other words, the Returning Officer must determine whether the nomination should be accepted or rejected having regard to the remedies applied.
The word remedy connotes futurity. It means to cure, to put right, to rectify, to make good; see the Shorter Oxford English Dictionary and the Macquarie Dictionary. Of necessity to remedy is to make good that which was bad. This must apply to action taken after that which was bad has been identified.
In the present case, and for the purposes of the appeal, the Returning Officer, with knowledge that Mr O'Brien had paid his outstanding dues on 7 March 1997, rejected the nomination on the ground that Mr O'Brien was not a financial member of the AMWU "as required by the rules ...... at the time of the close of nominations". The Returning Officer said:-
"A nomination which is defective for the above reason can only be remedied if the "unfinancial" nominator is proved to have been financial after the close of nominations by having the nominator becoming financial ....".
The reasons given by the Returning Officer for rejecting the nomination after the expiration of the 7 days notice illustrate the error on his part. Sub-rule 11(a) prescribes what is to happen at the expiration of the closing date for lodging nominations or, where the Returning Officer has, under Sub-rule 10, given notice of a defect or defects, at the expiration of 7 days after the sending of the notice (emphasis added). These are true alternatives. On the facts of this case, the crucial date is 12 March 1997. That is the date at which the Returning Officer must determine whether the nomination is valid or, put another way, whether the defect has been remedied. By analogy with illness, has the remedy applied to cure the illness had the result of curing that illness within the time specified. In the present case, the remedy was to ensure Mr O'Brien became financial before 12 March 1997. He became financial before that day. Therefore the defect in the nomination had been cured or remedied before 12 March. The second alternative prescribed in Sub-rule 11(a) applies.
This conclusion is consistent with the Rules of the AMWU. Rule 35(1) provides:-
"Unless otherwise specified in these Rules a member shall not be financial whilst in arrears with the payment of any contributions, fines, or levies such having to be paid by the last day of the quarter in which they fall due; once so paid the member again becomes financial."
This rule makes it clear that when Mr O'Brien paid his outstanding dues on 7 March 1997 he became financial. There is much to be said for the view that having paid all outstanding dues, Mr O'Brien had been continuously financial for a long period including the date on which nominations closed, namely 4 March 1997; see Lovell v Federated Liquor and Allied Industries Employees Union of Australia (1978) 22 ALR 704 per Smithers J at 731. This conclusion, however, applies if, and only if, payment after 4 March 1997, but before 12 March 1997 is treated as being a remedy curing the defect of being unfinancial on 4 March.
On this construction of Sub-rules 10 and 11, it is clear that there have been at least two irregularities involved, namely the rejection of the nomination and the declaration of Mr Bastian as State Secretary NSW.
During the course of the inquiry and on the appeal much time was spent on discussing a number of authorities said to be relevant to the question before the Court. It is important to remember, that when the proper construction of a provision is an issue, the Court should examine the provision and construe it in its context and according to the words used. When this has been done it may be useful to look at authorities of courts discussing the same or similar provisions. It is unwise to consider other authorities first. Too much time and effort can be expended on the construction of other provisions, often in different form, as a result of which the real issue before the Court is obscured. To some extent this happened here. It was suggested there was a conflict of opinion between J B Sweeney J and Keely J concerning the proper construction of provisions similar to Sub-rules 10 and 11 of the Rules of the AMWU. This was a side issue which does not assist in determining the question before the Court. For the sake of reference the authorities are: Re Election for Office in Australian Building Construction Employees and Builders Labourers Federation (1978) 30 FLR 252, J.B. Sweeney J; Re Application by Shahid Naqvi J.B. Sweeney J 26 March 1981, unreported; Re Australasian Meat Industry Employees Union Keely J 19 July 1988 unreported and Re Hall (1994) 58 IR 19, Keely J. These authorities are discussed at length in the reasons of the Court which held the inquiry. They do not assist in the construction of Sub-rules 10 and 11 of the Rules of the AMWU.
Attention is drawn to Sub-rule 12 of the Rules of the AMWU. This sub-rule contains provisions relating to the conduct of a ballot, including a ballot held under Sub-rule 11(b). Under Sub-rule 12(a) the Returning Officer is required to determine the opening and closing dates of the ballot. Under Sub-rule 12(b) the Returning Officer is required to compile a roll of voters for the ballot. Sub-rule 12(c) is set out:-
"(c) The roll of voters for a ballot shall be the persons, being members of the Union on the day being 28 days before the opening date of the ballot who were financial on that day and remained financial until the opening date of the ballot."
This requires the roll of voters to include only those members who were financial on a specified day and "remained financial until the opening date of the ballot". A prescription of this kind is an invitation to uncertainty even if it could be complied with by the Returning Officer. This sub-rule should be considered by the appropriate officers of the AMWU. Unless there are good arguments to the contrary, consideration should be given to amending the rule to specify a particular date on which the list of financial members should be determined.
Finally, because of the times specified for the ballot ordered by the Court conducting the inquiry, the Full Court, on 13 October 1997, ordered that the appeal be dismissed and that its reasons would be published at a later date. The reasons for judgment are now published.
I certify that this and the preceding fifteen (15) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice R M Northrop