Was the rule alteration made in accordance with the AMWU's Rules?
7 It is convenient to commence our consideration of this question by identifying, so far as it is relevant, the governmental structures established by the AMWU Rules. The AMWU membership is allocated by the AMWU Rules into "the Manufacturing Membership" (see rule 3A) and three "Divisions" - the "Vehicle Division", the "Food and Confectionary Division" and the "Printing Division" (rule 49.1-49.3). The membership of each of the Divisions is distributed between regions in accordance with rule 49.6-49.8. Each Division has both national and regional governing bodies (rule 50). Laid over the divisional structure is a state and national governing structure comprising a State Conference (rule 23), a State Council (rule 25) and, at the national level, a National Conference (rule 5) and a National Council (rule 7).
8 For current purposes it is sufficient that we focus on the national governing structure. The "supreme governing body" of the AMWU is its National Conference (rule 6.1). That body consists of the members of the National Council together with the delegates elected from the Manufacturing Membership and each of the three Divisions (rule 5). Broadly speaking, one delegate is elected for every 3,000 members or part thereof of the Manufacturing Membership and each of the Divisions. The Commission's reasons record that there are 74 persons from across Australia who are members of National Conference at [102]. Rule 5.1 provides for National Conference to meet every third year or by any Special National Conference convened by National Council.
9 The National Council is the "Committee of Management" of the AMWU and "shall subject to the powers and decisions of the National Conference and these Rules, have the care, control, superintendence, and management in all respects of the affairs, business, funds and property of the Union …" (rule 8.1). The composition of National Council is described by rule 7 and consists of various national officials of the AMWU including its National President and National Secretary.
10 Rule 6 deals with the powers of National Conference. It is necessary that we set that rule out in full but emphasis is added to highlight those parts of the rule that are central to the argument that we will shortly discuss:
6 - POWERS OF NATIONAL CONFERENCE
1. Authority of Conference
The National Conference shall be the supreme governing body of the union and its powers shall include the following:-
(a) To take all such steps as it shall think fit to carry out all or any of the objects of the union and to raise or spend such funds as are in the opinion of Conference necessary to carry out the objects.
(b) To decide the general policy of the union and take steps to enforce the carrying out of such policy.
(c) To impose levies in accordance with these rules.
(d) To give directions relating to budgets adopted by National Council.
(e) To impose penalties in accordance with these rules.
(f) To hear and decide any appeal, subject to the provisions of Rule 35, by a member, State Council or State Conference, against any act or decision of the National Council. Notwithstanding any other provisions of these Rules, members of National Council shall not participate in the hearing and deciding of any such appeal. In the event of a member of the conference having been involved in an appeal at any stage, he/she shall not participate when that particular appeal is considered.
(g) To deal with and decide any matter submitted to it by any District Committee, Industry Sector Committee, Workshop (provided the item has been endorsed by at least five members), State Council, State Conference of the Union, a Division National Conference, a Division national Executive Committee, by the National Council or any matter which a majority of members voting at Conference decide should be dealt with.
(h) Subject to sub-rule 6.1A, to make, alter, amend or rescind these Rules or to adopt new Rules.
(i) To delegate any of its powers other than its powers under paragraphs (c), (d), (e), (f), (i) and (j) hereof to any State Council or Conference or to the National Council or a Division National Conference or Division National Executive Committee or to any officer of the Union provided that such delegation shall not prevent the National Conference from its exercising such powers and that any exercise of power pursuant to such delegation shall be subject to appeal to and review by National Conference.
(j) To confirm, over-rule or otherwise deal with any decision of the National Council.
(k) To exercise all or any of the powers of National Council.
(I) To fix the salary, conditions of employment and allowances for all full-time officials and salaried officers.
(m) To select a National Returning Officer and Deputy Returning Officer. Any member of the Union being financial and having been a member for the previous seven consecutive years and who resides in the State where the National office is situated and who is not the holder of any other office in nor an employee of the Union or of a section or division of the Union shall be eligible to be nominated at the conference for the position of National Returning Officer and Deputy Returning Officer. The persons elected to these positions shall hold office until the next triennial Conference or until a successor is elected. The Returning Officer shall conduct plebiscites decided upon by National Conference or National Council.
1A.(a) The National Conference may make, alter, amend or rescind rules or adopt new rules affecting the Vehicle Division provided that:
(i) If no later than 30 days from the date of the National Secretary advising in writing, by mail or distribution by email, or by hand delivery at a meeting of the National Conference in session, the particulars of such changes to the rules, the Vehicle Division National Conference resolve by a majority vote to not approve those changes which directly affect the Vehicle Division, those changes shall have no effect and shall not be submitted to the Industrial Registrar for certification.
(ii) If, within 14 days of the said advice under (i) above, by the National Secretary of the particulars of the National Conference decision, the National Divisional Secretary - Vehicle Division has not taken steps to arrange for the conduct of a ballot of all members of the Vehicle Division National Conference of that decision on the question, two or more members of the Vehicle Division National Conference may proceed to arrange a ballot on the matter and any decision of that Vehicle Division National Conference on the matter shall have full force and effect as a decision not to approve such change to the rules provided it has been completed no later than 30 days from the date of the said advice of such changes to the rules. For the avoidance of doubt, it is declared that there shall be no requirement or duty upon the Vehicle Division or any officer of the Vehicle Division to arrange for a ballot on the matter, but a decision to arrange such a ballot is within the discretion of the National Divisional Secretary - Vehicle Division or any two other members of the Vehicle Division National Conference, as the case may be.
(b) The National Conference may make, alter, amend or rescind rules or adopt new rules affecting the Food and Confectionery Division provided that any decision by the National Conference to make, alter, amend or rescind rules or adopt new rules which directly affects the Food and Confectionery Division shall have no effect unless approved by a majority vote of the Food and Confectionery Division National Conference such vote to be taken within 30 days of the National Conference approving the rule alteration.
(c) The National Conference may make, alter, amend or rescind rules or adopt new rules affecting the Printing Division provided that any such decision by the National Conference shall have no effect unless approved by a majority vote of the Printing Division National Conference or by a majority of members of the Union in the Printing Division voting in a referendum in accordance with this sub-rule.
(d) A decision of the National Conference referred to in the previous paragraph must be considered by the Printing Division National Conference within 30 days of the decision of National Conference.
(e) The Printing Division National Conference may in relation to a decision of the National Conference referred to in this sub-rule -
(i) approve the decision of the National Conference;
(ii) reject the decision of the National Conference; or
(iii) if 75% or more of the delegates to the Printing Division National Conference so request, refer the decision to a referendum.
(f) Where a decision is referred to a referendum in accordance with the previous paragraph, the National Divisional Secretary - Printing Division shall arrange for the referendum to be conducted within 4 weeks in accordance with Rule 51.15.
2. Voting Conference
All decisions of Conference shall be made by a majority of the members present. The method of voting shall be on the voices or show of hands. Provided that 20 per cent of the delegates present demand a division it shall be granted. The decisions of Conference shall be binding on all members and bodies of the Union.
3. At every meeting of the Conference, a majority of delegates entitled to attend shall form a quorum.
4. (a) Where matters cannot be determined by the National Council a majority of members of the National Council may resolve to refer the matter to delegates to the National Conference for a decision by a postal ballot of all delegates.
(b) A matter shall be referred for decision by delegates to the National Conference by postal ballot where the National President receives a request from either:-
(i) three State Councils provided that such request is made at a special meeting of the Councils making the request; or
(ii) a Division National Conference.
(c) A decision of the majority of delegates to National Conference voting at a postal ballot in accordance with this sub-rule shall be deemed to be a resolution of the National Conference in meeting assembled and shall have full force and validity unless and until such acts or decisions are reversed or amended by a Conference.
11 Central to ResMed's contention that the rule alteration was not authorised under the AMWU Rules, are the terms of rule 6.4 and the meaning of the phrase "matters cannot be determined by the National Council" in rule 6.4(a). Relying on that phrase, ResMed contended that the matters that may be referred by National Council to the delegates of National Conference for decision by postal vote are confined to those matters with which National Council is itself empowered under the Rules to deal and not any other matters.
12 It is common ground that, absent a delegation made by National Conference under rule 6.1(i), only National Conference has the power to alter the AMWU Rules: rule 6.1(h). It is also common ground that the rule alteration was effected as follows. On 18 September 2014, the National Council resolved to refer the proposed rule alteration to National Conference for determination by postal vote. By 21 October 2014 a majority of the members of National Conference, voting by postal ballot, approved the rule alteration.
13 By its primary contention, ResMed contended that as National Council did not itself have the power to make the proposed rule alteration, that alteration was a matter that "cannot be determined by the National Council" within the meaning of rule 6.4(a). ResMed contended that the referral power was confined to matters within National Council's power to determine but which, for some practical reason, National Council could not determine. That was what "cannot be determined" meant and no more. Accordingly, ResMed submitted, National Council had no capacity to refer the rule alteration to a postal ballot of National Conference and, consequently, the approval given by National Conference to the rule alternation was itself invalid.
14 The phrase in question ought to be given its ordinary meaning unless, when read in context and with an eye to its evident purpose, there is a basis for concluding that something other than its ordinary meaning was intended. The rules of a union should be given a sensible practical construction: Australian Workers' Union v Leighton Contractors Pty Limited (2013) 209 FCR 191 at [75]-[76] (Katzmann J, with whom McKerracher J agreed); Conquo v Jackson [2009] FCA 45 at [22] (Sundberg J).
15 As the Full Bench said at [112] of its reasons, ResMed's contention "places a limitation on the scope of the phrase which does not arise from the ordinary meaning of the words used". The ordinary meaning of the phrase in question encompasses all matters which National Council cannot determine, including for the reason that it lacks the capacity to do so. A lack of capacity is a common reason for a body with restricted powers to be unable to determine a matter. The phrase "cannot be determined" is, as a matter of ordinary language, a perfectly appropriate way of describing an inability of that kind.
16 If an inability of that kind was not intended to fall within the ambit of Rule 6.4(a), it is difficult to discern what other kind of inability is contemplated by the paragraph. It must be presumed that rule 6.4(a) was intended to have some work to do. If its scope was limited to the referral of matters that National Council has the capacity to determine for itself, there would be little or no work for the paragraph at all. That flaw in ResMed's contention was addressed by the Full Bench at [112] when it stated:
Further, such an interpretation would give rule 6.4(a) little or no work to do, since it is difficult to identify any circumstances where this could actually occur. ResMed was only able to suggest two circumstances: where a quorum could not be obtained, or where there was a tied vote. The former cannot be correct because, if the National Council could not decide a matter because it could not form a quorum, neither could it validly pass a resolution referring the matter to a postal vote of National Conference delegates under rule 6.4(a). The latter is also doubtful, since under normal meeting procedures a tied vote on any resolution means that the resolution is decided in the negative, not that there is no decision at all. In any event, this would likely be a fairly rare circumstance.
17 On this application, ResMed sought to counter that deficiency by suggesting another purpose for the inclusion of rule 6.4(a). It contended that the power to refer given by rule 6.4(a) is there to deal with matters which the members of National Council could not themselves vote upon because of a personal conflict of interest with the subject matter of the referral. There is an air of desperation associated with ResMed's newly discovered justification for rule 6.4(a) but, nevertheless, we shall address it.
18 The impediment relied upon by ResMed is unlikely to be a commonly experienced problem for any governing body let alone for a body comprised of 30 persons located all over Australia. It is unlikely to have been in contemplation and the subject of an express provision in the Rules. If the draftsperson had in mind a rule designed to overcome the specific kind of problem ResMed raised, it is unlikely that the wide and general language used by rule 6.4(a) would have been employed. It is far more likely that if the potential problem had been adverted to at all in the drafting process, a specific mechanism would have been included for dealing with it, not only in relation to National Council, but for each of the governing bodies created by the Rules.
19 Furthermore, ResMed's approach would largely denude rule 6.4(a) of its apparent purpose. The purpose of rule 6.4 is obvious. The rule provides a mechanism for National Conference to make valid decisions by postal ballot. That such a facility has been provided for is both sensible and to be expected. National Conference comprises a large body of individuals located across Australia. A face to face meeting of those persons is an inherently costly exercise, the expense of which is met by the AMWU (see rule 5.8). It is likely to involve significant inconvenience, particularly as most of the delegates will not be employees of the AMWU and, it may be expected, will have work and other commitments. The Rules recognise the cost and effort involved in convening a meeting by only requiring triennial meetings (rule 5.1), supplemented, when considered necessary or desirable, by a Special National Conference called by National Council (rule 8.1(k)).
20 It is to be expected that the Rules would provide for a more practical and timely means than a meeting for discerning the will of the AMWU's supreme governing body, particularly as that body is given powers which are not able to be exercised by any inferior body, and the management of the organisation will, from time to time, require the will of its ultimate decision-maker to be discerned with some urgency.
21 There is no apparent basis for thinking that the practical and facilitative nature of postal ballots, as a means for National Conference to make decisions, was intended to be restricted to any particular subject matters let alone the very unlikely subject relied upon by ResMed.
22 That is not to say that resort to a postal ballot is intended by the Rules to be unrestricted. Rule 6.4 imposes restrictions but they are not subject matter restrictions. Nor, we observe, are subject matter restrictions imposed on the National Council when the Rules elsewhere address its capacity to put a matter before National Conference (see rule 8.1(k) in relation to a Special National Conference and rule 11.2 in relation to the agenda of the triennial National Conference).
23 Insofar as rule 6.4 provides for restrictions, it does so by reference to who may initiate the postal ballot and the requisite circumstances which need to exist for that to be done. We will return to further consider those restrictions shortly, but before doing so we should make this observation. ResMed conceded that the consequence of the restricted meaning it sought to ascribe to paragraph (a) was that the subject matter of referrals under paragraph (b) of rule 6.4 must also be so restricted. In other words, ResMed submitted that the power to refer under paragraph (b) was also restricted to the referral of a matter which the bodies there identified are empowered to determine for themselves, but which cannot be determined for practical reasons (recalling that the only such reason ResMed could identify was an incapacity of the body to determine a matter because of the personal conflicts of interest of its constituent members).
24 Consistency and harmony as between paragraphs (a) and (b) of rule 6.4 required that concession. But the making of it well demonstrates the implausibility of ResMed's approach. First, the words "where matters cannot be determined" do not appear in paragraph (b). ResMed's reliance on that phrase for its construction of paragraph (a) is therefore greatly undermined. Second, it is absurd to suppose that the only work intended for rule 6.4(b)(i) is to address a dilemma the occurrence of which must be a near impossibility. On ResMed's construction, the only work for rule 6.4(b)(i) is the referral of a matter to National Conference where the large memberships of each of the three State Councils are sufficiently personally conflicted in relation to the same issue that each respective State Council is unable to determine the matter.
25 Returning to the apparent purpose of rule 6.4 and the nature of the limitations there imposed, in our view, that rule seeks to facilitate the making of a timely and definitive determination by the supreme governing body of the AMWU on matters which important organs within the organisation have decided require it. In a hierarchical organisation in which some powers and responsibilities are reserved to its supreme governing body, it is of no surprise that a timely and efficient means of having the supreme governing body address a matter should be given to the committee of management where it lacks the power to address the matter itself. That, it seems to us, is the principal purpose of rule 6.4(a) that the words "where matters cannot be determined by the National Council" emphasise rather than exclude.
26 Similarly in a hierarchical organisation with complicated governmental structures in which powers and responsibilities have been carefully distributed between different divisions or sections representing different occupational or regional memberships, it is of no surprise to find a facilitative provision such as rule 6.4(b). The restrictions there identified on the initiation of a postal ballot are not subject-matter restrictions. They are restrictions which, no doubt, have been carefully calibrated to reflect what the framers of the Rules thought to be the minimum grouping of members within the union sufficient to warrant a vote of National Conference by postal ballot. An obvious example of when the kind of facility provided by rule 6.4(b) might be utilised is a request for National Conference to exercise the power given to it by rule 6.1(j) to "over-rule or otherwise deal with any decision of the National Council". That intent is expressly reflected in the terms of rule 14 which provides:
A State Council, or a Division National Conference may request any decision made by the National Council to be submitted to members of the National Conference for vote by post. Where 3 or more State Councils, or a Division National Conference makes such a request in relation to a particular decision or decisions the National President shall take steps as quickly as possible to have such a vote taken.
The terms of rule 14 are consistent with the construction of Rule 6.4 which we prefer. On ResMed's construction, rule 14 would be largely, if not wholly, ineffective. That could not have been intended.
27 The ordinary meaning of the words of rule 6.4(a) encompasses a situation where National Council is unable to determine a matter because it lacks the power to do so. That construction leads to a sensible, expected outcome. ResMed's construction does not accord with the plain meaning of the words of rule 6.4(a) and fails to produce a sensible result. That construction must be rejected.
28 ResMed also made a further submission not directly reliant on the phrase "cannot be determined by the National Council". It contended that the rule alteration was invalid because National Council is not empowered under the Rules to make a rule change by postal ballot. For that proposition reliance was placed upon rule 6.2 and in particular the words "[a]ll decisions of Conference shall be made by a majority of the members present". ResMed contended that only when meeting in person is the National Conference constituted as such and that the powers of National Conference provided by rule 6.1 (including the power to alter the Rules) are only able to be exercised by National Conference so constituted. It was contended that decisions made by postal ballot in accordance with rule 6.4 are decisions by delegates of National Conference and not by National Conference. We reject those contentions.
29 The requirements of rule 6.2 are directed to face to face meetings of National Conference and are of little assistance to ResMed's submission. The distinction ResMed attempted to draw between National Conference and the delegates of National Conference is illusory. In any event, rule 6.4(c) provides a complete answer. It addresses the validity of decisions made by postal vote by the delegates of National Conference. It specifically deems such a decision to be "a resolution of the National Conference" (emphasis added).
30 Furthermore, if National Conference could not exercise any of its powers conferred by rule 6.1 by a postal vote, the purpose which we consider is clearly intended for rule 6.4 would be negated.
31 ResMed's second contention was also put in a more limited way. It was contended that the Rules intend that National Conference may only deal in face to face meetings and not by postal vote with an alteration to the AMWU's eligibility rule. It was said that the Rules seek to enhance democratic decision-making and that a construction of the Rules which provided National Conference with the capacity to make a rule alteration by a postal vote would undermine the democratic processes which the Rules intend.
32 This contention must also be rejected. It finds no support in the text of the Rules and there are many indicators to the contrary. First, the power to alter the Rules is a power that may be delegated to various governing bodies including National Council (Rule 6.1(i)). Whilst that sub-rule excludes the capacity to delegate some of the powers conferred on National Conference, such as the power to impose levies or penalties, the power to make rule alterations is not exclusively the reserve of National Conference and may be delegated. In that respect, the Rules themselves do not appear to regard the rule alteration power as of the highest order of importance.
33 Secondly, there is nothing in the Rules to suggest that decision-making by postal vote is to be regarded as inferior in some way to a vote at a meeting or an inappropriate means by which eligibility rule alterations may be considered and made. ResMed's submission was to the effect that this method of decision-making was undemocratic or not sufficiently democratic for decisions about a rule alteration of an eligibility rule. The submission seemed to be founded in some idealistic notion that face to face meetings of National Conference were attended by large numbers of ordinary members and that the union's democratic processes were greatly enhanced by the capacity of those persons to listen to debate. In any event if participatory decision-making is the underlying desired goal upon which the submission was founded, there is nothing undemocratic about postal voting as a means of discerning the will of National Conference. National Conference is composed of delegates, in the main ordinary members of the AMWU, who are there as representatives of the many occupational and regional groupings within the AMWU. A postal ballot requires the participation of those delegates and, through them, the various membership groupings which they represent.
34 In support of its contention that the Rules required democratic decision-making, ResMed relied upon rule 3 which relevantly provides that an object of the AMWU (and presumably the Rules) is to "promote … democratic … practices". ResMed did not rely upon the terms of the RO Act to draw any implication as to what the Rules intend, however an implication that the Rules intend to provide for the democratic functioning of organisations may be supported by reference to the RO Act. As the rules of organisations must comply with the requirements of the RO Act, it may be presumed that the AMWU Rules are intended to do so. One of the requirements of the RO Act, provided for in s 141(1)(b)(iv), is that the rules of an organisation must provide for:
(iv) the control of committees of the organisation and its branches respectively by the members of the organisation and branches;
35 That requirement may be considered as reflecting the "standards" that the RO Act requires organisations to meet including, relevantly, the following standards expressed in s 5(3):
…
(b) encourage members to participate in the affairs of organisations to which they belong; and
…
(d) provide for the democratic functioning and control of organisations; …
36 Those standards are also relevant to the requirement made by s 142(1)(c) of the RO Act that the rules of an organisation:
(c) must not impose on applicants for membership, or members, of the organisation, conditions, obligations or restrictions that, having regard to Parliament's intention in enacting this Act (see section 5) and the objects of this Act and the Fair Work Act, are oppressive, unreasonable or unjust; …
37 It is reasonable to assume, in favour of ResMed, that the AMWU Rules intend to provide for the democratic functioning of the AMWU and to encourage members to participate in the affairs of the AMWU. But there is no warrant for the conclusion that a postal voting process for the making of rule alterations (including of eligibility rules) is necessarily or inherently offensive to the standards identified above or otherwise contrary to the requirements of the RO Act.
38 We were not referred to any authorities on the issue, but there are a number of authorities which have considered whether rule alterations made by a governing body of an organisation by postal or telegraphic means were validly made. Those cases discuss the predecessor provisions to the standards (or objects) identified at [35] and consider predecessor provisions of s 142(1)(c) of the RO Act.
39 In Kingham v Ferguson [2001] FCA 537; 107 IR 403, Goldberg J was asked to determine the validity of a resolution made by postal ballot. In that case, it was relevantly contended that a rule in general terms empowering a Divisional Secretary to conduct a postal ballot of the Divisional Conference of the Construction, Forestry, Mining and Energy Union, impliedly excluded a postal ballot seeking the review of a decision of a Divisional Executive to amend the rules of the Division. At [34], Goldberg J noted the convenience provided by the facility of a postal ballot for obtaining the views of delegates of the Divisional Conference spread throughout Australia. At [36] and [37] his Honour made the following observations:
[36] There is nothing in the express terms of the Rules, the Act and Regulations or the nature, function and purpose of the Union which warrants the imposition of such an implied limitation. Although s 187A(a) and (b) of the Act make it clear that the provisions of Pt IX of the Act are designed to encourage the democratic control of organisations and to encourage members of organisations to participate in the affairs of organisations, it does not follow that a postal vote is inconsistent with the democratic functioning of a union. A postal vote may not allow an interactive dialogue to occur in the course of its implementation, but it still allows for competing views to be presented, if thought appropriate, in the material which is delivered to delegates to enable them to consider, record and return their votes. What is important, for the purposes of the democratic control of the Division, and the democratic participation of the delegates to the Divisional Conference, is that their votes be sought and counted on any matter in respect of which a decision of the Divisional Conference has to be made. That result is achieved by a postal vote.
[37] I do not consider there is any warrant for implying into the Divisional Rules a limitation on the power of the Divisional Secretary to conduct a postal vote of delegates to the Divisional Conference to determine a decision of the Divisional Conference. Such a limitation is not required to enable the intention of the Rules to be given full effect, nor is it required to ensure that the Division functions properly having regard to the objects of the Act and the control of the Division required by the Divisional Rules.
40 There are, however, other relevant authorities which do not appear to have been drawn to the attention of Goldberg J in Kingham. A view that may fairly be regarded as contrary to that expressed by Goldberg J was expressed by Sheppard J in Squires v Stephenson [1983] FCA 19; 4 IR 1. In that case, Shepperd J addressed the validity of a rule which permitted a rule alteration by a telegraphic vote of an organisation's governing council. At 12-13 (IR) Sheppard J observed that it was undesirable that a rule amendment should be effected without each member of the council having had the benefit of discussion in which the views of others, including the views of any minority, could be heard. His Honour went further and determined that the rules would only be valid in providing for their amendment if the rule alterations were made directly by the membership of the union.
41 Very shortly after that judgment was published, Squires v Stephenson came to be considered by a five member Full Court (Bowen CJ, Smithers, Evatt, Northrop and Sheppard JJ) in Wright v McLeod [1983] FCA 351; 51 ALR 483. That case considered the validity of a resolution to amend certain of its rules made by postal vote by a federal council of an organisation. It was contended, inter alia, that the rules of the organisation were contrary to the Conciliation and Arbitration Act 1904 (Cth) because the rules allowed rule alterations to be made "by a postal vote thus preventing debate and exchanges of ideas as at a meeting" (at 490, ALR). No judge other than Sheppard J (in dissent and at 538, ALR) accepted that contention. Each of the majority disapproved of the proposition accepted in Squires v Stephenson that the direct participation of the membership of the union was required for rule amendments to be validly made: Bowen CJ at 491; Smithers J at 502-503; Evatt and Northrop JJ at 519 (ALR).
42 At 512 (ALR), Evatt and Northrop JJ said:
In considering the application of s 140(1)(c), regard must be had to the purposes of the registration of organizations under the Act. It is important to remember that organizations should be financially viable in order to enable them to fulfil that purpose effectively. It is equally important to remember that an organization is free to choose its own internal structures, including the procedures to be adopted in making a rule alteration, and that the court is not free to impose its modes of thought upon organizations because it considers certain structures to be more desirable than those chosen by the organization.
43 At 520 (ALR), noting that the rule in question had general application and was not limited to rule alterations, Evatt and Northrop J said this:
A postal vote of members of a committee of an organization is not unusual. In fact, having regard to the purposes of registration of organizations under the Act, there is much to be said in favour of such a procedure.
44 The views expressed by the majority in Wright are consistent with the view expressed by Goldberg J in Kingham. They are consistent, too, with our view that the provisions of the RO Act, to which we have referred at [34]-[36], do not, of themselves, warrant any implication that a rule providing for decision-making by postal ballot should be construed as excluding the capacity to make rule alterations. Nor do we see any warrant for such an implication arising from the reference made in the objects of the AMWU's Rules to the promotion of democratic processes.