The Queen v Gray and Ors; Ex parte Marsh and Anor

What constitutes an irregularity? 8 The first question is whether such circumstances could, if proved, amount to an irregularity as defined in the Act. In The Queen v Gray and Others; Ex parte Marsh and Another (1985) 157 CLR 351 Gibbs CJ (with whom Mason, Wilson, Brennan, Deane and Dawson JJ agreed on this issue) said at 365: "It would appear from the context provided by s.4(1) that the Parliament intended the definition of 'irregularity' to be inclusive and not exclusive, or in other words that the definition was intended to comprehend such things as the word would ordinarily mean as well as those specifically included. Although the things specifically included in the definition are so widely defined that at first it does not seem easy to envisage other things which would not come within the specific terms of the definition but would still be irregularities in the ordinary meaning of the word, it is possible to suggest examples - for instance, a threat made contrary to s.171(2) which induced the withdrawal of a candidature, or a case (suggested by Gray J.) in which, 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." 9 His Honour referred to the ordinary meaning of the word "irregularity" at 367-8 as follows: "According to the Oxford English Dictionary 'irregularity', in its relevant sense, means 'want of conformity to rule; deviation from or violation of a rule, law, or principle … deviation from what is usual or normal'. The notion of an irregularity, in relation to an election, involves the idea of some departure from some rule, established practice or generally accepted principle governing the conduct of an election." 10 In Marsh an unsuccessful candidate for election, Robert Adamson, contended that several pamphlets distributed to voters were misleading and their distribution constituted an irregularity. The pamphlet generally associated the successful candidate, Charles Bali, with the Australian Labor Party and criticised Mr Adamson for alleged Communist associations. Mr Adamson contended that the pamphlets were misleading in that they failed to disclose that Mr Bali was supported by the National Civic Council, a body proscribed by the Australian Labor Party. In rejecting this argument Gibbs CJ said at 368: "there is simply no rule or principle of law that requires a candidate for an election to disclose every fact which may affect the opinion of voters." 11 His Honour continued at 370 as follows: "Although it was clearly correct to say that it is a wrong that electors should be tricked or misled, and although it is true that the Parliament may legislate against such a mischief in the case of a union election as well as in the case of an election to the Commonwealth Parliament, it does not follow that the Parliament intended that every statement by which voters might be misled, or every failure to disclose information which voters might consider material, should be an irregularity within the meaning of Pt IX of the Act. It was pointed out in Evans v. Crichton-Browne ((1981) 147 CLR 169,207), that 'the result of many elections might be rendered uncertain if any untrue or incorrect statement of fact, opinion, belief or intention might have the effect of invalidating the election if the statement was intended or likely to mislead or improperly interfere with any elector in the formation of his political judgment'. The uncertainty might be even greater if non-disclosure was a ground for avoiding an election. It is entirely a matter for the Parliament to decide whether considerations of that kind should outweigh the need to attempt to ensure absolute purity in the electoral process. It cannot be assumed that the Parliament intended to enable an election to be challenged under Pt IX on the ground that statements were made which might in some way mislead the electors in their choice. If the Parliament had so intended, it could easily have expressed that intention, but it has not done so." 12 Thus, in Marsh, the High Court drew the limit to the reach of the concept of irregularity by reference to a consideration of policy, namely, the need to prevent too great uncertainty in the result of elections. 13 In relation to misleading statements made to electors Gibbs CJ referred to Evans v. Crichton-Browne (1981) 147 CLR 169, 207 and said at 367: "the Court drew a distinction between misleading statements which were intended or likely to affect an elector when he sought to record and give effect to the judgment he had formed as to the candidate for whom he intends to vote, and misleading statements which might do no more than affect the formation of that judgment." 14 In Re Collins and Others; Ex Parte Hockings (1989) 167 CLR 522 the question was whether the use of union resources to promote one group of candidates in an election and the denial of such resources to another group of candidates constituted an irregularity in or in connection with an election. Brennan and Deane JJ said at 525: "In Reg. v. Gray; Ex parte Marsh ((1985) 167 CLR 351, 368), Gibbs C.J. said: 'The notion of an irregularity, in relation to an election, involves the idea of some departure from some rule, established practice or generally accepted principle governing the conduct of the elections.' (Emphasis added.) As appears from that judgment and its reference to Evans v. Crichton-Brown ((1981) 147 CLR 169), an irregularity is not 'in or in connexion with an election' if the irregularity consists merely in the steps taken to affect voting intention but leaves untouched the processes of nomination, conduct and declaration of the poll. This is such a case." 15 Gaudron J held that an irregularity which affected voting intentions alone was not an irregularity in or in connection with an election. She said at 531: "… bribery, intimidation and coercion aside, irregularities are directly associated with the machinery processes or formal steps involved in an election." 16 Toohey and McHugh JJ agreed with Gaudron J and added at 526: "Conduct which constitutes a breach of the rules of an organization but which goes no further than supporting the candidature of members of a particular 'team' amounts to an irregularity but it does not give rise to an irregularity in or in connexion with an election because it does not involve a departure from some rule, practice or principle governing the conduct of the election." 17 It follows from these cases that distributing misleading advertising material among electors, or producing electioneering material with union resources in breach of the rules of the union do not constitute irregularities in relation to an election for the purposes of s 223 of the Act because while this conduct may have an effect on voters in making a judgment about the person for whom they would vote, it does not touch the machinery aspects of the election. The requirement that conduct must be in relation to an election means that such conduct must touch the machinery aspects of the election such as the nomination process, the recording of votes, or the declaration of the results. Conduct is not in relation to an election within the meaning of the definition of irregularity if it only concerns the formation by voters of a judgment about the person for whom they intend to vote. To permit the courts to inquire into matters which influence a voter in deciding the person for whom to vote would render election results too uncertain. Further, inquiry into a voter's intention would intrude into the secrecy of the ballot - a result which the scheme of the Act does not envisage.

was there an irregularity - the allegations 18 It is now necessary to examine the allegations made by the applicant in the light of these principles. 19 The present case does not concern conduct which could affect the voters directly at all. The only impact on voters of the applicant failing to nominate for election was to reduce the field of candidates and thereby reduce the scope of choice among candidates open to the voters. Rather, this is a case where the conduct alleged to amount to an irregularity affected the process of nomination. 20 Unlike Marsh or Hocking there is no question of intruding into the secrecy of the ballot in this case. Further, the distinction between irregularities which affect the machinery aspect of an election and those which affect the formation of a judgment as to the person to be elected does not have a direct application. Finally, the consideration of rendering the results of elections too uncertain must be viewed in a different context. 21 Usually the rules of the union provide for the process of nomination. They often prescribe the qualification for nomination, such as membership of the union for a specified period prior to nomination. A common complaint of irregularity in a union election is that there has been a breach of the rules because the returning officer has rejected the nomination of a person who is qualified to nominate and whom the returning officer has wrongly determined is not qualified to nominate for office. Such an irregularity falls within subparagraph (a) of the definition of "irregularity". 22 The present case put by the applicant does not rely on any breach of the rules of the union concerning the process of nomination. The question is whether the conduct alleged amounts to an irregularity in relation to the election within the ordinary meaning of the term. Whether it does so or not depends on the nature of the irregularity established by the facts of the particular case. There will be few fact situations concerning the nomination process which will constitute an irregularity in relation to an election where there is no breach of the rules of the union. However, in my view, the facts alleged by the applicant are capable of amounting to an irregularity. 23 There are several important considerations. The information which was not disclosed concerned a vital issue for a potential candidate. The issue was whether the position would be paid or not paid. The capacity of many, if not most, potential candidates to nominate will depend on whether the position will yield them an income. A different result may well follow if the issue were not so critical to the capacity of a person to nominate for election and take up office if elected. Thus, if the non-disclosure related to the amount of pay for the position rather than whether it was to be paid at all, there may not be a relevant irregularity. The matter can be tested in the following way. If the rules of a union relating to the nomination process were amended shortly before an election and the union did not make available amended rules to members so that some candidates, say, lodged nominations outside an amended time limit, there would be an irregularity in relation to the election within the ordinary meaning of the expression. Where there is a non-disclosure of vital information the receipt of which will determine whether people stand for election there is, in my view, also an irregularity in relation to the election. The information withheld must be vital in the sense that, had it been known, it would have caused a potential candidate to change their mind and nominate for election. 24 On this analysis a critical issue of fact arises in the inquiry before the Court. If the evidence is that the information withheld from the applicant was that the position would almost certainly be a paid position after the election, the conditions which I have outlined would be met and an irregularity in relation to the election would have occurred. The necessary evidence is encapsulated in propositions 3, 4 and 6 set out in par 7 of these reasons. Before considering whether the evidence before the inquiry amounted to this it is desirable to refer to the evidence which satisfies me that propositions 1 and 2 set out in par 7 of these reasons are satisfied, that is to say, that the applicant believed on reasonable grounds induced by the union that the office of Federal Secretary of the Division would be unpaid following the election.

Events prior to the November 1998 election 25 There was a long history of controversy in the Food and Confectionery Division of the union over the question whether the office of Federal Secretary of the Division was or should be a full-time paid position. 26 In August 1994 Ms Freda Bogar was elected to that position and took up office on 2 September 1994. She encountered opposition from a group within the union which has been described in this inquiry as the followers of the present National Secretary, Mr Doug Cameron. When Ms Bogar took office the National Council of the union endeavoured to treat her office as an unpaid position. She took proceedings in the Industrial Relations Court of Australia seeking to compel the union to perform and observe the rules by treating her position as a paid position. She was successful in this application both at first instance, and on an appeal taken by the union and determined by the Full Court on 3 July 1996. 27 In October 1997 the relevant organs of the union took steps to change the rules of the union so that the Federal Secretary of the Division would be an unpaid position after the expiration of the then current term. 28 On 2 March 1998 the Federal President of the Division commenced proceedings in this Court under s 258 of the Act seeking validation of certain irregularities which had occurred in relation to the attempt to amend the rules. Wilcox J made orders validating the irregularities (see Carlo Frizziero v Freda Bogar [1998] FCA 567). Ms Bogar instituted an appeal against those orders but did not proceed with it. 29 On 2 February 1998 nominations for the next election for the office of Federal Secretary of the Division opened. The question whether the office should be a paid full-time position or an honorary position was an issue in this election. Ms Bogar and Mr Treharne were the two candidates for the position. On 26 May 1998 Mr Treharne was declared elected to the position. 30 Ms Bogar instituted an inquiry in this Court into the election of Mr Treharne. On 28 August 1998 the Court found that there had been an irregularity in the acceptance of the nomination of Mr Treharne by the returning officer and the election was declared void. The election for the office of Federal Secretary of the Division had been conducted at the same time as the election for the office of Tasmanian Regional Secretary of the Division. Mr Treharne nominated for both offices. The Court found that nomination for both offices was in breach of the rules of the union. (See In the matter of a an application by Freda Bogar for an inquiry relating to an election for office in the Automotive, Food, Metals, Printing & Kindred Industries Union, Food & Confectionary Division [1998] FCA 1259.) 31 Notices announcing the calling of the new election appeared on 14 September 1998. Nominations closed on 1 October 1998. Valid nominations for the election were received from Ms Bogar and Mr Treharne and on 19 November 1998 Mr Treharne was declared elected to the position. 32 This course of events was known to Mr Morrison. In particular he knew that there had been ongoing controversy over a long period, including proceedings in this court, which determined that the office was a paid office under the rules of the union. I accept that before the close of nominations he believed that the position of the union leadership was strongly in favour of the Federal Secretary of the Division becoming an unpaid position under the rules.

The change of approach 33 The evidence as to the change of view of those persons in control of the union whether the office of Federal Secretary of the Division was to be paid or unpaid focused on a meeting attended by Mr Doug Cameron, Mr Ian Jones, the Federal Secretary of the Vehicle Division, Mr Treharne and Ms Bogar. Mr Cameron, Ms Bogar and Mr Treharne gave evidence about the meeting. Mr Jones was unavailable because he was away on his honeymoon. The meeting occurred in late September 1998, that is to say after nominations for the November 1998 election had opened and before they had closed. 34 Mr Cameron and Mr Treharne said that there was mention of the office becoming a paid position following the election. Ms Bogar disputed that the matter was raised at all. It does not seem to me to be necessary to resolve this conflict, or indeed a number of other factual conflicts, concerning the meeting. It was common ground that, whether expressed at this meeting or not, prior to the closing of nominations Mr Cameron had changed his long held view that the position should be unpaid and Mr Jones supported the view that the position should be paid. 35 The pivotal issue is whether this change of position by Mr Cameron, supported by Mr Jones, made it so probable that the change would occur that the situation was a de facto rule change, or, in other words, it was in reality equivalent to the adoption of that view by the required organs of the union. If that were the situation evidence of the power blocs or factions in the union or voting promises or past voting patterns would support it. No such evidence was led or elicited. 36 Mr Cameron gave evidence that he had one vote on the National Executive and National Conference and would use that vote in support of making the office a paid position. He said that he would also advocate the position in the democratic fora of the union. But in the end, the structure of the union is democratic and, he said, he could not procure or demand the votes of others. Indeed he gave examples of occasions on which the position he advocated had been rejected by the National Conference. Furthermore, to reverse the rule change which was before the Industrial Registrar and which made the office an unpaid position required a vote in favour which the Federal Executive of the Division could veto. Mr Cameron was not a member of the Federal Executive of the Division. 37 Counsel for the applicant suggested that there was a practical unreality in the Court accepting that Mr Cameron's view would not be translated into fact. Counsel drew attention to the fact that Mr Cameron and Mr Jones had successfully moulded different elements of the union that had come together as a result of amalgamations into a more cooperative working organisation by promoting compromise policies such as the policy of payment for the position of Federal Secretary of the Division. Their record demonstrated a practical probability that their view would prevail and the office would become a paid position. Counsel argued that the events which followed the election proved the point. Those events were as follows. 38 The result of the election was declared on 19 November 1998. On 20 November 1998, that is, the day following the declaration of the election result, the process for retaining the paid status of the position of Federal Secretary of the Division was set in train. On that day, the Federal Executive of the Food and Confectionery Division voted to recommend to the National Council of the union that the 10 March 1998 rule change, making the position of Federal Secretary of the Division honorary, be withdrawn from consideration for certification by the Industrial Registrar of the Australian Industrial Relations Commission (AIRC), and the rule change be rescinded by a vote of the National Conference of the union. Rule 6.1(g) of the union's certified rules provides that only the National Conference has the power to alter, amend or rescind the rules of the union. 39 On 8 December 1998, the National Council endorsed the resolution of the Federal Executive of the Food and Confectionery Division and resolved that: "appropriate steps, subject to the approval of the Food and Confectionery National Conference, be taken to have a further decision of National Conference to determine that the position of Federal Secretary of the Food and Confectionery Division is a full-time position." 40 In accordance with the National Council resolution, Mr Treharne was directed on 15 December 1998 by Mr Cameron to arrange a ballot of the Food and Confectionery Division National Conference Delegates on the question of whether the position of Federal Secretary of the Division was to be a full-time position. The result of a postal ballot of delegates was declared on 4 February 1999, with seven out of ten delegates supporting the retention of the full-time status of the position. 41 In the meantime, on 20 January 1999, Mr Cameron wrote to the Deputy Industrial Registrar of the AIRC to inform him that the rule change notified on 10 March 1998, but as yet uncertified, was in the process of being rescinded. 42 On 19 February 1999, the National Conference of the union voted by postal ballot to rescind the earlier rule change making the Federal Secretary of the Division an honorary position, and reinstate it as a full-time position. The vote of the National Conference was ratified by a vote of the Federal Conference of the Food and Confectionery Division within 30 days of the result of the National Conference vote being declared. On 9 April 1999, Mr Cameron notified the Deputy Industrial Registrar of the AIRC that the rule change had been effected, and the Deputy Industrial Registrar informed Mr Cameron on 27 April 1999 that the rule change of 10 March 1998 was rescinded and superseded by the changes lodged on 9 April. With that, the position of Federal Secretary of the Food and Confectionery Division once again became paid. 43 As explained earlier in these reasons, for an irregularity to have arisen in this type of case the information which was withheld from a member contemplating nomination must concern a state of affairs so likely to occur that it can be said to be practically certain. The speed with which the decision-making organs of the union acted to retain the position of Federal Secretary of the Division as a paid position after the election of Mr Treharne is consistent with the applicant's contention that the adoption of Mr Cameron's view was a foregone conclusion. Further, the process necessary under the rules to effect a further amendment of the rules involved, in this case, resolutions of the Federal Executive of the Division, the National Council, Food and Confectionery Division National Conference Delegates and the National Conference of the union. While support for the rule amendment by one organ of the union alone might not suggest that the decision was a foregone conclusion, the support by this series of decision-making organs supports the applicant's argument. I suspect that Mr Cameron's evidence understated the real effect of his influence in this matter. 44 However, suspicion, the coincidence of events, speed and widespread post-election support are, on balance in the circumstances of this case, not enough to establish that the result was tantamount to a foregone conclusion at the time when nominations closed. Without evidence of the power structure of the union and reference to voting patterns or factional or other alliances or voting promises there is, on balance, insufficient basis upon which to conclude that the retention of the paid status of the position was such a foregone conclusion as to be a practical certainty.

CONcLUsion 45 Thus, although the facts alleged in the application for the inquiry would, if established, have constituted an irregularity in relation to the election, those facts have not been shown. Consequently, the inquiry must be terminated without a finding that an irregularity occurred. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Counsel for the Applicant: Mr R Hinkley with Mr K Farouque

Counsel for the Respondent: Mr J Shaw QC with Mr I Latham

Date of Hearing: 19 - 21 September 2000