The Queen v Gray Ex parte Marsh

REASONS FOR JUDGMENT 1 The Australian Education Union ('AEU') is a registered organisation under the provisions of the Workplace Relations Act 1996 (Cth) ('the Act'). Each election for an office in an organisation, or a branch of an organisation, must be conducted by the Australian Electoral Commission: s 182(1) of Sch 1B to the Act. In 2003 elections were held for offices in each of the branches of the AEU, including the Queensland Branch. On 2 February 2004 the applicant, the Electoral Commissioner as defined in the Commonwealth Electoral Act 1918 (Cth), formed the belief that there had been irregularities in relation to the AEU (Queensland Branch) election. Accordingly, the applicant made an application pursuant to s 200(3) of Sch 1B for an inquiry by this Court into the matter. 2 As required by O 48 r 10A(1)(a) of the Federal Court Rules, the applicant filed an application in Form 50A which set out particulars of the election and of the alleged irregularities. The application having been filed, the Court is required if it 'is satisfied that there are reasonable grounds for the application' to fix a time and place for conducting the inquiry: s 201 of Sch 1B of the Act. 3 The duties of the Court at an inquiry and the orders which it may make are found in s 206 of Sch 1B. Section 206 so far as presently relevant provides: '206(1) [Inquiry into irregularity] At an inquiry, the Federal Court must inquire into and determine the question whether an irregularity has happened in relation to the election, and such further questions concerning the conduct and results of the election as the Court considers necessary. … 206(4) [Orders where irregularity found] If the Court finds that an irregularity has happened, the Court may, subject to subsection (5), make one or more of the following orders: (a) an order declaring the election, or any step in relation to the election, to be void; (b) an order declaring a person purporting to have been elected not to have been elected, and declaring another person to have been elected; (c) an order directing the Industrial Registrar to make arrangements: (i) in the case of an uncompleted election - for a step in relation to the election (including the calling for nominations) to be taken again and for the uncompleted steps in the election to be taken; or (ii) in the case of a completed election - for a step in relation to the election (including the calling for nominations) to be taken again or a new election to be held; (d) an order (including an order modifying the operation of the rules of the organisation to the extent necessary to enable a new election to be held, a step in relation to an election to be taken again or an uncompleted step in an election to be taken) incidental or supplementary to, or consequential on, any other order under this section. 206(5) [Conditions for declaring election void] The Court must not declare an election, or any step taken in relation to an election, to be void, or declare that a person was not elected, unless the Court is of the opinion that, having regard to the irregularity found, and any circumstances giving rise to a likelihood that similar irregularities may have happened or may happen, the result of the election may have been affected, or may be affected, by irregularities.' (original emphasis) 4 The term 'irregularity' is defined in s 6 of Sch 1B as follows: 'irregularity, in relation to an election or ballot, includes: (a) a breach of the rules of an organisation or branch of an organisation; and (b) an act or omission by means of which: (i) the full and free recording of votes by all persons entitled to record votes and by no other persons; or (ii) a correct ascertainment or declaration of the results of the voting; is, or is attempted to be, prevented or hindered; and (c) a contravention of section 190.' (original emphasis) 5 Section 190 of Sch 1B provides: '190 An organisation or branch commits an offence if it uses, or allows to be used, its property or resources to help a candidate against another candidate in an election under this Part for an office or other position. Maximum penalty: 100 penalty units.' 6 On 20 February 2004 the AEU and the Queensland Teachers Union of Employees ('the QTU'), which is an organisation registered under the Industrial Relations Act 1999 (Qld), were granted leave to appear and make submissions on the matters arising under s 201(1)(b) of Sch 1B, namely whether there were reasonable grounds for the application for an inquiry. 7 The application set out the following particulars of the election and of the alleged irregularities: 'Particulars of election 1. Organisation or branch: Australian Education Union Queensland Branch. 2. Office:Federal Conference Delegates representing the General Division. 3. The result of the election was declared on 4 November 2003. Particulars of alleged irregularities