Transport Workers' Union of New South Wales v Patrick Murray

Conciliation and Arbitration Act 1904 (Cth) s 144, s 144(5a) Industrial Arbitration Act 1940 LEGISLATION CITED: Industrial Relations Act 1996 ss 3, 3(d), 154, 218, 218(1)(b), 222, 243, 248, 260, 261, 262, 263, 263(1), 263(2), 263(5), 264, 265, 266, 266(1), 266(2) Interpretation Act 1987 ss 5(2), 9, 33 Workplace Relations Act 1996 (Cth) Schedule 1 cl 273, cl 273(2)

Ascot Investments Proprietary Limited v Harper and Another (1981) 148 CLR 337 Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292 BWN Industries Pty Ltd v Downey and Another (1993) 11 ACSR 777 CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 Cooper Brookes (Wollongong) Proprietary Limited v The Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297 Humes Ltd. v Unity APA Ltd. and Another (No 1) [1987] VR 467 K & S Lake City Freighters Proprietary Limited v Gordon & Gotch Limited (1985) 157 CLR 309 Kazar v Duus and Others (1998) 88 FCR 218 McGee v Sanders and Others (1991) 30 FCR 565 Mills and Others v Mills and Others (1938) 60 CLR 150 Newmarch v Atkinson (1918) 25 CLR 381 CASES CITED: Ngurli Limited v McCann and Another (1953) 90 CLR 425 Owens and Others v Australian Building Construction Employees and Builders Labourers Federation (1978) 19 ALR 569 Project Blue Sky Inc and Others v Australian Broadcasting Authority (1998) 194 CLR 355 Public Service Board (NSW) v Public Service Assn (NSW) (1986) 14 IR 445 Re Sarina; Ex parte Wollondilly Shire Council (1980) 32 ALR 596 Samrein Pty Ltd v Metropolitan Water Sewerage and Drainage Board (1982) 41 ALR 467 Saraswati v The Queen (1991) 172 CLR 1 Scott v Jess (1984) 3 FCR 263 The Queen v Holmes and Others; Ex parte Public Service Association of New South Wales and Another (1977) 140 CLR 63 Thomas v Hanson and Another (2001) 107 IR 57 Thompson and Others v The Council of the Municipality of Randwick (1950) 81 CLR 87 Turner v The Australasian Coal and Shale Employees' Federation and Elcom Collieries Pty Ltd (1984) 6 FCR 177 Word v Williams (1955) 92 CLR 496

APPLICANT / RESPONDENT: Mr H Borenstein of Senior Counsel Mr A A Hatcher of Counsel SOLICITORS: Mr M Doherty LEGAL REPRESENTATIVES: Maurice Blackburn Lawyers

RESPONDENT / APPLICANT: Mr R Reitano of Counsel SOLICITORS: Mr P J Pasfield Slater and Gordon Lawyers

TRANSPORT WORKERS' UNION OF NEW SOUTH WALES v PATRICK MURRAY

Application by Transport Workers' Union of New South Wales for declaratory relief under s 154 of the Industrial Relations Act 1996

PATRICK MURRAY v TRANSPORT WORKERS' UNION OF NEW SOUTH WALES

Application by Patrick Murray for an order under s 266 of the Industrial Relations Act 1996

1 The Transport Workers' Union of New South Wales ('TWU') is an organisation of employees registered under the Industrial Relations Act 1996. Patrick Murray is a member of the TWU. The TWU is seeking, inter alia, a declaration that Mr Murray is not entitled to inspect accounting records of the Union under s 263(5) of the Act. Mr Murray, on the other hand, has applied for orders under s 266 of the Act that the TWU forthwith permits him to inspect the Union's accounting records.

THE ISSUES 2 The two matters before the Court raise two preliminary questions of law. The two questions are, as the TWU correctly formulated: (1) Does Mr Murray have an absolute right to inspect under s 263(5) of the Act, even assuming he is not acting in good faith or for a proper purpose?

(2) Does the Court have a discretion under s 266 of the Act as to whether to grant relief and/or as to what relief may be granted? THE LEGISLATION 3 The statutory provisions in issue, and which are to be found in Ch 5 - Industrial Organisations, Pt 4 - Regulation of State Industrial Organisations, Div 4 - Membership, are in the following terms: 263 Copies of report and audited accounts to be provided to members and presented to meetings …

(5) In addition to other rights conferred on a member of a State organisation by this Division, a member is entitled to inspect the accounting records of the organisation at its registered office during business hours.

(1) The Commission may, by order, enforce the provisions of this Division on the application of a member, former member or prospective member of an industrial organisation affected by a contravention of this Division.

(2) The Commission may, in particular, for that purpose do any one or more of the following: (a) order the admission to membership of an applicant for membership of an industrial organisation (whether from the date of the order or an earlier date),

(b) declare that a member of an industrial organisation ceased to be a member on a particular date,

(c) order an industrial organisation to correct its register of members,

(d) order an industrial organisation (or its officials or employees) to take any particular action or to cease any particular activity,

4 There was no disagreement between the parties that the determination of this question is essentially a matter of statutory construction. The TWU contended that s 263(5) was to be construed in the context of the Act and consistent with a construction that would promote the purpose or object underlying the Act, there being no need to first identify some ambiguity: Cooper Brookes (Wollongong) Proprietary Limited v The Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297 at 320-1 per Mason and Wilson JJ; CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 at 408 per Brennan CJ, Dawson, Toohey and Gummow JJ; Project Blue Sky Inc and Others v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] per McHugh, Gummow, Kirby and Hayne JJ; s 33 of the Interpretation Act 1987.

5 Mr H Borenstein of senior counsel with Mr A Hatcher of counsel, for the TWU, analysed the context in which s 263 appeared. It was submitted that the context disclosed a legislative purpose to make organisations and their officers accountable to the members for the proper operation of the organisation. Section 263(5), it was submitted, could be seen as being in aid of that purpose, such purpose also marking the limit of the right under s 263(5). Counsel submitted that a finding that the right to inspect in s 263(5) was absolute would produce extraordinary, capricious or irrational results. It would permit the use of the right in bad faith and/or for a purpose contrary to the interests of the organisation, such as to undermine its ability to represent its members, or maintain its industrial instruments, or its ability to continue to operate. This could clearly not have been intended by the legislature, it was submitted.

6 Reference was made to a number of authorities to support the proposition that rights are to be exercised bona fide and for the purpose for which they are granted: Thompson and Others v The Council of the Municipality of Randwick (1950) 81 CLR 87; BWN Industries Pty Ltd v Downey and Another (1993) 11 ACSR 777 at 783 per Hayne J, citing Humes Ltd. v Unity APA Ltd. and Another (No 1) [1987] VR 467 at 470; Samrein Pty Ltd v Metropolitan Water Sewerage and Drainage Board (1982) 41 ALR 467 at 468; Kazar v Duus and Others (1998) 88 FCR 218; Thomas v Hanson and Another (2001) 107 IR 57.

7 For Mr Murray, Mr R Reitano of counsel submitted that s 263(5) was a simple provision: so long as the member attended at the registered office of the organisation during business hours, that member was entitled to inspect the accounting records of the organisation. It was submitted that the legislature had not, by express words, conditioned or qualified the right created by the section. Mr Reitano submitted the words of the subsection were clear and unambiguous. There was no need to imply or import words into the provision to make sense of them or to avoid some allegedly absurd or irrational construction of the section: see Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292 at 302 per McHugh JA for the approach to be taking in reading words into a statute.

· Even if one adopted a purposive approach to the reading of the provision the outcome was the same - the purpose of the provision was to make organisations accountable to their members. · The purpose or object of the provision was to provide members with an entitlement to inspect the financial records of their organisation. It is a provision that is described as a right. It lies in a section (s 263) of the Act that is wholly aimed at providing rights to members and making organisations accountable to them. · The purpose was supported by a civil penalty provision aimed at ensuring that the organisation complied with this purpose. The existence of a penalty strongly pointed against any suggestion that subjective assessments as to the purpose of inspection were relevant or necessary in determining a member's right to inspect accounts.

· There was nothing in s 263(5), the purpose of the provision, the surrounding sections or the Act generally that threw any doubt on the literal meaning of the section (see Saraswati v The Queen (1991) 172 CLR 1 at 21 per McHugh J). Further, and given the purpose of the provision, a literal reading of the legislation would lead to an outcome that was not irrational, obscure or capricious. · The legislature could have included a specific requirement in s 263(5) that a member be acting in good faith or for a genuine purpose before being entitled to see the organisation's records. It chose not to do so. The point is underlined and to be compared with the equivalent provision in the Commonwealth Act. Clause 273 of Schedule 1 to the Workplace Relations Act 1996 deals with applications by members to inspect the financial records of reporting units. Subclause 273(2) sets out that an order may only be made where, inter alia, the Commission is satisfied that the applicant is acting in good faith. Consideration

9 The TWU was undoubtedly correct in contending that the process of construction must always begin by examining the context of the provision that is being construed: Project Blue Sky at [69] per McHugh, Gummow Kirby and Hayne JJ. See also K & S Lake City Freighters Proprietary Limited v Gordon & Gotch Limited (1985) 157 CLR 309 at 312, per Gibbs CJ; at 315, per Mason J; at 321, per Deane J. The objective is to find the underlying purpose or object of the statute and, if possible, to adopt an interpretation of the relevant statutory provision that furthers the purpose or object: D C Pearce & R S Geddes, Statutory Interpretation in Australia, (6th ed, 2006) at 33.

10 In Cooper Brookes, the High Court (Mason and Wilson JJ) at 320-321helpfully provided the following assistance in construing statutes: In some cases in the past these rules of construction have been applied too rigidly. The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole. But in performing that task the courts look to the operation of the statute according to its terms and to legitimate aids to construction.

… On the other hand, when the judge labels the operation of the statute as "absurd", "extraordinary", "capricious", "irrational" or "obscure" he assigns a ground for concluding that the legislature could not have intended such an operation and that an alternative interpretation must be preferred. But the propriety of departing from the literal interpretation is not confined to situations described by these labels. It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions.

Quite obviously questions of degree arise. If the choice is between two strongly competing interpretations, as we have said, the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention. If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended.

11 The Industrial Relations Act contains a number of objects in s 3, all directed to the establishment of a framework for the conduct of industrial relations in the State and the regulation of industrial relationships. The most pertinent of the objects for the purpose of these proceedings is set out in s 3(d) as follows: …

(d) to encourage participation in industrial relations by representative bodies of employees and employers and to encourage the responsible management and democratic control of those bodies

12 Chapter 5 of the Act deals with industrial organisations. Part 1 deals with Principles of association, Pt 2 with State Peak Councils, Pt 3 - Registered organisations, Pt 4 - Regulation of State industrial organisations, Pt 5 - Regulation of industrial organisations (other than State industrial organisations), Pt 6 - Demarcation orders, Pt 7 - Entry and inspections by officers of industrial organisations and Pt 8 - Legality of trade unions.

13 Section 263 falls within Div 4 of Pt 4. Division 1 of Pt 4 deals with the application of the Part to State organisations, Div 2 - Rules, Div 3 - Election of officers, Div 4 - Membership, Div 5 - Duties and liability of officers, Div 6 - Disqualification from office, Div 7 - Records, Div 8 - Accounts and audit, Div 9 - Amalgamation and Div 10 - Validating provisions.

14 Div 4 of Pt 4 deals with the following membership matters: Entitlement to membership of State organisations (s 260); Request by member for statement of membership (s 261); Request by member for copy of rules (s 262); Copies of report and audited accounts to be provided to members and presented to meetings (s 263); Resignation from membership (s 264); Mortality fund (s 265); Enforcement (s 266).

15 There did not appear to be any disagreement between the parties that the context in which s 263(5) appears disclosed a legislative purpose to make organisations and their officers accountable to the members for the proper operation of the organisation. In this respect, it is noted that Pt 4 prescribes the mandatory contents of the rules of any organisation, and in s 243 it provides that the rules must contain the prescribed restrictions on the making of loans, grants and donations; s 248 allows a member of an organisation to apply to the Commission for an order for the performance or observance of the rules of the organisation; Div 4 of Pt 4 identifies a range of members' rights or entitlements, for instance the entitlement to membership, the entitlement to a copy of the rules, an entitlement to a statement of membership; Div 5 prescribes the duties and liabilities of officers of an organisation, creating offences for acting dishonestly to deceive or defraud, improper use of the position for profit and failing to disclose conflicts of interest; Div 7 contains provisions for organisations to keep and lodge with the Commission, various records including records of loans, grants and donations.

16 Where the parties diverged, of course, was on the question of whether a member had an unqualified or absolute entitlement to "inspect the accounting records of the organisation at its registered office during business hours." In other words, whether a member, even one acting in bad faith or for an improper purpose, had an absolute right to inspect his or her union's accounting records.

17 There is no doubt what exists here is "two strongly competing interpretations". A literal interpretation of the provision suggests, apart from the qualifications contained in the provision itself, that s 263(5) gives a member an absolute right to inspect. However, I cannot imagine it to be correct that the legislature intended that a member of an industrial organisation should have an unqualified or absolute right to inspect the organisation's accounting records and thereby permit inspection for an improper purpose.

18 An industrial organisation registered under the Act is not a mere agent of its members but rather a party principal: Public Service Board (NSW) v Public Service Assn (NSW) (1986) 14 IR 445 at 450-451. Public Service Board was a decision under the Industrial Arbitration Act 1940 but the precept expressed in that decision has not changed under the 1996 Act. Section 222 of the Act provides that upon registration under Ch 5, a State organisation is a body corporate, has perpetual succession, has power to have dealing with any real or personal property, is required to have a corporate seal, and may sue or be sued in its corporate name. The point to be made is that the organisation, as a corporate entity, has rights and obligations of its own to exercise or meet and interests to protect including the collective interests of its members.

19 It could not be the case that the legislative intention was to render a corporate entity vulnerable to actions by a member that were contrary to the interests of the organisation, such as to undermine its ability to represent its members or to compromise its ability to operate as an industrial organisation.

20 Counsel for the TWU proffered a number of examples of how an absolute right to inspect might be damaging to an organisation. There is, perhaps, no great utility in speculating with any specificity on the different ways in which accounting and related information could be used to disadvantage an industrial organisation. But one can readily imagine privacy issues, commercial-in-confidence matters and industrial strategies being susceptible to improper purpose by a member prepared to act against the interests of his or her organisation.

21 Section 218 of the Act sets out the criteria for registration of an organisation. Section 218(1)(b) provides that the Industrial Registrar is to grant the application for registration if, and only if: the organisation is an organisation for furthering or protecting the interests of its members

22 An organisation has a duty to further and protect the interests of its members. It is conceivable that a member may seek to inspect accounting records for a purpose that may harm the interests of other members. The organisation is entitled - bound - to act to protect those interests.

23 Section 263(5) provides that a member is "entitled to inspect the accounting records of the organisation…" To be entitled is to have a right or claim to something (see Macquarie Dictionary definition). In the context of corporation law a "right" has been regarded as synonymous with a "power". Thus in BWN Industries Pty Ltd v Downey and Another (1993) 11 ACSR 777, the Court was concerned with the right of a member to call a general meeting of a corporation. At 783 Hayne J stated: Lastly, it was submitted that the resolutions to be proposed at the meeting are resolutions the passing of which would be beyond power as being either a fraud on the minority or oppressive, and that accordingly there is no power in the Commonwealth Bank of Australia to cause Secton to requisition a meeting or call a meeting to consider and if thought fit to pass such resolutions. Reference in this regard was made to Humes Ltd v Unity APA Ltd (No 1) [1987] VR 467; Re Ariadne Australia Ltd [1991] 2 Qd R 377; (1990) 2 ACSR 791; 8 ACLC 1000, and Adams v Adhesives Pty Ltd (1932) 32 SR (NSW) 398. No doubt the right of a member to requisition a meeting is subject to at least one restriction; it is subject to the general limitation on any power that the power is to be exercised by the purpose for which it is given, See for example, Mills v Mills (1938) 60 CLR 150. In the present context that limitation means, in my view, that the power to requisition and call a meeting must be used for the purpose of seeking the convening of a meeting at which particular resolutions will be considered and voted upon, and it may not be used for a purpose, for example, of simply harassing the company…. 24 The proposition that the right of a member to requisition a meeting is subject to the general limitation on any power, that is, the power is to be exercised for the purpose for which it is given, was stated in the context of a commercial corporation. Similar propositions have been stated in the same context: see Mills and Others v Mills and Others (1938) 60 CLR 150 at 185 per Dixon J regarding the duty of directors; see Humes Ltd. v Unity APA Ltd. and Another (No. 1) [1987] VR 467 regarding the power of minority shareholders to requisition a general meeting of a company and where it was stated that the right to do so "must be exercised bona fide and for the purpose for which it was conferred" per Beach J at 470; see Ngurli Limited and Another v McCann and Another (1953) 90 CLR 425 at 438 where the High Court stated: "But the powers conferred on shareholders in general meeting and on directors by the articles of association of companies can be exceeded although there is literal compliance with their terms. These powers must not be used for an ulterior purpose".

25 I am unable to see any reason why a distinction should be made between a shareholder or member of a company, for instance, and a member of an industrial organisation in relation to the exercise of a right or power vis a vis a corporate entity.

26 In this respect I note what Gray J said in Scott v Jess (1984) 3 FCR 263 at 269 in relation to federally registered industrial organisations: Officers of an organization are under a duty to exercise powers conferred upon them by the rules of the organization bona fide for the purposes for which the powers are conferred. That is a statement of principle having general application to officers of organizations. It is but one aspect of a general principle having application far wider than to officers of organizations.

27 Further, I note what Heerey J said in McGee v Sanders and Others (1991) 30 FCR 565 at 573: The similarity in structure and function between companies and organisations of employees registered under Commonwealth industrial legislation has been well recognised: Allen v Townsend (1977) 31 FLR 431 at pp 483-486, Scott v Jess (1984) 3 FCR 263 at p 269. I do not see any logical reason why the particular rule as to access by members of the elected governing body of companies to corporate documents should not also apply to registered organisations of employees. 28 I do not see any basis for distinguishing between an organisation registered federally and one registered under the New South Wales Industrial Relations Act in so far as a general duty to act in good faith is concerned. I note that cl 273 of Schedule 1 to the Workplace Relations Act 1996 deals with applications by members to inspect the financial records of reporting units. Clause 273(2) provides that an order may only be made where, inter alia, the Commission is satisfied that the applicant is acting in good faith. No such express qualification appears in the New South Wales Act. That the Commonwealth statute contains an express good faith provision was not a consideration McGee v Sanders, Allen v Townsend or Scott v Jess when it was determined that the principle of good faith established in relation members of companies should also apply in relation to officers of registered organisations of employees. I would add that the fact the Commonwealth statute contains a good faith provision is no basis for contending that it was not the legislature's intention to have such a provision in s 263(5). No attempt was made to demonstrate the two statutes were in pari materia and there is no basis for believing that the New South Wales legislature took a deliberate decision not to follow the Commonwealth's approach in relation to the right of a union member to inspect the union's records.

29 I note, of course, that Scott v Jess, Allen v Townsend and McGee v Sanders were concerned with officers of organisations. However, Mansfield J in Thomas v Hanson took the view at [36], and I respectfully agree with it, that: [A] similar restriction [may be implied] upon the right of a member to inspect records of the AWU to that which applies to the members of the Branch Executive (or other officers) to exercise that right in good faith and for the purpose for which the right has been given and not for some ulterior or extraneous purpose. 30 In Thomas v Hanson, Mansfield J applied the principle of bona fide exercise of power to the Branch Executive of an industrial organisation. At [21] his Honour held: As the Branch Executive has general control and conduct of the business of the Branch, I consider that there is a clear implication by reason of r35 that it should have access to information held by the Branch for the purpose of performing its functions. Where information relating to members is or may be relevant to the performance of its functions, it is clear that the Branch Executive should have the entitlement to have access to that information: see McGee v Sanders (1991) 30 FCR 565 at 571 - 574. However, it is also clear that the exercise of its power to have access to such information must be bona fide for the performance of its functions: Allen v Townsend (1977) 31 FLR 431 at 483 - 489; Jess v Scott (1986) 14 IR 341 at 344. 31 More relevantly, one of the issues in Thomas v Hanson was the right of the Branch President, as a financial member of the union, to inspect the membership records of his organisation. The relevant rule of the organisation was in the following terms: 59(3) A financial member making a specific request to inspect a part or parts of the records of the Union or of the Branch, Division or District of which he is part must be permitted to do so provided that : (a) the request provides sufficient particulars of the information sought;

(c) no copies may be made or documents removed without the written authority of the relevant Secretary. 32 At [30]-[36] Mansfield J considered whether there was implied into r 59(3) some restriction upon its express words by reference to the purpose for which a member sought to inspect certain records: [30] The question whether r59(3) should entitle Mr Thomas to the right to inspect the membership records, given the clear purpose of his request is to assist him and his ticket in campaigning in the election, is a more difficult one. On one view, r59(3) is quite straightforward and it applies in the present circumstances. As counsel for Mr Thomas submitted, the words of r59(3) are plain. The Rule, by the use of the word "must", obliges the Secretary to make the records available for inspection. It is not a qualified right. The express restrictions on the exercise of that right are contained in the three provisos. There are, however, considerations which militate against giving r59(3) such a full operation. Mr Hanson through his counsel says that such information as workplace, gender and telephone numbers is confidential. It is information which would have its own market and which, in the hands of a disgruntled member after the election, may make its way to a competitor union, with the potential to do serious damage to the industrial interests of the AWU. The release of that information may intrude upon the privacy of members. Some members have silent telephone numbers, and may not wish to have that information made available to other members. The records are not available to members of the public. There are good reasons why they should remain confidential, both in the interests of the AWU or the Branch and in some cases (eg silent telephone numbers) of the members as individuals. Some information will have been provided to the AWU in confidence. It is easy to conceive of circumstances where the Branch Secretary has good reason to be concerned about the use to which information sought to be inspected may be put. An extreme example would be where a member seems to ascertain the private details of another member to pursue a personal vendetta.

[31] The fact that such information as the workplace, telephone numbers and gender of members of the AWU is private is indisputable. So too is the fact of their membership, and their addresses. That much was recognised, for example, in Kierath v Western Australian Builders' Labourers', Painters' and Plasterers' Union (1997) 75 IR 124 at 131 per Malcolm CJ, Murray and Owen JJ. That case concerned the exercise of the discretion of the Registrar of the Western Australian Industrial Relations Commission to provide information about the members of a union to a member of the public. It turned upon the construction of a particular provision in the Industrial Relations Act 1979 (WA) and is not of direct relevance to the present issues.

[32] In this instance, however, the fact of that information being private must lie with the right of inspection given to members in the Rules, and the fact that the names and addresses of members eligible to vote in the election will be contained in the roll of voters made available through the returning officer. In many cases, the gender of the member will appear from the given name or names. In most cases, the telephone number will be accessible through the telephone directory.

[33] To resolve these conflicting considerations, it is necessary first to determine whether there is implied into r59(3) some restriction upon its express words by reference to the purpose for which the member seeks to inspect certain records. If there is some such implication, the question will then arise whether the acknowledged purpose of Mr Thomas, namely to use the information in campaigning in the election, is one which r59(3) does not accommodate.

[34] Gray J in Scott v Jess (1984) 3 FCR 263 at 282 - 284 discussed considerations relevant to implying terms into the rules of an organisation registered under the Act. His Honour said at 284 : "The difficulty of implying terms into the rules of an organisation does not, however, mean that such rules are to be construed as if no implication whatever arises from them. In many respects, there are to be derived from the express terms of the rules, the terms of the Act and the Regulations, and the nature, function and purpose of the organisation concerned, implications which limit what might otherwise be the extent of the express terms of the rules. ..." [35] His Honour at 286 - 288 referred to four useful principles in determining whether and to what extent the express powers contained in the Rules of a registered organisation are limited by implication. As his Honour acknowledged, those principles may not be equally applicable in all circumstances and indeed they may conflict in their application in certain circumstances. That statement of principles was approved by the majority of the Full Court ( Evatt and Northrop JJ) in Tanner v Maynes (1985) 7 FCR 432 at 441. The third of those principles is, to my mind, helpful in addressing the present issue. Gray J said at 287 : "3. A power given to a person or persons by the rules of an organisation must be exercised in good faith and for the purpose for which it is given, not for some ulterior or extraneous purpose. In support of this proposition, it is unnecessary to do more than to refer to the joint judgment of Evatt and Northrop JJ in Allen v Townsend (1977) 31 FLR 431 at 483-489, and to the cases cited in that passage, although the proposition at 483 that the fiduciary duty therein referred to is owed to the members of the organisation, as distinct from the organisation itself, may be questionable. In this respect, it is important to note that the onus of proving lack of good faith or ulterior purpose rests upon those who seek to overturn the exercise of a power, and not upon those who seek to uphold it. See Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337, at 348-349 per Gibbs J (as he then was), with whom Stephen , Aickin and Wilson JJ concurred." [36] I consider that it is appropriate to imply into the right given to members under r59(3) some such restriction as there referred to. There are, of course, differences in the responsibility of, and the relationship with, an organisation on the part of those charged with its management from those who are simply its members. The special position of those charged with responsibility for the management of the affairs of an organisation is explained by Heerey J in McGee v Sanders (1991) 30 FCR 565 at 571 - 573. However, in my view, the nature, function and purpose of an organisation such as the AWU warrants the implication of a similar restriction upon the right of a member to inspect records of the AWU to that which applies to the members of the Branch Executive (or other officers) to exercise that right in good faith and for the purpose for which the right has been given and not for some ulterior or extraneous purpose. R4 sets out the objects of the AWU. It is clear that its principal objects include fostering and promoting the interests of its members eg r4(1), r4(3), r4(4), r4(11), r4(12), r4(15), r4(18), r4(21) and r4(23) - r4(30). R17 obliges a member to abide by the Rules. If a member were to seek to exercise the right to inspect a record of the AWU for an entirely extraneous purpose, such as identifying the personal details of a member to pursue a personal vendetta or for the purpose of assisting another organisation to recruit its members, I do not think that it is intended that the Rules are intended to facilitate that process. Consequently, I consider that it is implied into r59(3) that inspection is not permitted if it is proved that a member seeks to inspect part or parts of the records of the AWU for a purpose which is inconsistent with the interests of the members of the AWU. The onus of proving that wrongful purpose will lie upon the Branch Secretary or other officer responsible for providing inspection of records in response to a request: see McGee v Sanders (No 1) at 574; Gray J in Scott v Jess at 289. 33 It is accepted that the instrument with which Mansfield J was concerned was the registered rules of a union and not a statutory instrument. It is also accepted that preferred approach to the construction of union rules is to construe them not technically or narrowly, but broadly and liberally: see The Queen v Holmes and Others; Ex parte Public Service Association of New South Wales and Another (1977) 140 CLR 63, although such an approach would not seem to be inconsistent with a purposive approach to statutory construction.

34 Nonetheless, in my opinion, there is no logical basis for taking a different approach from that of Mansfield J in Thomas v Hanson to the question of whether under s 263(5) a member has an absolute right to inspect. That right, in my opinion, is qualified by a requirement that the purpose of the inspection must be bona fide or, in other words, that the purpose is not inconsistent with the interests of the organisation and its members. The onus of proving wrongful purpose would lie with the organisation: Ascot Investments Proprietary Limited v Harper and Another (1981) 148 CLR 337 at 348-349; McGee v Sanders at 574; Scott v Jess at 289.

35 It was contended for Mr Murray that a literal interpretation of s 263(5) would not lead to an absurd, extraordinary, irrational, obscure or capricious outcome: see Cooper Brookes at 320. On the contrary, I consider it would be an extraordinary or irrational outcome if a member of an organisation had an unqualified right to obtain information from the organisation in circumstances where it was intended to use that information against the interests of the organisation or any of its other members.

36 Counsel for Mr Murray submitted that a literal interpretation of s 263(5) fitted with the context in which the provision is to be found but that the TWU's approach did not. For example, it was contended in relation to s 263(1) that "an organisation can dispense with the statutory obligation created by the word "must" if it feels that any one, or some, of its members might not be using or might not be intending to use that information for a bona fide purpose…"

37 Section 263(1) provides: A State organisation must provide free of charge to its members: (a) a copy of the report of the auditor in relation to the inspection and audit of the accounting records kept by the organisation in relation to a financial year, and

(b) a copy of the accounts and other statements to which the report relates. 38 I note that s 263(1) is qualified by s 263(2), which permits the organisation to provide to the members of the organisation a summary of the report, accounts and statements free of charge. Neither s 263(1) nor (2) raise for consideration a member's right as does s 263(5). The two provisions impose an obligation on the organisation to provide information to its collective membership. It seems to me that the organisation is bound to observe the requirements of either provision and must do so in good faith. That is to say, the organisation is required to properly inform its members of the state of the organisation's accounts and if it fails to do so it is liable to be prosecuted for contravening the provision. It is difficult, if not impossible, to envisage a situation where the organisation would refuse to provide, to an individual member, accounts information that has been distributed to the membership at large because it was considered the individual member intended to use the information for an improper purpose. 39 In considering context, the function of each provision in Ch 5, Pt 4 needs to be considered and a generalisation of the sort contended by Mr Murray does not assist in the task of construing the relevant provision.

40 I do not consider any inconsistency arises between s 263(5) and the other provisions in Ch 5 of the Act if it is to be implied in s 263(5) that the right to inspect must be exercised for a proper purpose.

41 In my opinion, the answer to the first question about whether Mr Murray has an absolute right to inspect under s 263(5) of the Act, even assuming he is not acting in good faith or for a proper purpose, is "No". I so find.

WHETHER THE COURT HAS A DISCRETION UNDER SECTION 266 OF THE ACT

· The grant of power to the Commission in s 266(1) and (2), is clearly in permissive and not mandatory terms. It uses the word "may" rather than "must". Thus the natural meaning of the words of the section give the Commission is discretion in the exercise of its powers under the section. · This interpretation is consistent with the section 9 of the Interpretation Act. · A textual analysis of the provisions of the IR Act clearly demonstrates that the legislature was alive to the use of mandatory and permissive terms where intended. 43 For Mr Murray, it was submitted:

· Despite the use of "may" in s 266, given the purpose of the Division is to provide an absolute entitlement or right to members upon establishment of certain facts, (that is being a member and having been denied access to the relevant records at the registered address of the organisation during business hours) then the right to relief follows. If there were to be a general discretion about the entitlement of an applicant to relief, then that discretion would be found in the Act (see Owens and Others v Australian Building Construction Employees and Builders Labourers Federation (1978) 19 ALR 569 at 578). · Once an applicant establishes an infringement of a statutory right he or she otherwise has there is no residual discretion that the Court acting judicially can call upon to deny relief. To do so would be acting contrary to the Act. The only discretion the Court has is as to the form of any orders that should be made. · Once it is accepted that the purpose of the Division is to make organisations accountable to their members and to provide members with rights (supported with civil penalty provisions), then the restricted nature of the discretion provided to the Court by the use of the word 'may' in section 266 may be understood. The discretion is one exercisable only to the extent of enforcing the provisions of the Division and restraining contraventions of the Division. Consideration

44 Having found that the right of a member to inspect accounting records under s 263(5) is subject to the qualification that it must be exercised for a proper purpose, it seems to me to follow that under s 266 the Court has a discretion as to whether to grant relief and what relief may be granted. Nevertheless, I should deal with the main contentions of the parties.

45 The TWU submitted a textual analysis of the provisions of the Act demonstrated that the legislature was alive to the use of mandatory and permissive terms where intended. The examples given were as follows:

· section 89 confers a powers to order remedies for unfair dismissal using "may" cf s 90 use of 'must'; · section 107 confers powers to prevent unfair contracts using "may" in sub-section (1) and "must" in sub-section (2); · section 109(1) use of "must" when required to settle a matter by conciliation; · section 266 uses "may" and in contrast, sections 267 and 268 and 269, use 'must'. Also contrast the use of these words in section 270(1) ('may') and section 270(3) ('must'); · section 275(2) uses 'may' in contrast to 'must' s 276. Also have regard to section 277 where the distinction is also made. 46 This analysis cannot be regarded as definitive by any means, but it does demonstrate the TWU's contention about the legislature being alive to the different use of mandatory and permissive terms in the Act where that different use is called for. 47 Section 9 of the Interpretation Act provides: (1) In any Act or Instrument, the word "may", if used to confer a power, indicates that the power may be exercised or not, at discretion.

(2) In any Act or Instrument, the word "shall", if used to impose a duty, indicates that the duty must be performed. 48 Section 9 of the Interpretation Act is not, however, decisive. Section 5(2) provides: This Act applies to an Act or instrument except in so far as the contrary intention appears in this Act or in the Act or instrument concerned. 49 As Pearce & Geddes observe at 339 in relation to such provisions as s 9: In many cases no reference is made to the provision, the courts discussing the issue only in common law terms. In other cases the courts have pointed to the fact that the Interpretation Acts are all expressed to apply unless the contrary intention appears which leads one back to the common law position. 50 The common law position is that there is a prima facie presumption that permissive or facultative expressions, such as the word "may" operate according to their ordinary natural meaning and that "it lies on those who assert that the word 'may' has a compulsory meaning to show, as a matter of construction of the Act, taken as a whole, that the word was intended to have such a meaning": Ward v Williams (1955) 92 CLR 496 at 506. 51 Importantly, I also note that the learned authors express the view that provisions which empower courts to grant relief of a specified kind are usually not treated as imposing an obligation to exercise that power (at 337). And further, that this appears to be the standard approach, fitting as it does with the general common law and equitable rules relating to the discretion the court exercises with regard to remedies (at 338). The authorities cited included Newmarch v Atkinson (1918) 25 CLR 381, Ward v Williams and Re Sarina; Ex parte Wollondilly Shire Council (1980) 32 ALR 596. 52 One of the exceptions referred to by Pearce & Geddes was Owens, which was relied upon by Mr Murray in the present proceedings. In Owens it was held that where it had been determined the applicants were entitled to be members of a union they had a right to appropriate orders to give effect to that determination.

53 Section 144 of the Conciliation and Arbitration Act 1904 (Cth) provided, inter alia: (5) Where a question or dispute arises as to the entitlement under this section of a person to be admitted as, or to remain, a member of an organization, that person, a person who is or desires to become the employer of that person or the organization may apply to the Court for a declaration as to the entitlement of that first-mentioned person under this section.

(5) (a) Subject to sub-section (7), the Court has jurisdiction to hear and determine an application under the last preceding sub-section and may, notwithstanding anything contained in the rules of the organization concerned, make such order to give effect to its determination as it thinks fit.

54 In Owens at 578 the Federal Court - Industrial Division (J B Sweeney, Evatt and Keely JJ) stated in relation to the relevant statutory provision (s 144 of the Conciliation and Arbitration Act 1904 (Cth)): In sub-s (1) a legal right is conferred upon a person in terms which are not qualified by reference to the objects of the Act such as the preservation of goodwill in industry. The section next provides for an application for a declaration as to the right and a hearing and determination of that application. All parties agreed that the court would not be entitled to refuse to make a declaration as asked if the facts as to qualification and character are established. The exercise of the power there given depends not upon the discretion of the court but upon the proof of the particular facts: Finance Facilities Pty Ltd v FC of T (1971) 127 CLR 106 at 134. No permissive phrase is used up to here.

The next step under the section is for the court to make such orders to give effect to its determination of entitlement as it thinks fit. It would seem to us an odd piece of legislation if the court was required by the section to proceed with a hearing and determine whether a statutory entitlement existed in a particular case but, after determining that such a right existed, and making a declaration accordingly, the court might decline to make an order giving effect to the entitlement and declaration having regard to the objects of the Act and like matters. If it were intended that these questions of general discretion were to be taken into account then one would expect that it would be provided that they might be taken into account at the point of deciding whether there is an entitlement or whether any declaration as to the existence of an entitlement should be made rather than after the declaration. 55 However, in the later case of Turner v The Australasian Coal and Shale Employees' Federation and Elcom Collieries Pty Ltd (1984) 6 FCR 177 the Court (Northrop, Keely and Gray JJ) dealt with a question not addressed in Owens, namely, whether orders under s 144 are made in respect of the rights of the parties as they existed at the date when the proceedings were commenced, or in respect of those rights as they exist at the date of judgment.

[T]he general rule should apply, namely that a declaration as to entitlement should be made on the basis of the rights of the parties as they existed at the date of commencement of the proceedings. Subsections (5 A ) and (6) indicate, however, that the orders which the court makes to give effect to its determination are intended to be flexible. This suggests that regard should be had to the situation which exists at the date when the court comes to make its order. If, between the date of commencement of proceedings and the date of judgment, an applicant has ceased to be employed and no longer desires to be employed, or has ceased to be qualified to be employed, grounds may exist for a refusal to make any order other than a declaration of entitlement as at the commencement of proceedings. For instance, an applicant may have suffered an injury rendering him or her unfit permanently to undertake employment of the kind originally desired, or may have found more attractive permanent employment in another field. The purpose of s 144 does not go to the extent of forcing organisations to take as members persons who, at the date of judgment, fall wholly outside the purview of the section.

57 Section 144 of the Commonwealth statute is quite different to s 263(5) of the New South Wales Act. The former provision required the court to first make a determination of right. The issue in Owens was whether the second stage (subs 5a) was permissive or mandatory, noting the use of the word "may" in the subsection. The Court found it was mandatory because it would be "an odd piece of legislation if the court was required… to proceed with a hearing and determine whether a statutory entitlement existed in a particular case but, after determining that such a right existed, and making a declaration accordingly, the court might decline to make an order giving effect to the entitlement."

58 Section 263(5) does not create a two-stage process of calling for the court to first make a determination of right and then to make orders giving effect to that determination. Section 266(1) provides that the Commission "may, by order, enforce the provisions of this Division…". Section 266(2) then sets out the type of orders that might be made; it is merely an elaboration of what may be done under s 266(1).

59 In any event, Turner disagrees with Owens to the extent that there may be situations where the exercise of a discretion is required because, for example, there is no utility in making the order.

60 I do not consider that the necessary parallel with Owens, as contended for by Mr Murray, exists and I, therefore, do not propose to follow it.

61 In my opinion, the use of the word "may" in s 226(1) and (2) is to be construed in the permissive and not the mandatory sense. It follows that the answer to Question 2 is "Yes". I so find.

62 The answers to the two questions are as follows: Question 1: Does Mr Murray have an absolute right to inspect under s 263(5) of the Act, even assuming he is not acting in good faith or for a proper purpose?

Question 2: Does the Court have a discretion under s 266 of the Act as to whether to grant relief and as to what relief may be granted?

63 The question of costs is reserved.

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