Federated Liquor & Allied Industry Employees Union of Australia., Application by Shirley Mellor for inquiry into election in the [1986] FCA 668

CATCHWORDS

Industrial law - registered organization - election - inquiry

whether irregularities have occurred - duty of Court - agreed

findings as to irregularities ~- whether new election or new

ballot - form of orders - requirement of secret postal ballot.

Conciliation and Arbitration Act 1904, ss. 4, 133AA, 165, 171.

IN THE MATTER OF AN APPLICATION BY SHIRLEY MELLOR FOR AN INQUIRY INTO AN ELECTION IN THE FEDERATED LIQUOR AND ALLIED INDUSTRIES

EMPLOYEES UNION OF AUSTRALIA.

NO. 06 OF 1986

GRAY J.

BRISBANE

~ QAPR 1987

FEDERAL Coun: AUSTRALIA. OF

PRINCIP, REGISTRY

et.

26TH NOVEMBER 1986

IN THE FEDERAL COURT OF AUSTRALIA

) ) QUEENSLAND DISTRICT REGISTRY ) No. 06 of 1986 }) )

INDUSTRIAL DIVISION

«

IN THE MATTER of an application by SHIRLEY MELLOR for an inquiry into an election in the FEDERATED

LIQUOR AND ALLTED INDUSTRIES EMPLOYEES UNION OF AUSTRALIA

JUDGE: GRAY J.

DATE: 26TH NOVEMBER 1986

EX TEMPORE REASONS FOR JUDGMENT

This election inquiry was adjourned on Monday 17th November 1986, to enable Messrs. Elton and Hardie, parties to the inquiry, to seek from the High Court of Australia an order nisi for prohibition and an order staying the proceedings in this

Court.

On 24th November, the inquiry resumed. Mr. Cooke appeared with Mr. Watson for the applicant and Mr. Bell and Ms. Que, candidates in the elections. Mr. Shaw 0.C. and Mr. Jerrard appeared for Messrs. Elton and Hardie, who were also candidates in the elections. Mr. Hanger 0.C. and Mr. Diehm appeared for the Australian Electoral Commission, an officer of which is

conducting the elections. Mr. Moore of counsel appeared for the

-2- Federated Liquor and Allied Industries Employees Union of

Australia, the organization in whose Queensland Branch the

elections have been conducted, until lunch-time on the first day,

*

after which his place was taken by Mr. Channell, solicitor for

the organization.

At the outset, Mr. Shaw informed the Court that his clients were prepared to concede that irregularities had occurred in or in connection with the subject elections, and that those irregularities may affect the results of the elections. No concession was made of any wrongdoing on the part of Messrs.

Elton and Hardie. Argument ensued as to whether, in the light of these partial concessions it would be necessary to continue the

inquiry, apart from determining what orders should be made.

FPollowing this argument and the luncheon adjournment, counsel for the applicant and Mr. Bell and Ms. Que and counsel for Messrs. Elton and Hardie announced that they had agreed upon findings which it would be appropriate for the Court to make in all the circumstances. These findings are undoubtedly proper on the affidavit evidence and other documentary material filed in the inquiry. They give to the applicant substantially all that she seeks in the inquiry, with the exception of findings that Messrs. Elton and Hardie have been involved in irregularities.

They have the approval of the applicant and all candidates in the elections, as well as the organization. The Australian Electoral Commission which appeared in the inquiry for the purpose of assisting the Court, and adopted a neutral stance with respect to

the candidates, sought by its counsel to persuade the Court to

- 3- continue the anquiry, in the hope that the conduct of a new election or ballot might be assisted by other findings which the Court might make. The question therefore arose whether the duty imposed on

the Court by s. 165(1) of the Conciliation and Arbitration Act

1904, to "inquire into and determine the question whether any irregularity has occurred in or in connection with the election" is discharged by the Court making the agreed findings, or whether it is necessary to continue the inquiry despite the desire of the competing parties to bring 1t to an end. I formed the view that it is open to the Court, in conducting an inquiry, to accept the Consensual findings of opposing parties, operating at arms length, and in receipt of competent legal advice, as discharging its obligation to inquire. The power contained ins. 164(4)(b) of the Act to "inform itself on any matter in such manner as it thinks just" is broad enough to justify the Court's acceptance of the views of such parties. The Court is not bound to act by consent, and would not do so if there were a danger of collusion, or some other factor which might indicate that matters of substance might be revealed by further inquiry. The saving of public moneys, and of costs to parties which are not funded

publicly, is a powerful factor in persuading the Court that it

should not prolong an inquiry unnecessarily.

There still remained the issue in the present case whether the Court should continue to inguire into the involvement, if any, of Messrs. Elton and Hardie in the

irregularities. The Court's task is not to conduct a witch-hunt,

oe

—~4- put to inquire whether irregularities have occurred. This may involve making findings as to the identities of persons responsible for irregularities, but will not necessarily. There is evidence before the Court that some documents involved is the elections are in the hands of the Australian Federal Police, and the Court has been made aware that officers of the Australian Federal Police are investigating the conduct of various persons in relation to the elections. The reluctance of Messrs. Elton and Hardie to volunteer evidence in the inquiry is therefore understandable. The existence of a simultaneous police investigation with the possible consequence that persons will he charged with criminal offences, would make it very adifficult to conduct an adequate inquiry. The Court would be obliged to respect the rights of persons not to incriminate themselves, and this would limit the extent to which a balanced view of the facts could be taken. The conduct of any persons who may have committed offences will not escape scrutiny by the curtailment of this inquiry, because the police will no doubt continue' their investigations in any event. For these reasons I took the view that further inquiry was unnecessary, and resolved to make the following findings:

The Court finds that the following irregularities have occurred in or in connection with the elections currently being conducted for the offices of State Secretary-Treasurer and Assistant State Secretary in the Queensland Branch of the Federated Liquor and Allied Industries Employees Union of Australia:

(1) Ballot papers belonging to members who had left their place of employ, and who had given the place

of employment as the address to which ballot papers

-5- were sent, had been collected by unauthorised persons.

{2) Members did not receive ballot papers yet ballot Papers purportedly having been completed by those members have been received by the Returning Officer at the Australian Electoral Commission in 240 out of 411 cases examined by the Returning Officer.

These facts constitute irregularities within the statutory

definition of irregularity ins. 4(1) of the Act in that they

involve acts "whereby the full and free recording of votes by all

persons entitled to record votes, and by no other persons, or a

correct ascertainment or declaration of the results of the voting

is, or is attempted to be, prevented or hindered".

At an early stage after the ballot had closed, the Returning Officer formed the view that it had failed and resolved not to count the votes. Despite the efforts by Messrs. Elton and Hardie to persuade the High Court to compel the counting by Mandamus or injunction, the votes still remain uncounted. There is a very real likelihood that the irregularities which have occurred may affect the results of the elections. It has not been suggested that a count should take place, and in view of the difficulty of distinguishing valid from invalid votes, it seems

unwise to attempt a count.

All parties were of the view that the elections or the ballot should he declared void, and that consequential orders should be made pursuant to s. 165(3) of the Act. There was also

consensus that orders should be made pursuant to 5. 165(3)(d),

- 6- with a view to avoiding irregularities in the conduct of any future election or ballot. To enable the parties to discuss the appropriate orders, the matter was adjourned until today. Further submissions have been made today, and I propgse to

pronounce formal orders. Before doing 50, however, there are

some comments which I desire to make.

In the first place, I commend the Returning Officer on the responsible and assiduous approach which he has taken to his tasks. It appears to me that he has done ail he could do reasonably to ensure that irregularities would not occur, and his efforts in investigating those which have occurred have been most fruitful. I am also grateful for his role in suggesting orders

which will assist in avoiding future irregularities.

The second comment is directed to all members and officers of the branch, to employers in the industry in which members of the organization are employed, and to members of the public generally. It is vitally important that the democratic rights of members of the organization be respected, and that no step be taken to interfere in any way with the receipt by any member of a ballot paper, or with the exercise by any member of the right to vote. Section 171 of the Conciliation and Arbitration Act 1904 refers to various acts of interference with elections in registered organizations which are criminal offences, punishable by fines or imprisonment, or both. As has been shown by events connected with the subject elections, the Australian Electoral Commission and the Australian Federal Police

will take action to enforce the law if such offences are, or may

~7- have been, committed. It should also be remembered that a conviction for such an offence results in disqualification from holding office in a registered organization, by virtue of s. 132B

of the Act. as

I also note that Messrs. Elton and Hardie have given undertakings that they will withdraw their current High Court proceedings, and will not recommence them or commence similar

proceedings in relation to the current election inquiry.

Considerable discussion has taken place this morning as to the forms of orders which should be made. The first issue was whether the Court should order the conduct of a fresh election or merely a fresh ballot. The view I have taken is that the candidates who have nominated have become entitled to the conduct of a ballot as between themselves and the other candidates who have nominated. To order a complete fresh election involving the taking of nominations would be to disentitle those candidates to such a ballot. In my view, in the circumstances, that should not be done. I therefore propose to order that a fresh ballot only

be conducted.

A second major issue raised by Mr. Jerrard on behalf of Messrs. Elton and Hardie was whether ballot papers directed to Members who do not provide private addresses should be sent to their work-place addresses or should be available for collection by them from electoral offices. In this connection, it is sufficient for me to say that an examination of the provisions of

the Act shows that such an order could not be made. Section

~g- 133AA of the Act requires that every election by a direct voting system for an office within an organization, being an office that is included in paras. (a), (aa), (b) or (c) of the definition of "office" in s. 4(1) shall be by secret postal ballot. The -<

eBlections for the positions of State Secretary-Treasurer and Assistant State Secretary fall within that provision. Section

4(1) of the Act contains a definition of postal ballot in the

following terms:-

""Bostal ballot" means a ballot for the purposes of which a ballot paper is to be sent by prepaid post to each person entitled to vote and facilities are to be

provided for the return of the completed ballot paper by

post by the voter without expense to hin." The Act therefore requires that a ballot paper be sent by prepaid post to each voter and it would not be possible to make an order

that persons collect their ballot papers from the Electoral

Office.

As to the other matters of controversy in relation to the form of orders, they have been resolved either by agreement or by decision, and if they have not been resolved by agreement, then the reasons for my decisions on each point have sufficiently

appeared in the discussion that has occurred.

The formal order is as follows: The Court having found that irregularities have occurred in or in connection with the elections for the offices of State Secretary-Treasurer and Assistant State Secretary in the Queensland Branch of the Federated Liquor and Allied Industries

Employees Union of Australia, and being satisfied that the

- 9 ~-

results of the elections may be affected by irregularities,

declares and orders:

(1)

(2)

(3)

(4)

That the ballot conducted in the elections for the offices of State Secretary-Treasurer and Assistant State Secretary in the Queensland Branch of the Federated Liquor and

Allied Industries Employees Union of Australia in and

about July 1986, is void.

That the Industrial Registrar is directed toa make

arrangements for the conduct of a fresh ballot between Ist

April 1987 and 30th April 1987, the candidates in such

ballot being the existing candidates in the elections, or

such of them as wish to continue their candidacy.

That the persons eligible to vote be members of the

Federated Liquor and Allied Industries Employees Union of

Australia in its Queensland Branch, who are financial in

accordance with the Rules as at 26th November 1986.

That the roll of voters for such fresh ballot be prepared

in the following manner;

(a) on or before 24th December 1986 the State President of the Queensland Branch of the Federated Liquor and Allied Industries Employees Union of Australia, Noel Rawle Horn, supply to the Australian Electoral Commission a list of the names and addresses of the members eligible to vote in such ballot;

(b) the Returning Officer take such steps as he sees fit, by direction or request to any person

or persons, to ascertain the private addresses

(5)

(6)

- 10 - of any members for whom private addresses do

not appear on the list supplied.

That in the conduct of the fresh ballot, so far as

possible ballot papers be sent to the private addresses of

persons eligible to vote, but where private addresses are not available, ballot papers be sent to the work place addresses.

That accompanying the ballot paper sent to each person

eligible to vote, there be;

{a) a business reply paid envelope, addressed to the Australian Electoral Commission;

(b) an envelope marked "Ballot Paper" with a tear-off section, bearing a number corresponding to the number allocated to that person on the roll of voters, containing provision for the insertion of the name and

address of the voter, a declaration in the

following terms:

"T certify that I ama person eligible to vote in the elections for

State Secretary-Treasurer and Assistant State Secretary of the Queensland Branch of the Federated Liquor and Allied Industries Employees Union of Australia, and that I have completed the ballot

paper contained in the within envelope." and provision for the signature of the voter; (c) a voting information slip, advising that the

secrecy of the ballot will not be violated by

reason of the number and the declaration, and

- 1ll- containing instructions for the completion of the ballot paper and the tear-off section, and

the posting of the same.

(7) That the State Secretary-Treasurer of the Queensland Branch of the Federated Liquor and Allied Industries Employees Union of Australia provide all reasonable assistance in the preparation of the list of names and addresses referred to in paragraph 4(a) of this order.

(8) That -liberty is reserved to any party to apply on seven

days' notice in writing to each other party.

This 1s to certify that this and the \o preceding pages are a true copy of the reasons for judgment herein of His Honour Mr. Justice Gray.

Dated:\% 3:8 jAssociate. Melanie oy , Mr. N.M. Cooke, Mr. K. Watson for Applicant, Mr. Bell and Ms. Que

Instructed by Cooper, Grace and Ward

Mr. J. Shaw Q.C., Mr. Jerrard for Messrs. Elton, Hardie.

Instructed by Carberry & Co. Mr. R.I. Hanger Q.C., Mr. I.C. Diehm for Australian Electoral Commission.

Instructed by Australian Government Solicitor.

Mr. M. Moore for Federated Liquor and Allied Industries Employees

- 12 - Union of Australia.

Instructed by Hawthorn, Cuppaidge and Badgery.

Dates of hearing: 17,24, 26/11/86.

vf