Union Election Challenge Dismissed: Irregularity not established.
The applicant, a nurse of 29 years, challenged the election for Secretary of the Australian Nursing Federation (ANF), citing irregularities, including insufficient time for ballots to be returned by post, inclusion of unfinancial members in the electoral roll, and non-compliance with prior orders. Declarations sought included voiding the election result and amending the ANF’s rules to extend ballot distribution time. The respondents, the ANF and the WA Electoral Commission opposed the claim, contending that there were no irregularities.
A preliminary issue questioned whether the applicant could challenge all officeholders’ election results. The respondents contended that she only had standing to challenge the election for the office of Secretary, that being the office she nominated for, and she was not able to challenge the result of the election generally for all officers.
The Chief Commissioner found that the applicant had standing to challenge the election generally. This decision was based on the terms of the statute, specifically s 66(1)(a) of the Act, which allows a person who is or has been a member of an organisation to make an application to the Chief Commissioner to inquire into an election for an office in the organisation. The Chief Commissioner also emphasised the importance of democratic control of organisations, as outlined in section 6(f) of the Act, which encourages full participation by members in the affairs of the organisation and allows current or former members to challenge elections is consistent with this objective.
The ANF has 37,000 members, and Ms Reah became Secretary due to Mr Olson's resignation. The applicant raised concerns about the non-receipt of ballots, seeking an order to declare the election void and rule changes. The WAEC certified the results, with Ms Reah winning the Secretary position. The central issue involved the obligations of the Returning Officer, with the applicant arguing for a mandatory extension due to potential delays by Australia Post.
Non-compliance with orders
The Chief Commissioner concluded that the delay in distributing an earlier decision of the Commission regarding the ANF’s non-compliance with its Rules, did not constitute an irregularity related to the election process. The Chief Commissioner clarified that irregularities must be connected to the election itself, and the timing and distribution of the decision did not meet this criterion. As a result, the applicant’s arguments on this ground faced difficulties in establishing their validity, and the Chief Commissioner did not find an irregularity in connection with the election based on the delay in distributing the decision.
Failure by the Returning Officer to extend the ballot
The applicant argued for a mandatory duty based on the ANF’s Rules, while the WAEC contended that the Returning Officer had discretion, citing s 69(5) of the Act. The Registrar and parties also discussed the interaction between the Act, Regulations, and ANF Rules. The applicant emphasised the obligation to prevent irregularities. While the ANF asserted the prevalence of statutory provisions over union rules. The Chief Commissioner ultimately rejected the applicant’s claims, stating that the conduct of the election was consistent with the ANF’s Rules and did not constitute an irregularity.
The Chief Commissioner also addressed the applicant’s concerns about postal delays and non-receipt of ballots. He noted that the evidence was scant regarding reasons for members not receiving ballots and highlighted the speculative nature of such claims. The Chief Commissioner concluded that the election process, including the three-week timeframe, was normal and consistent with established practices. He emphasised that the WAEC did not depart from rules or practices, and members also bore responsibility for the election’s conduct, such as maintaining correct addresses under the ANF’s Rules. The Chief Commissioner cited previous cases to distinguish situations involving postal delays and underscored the impracticality of guaranteeing the delivery of each ballot. Overall, it was found that no irregularities that would invalidate the election existed.
On the evidence before the Chief Commissioner, it could not be concluded that the Returning Officer was under any obligation, as a matter of law, based on the legal principles, to extend the ANF election in this case. Further, the Chief Commissioner could not conclude on the evidence that the election was conducted in such a manner that involved a departure from some rule, established practice, or generally accepted principle governing the conduct of an election, so as to constitute an irregularity requiring the Chief Commissioner’s intervention under s 66(2)(e) of the Act. Thus, the application was dismissed.
The decision can be read here.