WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PRESIDENT

CITATION : 2009 WAIRC 00211

DELIVERED : FRIDAY, 24 APRIL 2009

FILE NO. : PRES 2 OF 2009

APPLICANT

-v-

KEVIN NOEL REYNOLDS, THE SECRETARY - THE CONSTRUCTION, FORESTRY, MINING & ENERGY UNION OF WORKERS

FIRST RESPONDENT

-and-

DARREN KAVANAGH

SECOND RESPONDENT

-and-

WAYNE NICHOLSON RETURNING OFFICER WA ELECTORAL COMMISSION

         THIRD RESPONDENT

-and-

INTERVENER THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF WORKERS

CatchWords:

Industrial Law (WA) - Section 66(2)(e) application - Jurisdiction of Commission - Whether there was an irregularity “in connection with” an election - Candidates allegedly provided with electoral roll with telephone numbers by returning officer - Whether allegations are moot when new election had been ordered - Whether actions of returning officer breached s69 of Industrial Relations Act 1979 or reg 12 of the Industrial Arbitration (Union Elections) Regulations 1980 - Application dismissed - Industrial Relations Act 1979 (WA), s7, s7(1), s26(1), s26(1)(a), s26(1)(b), s26(1)(c), s27(1)(a), s27(1)(a)(iv), s66, s66(2), s66(2)(e), s69, s69(9) - Industrial Arbitration (Union Elections) Regulations 1980 - Reg 12, 12(4) - Workplace Relations Act 1996 (Cth)

Legislation:

Industrial Relations Act 1979 (WA), s7, s7(1), s26(1), s26(1)(a), s26(1)(b), s26(1)(c), s27(1)(a), s27(1)(a)(iv), s66, s66(2), s66(2)(e), s69, s69(9)

Workplace Relations Act 1996 (Cth)

Industrial Arbitration (Union Elections) Regulations 1980, reg 12, reg 12(2), reg 12(4)

Result:

Application dismissed.

Representation:

Counsel:

Applicant:  In person

First Respondent: Mr K J Bonomelli (of Counsel), by leave

Second Respondent: No appearance

Third Respondent: Ms N Eagling (of Counsel), by leave

Intervener:  Mr R C Kenzie QC, by leave and with him

  Mr T J Dixon (of Counsel), by leave

Solicitors:

Applicant:  Not applicable

First Respondent: Jeremy Noble Barristers & Solicitors

 Second Respondent: Leask & Co

 Third Respondent: State Solicitor for Western Australia

 Intervener: Slater and Gordon Lawyers

Case(s) referred to in reasons:

Civil Service Association of Western Australia Inc v Commissioner of Police, Western Australian Police (2006) 86 WAIG 639

Confederation of Western Australian Industry (Incorporated) v Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1990) 70 WAIG 1281

Harken v Dornan (1992) 72 WAIG 1727

R v Gray; Ex parte Marsh (1985) 157 CLR 351

Re Collins; Ex parte Hockings (1989) 167 CLR 522

Thompson v Reynolds (2009) 89 WAIG 287

Veloudos v Young (1981) 56 FLR 182

Case(s) also cited:

Jones v Civil Service Association Inc [2003] WASCA 321

Mcjannett v Reynolds & Ors (2008) 88 WAIG 2086

Stacey v Civil Service Association of Western Australia (Incorporated) (2007) 87 WAIG 1229

Reasons for Decision

RITTER AP:

Introduction

1          On 23 February 2009 the applicant filed an application seeking, under s66 of the Industrial Relations Act 1979 (WA) (the Act), an inquiry into the election for offices in the Construction, Forestry, Mining and Energy Union of Workers (CFMEUW).  The application was, after being filed, endorsed with directions in the usual manner.  One of those directions was that the application be served upon the CFMEUW.  The reason for this was because of its obvious interest in the application.  The endorsed directions also included that there be a directions hearing on 18 March 2009.  The longer than usual length of time between the filing of the application and the first directions hearing occurred at the request of the applicant.

Leave to Intervene

2          At the directions hearing the CFMEUW applied for leave to intervene in the proceedings.  This was not objected to by the applicant or any of the respondents.  The application was granted and an order made accordingly.

The Summary Dismissal Application

3          Prior to the directions hearing the CFMEUW also foreshadowed that, if leave to intervene was granted, it would apply for the proceedings to be summarily dismissed.  The primary basis for this was that the contentions made in the substantive application could not, as a matter of law and fact, constitute “irregularities” for the purpose of s66(2)(e) of the Act.  Accordingly there was no jurisdiction to inquire into the election and the application must fail.  Further or alternatively it was submitted that the application should be dismissed under s27(1)(a) of the Act.  The reason for this submission was that the contentions in the application did not relate to the present election for offices and were therefore moot; in the sense of having being overtaken by events and accordingly irrelevant to the present election.  The application of the CFMEUW was supported by the respondents.

4          At the directions hearing, after discussions with the parties, I made orders for the filing and service of submissions on the summary dismissal application.  That application was then listed for hearing on 8 April 2009.

5          It was accepted by the CFMEUW and the respondents that the basis upon which the application for dismissal should be considered was to take the applicant’s case “at its highest”.  In other words the question is whether, assuming the applicant could prove the facts which he contended had occurred, they could properly support, as a matter of fact and law, an inquiry under s66 of the Act.  It is also appropriate to record at this stage that the parties and the CFMEUW do not accept that all of the facts occurred, which are alleged by the applicant.  This point is particularly made by the third respondent.

Background to the Election

6          The present election for offices is to occur because of orders I made in proceedings PRES 3-6/2008.  Those proceedings involved an inquiry into alleged irregularities in the elections for offices which were, pursuant to the rules of the CFMEUW, scheduled to occur in the second half of 2008.  I published reasons for decision in those proceedings on 23 January 2009 (“the first reasons” – see Thompson v Reynolds (2009) 89 WAIG 287). In the first reasons I set out the relevant statutory provisions, rules of the CFMEUW, claims which were made, relevant evidence, issues which emerged and my analysis of those issues.  I concluded that an irregularity had occurred in the compilation of the roll for the 2008 election for offices in the CFMEUW.

7          After hearing from the parties I made orders on 28 January 2009.  The first of these was a declaration that the irregularity had occurred.  The second order was that an “election proceed pursuant to Rule 23 of the CFMEUW Rules for all offices and such election be arranged by the Registrar and the Electoral Commissioner appointed under s 69 of the Industrial Relations Act 1979 (WA) in accordance with the following scheme and timetable…”.  The scheme and timetable were then set out.  For present purposes it is relevant to note that it was ordered that nominations were to open on 17 April 2009 and close on 1 May 2009.  The ballot was ordered to commence on 22 May 2009 and conclude on 19 June 2009.

8          It is also relevant to note at this stage that as set out in the first reasons, although the electoral process had in accordance with the CFMEUW rules commenced for the 2008 election, I ordered on 16 September 2008 that the returning officer should not take any steps to proceed with the election until further order.

The Present Application

9          The application in the present proceedings set out as the grounds of the application, the following:

“WA Electoral Commission unlawfully assisting individual candidates Kevin Reynolds and Darren Kavanagh.  WA Electoral Commission supplied private phone numbers to Darren Kavanagh who then canvassed members with SMS messages on several occasions to assist his election campaign.  WA Electoral Commission and or CFMEU contravened sections 12 (2) and (4) of the Industrial Arbitration (union elections) regulations, 1980 and section 69(9) on the Industrial Relations act 1979.  WA Electoral commission and or Darren Kavanagh further contravened the Federal privacy act 1988 and other privacy regulations with unlawful use of private telephone numbers.  as per attached schedule 1 [sic].” 

10       “Schedule 1” was an affidavit sworn by the applicant, which set out facts and annexed documents which were said to support the application.

11       It is appropriate at this juncture to say that the broad and unparticularised allegations in the application that there had been a breach of, “the Federal Privacy Act and other privacy regulations” was not the subject of any relevant evidence or submissions.  As a result I do not think that allegation could support an inquiry under s66 of the Act.

12       It is also pertinent to note at this stage that the alleged supply of private telephone numbers did not occur at a time after the order which I made for an election on 28 January 2009.  Instead it allegedly occurred in relation to the election then scheduled to take place in the second half of 2008 and before the order made on 16 September 2008.

The Allegations Made by the Applicant

13       The following is taken from the applicant’s affidavit and the annexed documents.

14       The applicant was a candidate for the position of assistant secretary in the 2008 elections of the CFMEUW.  The applicant said that on 21 August 2008 he met with the returning officer, Mr Nicholson (the third respondent), at the offices of the Western Australian Electoral Commission (the WAEC). He there requested a copy of the electoral roll.  The applicant said he was told by Mr Nicholson that no candidate would be receiving any copies of the roll and it would only be available for inspection at his office at a later date.

15       On the following day the applicant wrote to Mr Nicholson with a complaint about the conduct of the elections.  In the letter, the applicant requested a copy of the roll on the grounds that Mr Reynolds and Mr Kavanagh (candidates for the position of secretary) had already received copies of the roll.

16       On 29 August 2008 the applicant received a letter of reply from the Electoral Commissioner dated 27 August 2008.  In that letter it was said that, in accordance with the rules of the CFMEUW, an election was not formally underway until nominations were opened and closed.  The letter said that the list of eligible voters had closed, in accordance with the rules, on 23 July 2008.  It also said that the returning officer had not issued any voter lists for the election.  The letter said that under regulation 12 of the Industrial Arbitration (Union Elections) Regulations 1980 (the Union Election Regulations), the returning officer was to make the electoral roll available for inspection by members of the union or other authorised persons.  Section 69(9) of the Act was also mentioned.  It entitles members and candidates to inspect and take extracts from the list of eligible voters.

17       The applicant deposed that on 10 September 2008 he received a telephone call from a CFMEUW official alleging that Mr Kavanagh had been given a membership roll by the WAEC containing “numerous phone numbers belonging to CFMEU [sic] members and Mr Kavanagh and his associates were sending campaign text messages to those persons”.  The applicant said that union members had complained to the WAEC about this.  The WAEC had then recalled the roll form Mr Kavanagh.

18       The applicant said that after receiving this information he attended the offices of the WAEC and met with Mr Nicholson and Mr Botterill. (Mr Botterill became the substitute returning officer for the 2008 elections following the calling of the Western Australian State Parliamentary Election).  The applicant said that during this meeting Mr Nicholson and Mr Botterill denied supplying a roll to Mr Kavanagh or Mr Reynolds containing telephone numbers.  They also said that the rolls were recalled due to other problems such as “workplace addresses”.  The applicant deposed that at the meeting the returning officers did not explain why Mr Reynolds and Mr Kavanagh had been given membership rolls in “contradiction of their earlier stated position”.

19       The applicant then referred to and annexed to his affidavit a letter by him to the Electoral Commissioner dated 18 September 2008.  This was sent via email on that date.  Relevantly that letter referred to an earlier letter by the applicant dated 10 September 2008, as to which he had not received a reply.  The letter dated 18 September 2008 also referred to another letter sent earlier that day.  The earlier letter had referred to the non reply to his letter dated 10 September 2008.  The second 18 September 2008 letter then said the applicant had received a telephone call from Mr Botterill in response to the first letter sent on 18 September 2008.  The second letter said it was not appropriate to respond to “these important issues in any manner other than in writing”.

20       The letter then went on to request details of the membership roll which Mr Kavanagh had been provided with which was later removed from his possession.

21       A letter in reply, dated 18 September 2008, was sent by the Electoral Commissioner to Mr Mcjannett and received by him on 22 September 2008.  That letter referred to Mr Mcjannett’s letters of 10 and 18 September 2008 and also the order, described earlier, which I made on 16 September 2008.

22       The letter then said that the returning officer had an obligation to ensure that the electoral roll was in “in good order”.  The letter said the list of members was withdrawn from all candidates because of the requirement to have residential addresses shown on the electoral roll.  The letter said that “[a]ll lists [had] been returned to the Commission and work [was] continuing to finalise the election roll”.

23       The applicant’s affidavit then detailed a freedom of information request which he made “concerning the illicit supply and use of private telephone numbers”.  The freedom of information request was made by letter to Mr Nicholson dated 8 December 2008.

24       The Freedom of Information Officer of the WAEC provided a detailed reply to the applicant’s freedom of information request by letter dated 5 February 2009.  This was received by the applicant on 9 February 2009.  In that letter the officer said he had decided to refuse the application for a copy of the “CFMEUW roll that was issued in September 2008 to Mr Kevin Reynolds and Mr Darren Kavanagh and any mobile telephone numbers contained therein”.  The letter set out relevant factual background.  The letter said that “[a]fter the conclusion of the nomination period [on] 4 September 2008 the Electoral Commission sent a copy of the CFMEUW roll to Mr Reynolds and Mr Kavanagh”; but before doing so both of these men had to sign a “Roll Use of Agreement contract with the Electoral Commission”.  That agreement set out the basis upon which the roll was provided.

25       The letter said that after the roll was sent to Mr Kavanagh and Mr Reynolds it was discovered that “one of the rolls supplied had some mobile telephone numbers of CFMEUW members included.  As soon as this was discovered the returning officer contacted (via telephone) the appropriate candidate and requested that the candidate not use the roll containing this personal information and requested that the roll be returned to the Electoral Commission.  The candidate obliged with this request immediately”.

26       The letter then referred to the applicant’s correspondence to the returning officer and the order which I made on 16 September 2008.  The letter also referred to an email sent by the applicant to the returning officer requesting a copy of the CFMEUW roll.  The letter said the request “could not be actioned because the CFMEUW election had been suspended”.

27       The letter then recorded the decision of the Electoral Commissioner about the freedom of information request.  The request was refused on the basis that disclosure “would reveal personal information about an individual”.  The letter said that the Electoral Commissioner did not think it was in the public interest to provide that information to the applicant.

28       The letter then set out the applicant’s rights of appeal.

29       In his affidavit, the applicant contended that the letter dated 5 February 2009 contained “many inaccuracies”.  The affidavit also said however that there is “abundant evidence” that Mr Kavanagh and his “Renew the CFMEU team”, did not comply with the request to return the roll but used the telephone numbers to send out text messages to thousands of members on the eve of the “Federal Union Election”.  I mention at this stage that, as described in the first reasons, elections for offices in the Construction, Forestry, Mining and Energy Union, registered under the Workplace Relations Act 1996 (Cth) were scheduled to and did occur in the second half of 2008.  The applicant’s affidavit then referred to complaints made by members of “the union” to the Australian Electoral Commission about the supply of their telephone numbers to Mr Kavanagh.  The applicant asserted he had in his possession copies of messages sent by the “Renew the CFMEU team” which had also been “downloaded onto computer equipment”.  The applicant’s affidavit then concluded that: “the election process past and present had been corrupted”.

30       In summary, the applicant’s complaint is that an irregularity has occurred because the WAEC wrongly assisted Mr Kavanagh and Mr Reynolds by providing them with an electoral roll which contained private telephone numbers of CFMEUW members and that this roll had been used by Mr Kavanagh to solicit votes from members.  Additionally, this roll was not provided to the applicant.

The Submissions on Jurisdiction

31       As set out earlier, the first basis upon which dismissal of the proceedings was sought was because what has been alleged by the applicant cannot, as a matter of law and fact, constitute an “irregularity” as defined in the Act.

32       Relevantly, s66(2)(e) of the Act provides that the President may:

“…

(e) inquire into any election for an office in the organisation if it is alleged that there has been an irregularity in connection with that election and make such orders and give such directions as the President considers necessary –

(i) to cure the irregularity including rectifying the register of members of the organisation; or

(ii) to remedy or alter any direct or indirect consequence thereof;

…”

33       “Irregularity” is defined in s7 of the Act in the following way:

“irregularity, in relation to an election for an office, includes a breach of the rules of an organisation, and any act, omission, or other means by which the full and free recording of votes, by 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;”

34       In support of its argument, the CFMEUW referred to discussion by the High Court about the substantially similar definition of “irregularity” in the then applicable Federal legislation, about the elections for offices in federally registered unions.  This discussion has been held to be applicable to determining whether an irregularity has occurred under the Act (see Harken v Dornan (1992) 72 WAIG 1727 and also the first reasons at [201]-[208]). 

35       In particular, the CFMEUW relied upon the observations of Gaudron J in Re Collins; Ex parte Hockings (1989) 167 CLR 522.  At 528, Gaudron J said that the hindering or prevention of “the full and free recording of votes”, in the definition of irregularity, referred “to the processes involved in obtaining, marking and returning a ballot paper and not the process by which a voter decides for whom to vote”.  Her Honour cited R v Gray; Ex parte Marsh (1985) 157 CLR 351 in support of this proposition.  Her Honour quoted from the reasons of Gibbs CJ in Ex parte Marsh at 368, where the Chief Justice said: “[t]he 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 election”.  Her Honour concluded at 531 that “the expression ‘irregularity in or in connection with an election’, as used in the [Federal] Act, does not encompass those activities by which candidates or persons acting in their interests seek, by their advocacy or by promoting or publicising such advocacy, to influence voters in their decision for whom to vote”. 

36       The CFMEUW also cited the reasons of Toohey and McHugh JJ in Re Collins in support of the proposition that even breaches of an organisation’s rules do not necessarily give rise to an irregularity.  Their Honours said 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.”

37       It was submitted on the basis of the reasons in Re Collins that what the applicant here alleged could not constitute an “irregularity in connection with” the election which is to take place. 

38       The CFMEUW did acknowledge that the definition of “irregularity” in s7 was inclusive rather than exclusive.  This point was made by Gibbs CJ in Ex parte Marsh at page 365, with respect to the then applicable Federal legislation.  The Chief Justice referred to other examples of irregularities as being a threat which induced the withdrawal of a candidature or, without any breach of a union’s rules, a returning officer failing to make available any reasonable facility for the receipt of nominations, so that persons who desired to be candidates were prevented from nominating.  The CFMEUW submitted however that there was nothing of this ilk in the applicant’s contentions. 

39       The CFMEUW submitted that even if the WAEC had supplied telephone numbers to one or more of the candidates this was at most an “electioneering irregularity” which was not an “irregularity” for the purposes of the definition in s7(1) of the Act.  The CFMEUW cited in support of this contention the reasoning of the Industrial Appeal Court in Harken.  There, the then President had found that there were irregularities because a candidate had used the resources of the union for his own purposes in endeavouring to persuade electors to vote for him at an election.  However an appeal against this decision was allowed by the Court, following the reasoning in Re Collins. 

40       Accordingly the CFMEUW submitted, in effect, that:

(a) There was no allegation of a breach of the rules of the CFMEUW.

(b) The alleged acts or omissions were not those by which:

 (i) the full and free recording of votes; or

 (ii) a correct ascertainment or declaration of the results of the voting,

  was, or was attempted to be, prevented or hindered.

(c) What was alleged did not otherwise constitute an irregularity in connection with the election for offices in the CFMEUW.

41       Each of the respondents adopted the submissions of the CFMEUW on the issue of jurisdiction.

42       In his submissions, the applicant did not accept that the facts he relied upon did not constitute an irregularity in relation to an election for office.  The applicant provided few details however to support this fairly diffident submission.  The applicant did, correctly, submit that the authorities relied upon by the CFMEUW did not involve allegations of “serious illegal conduct” by a returning officer or Electoral Commissioner, or the unlawful use of private telephone numbers, as he argued had been released by the WAEC to Mr Reynolds and Mr Kavanagh. 

43       It was also submitted that the Commission has a wide range of powers under s66.  In addition reliance was placed upon s26(1)(a)-(c) of the Act. 

44       The applicant also argued that the provision of the roll by the WAEC to Mr Reynolds and Mr Kavanagh was in contravention of s69(9) of the Act and regulation 12(4) of the Union Election Regulations. 

45       Section 69(9) of the Act provides:

“The Secretary of the organisation shall, within such time as the Registrar may require, lodge with the Registrar a copy of the register of members referred to in section 63 and that register shall be open for inspection and extracts may be taken therefrom, at the office of the person conducting the election, by any member of the organisation or candidate at the election.”

46       Regulation 12(4) of the Union Election Regulations provides:

“The returning officer shall, at the place where he carries out his functions as returning officer, make the electoral roll applicable to an election for an office available for inspection by members of the union, or by any person authorised by the returning officer, during the ordinary hours of business until the day on which the result of the election is declared.”

47       The applicant submitted that the provisions did not authorise the giving of a copy of the entire electoral roll to a candidate.  With respect to s69(9) of the Act the applicant contended the use of the word “extract” meant that only something less than the entire roll could be provided. 

The Submissions on Whether the Allegations are Moot

48       With respect to the contention that the allegations made by the applicant were now moot, so that the application should be dismissed for that reason, the lead submissions were made by the third respondent.  The other respondents and the CFMEUW adopted his submissions.

49       The third respondent submitted that the order that I made on 28 January 2009 was for “a new election to proceed in accordance with a new timetable.  This new timetable included the compilation of a new roll”.  Accordingly, the question of the use made by the roll supplied by the WAEC to Mr Kavanagh in the “previous election” was a “dead issue”.  It was then submitted that courts would not decide a question that is academic in the sense that it is “useless, merely hypothetical, raised prematurely or a dead issue”, although there was a discretion to determine a question which has ceased to be a live issue between the parties, where the determination is in the public interest.  The third respondent cited Veloudos v Young (1981) 56 FLR 182 at 190, Confederation of Western Australian Industry (Incorporated) v Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1990) 70 WAIG 1281 at 1282 and Civil Service Association of Western Australia Inc v Commissioner of Police, Western Australian Police (2006) 86 WAIG 639 at [11], in support of this proposition.  It was also submitted that whether there was a supplied roll that incorrectly contained telephone numbers or whether those numbers were used to contact members of the CFMEUW in 2008 was not a matter of public interest.

50       Accordingly the Commission should use its powers under s27(1)(a)(iv) of the Act to dismiss the proceedings.

51       In supporting the submissions made by the third respondent, the CFMEUW said that the election process for the elections which were to be held in the second half of 2008 were “superseded by an entirely new electoral process”.  Accordingly there could not now be any relief granted in relation to the “original election”.

52       On this issue, the applicant submitted, again rather baldly, that the election which was scheduled to occur in the second half of 2008 has not been superseded.  It was submitted that would not occur until “such time as an election period has commenced and finalised”.  It was submitted that it was not possible for the present election to be conducted “on a level playing field”, until “an inquiry has discovered on what basis a solitary candidate was supplied [with] thousands of private [tele]phone numbers by the returning officer and on what basis high ranking public servants within the WAEC were apparently lying about it to the applicant”.

53       It was submitted that given what the applicant had ascertained by reason of the letter from the FOI officer of the WAEC in February 2009, the inquiry leading to the first reasons did not “delve far enough”. 

Analysis

54       As I said earlier, in determining the present application I assume that the applicant will be able to establish that the facts he has deposed to did occur.  I am not satisfied however that those facts provide a jurisdictional foundation for an inquiry under s66(2)(e) of the Act.  This is because that jurisdiction is founded upon there being an allegation “that there has been an irregularity in connection with” the election into which the inquiry is to be made or sought to be made.  In my opinion what the applicant complains about is not of this character.  The applicant alleges irregularities in relation to the electoral process for the elections which were to take place in 2008; not the election which I ordered to take place on 28 January 2009.  I do not accept the applicant’s point that, in effect, the 2008 electoral process has continued.  That electoral process was halted by the order I made on 16 September 2008.  The order which I made on 28 January 2009 was for a new election.  This is clear in my opinion because as a consequence of the orders I made:

(a) A new electoral roll was to be compiled.

(b) There was to be a new timetable for elections.

(c) Nominations for offices were again to be called for by the returning officer.

(d) Candidates who had nominated for the 2008 election would again have to nominate if they wished to contest the election.

55       Accordingly, in my opinion, the supply of the 2008 electoral roll to Mr Reynolds and Mr Kavanagh, prior to 16 September 2008, is not an irregularity in connection with the election which I ordered to take place on 28 January 2009.  To illustrate this point, Mr Kavanagh may not even nominate for the position of secretary or any other office in the present election. 

56       I also accept the submissions of the CFMEUW about the meaning of “irregularity” in ss7 and 66(2) of the Act.  Additionally, I accept the submissions of the CFMEUW that what the applicant has alleged could not as a matter of law and fact constitute such an irregularity.

57       To the extent to which what the applicant alleges is argued to constitute an irregularity in connection with the scheduled 2008 election, it has been overtaken by events.  Those events are the orders I made on 16 September 2008 and 28 January 2009.  Accordingly I accept the submission of the third respondent that the allegations made are moot, with respect to the 2008 election, and there would be no public interest in inquiring into them. 

58       I also do not accept that the actions which the WAEC has allegedly engaged in could constitute a breach of regulation 12(4) of the Union Election Regulations.  This regulation requires the Returning Officer to make an electoral roll available for inspection by the persons there described.  It does not provide that a copy of the electoral roll cannot be provided to candidates for an office.

59       Not dissimilarly, s69(9) of the Act provides that a lodged copy of the register of members “shall be open for inspection and extracts may be taken therefrom”, from “the office of the person conducting the election, by any member of the organisation or candidate at the election”.  The subsection is permissive in the sense of giving an entitlement to candidates or members of an organisation, rather than restrictive of what the person conducting an election may do.  That is the subsection does not in its terms prevent a returning officer from providing a candidate with a copy of the register of members. 

60       The applicant’s reliance on s26(1) of the Act also does not assist him.  That subsection is about how the jurisdiction of the Commission is to be exercised – it does not provide any avenue for the jurisdiction of the Commission to be added to.

Conclusion

61       For these reasons I do not accept that the allegations made by the applicant could form a proper basis for an inquiry under s66(2)(e) of the Act.  Accordingly, the Commission has no jurisdiction to conduct such an inquiry and the application must be dismissed.