ORDER PURSUANT TO S.66

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2022 WAIRC 00681

DELIVERED : Wednesday, 21 September 2022

FILE NO. : PRES 7 OF 2022

Applicant

AND

The Australian Nursing Federation, Industrial Union of Workers Perth

Respondent

Catchwords : Industrial Law (WA) - Order pursuant to s 66 - Powers of the Chief Commissioner under s 66(2) - Election for office holders - Compliance with registered Rules - Election provisions of the Act - Failure of union to comply with rule - Declaration issued - Orders issued

Legislation : Industrial Arbitration (Union Elections) Regulations 1980 (WA) reg 3

Industrial Relations Act 1979 (WA) s 6(e), s 6(f), s 26(1), s 56A, s 56, s 56(1)(e), s 57, s 61, s 66, s 66(2), s 69, s 69(4)

Result : Declaration and orders issued

Representation:

Counsel:

Applicant : Mr J Carroll of counsel

Respondent : Ms B Burke of counsel

Case(s) referred to in reasons:

Allshorn v Stapelton (1984) 4 FCR 236

Harry Arnott v Western Australian Police Union of Workers [2022] WAIRC 00208; (2022) 102 WAIG 369

Jones v Dunkel (1959) 101 CLR 298

Re Anti-Cancer Council of Victoria; Ex Parte State Public Services Federation (1992) 175 CLR 442

Scott v Jess (1984) 56 ALR 379

Stacey v Civil Service Association of Western Australia (Incorporated) [2007] WAIRC 00568; (2007) 87 WAIG 1229

Reasons for Decision

Background

1         The respondent is an organisation registered under the Industrial Relations Act 1979 (WA) and represents its members employed in the nursing profession in Western Australia.  As a registered organisation, by s 61 of the Act, the respondent is subject to the jurisdiction of the Commission and the Industrial Appeal Court, and all members of the respondent are bound by its registered Rules.

2         The respondent has office holders who are required to be elected to their positions by the membership, in accordance with the Rules.  Under rule 20 - Elections, an election for office holders in the positions of President, Senior Vice President, Vice Presidents (two positions), and Executive and Council members is to be ‘conducted’ between 1 July and 31 August in each election year.  Under the Rules, the office holders hold office for four years.  In the case of the Executive and Councillors, half of them are elected in each election cycle.

3         In accordance with s 69 of the Act, the respondent’s then Secretary, Mr Mark Anthony Olson, wrote to the applicant on 12 July 2022, to request an election be held for office holders.  On 14 July 2022, the applicant wrote to the Secretary of the respondent and advised that an election request had been duly made under s 69 of the Act.  Subsequently, on 21 July 2022, the applicant wrote again to the respondent’s Secretary, to inform him that that Western Australian Electoral Commission could not conduct the requested election in the time required under rule 20, due to a late request made by the respondent.  The applicant suggested to the respondent that it may need to consider what steps it should take to address any non‑compliance with its Rules.

4         On 21 July 2022, the respondent made an application to the Chief Commissioner under s 66 of the Act, for an order that relevant rules of the respondent be waived and the end date for an election for office holders be extended to 30 September 2022.  A further order was sought that current office holders of the respondent, who are to be subject to an election in this election year, remain in office until the election result is declared.  On 4 August 2022, I made orders in application PRES 6 of 2022: [2022] WAIRC 00331.  Orders in similar terms were made by the Chief Commissioner under s 66 of the Act on 4 September 2020: [2020] WAIRC 00784; (2020) 100 WAIG 1321.  In that case, the election request by the respondent was made on 20 August 2020.  The WAEC was unable to conduct the election in time, which necessitated the s 66 application.

5         After my order issued in application PRES 6 of 2022, the applicant commenced the current proceedings under s 66 of the Act.  The applicant seeks a declaration and orders in relation to the respondent’s alleged non‑compliance with its Rules concerning the conduct of elections.  In addition to seeking a declaration that the respondent has failed to comply with rule 20 of its Rules, the applicant seeks orders that the respondent take all reasonable steps to notify its members of its non‑compliance and to also notify steps taken to avoid non‑compliance in the future.  An additional order is sought to prevent those office holders remaining in office, in accordance with my order of 4 August 2022 in application PRES 6 of 2022, from making any significant financial decisions during the period of operation of the order.

6         The respondent resists the making of the declaration and orders sought and denies that it has failed to comply with its Rules.

Issues to be determined

7         The issue to be determined in these proceedings is of a relatively narrow compass.  It is the meaning to be accorded to rule 20(1) of the respondent’s Rules, where it is specified in relation to elections for office holders that:

Elections for the office of President, Senior Vice President, Vice Presidents, Executive and Councillors shall be conducted between the first day of July and the 31st day of August in the year in which those positions become vacant pursuant to these Rules, provided that the Returning Officer may call for nominations prior to the 1st of July in the year of election.

8         Under rule 20(3), elections under the  respondent’s Rules are to be conducted by a Returning Officer from the WAEC, appointed by the Council of the respondent.  What this means, in contrast to the relevant provisions of the Act, dealing with elections, is a matter I return to later in these reasons.  The Council, under  rule 10 ‑ Council, is responsible for the management of the affairs of the respondent.  By  rule 11 ‑ Powers of the Council, in relation to elections, it is provided that:

The Council shall have the power to:

…

(14) Organise the conduct of Union elections and plebiscites.

(15) Appoint a returning officer.

9         Additionally, the Executive of the respondent, which is constituted by the President, the Senior Vice President, both Vice Presidents, the Secretary and four Executive members, has, by  rule 13 ‑ Powers of the Executive, all the powers of the Council, subject to any decision or direction of the Council.  This excludes certain matters not relevant to the determination of these proceedings.

10      As noted earlier in these reasons, elected office holders in the respondent hold office for four years and are eligible for re‑election.  A rule that assumed some significance in argument in the proceedings is  rule 17(3) which is in the following terms:

(3) The President, Senior Vice President, each of the Vice Presidents, Secretary and each of the Executive members and Councillors shall assume office on the 30th September in the year of their election provided that where the result of the election for any or all of these offices has not been declared before 30th September, the successful candidate or candidates shall, when the result is declared, assume office immediately.

A candidate elected to any of these offices shall hold it in accordance with the rules until the successor duly assumes the office pursuant to these Rules.

11      The terms of rule 23 ‑ The Ballot was also given some prominence in the proceedings.  Relevantly, whilst quite lengthy, it provides as follows:

(1) The Returning Officer shall conduct the elections by acting in accordance with the following provisions of this Rule.

(a) Within a period of twenty-one days before the date of commencement of the period for lodging nominations of candidates for an election for an office, cause to be published in a newspaper or newspapers a notice setting out:

(i) the name of the Union;

(ii) the title of the office;

(iii) the form in which nominations are to be made;

(iv) the place for lodging nominations;

(v) the times and dates of the commencement of the period for lodging nominations and inviting nominations of persons, eligible for election for the office under these Rules to stand as candidates for elections to that office.

(b) Check all nominations received to see that they comply with the requirements of the rules and reject any that do not so comply.  Before rejecting a nomination the Returning Officer shall notify the person concerned of the defect, and where it is practicable to do so, give such person the opportunity of remedying the defect within seven days of being so notified.

(c) If there be no more nominations than there are vacancies for the position, declare the nominated person or persons elected to the position.

(d) Where more nominations are received than there are vacancies to be filled:-

(i) by ballot decide the order in which the candidates' names shall appear on the ballot paper,

(ii) where appropriate have ballot papers printed,

(iii) obtain from the printer a certificate of the number of ballot papers printed,

(iv) ensure that such ballot papers indicate:-

** the number to be elected,

** the manner in which votes shall be recorded including a statement to the effect that the voter may not vote for more candidates than there are vacancies and specifying the number of vacancies for the office in question,

** the date and time for closing of the ballot,

** A Statement in writing directing the voter to both print and sign his or her name on the reverse side of the envelope provided for the return of the ballot paper.

(v) Provided that a nominee may withdraw their nomination within 7 days after nominations have closed.

(e) Be responsible for the safe custody of the ballot papers;

(f) Either initial every ballot paper or cause each ballot paper to be marked with a facsimile of his/her initials prior to its distribution.

(g) With all convenient speed but not later than fourteen days before the ballot is to be held, send to each member the following papers by prepaid post in a sealed envelope:

(i) a notice setting out the reasons for taking the ballot and the date and place and hour appointed for the closing of the ballot,

(ii) a ballot paper,

(iii) a notice that the ballot paper of any member whose subscription is overdue will not be counted,

(iv) a prepaid stamped addressed envelope addressed to the Returning Officer for the return of ballot papers with on its reverse side a space for the voter to both print and sign his or her name,

(v) material pursuant to Sub-rule (5) of Rule 20.

(h) Control a ballot box provided for the reception of the ballot papers and in the presence of the scrutineers, if they desire to be present, ensure that the box is empty immediately prior to the distribution of the ballot papers and thereupon seal such box and ensure that it remains sealed until the time fixed for the closing of the ballot.

(i) Hold the ballot box containing unopened envelopes received by him or her up to the hour appointed for the closing of the ballot.

(j) immediately after the closing date and hour for receipt of the return ballot papers, in the presence of such scrutineers as are present take steps to ensure no further ballot papers are deposited in the ballot box.  Thereupon, or in sufficient time to determine the result of the ballot her or she shall:

(i) open the ballot box and produce unopened all ballot paper envelopes;

(ii) determine, prima facie, the bona fides of the ballots by reference to the register of members and the financial status of those members;

(iii) open the ballot paper envelopes and extract from them all the ballot papers in such manner as to preserve the secrecy of the ballot;

(iv) place the ballot paper envelopes and ballot papers in separate bundles;

(v) secure the ballot paper envelopes in a safe place;

(vi) proceed with the counting of the votes.

(k) Any vote in respect of an election shall be informal if:

(i) the ballot paper is received by the Returning Officer after the notified hour on the closing date;

(ii) the contents of the ballot paper as marked by the voter do not comply with the instructions printed on it;

(iii) the Returning Officer is unable to determine the bona fides of the ballot pursuant to sub-rule (1) (j) (ii) of this Rule.

(l) Declare the result of the election and submit a full report of the ballot indicating the number of ballot papers printed, the number distributed and the number on hand and any other relevant matters.

…

(4) (a) The Returning Officer shall take such actions and give such directions as are reasonably necessary in order to ensure that no irregularities occur in or in connection with any election or plebiscite and in order to rectify any procedural defects and no person shall refuse or fail to comply with such directions or obstruct or hinder the Returning Officer or any other person in the conduct of such election or plebiscite or in the taking of any such action .

(b) The decision of the Returning Officer shall be final and binding regarding any matter touching the validity or normality of any nomination or vote or any matter touching or concerning an election or plebiscite and the conduct thereof.

(c) If, at any time prior to the declaration of the result or an election or a plebiscite any irregularity should occur in the conduct of the election or plebiscite which in the opinion of the Returning Officer makes the election or plebiscite void the Returning Officer shall declare the election or plebiscite and where appropriate any step in or in connection with the election or plebiscite void .

(d) Where the Returning Officer has made a declaration pursuant to paragraph (c) he or she shall hold another election .or plebiscite or take whatever steps are required to be taken again and then proceed with the uncompleted steps in the election or plebiscite.

(e) In exercising powers pursuant to paragraph (d) the Returning Officer may subject to the Industrial Relations Act 1979 as amended waive the requirements of the Rules to the extent necessitated by the practicalities of the situation.

(f) Where the Returning Officer has made a declaration pursuant to paragraph (c) with respect to an election for an office the person holding that office immediately prior to that election shall remain in office until his or her successor is elected.

12      The objects of the respondent’s Rules are also relevant.  Rule 3 ‑ Objects, subrule (1) provides that it is an object of the respondent to:

(1) To promote and protect the interest of members and to provide professional and industrial leadership for the nursing industry and the health sector.

Principles of interpretation of union rules

13      The principles applicable to the interpretation of union rules are well settled and I only need to advert to them briefly.  As was stated by Ritter AP in Stacey v Civil Service Association of Western Australia (Incorporated) [2007] WAIRC 00568; (2007) 87 WAIG 1229 at [89] ‑ [93]:

89 The way in which a Court or Industrial Commission should approach the question of the construction of the rules of an organisation is well established.

90 Brinsden J with whom Smith J agreed in Hospital Salaried Officers Association of Western Australia (Union of Workers) v The Hon Minister for Health (1981) 61 WAIG 616 at 618 said:-

“Generally speaking the correct approach to the interpretation of a union rule is to interpret it in the same manner as any other document.  It must be remembered however that union rules are not necessarily drafted by skilled draftsmen.  It is therefore necessary I think in construing a union rule not to place too literal adherence to the strict technical meaning of words but to view the matter broadly in an endeavour to give it a meaning consistent with the intention of the draftsman of the rule.  This approach has been endorsed in relation to awards: see Geo A.  Bond & Co.  Ltd.  (In Liq.) v McKenzie (1929) A.R.  499 at 503-4 referred to in Federal Industrial Law by Mills and Sorrell 5th Ed.  at p522.  I also said much the same thing in the unreported decision of Bradley v The Homes of Peace 1005/1978, judgment delivered 21st December, 1978 at p.13-14.”

91 These observations have been cited and applied in s66 applications.  An example is Williams v SDAEAWA (2005) 85 WAIG 1963.

92 A similar approach has been adopted by the High Court in the construction of union eligibility rules.  In Re Anti-Cancer Council of Victoria; Ex Parte State Public Services Federation (1992) 175 CLR 442 at 448, Mason CJ, Brennan and Gaudron JJ said it ‘is well settled that union eligibility rules are to be interpreted liberally and according to their ordinary and popular meaning’.  Their Honours cited a number of decisions in support of this proposition including The Queen v Isaac; Ex Parte Transport Workers’ Union (1985) 159 CLR 323 decision, where Wilson J at 340 said:-

“In construing the eligibility clause in the constitution of an organization, it is necessary to bear in mind the nature of the instrument in which the words appear and the purposes that it is intended to serve.  The rule now in question bears ample indication on its face that it has been prepared without the assistance of a skilled draftsman.  It has been amended from time to time, probably in response to the exigencies attending the industrial affairs of the union and without regard to the effect of the amendment on the internal consistency of the clause as a whole.  It follows that the words of the rule should be given a wide meaning and interpreted according to their ordinary or popular denotation rather than by reference to some narrow or formal construction: Reg.  v Cohen; Ex parte Motor Accidents Insurance Board ; Reg.  v McKenzie; Ex parte Actors and Announcers Equity.  Nevertheless, notwithstanding this generosity of approach, the meaning of the words remains a legal question to be determined by the application of the ordinary rules which govern the construction of written documents: Reg.  v Aird; Ex parte Australian Workers' Union; McKenzie.” (Footnotes omitted)

93 French J in Re Election for Office in Transport Workers’ Union of Australia, Western Australian Branch (1992) 40 IR 245 at 253 said that the “preferred approach to the construction of union rules which requires them to be construed not technically or narrowly but broadly and liberally and not “subjected to the same meticulous scrutiny as a deed carefully prepared by lawyers.””.  His Honour cited R v Holmes; Ex Parte Public Service Association (NSW) (1977) 140 CLR 63 per Gibbs J at 73 and Re An Election in the Australian Collieries Staff Association (NSW Branch) (1990) 26 FCR 499 per Lockhart J at 502.  The reasons of French J were cited with approval by Mansfield J in Thomas v Hanson [2001] FCA 539 at [20].  Authorities cited by the applicant set out a similar method of approach.  (Delron Cleaning Pty Ltd T/A Delron Hospitality Management (2004) 84 WAIG 2527 at [40] and FMWU v GW Smith and KJ Rose (1988) 68 WAIG 1010.

14      I will adopt this approach for present purposes.

Contentions of the parties

Applicant

15      On behalf of the applicant, counsel made several submissions.  First, it was contended that the terms of s 66 of the Act are very broad and undoubtedly support the orders sought in the present proceedings.  Second, as to the relevant facts, the applicant contended that whilst there has yet to be a breach, in that as at the time of the proceedings, the date of 31 August had not yet occurred, it was submitted that a breach of the respondent’s Rules was inevitable.  This was so, as the submission went, because the evidence of the applicant, Ms Susan Bastian, setting out the correspondence between herself and the WAEC, made it plain that the WAEC, being experts in the field of conducting elections, could not conduct an election for the respondent in the time specified in rule 20.  The applicant submitted that this evidence was clear and unambiguous, and the Commission should so find.  Furthermore, it was submitted that the reason for the inevitable breach of the Rules was the late notice provided by the Secretary of the respondent to the applicant.  Given the promptness with which the applicant dealt with the request, it was contended that it could not be said that the applicant herself, contributed to any delay.

16      In terms of the response advanced by the respondent to the application, the applicant submitted that there was no merit to the contention advanced that the terms of rule 20 only require that an election be commenced, and not completed, within the relevant period of 1 July to 31 August.  There are several reasons for this.

17      First, the applicant submitted that this contention was at odds with the affidavit from Mr Olson, referred to later in these reasons, where, as set out below, he advanced ‘Reasons for non‑compliance with rule 20’.  The submission was made that this constitutes either express or implicit acceptance of a failure to comply with this rule.

18      Second, the approach adopted by the respondent is inconsistent with a proper construction of the relevant rules.  The applicant submitted that it is plain from the ordinary meaning of rule 20 that an election must be conducted between 1 July and 31 August in each election year.  Implicitly, if an election is not completed by the end date of 31 August, then it must still be being conducted in September or later, which would involve a contravention of the Rules.

19      Furthermore, given the evidence of Ms Bastian, and the confirmation by the WAEC that an election for the respondent would not be conducted and completed by 31 August and more likely not until mid‑October 2022, this provides significant evidentiary support that there will be a failure by the respondent to comply with rule 20.

20      In terms of the orders sought, as noted, the applicant contended that they are well within the jurisdiction and powers of the Chief Commissioner under s 66 of the Act.  The orders sought relate to the observance and non‑observance of the respondent’s Rules.

21      As to the declaration of non‑compliance, it was submitted by the applicant that there has been a history of non‑compliance.  Reference was made to the earlier s 66 application and order in 2020, that was necessary to be made because of the respondent’s failure to make a timely request to the Registrar for an election to be held.  Further, the applicant submitted that from the evidence, the respondent has demonstrated a somewhat casual attitude towards compliance with rule 20 regarding the conduct of elections.  Not only is this the second occasion on which it has occurred, but also the reasons advanced by Mr Olson in his affidavit as to why there had been non‑compliance, were described by the applicant as being poor and unsatisfactory (a copy of Mr Olson’s affidavit in application PRES 6 of 2022 was annexed to the affidavit of Ms Sarah Kemp, the Commission’s Deputy Registrar, in these proceedings).  This is especially so, given the importance of elections as a part of the democratic process within a registered organisation, having regard to the objects of the Act in s 6(f).

22      Furthermore, whilst it was the then Secretary of the respondent who outlined reasons why he had not made an earlier request to the Registrar, the applicant contended that it is the Council of the respondent that is responsible for not only managing the affairs of the union, but also organising and overseeing elections.  It was submitted that this creates a positive obligation on the Council to ensure that there is compliance with the respondent’s Rules, in particular, those relating to elections, given their importance.  The applicant submitted that it is quite inadequate to simply say that a person employed to ensure compliance with rule 20 had left the organisation, given the obligations on the Council.  This is particularly so given that this is now the second occasion on which such a delay has occurred, and largely for the same unsatisfactory reasons.  Given the similar circumstances cited as justification for seeking an extension of time in 2020, according to the applicant, this heightened the need to ensure that the same situation did not arise again.

23      In addition, the applicant contended that on the evidence of Mr Olson, he referred to his announcement on 30 May 2022 that he would be retiring at the end of his current term as Secretary, effective on 29 September 2022.  The applicant submitted that this announcement, as far back as it was made, should have brought into sharp focus the need for the timely conduct of an election in accordance with the respondent’s Rules.  Furthermore, the fact that a complaint from a member had been received by the applicant, as set out in Ms Bastian’s affidavit, regarding the failure of the respondent to hold a timely election for office holders, is evidence of the impact of such a situation.  The applicant submitted that regardless of there being a complaint, encouraging the democratic control of organisations and the full participation of members of such an organisation in its affairs is important.  As this is set out in object s 6(f) of the Act, this requirement heightens the importance of non‑compliance as a matter of concern to members of an organisation, underpinned by principles of such democratic control.

24      In the above circumstances, the applicant submitted that the declaration sought would constitute a mark of disapproval by the Commission in relation to non‑compliance with the Rules and will provide a measure of specific and general deterrence as well.  The second order sought, concerning the giving of notice and information to members, would allow those members to be fully informed of the circumstances consistent with democratic principles.  In terms of the third order sought, it was submitted that such an order is consistent with ensuring that office holders extended in office by reason of the Commission’s order, do not take unfair advantage of that further time in office, consistent with application of the same principle in general elections.

25      In addition to her written outline of submissions, the applicant developed several further submissions in oral argument during the hearing.  As to the proper construction of rule 20(1), being the central contention in these proceedings, it was submitted that the applicant’s approach to the interpretation of the words ‘Shall be conducted between the first day of July and the 31st of August in the year in which those positions become vacant pursuant to these Rules…’ is supported elsewhere in the Rules.

26      Specifically, the applicant referred to rule 23 ‑ The Ballot, relevant parts of which are set out earlier in these reasons.  The contention was advanced that the meaning to be given to rule 20(1) is confirmed by rule 23.  By rule 23(1), there is set out the process by which the Returning Officer ‘shall conduct the elections by acting in accordance with the following provisions of this Rule’.  Subrule (1)(a) to (l) sets out the detailed procedure established by the Rules, by which the Returning Officer is to ‘conduct the election’.  This commences with the process of lodging nominations of candidates for the election for an office through to and including the declaration of the election result and the provision of a full report.

27      In relation to the respondent’s submission on rule 17(3), which was the mainstay of the respondent’s argument in resisting a declaration of non‑compliance with the Rules, the applicant contended that the terms of rules 23(4)(c), (d), (e) and (f) are, as set out above, clear indications as to the only circumstances in which persons holding an office immediately prior to an election, may remain in office until their successor is elected.  It was submitted that the language used in these subrules is consistent with the language used in rule 17(3).  It is only in the circumstance of some irregularity which may require the Returning Officer to declare the election, or any step taken to be void, that the ‘holding over’ provisions in rule 17(3) will have application.

28      This is because, according to the applicant’s argument, the second paragraph in rule 17(3) provides that a person elected to any office shall hold it ‘in accordance with the rules’, until a successor assumes office ‘pursuant to these Rules’.  The submission was made that such a construction of rule 17(3) is entirely consistent with rules 23(4)(e) and (f), enabling the Returning Officer to waive requirements of the Rules as ‘necessitated by the practicalities of the situation’ and the holding over provision in rule 23(4)(f) where a declaration of invalidity is made in par (c).  Counsel for the applicant agreed with the proposition I put to counsel for the respondent that, read in this way, this scheme set out in the Rules constitutes a ‘contingency’, such that where a problem with an election arises, office holders can continue in office to ensure that the organisation can be properly run and be ‘kept on track’.

Respondent

29      On behalf of the respondent, counsel made several submissions.  First, at a meeting held on 12 August 2022, and as dealt with in the affidavit of Mr Michael Clancy, a Vice President of the respondent and its Senior Industrial Officer, the Council resolved to oppose the application made by the applicant and instruct counsel to advance its case before the Commission accordingly.  The respondent submitted that it objected to the declaration and orders sought and maintained that there had been no contravention of the respondent’s Rules.

30      In relation to the Rules themselves, an overarching submission was made that, adopting the generous rule of construction to the Rules, as well as considering the relevant provisions of the Act and the Industrial Arbitration (Union Elections) Regulations 1980 (WA), taken together, there has been and will be no contravention by the respondent of rule 20.  It was submitted that considering the respondent’s Rules in their entirety, in relation to elections, it is evident that the Rules provide a process by which elections may be conducted, but also do so in such a way to provide flexibility in the election process given, on the respondent’s submission, the involvement of external bodies responsible for the actual conduct of the election itself.  Focus was placed by the respondent in its submissions on rule 17(3), which contains the proviso that where an election has not been declared before 30 September, the officer will remain in office until their successor duly assumes office.

31      This was said to provide for the flexibility that due to circumstances, the conduct of an election may proceed beyond 31 August in any relevant election year, in which event, existing office holders remain in their offices to provide stability to the respondent until such time as the election outcome is known and declared.

32      Furthermore, the respondent contended that the terms of s 69 of the Act and reg 3 of the Regulations, combined with the relevant rules referred to by the respondent, confirm its approach to construction.  The respondent contended that once a request is made under reg 3, it is for the Registrar to consider and assess whether such a request is ‘duly made’.  Once that decision has been made then, in conjunction with the terms of s 69 of the Act, and by the applicant issuing such a decision, it is evidence that the election request was made in due time.  The import of this submission was to the effect that once such a decision is taken by the applicant, then it is not open for a conclusion to be reached that there has been a contravention of the respondent’s rules.

33      More broadly as to rule 17(3), when read in the manner contended by the respondent, its effect is to not require the ‘completion’ of the election within the period specified of 1 July to 31 August.  The ordinary meaning and effect of rule 17(3) is that, in effect by default, the terms of office of current office holders, in a situation where an election result is not known before 30 September in any given election year, are extended.  It was submitted that this is so in particular because the conduct of an election is undertaken by external bodies such as the WAEC whose actions are, according to the respondent, largely beyond its control.

34      On the above basis, it was submitted that the order made by the Chief Commissioner in August 2020 and my order made in application PRES 6 of 2022, to waive non-compliance with rule 20, were strictly not necessary, given its view now, as to the operation and effect of rule 17(3) of its Rules.

35      There were further submissions made by the respondent to the effect that during an election period, matters become contested as evidenced by the activities of Ms Samantha Fenn, who is a potential candidate in the election.  The submission was made that the Commission ought to be mindful of not enabling any decision in these proceedings to be inadvertently used by candidates in the election, for their own political purposes.

36      As to the affidavit of Mr Olson, and the alleged ‘concession’ by him as to a breach of rule 20, the respondent submitted that at all times the activities of the Secretary are subject to the control of the Council under rule 10.

37      The application of rule 23 was also the subject of supplementary written submissions of the respondent which I invited, in reply to the applicant’s contentions which were raised during the applicant’s oral argument.  It was submitted by the respondent that adopting the generous approach to interpretation of union rules, rule 23 does not have the effect of limiting rule 17(3), as contended by the applicant.

38      Finally, it was submitted by the respondent that there is no basis for the requested ‘caretaker convention’ order, imposing limitations on those remaining in office pending the outcome of the election.  It was submitted that this is particularly so, given the respondent’s approach to the construction of rule 17(3), which automatically extends the term of office of those currently holding office, where an election result is not known by the timeframe specified under the Rules.  It was submitted that imposing such restrictions would be nonsensical in these circumstances and the notion of a ‘caretaker convention’ is one unknown to industrial law and is not a matter dealt with under the Act.  It was further submitted that the imposed restraint may also have unintended consequences in relation to the conduct of the ordinary affairs of the respondent and its capacity to promote and protect the interests of members in accordance with the Rules.

The evidence

39      In her affidavit, Ms Bastian gave evidence that she received an election request from Mr Olson, the then Secretary of the respondent, by letter dated 14 July 2022.  The request was to have an election conducted to fill 13 vacant Council positions, due to the impending expiry of their terms of office.  On 14 July 2022, Ms Bastian decided under s 69 of the Act that a request for an election had been duly made.  That decision was communicated to Mr Kennedy, of the WAEC , by letter of the same date.  In the letter Ms Bastian noted that the Returning Officer may call for nominations prior to 1 July in the year of the election.

40      Ms Bastian testified that on 14 July 2022 she received a copy of an email from the WAEC, from Ms Chapman, the Project Coordinator, to the effect that a preliminary assessment had been undertaken and it seemed unlikely that an election could be conducted to meet the requirements of the respondent’s Rules, due to the lateness of the respondent’s request.  This was confirmed in a further email from Ms Chapman to the Commission’s Registry, with the view expressed that the 1 July to 31 August date was not achievable.  A prospective polling date of mid‑October 2022 was suggested, subject to the outcome of the s 66 application then on foot.

41      Ms Bastian then wrote to the respondent on 21 July 2022 and informed Mr Olson that the WAEC was not able to meet the election timetable in the respondent’s Rules, given the late timing of the request.  The s 66 application in PRES 6 of 2022 was made by the respondent on the same day.

42      In her evidence, Ms Bastian also noted the prior request by the respondent for an election dated 20 August 2020, which the WAEC was also unable to conduct between 1 July and 31 August.  This was confirmed by letter from Ms Bastian to Mr Olson dated 20 August 2020.  In the letter, Ms Bastian informed Mr Olson that she had decided that the request had not been duly made because it was not made within the time prescribed for an election to occur under the respondent’s Rules.  Ms Bastian also noted in the same letter that prior requests to her for an election to be held in 2016 and 2018 were made in mid to late June of those years to provide sufficient time for the conduct of an election.  It was noted that the timing of the request in August 2020 only gave the WAEC twelve calendar or eight working days for an election to occur.

43      As also noted earlier in these reasons, an application was made under s 66 of the Act at that time to the Chief Commissioner, to waive non‑compliance with the Rules to extend the time for the conduct of the election and to maintain office holders in their positions, until the election result was declared.  An order was made by the Commission to this effect on 4 September 2020.

44      Evidence on behalf of the applicant was also given by Ms Kemp.  Ms Kemp annexed to her affidavit a copy of the documents filed by the applicant and proposed intervenor in application PRES 6 of 2022.  As noted above, amongst this material was the affidavit of Mr Olson as evidence in support of the orders sought in application PRES 6 of 2022.  Mr Olson referred to the above outlined correspondence with Ms Bastian in relation to his request in July 2022 for an election to be held, and the application to the Chief Commissioner for orders under s 66 of the Act.  Mr Olson gave evidence that there were several ‘reasons for non‑compliance with rule 20’ (affidavit at [7]) including:

7. The ANFIUWP was unable to make a request for the election to be held until 12 July 2022 due to the following factors:

a. The staff member who was appointed to ensure that all future elections are conducted in accordance with the requirements of the ANFIUWP Rules left employment with the ANFIUWP;

b. The issues associated with the ongoing COVID-19 pandemic; including in the last two months a wave of ongoing staff absences due to COVID‑19 infection; and the increasing demands of members' concerns with regard their increasing workloads; have resulted in an extremely busy workload for all ANFIUWP staff, particularly myself.

c. On 30th May I announced that would be retiring at the end of my current term, 29th September 2022, and this has created a further significant amount of extra work for me in the areas of administration.

45      In addition, Ms Kemp gave evidence of a telephone conversation with Mr Clancy.  Ms Kemp testified that she spoke to Mr Clancy on the afternoon of Wednesday 13 July 2022.  The purpose of the conversation was to discuss the respondent’s request for an election.  Ms Kemp said that she told Mr Clancy that given the terms of rule 20 of the respondent’s Rules, and that the respondent was overdue in submitting a request for an election, that there may be insufficient time for an election to be held.  Ms Kemp said that Mr Clancy told her that Mr Olson had been very busy, and he had had difficulty in getting time to speak with him for the request for an election to be approved.

46      Evidence on behalf of the respondent in these proceedings was given by Mr Clancy.    At the outset, objections to some of Mr Clancy’s affidavit were taken by the applicant.  I indicated during the proceedings that the evidence of Mr Clancy would be provisionally admitted, and I would rule on the objections while giving my reasons.  I do so now.

47      As to the applicant’s objections to [20] ‑ [21] of Mr Clancy’s affidavit, it was contended that this evidence referred to the Rules of the respondent’s Federal Branch and are not relevant to the determination of this matter.  In those paragraphs Mr Clancy referred to delays to the Federal Branch elections in 2020 and 2021, due to COVID‑19.  In both cases, he said that the relevant office holders remained in office despite the delay.  The clear import of this evidence was to draw parallels with the current circumstance under the respondent’s Rules.  I do not consider that this evidence is relevant.  Decisions taken by the Australian Electoral Commission in relation to the respondent’s Federal Branch Rules are not determinative of the issues in dispute in this matter, and are not of assistance to the Commission.

48      The second objection taken by the applicant was to [22] ‑ [26] of Mr Clancy’s affidavit.  These paragraphs refer to meetings between representatives of the respondent and the Western Australian Minister for Health and Health Department officers in relation to bargaining for an industrial agreement.  This was put in the context of there being a need for a good industrial outcome to recruit and retain nurses in the public health system.  The purpose of this evidence, and the submissions of the respondent, was responsive to the orders sought by the applicant to constrain office holders from making any significant decisions during their extended period in office, under my order made in application PRES 6 of 2022.  The respondent submitted that Mr Clancy’s evidence goes to the issue of normal industrial activities of the respondent, that may be negatively impacted by such an order if made, and why it should not be made.

49      Given that during the proceedings the applicant modified the order it sought, limiting activities of office holders by directing them not to make any major or significant decisions in relation to the respondent’s income or expenditure, I do not consider that this evidence given by Mr Clancy, objected to by the applicant, is relevant.

50      In other respects, Mr Clancy testified that once the response of 14 July 2022 was received from the applicant, he understood that the election would proceed.  When the WAEC advised that it could not undertake the election in the timeframe specified, Mr Clancy formed the view that had the respondent been required to do so, it could have arranged the election itself within the time required, especially given his view that the Rules provide a period to the end of September, before office holders must vacate their offices.  There was some suggestion, on Mr Clancy’s evidence in cross‑examination, that he though the WAEC were ‘dragging their heels’ in terms of how long it was going to take them to conduct the election.

51      Despite this however, and given the urgency of the situation to get the election underway, Mr Clancy said that on being informed of the above, he commenced the s 66 application in PRES 6 of 2022.  He also referred to further correspondence from the now Secretary of the respondent, Ms Reah, to the applicant on 9 August 2022, after the issuance of my order under s 66 of the Act on 3 August 2022.  This correspondence further requested that an election be held.  The applicant responded with a further decision notice, that a request had been duly made under s 69 of the Act, dated 11 August 2022.

52      In terms of the respondent’s Council, Mr Clancy referred to a meeting of the Council on 12 August 2022 that he attended.  At the meeting, Mr Clancy testified that the respondent’s Director of Legal and Industrial Services, Ms Burke, reported on the s 66 applications in PRES 6 of 2022 and PRES 7 of 2022 and the election.  Mr Clancy said that because of the report, the Council passed a resolution to oppose the present application and for the respondent to conduct its case accordingly.

53      Mr Clancy also gave some evidence about, and expressed some concern that, those standing for office in the election may seek to use these proceedings for their own purposes.  He specifically referred to Ms Fenn, who sought leave to intervene in application PRES 6 of 2022 and his belief that she may seek to use any outcome in these proceedings, favourable to the applicant, to ‘attack’ (using Mr Clancy’s words) and criticise the respondent.  He expressed concern that the outcome of these proceedings may be misrepresented for these purposes.

54      Finally, Mr Clancy was asked in cross‑examination about the resignation of Mr Olson as the then Secretary and why he did so on the eve of the directions hearing in these proceedings on 28 July 2022 and why he did not serve his full term to 30 September 2022, as originally announced.   Whilst Mr Clancy was not able to comment on this matter, he did confirm that after his resignation from the position of Secretary, Mr Olson remains as the Chief Executive Officer of the respondent.

55      I find accordingly.

Consideration

56      In Harry Arnott v Western Australian Police Union of Workers [2022] WAIRC 00208; (2022) 102 WAIG 369, I referred to the importance of democratic control of registered organisations under the Act, and said at [74] to [75]:

74 It is trite that the powers in s 66 of the Act, are to be exercised consistent with the objects of the Act in s 6 and consistent with s 26(1) of the Act.  A principal object of the Act in s 6(e) concerns the formation of representative organisations of employers and employees … and their registration under the Act.  Additionally, s 6(f), importantly for present purposes, provides as follows:

(f) to encourage the democratic control of organisations so registered and the full participation by members of such an organisation in the affairs of the organisation; and

…

75 These are important objects of the Act in relation to organisations.  Free and fair elections, and encouraging full participation by members of an organisation in its affairs, is a touchstone of the democratic process.  It is a condition of registration of an organisation under Part II Division 4 of the Act, that the rules of the proposed organisation make provision for a proper voting system, subject to independent scrutiny.  Civil penalty provisions exist in the Act for contraventions of voting processes or where threats or forms of intimidation of candidates or voters occur.  These various provisions of the Act, underscore the importance placed on democratic principles and the full participation of members of an organisation in its affairs, consistent with the principal objects of the Act in ss 6(e) and (f).

57      This is also inherent in the respondent’s Rules in rule 3(1) to the extent that the respondent is to ‘promote and protect the interests of members …’  It is plainly in the interests of members that they fully participate in the affairs of the respondent and as I noted above in Arnott, this is a touchstone of the democratic process.

58      The terms of rules 19 to 23 of the respondent’s Rules make comprehensive provision for qualification for nominations for office and the conduct of elections for office holders in the respondent.  These provisions of the Rules, reflect the requirements of ss 56, 56A and 57 of the Act.  Whilst paying due regard to the generous approach to the construction of union rules, each provision of the Rules is to be construed as a part of the Rules as a whole.  In my view, as a matter ordinary meaning and the logical arrangement of the Rules, they are to be read together.  The draftsperson of the Rules has set out in some detail, including in transitional provisions in rule 18 – Transitional Provisions, the process for elections for office holders in the respondent.

59      If appointed by the Council under rule 11, the Returning Officer under rule 21, is responsible to ‘conduct an election for any office in the Union…’.  The responsibility is solely given to the Returning Officer for this purpose, and they have wide powers within the Rules, as to the election process.

60      Rule 17 deals with the terms of office for those holding office in the respondent.  It is provided that office holders hold office for a maximum period of four years.  Each of the elected officers specified in rule 17(3) assume office on 30 September in the year of their election.  This is subject to a proviso that I will come to later in these reasons, and which was a central plank of the respondent’s argument.  Importantly, the second par of rule 17(3) makes it clear that those persons elected to office, and those who may succeed them in an election, do so in accordance with the framework established by the Rules, for this purpose.

61      I return then to rule 20(1).  The words used in the sub-rule should be given their ordinary meaning:  Re Anti-Cancer Council of Victoria; Ex Parte State Public Services Federation (1992) 175 CLR 442 at 448 per Mason CJ, Brennan and Gaudron JJ.  The relevant language indicates that ‘Elections… shall be conducted between the 1st of July and the 31st of August in the year…’.  The use of the word ‘shall’ indicates that the obligation to conduct an election under rule 20 is mandatory and not discretionary.  This is consistent with rule 17, which provides for a maximum term of office for positions there set out, of four years.  This is also consistent with s 56(1)(e) of the Act, which provides that the rules of an organisation must not permit a person elected to hold office for a period exceeding four years.  I note however, that statutory provisions such as s 56(1)(e) of the Act, have been viewed as dealing with the content and form of rules of an organisation, rather than the consequences of non-compliance: Allshorn v Stapelton (1984) 4 FCR 236 per Woodward and Northrop JJ at 238 (Smithers ACJ agreeing).  This point was also the subject of supplementary written submissions from the respondent to the effect that s 56(1)(e) deals with the period that the Rules may specify an office holder to hold office for, and not the consequences for an individual office holder remaining in office.  Given the decision in Allshorn, this is to be accepted.      

62      I also observe at this point that the draftsperson of the Rules in relation to elections has used the phrase ‘shall be conducted’ and ‘shall conduct’ consistently throughout the relevant rules.  This no doubt reflects the requirements of the Act, in relation to the content of rules of organisations in relation to elections.  Acknowledging the generous approach to construction, where the same or similar phrase is used in an instrument, then absent any other contextual reason not to do so, a consistent meaning should be given to the words used.

63      The ordinary meaning of to ‘conduct’ something, in the present context, is to ‘lead’ guide; to escort; to command, to direct; to manage … to handle’ (Shorter Oxford English Dictionary).  Thus, a Returning Officer ‘conducts’ an election in the respondent by leading, guiding, directing and managing it.  However, the rule then provides, as it does consistently, that such conducting of an election, is to be between the two dates of 1 July and 31 August in each election year.  These two dates in my view, again as a matter of plain meaning, mark out the boundaries of the time within which the election itself is to take place.  Rule 20 does not say anywhere, as contended by the respondent, that the election is to be ‘commenced’ or the ‘commencement of the election’ is to take place between the dates specified in the rule.  If it was the intention of the draftsperson of the Rules to specify this, it would have been very easy to simply have said so.

64      Alternatively, the draftsperson could have said, if there was no intention to limit the period for the holding of an election, except for the end date of the periods of office of 30 September, that any election must occur ‘on or after’ 1 July or some other date in each election year.  Again, the rule does not say this.

65      As contended by the applicant in her submissions, any election that has not been completed by 31 August, in an election year, is, self-evidently, still being conducted after that date, whether it be in September or some time thereafter.  The use of the word ‘between’, as an indicator of time, means the period ‘intermediate to two others’ (Shorter Oxford English Dictionary).  There is a beginning point and an end point.  Subject to the proviso that the Returning Officer may call for nominations prior to 1 July in an election year, it is plainly intended by rule 20(1) that elections for office in the respondent take place over two months, between the two dates specified.

66      Consistent with the approach to construction that requires a provision in the instrument to be construed in the context of the Rules as a whole, the above meaning of rule 20(1) is confirmed by a consideration of rule 23, the terms of which are set out earlier in these reasons.  For the purposes of the Rules and an election conducted in accordance with them, a strong indicator of the meaning of ‘shall conduct the elections’ or ‘elections … shall be conducted’ for the purposes of rules 20 and 21, is to be found in rule 23.  Rule 23(1) sets out what the Returning Officer, as appointed by the Council of the respondent, is required, and empowered to do, to conduct an election.  The rule begins with the words ‘The Returning Officer shall conduct the elections by acting in accordance with the following provisions of this Rule…’.  This points to what ‘to conduct an election’ means under the Rule, from the beginning to the end of the election process.  The terms of rule 23 are comprehensive and set out the procedure for a Returning Officer to adopt, from the initial advertising and calling for nominations, the ballot preparation and balloting process, voting and the declaration of the result.

67      Importantly, for present purposes, rule 23(4) sets out particular powers of a Returning Officer in the event of an irregularity in the conduct of an election.  By rule 23(4)(c) in the case of an irregularity, presumably of a sufficiently serious nature, a Returning Officer can declare the entire election, or a step in it, void.  In the event this occurs, a Returning Officer may then, by rule 23(4)(d), require another election to be held or to have steps taken in an election, taken again.  To enable the Returning Officer to do whatever is required in this regard, rule 23(4)(e) enables provisions of the Rules to be waived.  Then, and importantly also for present purposes, rule 23(4)(f) provides that where a Returning Officer declares an entire election or part of it, void under rule 23(4)(c), this enables the person holding an office which is the subject of the election, to remain in it until their successor is duly elected.

68      Similarly, for the purposes of s 69 of the Act, the ‘conduct of an election’ under the statutory scheme, is to be read with the comprehensive process specified in the Regulations.  It is clear in that scheme too, that to ‘conduct an election’ means not just to commence it, but to complete it, through to the declaration of a result.

69      This then brings into consideration the respondent’s arguments as to the effect of rule 17(3).  For the following reasons, I do not accept the respondent’s view that rule 17(3) provides for, in effect, office holders to hold over their offices as a matter of course, or as alternatively, as a default extension of time for the conduct of elections, beyond the period specified by rule 20(1).

70      First, such an approach ignores the plain meaning of rule 20(1) discussed above.  If, as is the import of the respondent’s submissions, there is at least until 30 September in an election year, for the outcome of an election to be declared, and possibly longer, as a matter of course, the time periods in rule 20(1) would be of little meaning and would be otiose.  The generous approach to the construction of union rules does not give licence to simply ignore what is clear and unambiguous.  Second, as pointed out by the applicant in her submissions in response, if the respondent’s contentions are correct, then rule 23(4)(f), enabling an office holder to remain in office until his or her successor is elected, is also superfluous and has no work to do.  Such a provision would be unnecessary if office holders simply remain in office, in any event, as contended by the respondent.  It is trite to observe that in the construction of an instrument, including union rules, all the relevant provisions should be considered and where specific provisions are included, they should be given some meaning and effect.

71      The better view is that the combined effect of rule 17(3) read with rules 23(4)(c) to (f), is that these provisions enable, as a contingency, office holders to remain in office pending the declaration of the result of an election, in circumstances where the timetable in rule 20(1) cannot be met because of a problem with the election.  The Returning Officer is empowered to identify any such problem and to take the appropriate action.  As a matter of commonsense, this ensures stability and certainty for the organisation, such that office holders may remain and the organisation may continue to function normally, until successors assume office.  It avoids an unexpected ‘interregnum’: Allshorn at 238.

72      Additionally, the timing of the conduct of an election between 1 July and 31 August in an election year, under rule 20(1), and the declaration of a result by 31 August, enables an orderly and logical transition, such that existing office holders may dispose of any business by 29 September, in time for newly elected office holders to assume office on 30 September in the election year.

73      The next issue relates to the respondent’s argument that by reg 3 of the Regulations, read in conjunction with s 69 of the Act, once an election request has been determined by the applicant ‘to be duly made’, then in effect, the request for an election is within time and no contravention of the Rules can be established.

74      A request under s 69 for an election is set out in ss 69(1) to (4) of the Act, as follows:

69. Election, conduct of by Registrar or Electoral Commissioner

(1) An election for an office in an organisation may be conducted pursuant to this section where the Registrar decides that a request that the election be so conducted has been duly made.

(2) A request is duly made if it is made in writing within the time prescribed —

(a) by an officer of an organisation on behalf of the organisation; or

(b) by a person authorised to make the request by and on behalf of not less than 1/20th of the members of, or 250 of the members of the organisation, whichever is the lesser number.

(3) Where a request is made or purports to be made in accordance with this section, the Registrar must, after making such inquiries, if any, as the Registrar considers necessary, decide whether or not the request has been duly made.

(4) Where the Registrar decides that a request has been duly made, the Registrar must inform the organisation, and, where the request was made by a person referred to in subsection (2)(b), that person, accordingly, and make arrangements with the Electoral Commissioner appointed under the Electoral Act 1907 for the conduct of the election by an officer holding office under that Act or by some other person authorised in writing by the Electoral Commissioner.

75      Regulation 3 of the Regulations, is in the following terms:

A request for the conduct of an election under section 69 of the Act shall be made not less than one month before the commencement of the period for lodging nominations of candidates for election for an office in a union or association, but the Registrar may accept a request made less than one month before the commencement of such period if he is satisfied that it is practicable for the election to be conducted under section 69 of the Act in pursuance of the request and a request so accepted shall be deemed to have been made in due time.

76      The relationship between the above provisions and the terms of the Rules for elections was the subject of a letter from my Associate to the parties.  In it were posed several questions, with ultimately, the issue posed being whether the respondent has the option of requesting an election be conducted under s 69 of the Act or under its Rules.  Other related issues raised in the letter included whether the Council has responsibility for the conduct of an election; if so, what is it required to do and is it required to act consistently with the time specified in rule 20(1); and if the conduct of an election is under the Rules, whether a request can also be made under s 69 to the Registrar for an election.

77      The applicant submitted, having regard to the terms of s 56(1)(a) setting out the requirement for Rules of an organisation to make provision for the appointment of a Returning Officer, when read with the discretionary terms of s 69(1), that the respondent has the choice to either conduct an election using the process under its Rules, or to request the conduct of an election under s 69.  In the latter case, the cost of such an election is  met by the State.  Regardless of whether the election is conducted under the Rules,  or whether the respondent requests it be conducted under s 69 of the Act, the applicant submitted that in the present context, the respondent’s Council is required to take necessary steps within its powers, to initiate either process, in good time to enable the election to be conducted in the timeframe specified in rule 20(1).

78      For the respondent it was contended in response to the matters raised in my Associate’s letter, that the respondent has never contemplated the conduct of an election other than under s 69 of the Act.  I note however, what the respondent may have done in the past, or contemplated, is not determinative of what the organisation may be empowered to do under its Rules.  The respondent seemed to suggest that however the process for an election starts, the conduct of it is by the WAEC.  This submission was based on the terms of rule 20(3), and regardless of whichever course is taken, it is the WAEC that conducts an election.  In my view, this is correct, but the processes are different.  Under s 69 of the Act, read with reg 3 of the Regulations, a separate request and election process is prescribed.  Regulations 5 to 22, set out in detail the procedure to be followed for the conduct of an election conducted under s 69 of the Act.

79      Similarly, the Rules of the respondent, in rules 20 to 23, as outlined above, set out in detail the process to be followed in the conduct of an election.  A person from the WAEC is to be the Returning Officer under rule 20(3), but importantly, they are appointed by the Council of the Union, exercising its powers under rule 11(15).  This contrasts with s 69(4) of the Act, where it is the Registrar who arranges with the Electoral Commissioner for a person to conduct an election.  The processes are separate and distinct.  However, despite this, obligations are imposed on the Council under both the Act and the Rules, to facilitate the conduct of the election, depending on which course is adopted.

80      It is undoubtedly the case that the Rules of the respondent must be read with the relevant provisions of the Act.  I am of the view that the respondent having a choice to conduct an election, either in accordance with the processes under its Rules, or under s 69 of the Act, is the preferred approach.  That is, it is up to the organisation as to which course it adopts.  However, given the terms of the respondent’s Rules, in particular the powers of the Council, it is incumbent on the Council to act in a timely way.  Whether it approaches the WAEC to nominate a person to be appointed by the Council as a Returning Officer, to conduct the election in accordance with the Rules, or seeks an election under s 69 of the Act, the Council must act to ensure the election can be conducted within the time prescribed by rule 20(1).  The fact that the evidence before the Commission is that prior requests by the respondent for elections have been made in mid-June of an election year, may tend to indicate an awareness of this obligation.

81      I do not accept the respondent’s argument that the Decision Notice in some way excuses non‑compliance with the Rules in rule 20.  This is because the applicant is not required, as a part of the consideration of the request, to consider and reach a view whether the election could be conducted within the time set out in rule 20.  The Registrar is required to consider whether the election can be conducted under s 69 of the Act.  As I have noted above, this an entirely separate process to an election conducted under the respondent’s Rules.  Compliance with the respondent’s Rules forms no part of the applicant’s consideration and is not a requirement of reg 3 of the Regulations.

82      In this case, on all the evidence, I am satisfied that the respondent has contravened rule 20(1) of its Rules in that it has not made an election request to the applicant in good time, such that the election required to be conducted could be conducted between 1 July and 31 August in this election year.  All that was required by the respondent, in electing to make a request to the Registrar under s 69, was to write a letter.  Nothing more was required.  It is clear on the evidence of Ms Bastian, and from the communications with the WAEC, that there was no prospect that a request made by the then Secretary of the respondent, Mr Olson, in mid‑July, could enable an election to be properly conducted by the WAEC between 1 July and 31 August.

83      Furthermore, I am satisfied on the evidence that the reasons proffered by Mr Olson for the non‑compliance, demonstrates a somewhat lax attitude towards the important issue of the timely conduct of elections within the respondent.  As was common ground, this is now the second occasion on which a late request for such an election has been made by the respondent, requiring remedial action under s 66 of the Act.  The justification for the lateness in taking the simple step of writing to the Registrar, being short‑staffed and Mr Olson was busy, was inadequate.  Importantly, it is not just the Secretary who is responsible for taking timely steps to ensure that an election is commenced and conducted.  It is the responsibility of the Council to ensure that the organisation’s Rules are complied with.  Oversight of this process is important.

84      In this regard, counsel for the respondent informed the Commission, as is set out in the evidence of Mr Clancy, that the Council was fully informed as to both this application and the application in PRES 6 of 2022, and a resolution was taken to resist the application and conduct a case before the Commission.  Despite this, and ample opportunity to do so, other than the evidence from Mr Clancy who, by his position as a Vice President of the respondent, is a member of the Council, there was no evidence adduced before the Commission as to what steps, if any, the Council has taken since the last occasion where a s 66 order was made in August 2020, to ensure that such a situation did not arise again.  It is open to infer, and I do infer, applying the rule in Jones v Dunkel (1959) 101 CLR 298, that the unexplained failure by the respondent to adduce any evidence as to what further steps the Council has taken in this regard, leads to an inference that the evidence would not have assisted the respondent.  This is particularly so when a period was provided, before these proceedings were listed for hearing, to enable the Council to meet and to be given a full opportunity to consider the application brought by the applicant.

85      Accordingly, I will make a declaration in the terms sought by the applicant.

86      As to an order that due notice be given of this decision to members of the respondent, consistent with principles of openness, transparency, and the importance of democratic processes, as emphasised in the objects of the Act, such an order will be made.  I will also order the respondent to outline steps it will take to ensure compliance in the future.

87      I now turn to the order sought by the applicant that there be a circumvention of the powers of members of the Council, whilst they remain in office until such time as the election result is declared.  I am not persuaded to make such an order.  As noted at the outset of these reasons, the applicant modified the terms of the orders sought, to apply to ‘significant financial decisions in relation to income or expenditure,’ taken by the Council.  Whilst such an order would, in my view, fall within the very broad powers of the Chief Commissioner under s 66(2) of the Act, I am not persuaded that I should exercise my discretion to make such an order on this occasion.

88      First, the order sought is a novel one.  I am not aware from my research that such an order has been made on any other occasion.  Second, I have reservations about whether such an order, if made, may be the cause of disagreement or disputation, even among members of the respondent’s Council, about whether a particular decision is a ‘significant’ financial decision or not.  An order of the kind sought, which is in the nature of an injunction preventing certain activity taking place, should be crafted in precise terms to enable those who are bound by it, to clearly understand what their obligations are.  This is because there are consequences under the Act for non-compliance.  Third, ‘caretaker’ type conventions which are applicable in the political environment in relation to election periods are not, to my knowledge, applied in the same way to industrial organisations during an election.  Fourth, for such an order to be made, given the breadth and potential consequences of it, there would need to be some evidence before the Commission that there is a prospect that such decisions may be taken by the Council during the election, and the consequences for the members of the respondent.  Finally, any such order may have unintended, negative consequences for members of the respondent, in whose interests the Council must conduct the affairs of the organisation.  The alternative of relying upon a liberty to apply provision, to resolve any issues, would not be an appropriate mechanism in the circumstances in my view.

89      Having said the above however, the expenditure of funds in an organisation, and the use of resources generally, will be valid, if it is consistent with the objects and powers of an organisation, the latter of which are to be construed broadly: Scott v Jess (1984) 56 ALR 379 per Gray J at 403.  This is subject to the overriding obligation that members of the governing body of an organisation must exercise the powers given to them under an organisation’s rules, bona fide in accordance with the purposes for which the powers are conferred: Scott per Evatt and Northrop JJ at 385; per Gray J at 403 (citing Allen v Townsend (1977) 16 ALR 301; Ascot Investments Pty Ltd v Harper (1981) 33 ALR 631).  This is an extension of the principle applicable to directors of a company.

90      As to the submissions of the respondent that I should be wary about determining this matter during an election campaign, and whether a person or persons may seek to take some advantage from the outcome of these proceedings, I pay no regard to such considerations.  My obligation is to determine matters before me in accordance with the substantial merits and the law.  Simply because an election for offices in the respondent may be underway, does not impact on my duty in this regard.

Conclusion

91      A declaration and orders now issue.