2023 WAIRC 00806
ORDER PURSUANT TO S.66
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2023 WAIRC 00806

CORAM
: CHIEF COMMISSIONER S J KENNER

HEARD
:
FRIDAY, 18 NOVEMBER 2022, WEDNESDAY, 23 NOVEMBER 2022, THURSDAY, 27 APRIL 2023, FRIDAY, 28 APRIL 2023
WRITTEN SUBMISSIONS 5 MAY & 15 MAY 2023

DELIVERED : TUESDAY, 10 OCTOBER 2023

FILE NO. : PRES 10 OF 2022

BETWEEN
:
SAMANTHA FENN
Applicant

AND

THE AUSTRALIAN NURSING FEDERATION, INDUSTRIAL UNION OF WORKERS PERTH
FIRST RESPONDENT

AND

THE RETURNING OFFICER, WESTERN AUSTRALIAN ELECTORAL COMMISSION
SECOND RESPONDENT

AND

THE REGISTRAR, WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Intervenor

Catchwords : Industrial law (WA) - Application under s 66 – alleged irregularities in Union elections – Standing to challenge election result - Timing of election - Irregularity in connection with an election - Relevant principles - Whether failure to comply with orders of Commission regarding contravention of rules as to election - Whether union deliberately failed to distribute reasons to members - Whether this could constitute an irregularity - Relevant principles applied - Postal ballot and whether delays occurred by postal system - Whether an irregularity occurred - No irregularity - Application dismissed
Legislation : Fair Work Act 2009 (Cth)
Fair Work (Registered Organisations) Act 2009 (Cth) s 206; s 206(5)
Industrial Arbitration (Union Elections) Regulations 1980 (WA) reg 5; reg 6(1)(d); reg 7(1); reg 7(2); reg 8(1); reg 11; reg 11(a); reg 11(b); reg 11(c); reg 11(d); reg 14; reg 18(1); reg 18(4); reg 20(1)
Industrial Relations Act 1979 (WA) Part IIB, Division 4; s 6(f); s 7; s 52; s 52A; s 55; s 56; s 56(1); s 56(1)(d)(iii); s 57; s 57(2); s 61; s 63(1)(a); s 64; s 66; s 66(1)(a); s 66(1)(c); s 66(2); s 66(2)(ca); s 66(2)(e); s 66(2)(f); s 68; s 69; s 69(1); s 69(2); s 69(5); s 69(5)(a); s 69(7); s 69(12); s 70; s 71; s 71A; s 74; s 80; s 113(1)(f)
Interpretation Act 1984 (WA) s 10(c); s 3(1)(b)
Result : Application dismissed
REPRESENTATION:
Counsel:
APPLICANT : MR D RAFFERTY OF COUNSEL
FIRST RESPONDENT : MS B BURKE OF COUNSEL
SECOND RESPONDENT: MS S KEIGHERY OF COUNSEL
INTERVENOR : MR J CARROLL OF COUNSEL

Solicitors:
APPLICANT : EUREKA LAWYERS
FIRST RESPONDENT : ANF LEGAL SERVICES
SECOND RESPONDENT: STATE SOLICITOR’S OFFICE
INTERVENOR : STATE SOLICITOR’S OFFICE

Case(s) referred to in reasons:
Attorney General (Cth) v Oates [1999] HCA 35; (1999) 198 CLR 162
Avenell and Another v The Returning Officer, State School Teachers’ Union of WA (Inc) (1993) 73 WAIG 2939
Clancy v The Australian Nursing Federation Industrial Union of Workers Perth [2022] WAIRC 00325; (2022) 102 WAIG 1235; [2022] WAIRC 00330; (2022) 102 WAIG 1240; [2022] WAIRC 00331; (2022) 102 WAIG 1240
Clancy, in the matter of an application for an enquiry in relation to an election for offices in the Australian Nursing and Midwifery Federation [2017] FCA 460
Dwyer v President and Returning Officer, State School Teachers’ Union of WA (Inc) (1990) WAIG 3980
Eddy Lau Constructions Pty Ltd v Transdevelopment Enterprise Pty Ltd [2004] NSWSC 754
Harken v Dornan and Ors (1992) 72 WAIG 1727
Jabbcorp (NSW) Pty Ltd v Strathfield Golf Club [2021] NSWCA 154
Jones v Dunkel (1959) 101 CLR 298
Nimmo, in the matter of an application for an inquiry relating to an election for an office in the Australian Education Union (NT Branch) [2011] FCA 38
Perret v Robinson [1988] HCA 41; (1988) 169 CLR 172
Piper v Corrective Services Commission of New South Wales (1986) 6 NSWLR 352
R v Gray; Ex Parte Marsh (1985) 157 CLR 351
Re Application for an enquiry into an election for officers in the Transport Workers’ Union of Australia, Western Australian Branch (FCA Lee J unreported 11 April 1990)
Re Birch; Re Australian Workers Union (SA Branch) (No2) (1991) 37 IR 420
Re Collins; Ex Parte Hockings (1989) 167 CLR 522
Re Communication Workers’ Union of Australia Postal and Telecommunications Branch, New South Wales (1996) 67 IR 246
Rogers v Sideris and Ors and Tomlinson (1983) 64 WAIG 262
The Registrar v The Australian Liquor, Hospitality and Miscellaneous Workers Union, Miscellaneous Workers Division, Western Australian Branch (1997) 77 WAIG 1391
The Registrar v The Australian Nursing Federation Industrial Union of Workers Perth [2022] WAIRC 00681; (2022) 102 WAIG 1315; [2022] WAIRC 00684; 102 WAIG 1327
The Registrar v The Shop, Distributive and Allied Employees’ Association of Western Australia (1996) 76 WAIG 1705
Thompson v Reynolds [2009] WAIRC 00024; (2009) 89 WAIG 28


Reasons for Decision

The application
1 The applicant, Ms Fenn, has been a nurse for about 29 years, since 1993. For most of her nursing career, Ms Fenn has been a member of the first respondent, the Australian Nursing Federation, and its counterpart federal body, the Western Australian Branch of the Australian Nursing and Midwifery Federation.
2 As a result of proceedings before me, under s 66 of the Industrial Relations Act 1979 (WA), and orders I made on 3 and 4 August and 21 and 23 September 2022, an election by postal ballot for office bearers of the first respondent was held on 17 October 2022. Ms Fenn stood as a candidate for the office of Secretary. On 18 October 2022, the second respondent, the Western Australian Electoral Commission, declared the result of the election for office holders and, amongst others elected, Ms Reah was elected the ANF Secretary by a margin of 56 votes over Ms Fenn.
3 As a consequence of this result, and events leading up to it that I shall describe in more detail below, Ms Fenn challenged the election under s 66(2)(e) of the Act, on the basis of alleged irregularities in connection with it. The three grounds originally advanced in the amended application were:
(a) that the WAEC failed to provide sufficient time for the return of the postal ballots from members;
(b) that the ANF Roll of Electors included unfinancial members; and
(c) that the ANF failed to comply with my declaration and orders of 23 September 2022, which held that the ANF failed to comply with its Rules in not holding the election within the time as prescribed, by failing to distribute the decision and orders in a timely manner. It was contended that this may have influenced voting intentions in the election.
4 The ground in par 3(b) above was later abandoned by Ms Fenn.
5 Declarations and orders sought in these proceedings are to the effect that the election result should be declared void, and a fresh election should be held. Additionally, Ms Fenn seeks an alteration to the Rules of the ANF, to extend the minimum time required for the distribution of ballot papers for an election from 14 days to 28 days, as is the case in the Rules relating to elections of the ANF’s counterpart federal body, the Australian Nursing and Midwifery Federation.
6 Both the ANF and the WAEC oppose the application and deny that there was any irregularity in its conduct. Whilst the Registrar was an intervenor in the proceedings, her role was limited to providing discovery of relevant documents to the parties. Additionally, she made written submissions regarding the interaction between the Act and the Industrial Arbitration (Union Elections) Regulations 1980 (WA) in relation to elections, and relevant rules of the ANF in relation thereto.
7 A preliminary issue also arises in these proceedings. It is whether Ms Fenn may challenge the result of the election of all office holders, or whether she is restricted to only challenging the result for the election of the Secretary, being the position she contested.
Background and summary of facts
8 I have been assisted in this matter by the filing of comprehensive, and careful written submissions from counsel and a Statement of Agreed Facts, as to matters which are not controversial. I am grateful for this assistance. This background is drawn from the Statement. I make the following findings.
9 The ANF, as a registered organisation under the Act, has constitutional coverage of nurses. At the time of the events leading to these proceedings, it had some 37,000 members. For about 25 years, until mid-2022, the Secretary of the ANF was Mr Olson. Mr Olson resigned from the Secretary position and became the Chief Executive Officer of the ANF at that time. As a consequence of Mr Olson’s resignation, the ANF Council appointed Ms Reah to the position of Secretary by the filling of a casual vacancy under the ANF Rules.
10 As a result of proceedings before me under s 66 of the Act, on 3 August and 4 August 2022, I published reasons for decision and orders to the effect that the obligation on the ANF to hold an election in accordance with r 20 of its Rules, between 1 July 2022 and 31 August 2022, be waived. I further ordered that an election for office bearers of the ANF be held by no later than 30 November 2022: Clancy v The Australian Nursing Federation Industrial Union of Workers Perth [2022] WAIRC 00325; (2022) 102 WAIG 1235; [2022] WAIRC 00330; (2022) 102 WAIG 1240; [2022] WAIRC 00331; (2022) 102 WAIG 1240.
11 In the meantime, existing office bearers were to continue holding office until the declaration of the election result.
12 On 21 and 23 September 2022, as a result of proceedings under s 66 of the Act commenced by the Registrar, regarding non-compliance by the ANF with its Rules in relation to the conduct of an election, I published further reasons for decision and orders. Those were to the effect that the ANF had failed to comply with its Rules in failing to hold an election within the time required; requiring the ANF to take steps to notify its members of its non-compliance, including my decision; and to notify the Registrar of steps taken by the ANF to ensure that its Rules in relation to elections would be complied with in the future: The Registrar v The Australian Nursing Federation Industrial Union of Workers Perth [2022] WAIRC 00681; (2022) 102 WAIG 1315; [2022] WAIRC 00684; 102 WAIG 1327.
13 The ANF wrote to the Registrar on 11 August 2022 and requested that an election be conducted for the following office holders:
Senior Vice President;
Vice President x 2;
Secretary;
Executive Member x 2;
Councillor x 7.

14 In accordance with s 69 of the Act, the Registrar issued a decision that the ANF’s request for an election to fill the above vacancies had been ‘duly made’, and arrangements were made with the WAEC for the conduct of the election. As a result, the WAEC appointed Mr Ardeshir, an employee of the WAEC with experience in the conduct of elections, as the Returning Officer.
15 Mr Ardeshir contacted Mr Olson on 15 August 2022, proposing a timetable for the conduct of the election in the following terms:
· Advert to be published in the West – Monday 22 August
· Opening of Nominations – Monday 29 August
· Close of the roll – Monday 5 September
· Close of Nominations ‐ Monday 12 September
· Ability to withdraw nomination – Last day is Monday 19 September
· Mailout of the packages (assuming we proceed to election) ‐ Monday 26 September
· Election Day – Monday 17 October 10.00 am

16 Shortly after this contact, on the same day, as noted above, Mr Olson resigned as Secretary of the ANF and Ms Reah was appointed to the position through a casual vacancy.
17 As required by s 63(1)(a) of the Act, the ANF has a register of members, that, at the time, contained some 37,660 recorded members. A Roll of Electors was provided by the ANF to the WAEC in early September 2022, which comprised some 36,974 members. This was amended shortly after, by an amended Roll of Electors, comprising some 35,992 members, following the removal of retired members.
18 By 12 September 2022, on the close of nominations, there were more nominations than available positions for each office. Accordingly, the Returning Officer proceeded to conduct an election.
19 Preparation of ballot papers by the WAEC was intended to take place on 21 and 22 September 2022. However, on the passing of Her Majesty Queen Elizabeth II, a National Day of Mourning public holiday was proclaimed for Thursday 22 September. This meant that the ballot papers were not completed until Friday 23 September 2022. Whilst the timetable for the election provided for the lodgement of ballot papers with Australia Post on Monday 26 September 2022, as this was the Kings Birthday public holiday, this did not occur until the following day, on Tuesday 27 September 2022.
20 On this day, 35,988 ballot papers were lodged with Australia Post for delivery.
21 In relation to the non-receipt of ballot papers, there were communications between Mr Olson and Mr Ardeshir in late September 2022. These referred to communications with ANF members about receipt of ballot papers by post, to the effect that if members had not received them by 11 October 2022, they should contact the WAEC regarding a replacement. At around the same time, Ms Fenn also began raising concerns with the WAEC regarding the non-receipt of ballot papers, based on contact with her from members. Additionally, in early October 2022, the WAEC made enquiries of Australia Post regarding the non-delivery of ballot papers to a number of postcode areas in the State. After some enquiries, Australia Post advised the WAEC that there were no issues specific to mail delivery centres that it could identify.
22 Some 23 ANF members contacted the WAEC directly during the period 7 October to 13 October 2022 for replacement ballot papers, which were dispatched to them by express post. These members resided mainly in the metropolitan area of Perth, but also a few resided in the regions. Some nine ANF members contacted the union either during or after the election, to raise issues regarding the non-receipt of ballot papers. The WAEC has no record of any of them making contact with it about this matter.
23 On 18 October 2022, the WAEC certified the election results. The declaration signed by Mr Ardeshir stated that, for the position of Secretary, Ms Reah received 2,056 votes and Ms Fenn received 2000 votes. A third candidate, Ms Ziggi, received 336 votes. Between 18 October and 28 October 2022, the WAEC received a total of 446 late ballot papers from members of the ANF who voted. A total of 463 unopened ballot papers were returned to the WAEC, as undeliverable mail.
24 On 20 October 2022, the ANF President, Ms Fowler, sent an email to ANF members advising of the election result. In it, Ms Fowler also included a copy of my decision and orders dated 21 and 23 September 2022, referred to earlier in these reasons, with the notation ‘please also find attached the decision of the WAIRC in relation to the timing of the election’. No other description as to the content of the decision, which was some 26 pages long, was provided to members.
Approach to election challenges
25 The Chief Commissioner’s jurisdiction concerning elections in organisations is found in ss 66(2)(e) and (f) of the Act, which are as follows:
(2) On an application made pursuant to this section, the Chief Commissioner may make such order or give such directions relating to the rules of the organisation, their observance or nonobservance or the manner of their observance, either generally or in the particular case, as the Chief Commissioner considers to be appropriate and without limiting the generality of this subsection 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 Chief Commissioner 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 of the irregularity;
and
(f) in connection with an inquiry under paragraph (e) —
(i) give such directions as the Chief Commissioner considers necessary to the Registrar or to any other person in relation to ballot papers, envelopes, lists, or other documents of any kind relating to the election;
(ii) order that any person named in the order must or must not, as the case may be, for such period as the Chief Commissioner considers reasonable in the circumstances and specifies in the order, act or continue to act in and be taken to hold an office to which the inquiry relates;
(iii) declare any act done in connection with the election to be void or validate any act so done.

26 For the purposes of s 66(2)(e), an ‘irregularity’ is defined in s 7 of the Act to be:
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;

27 Sections 66(2)(e) and (f) of the Act are discrete powers contained within the broad scope of s 66 as a whole. As such, as a matter of construction, the powers available to be exercised by the Chief Commissioner regarding enquiries into elections in an organisation are limited to those specifically enunciated in ss 66(2)(e) and (f) of the Act, but the broad powers contained in the general introductory part in s 66(2) are not available to be exercised: Harken v Dornan and Ors (1992) 72 WAIG 1727 per Rowland J at 1730-1732 (Franklyn and Ipp JJ agreeing).
28 The meaning of ‘irregularity’ for the purposes of the statutory definition in s 7 of the Act was also the subject of consideration by the Industrial Appeal Court in Harken. This arose in the context of a comparison between the relevant provisions of s 66 of the Act and corresponding provisions of the Commonwealth legislation at the time, which were not materially different. As to these matters, Rowland J said at 1730 as follows:
The Commonwealth legislation is in terms substantially the same as s 66(2)(e). Each Act talks in terms of "an irregularity in connection with that election". Each Act defines irregularity in substantially the same terms. The West Australian Act provides:
"irregularity", in relation to an election for an office, includes a breach of the rules of an organization, 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;"
In Re Collins at 524 Brennan and Deane JJ summarised the matters:
"Gaudron J. has outlined the circumstances and the statutory framework in which the question arose whether a use of union resources to promote a ticket in a union election amounts to an 'irregularity in or in connexion with an election' within the meaning of that term in Pt IX of the Conciliation and Arbitration Act 1904 (Cth). In Reg. v. Gray; Ex parte Marsh (20), Gibbs CJ. said:
'The 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.' (Emphasis added.)
As appears from that judgment and its reference to Evans v. Crichton-Browne (21), an irregularity is not 'in or in connexion with an election' if the irregularity consists merely in the steps taken to affect voting intention but leaves untouched the processes of nomination, conduct and declaration of the poll. This is such a case.
As Gaudron J. points out, if an irregularity which affects merely the formation of voting intentions were capable of amounting to an 'irregularity in or in connexion with an election', an inquiry into the effect of the irregularity on the result of the election would involve a very substantial intrusion into the secrecy of the ballot. For these reasons we agree that the view taken by Gray J. in setting aside the subpoenas was correct."
In her reasons, Gaudron J found added support for reaching the same conclusion in the provisions of s 161 of the Commonwealth Act. She said at 531-532:
"Significantly, s. 165(4) limits the powers of the Court in an inquiry pursuant to s.161 of the Act by providing:
'The Court shall not declare an election, or any step taken in or in connection with an election, to be void, or declare that a person was not elected, unless the Court is of opinion that, having regard to the irregularity found, and any circumstances giving rise to a likelihood that similar irregularities may have occurred or may occur, the result of the election may have been affected, or may be affected by irregularities.'
The sub-section recognizes that an act or omission constituting an irregularity may be such that, ex post facto, it can be seen that it has not or will not affect the election result. But, it also impliedly recognizes that an irregularity is constituted by an act or omission which has a tendency to affect an election result and the impact or likely impact of which can be ascertained in the course of an inquiry. Assuming that it is possible to ascertain whether or not advocacy in favour of a particular candidate or particular candidates had a causative influence on the voting decisions of electors or some of them, the question whether there was an impact or likely impact on the election result could only be ascertained by a very substantial intrusion into the secrecy of the ballot. The Act, in ss. 133 and 133AA, contained detailed provisions for secret ballots in union elections, and, in my view, there is nothing to be found in the Act permitting of an inference that an inquiry might be conducted so as to require an elector to disclose for whom he or she voted or for whom he or she would have voted but for the advocacy which led to his or her decision. Unless such could be done, an inquiry into matters of electioneering would, at least in the ordinary course of events, be an inquiry lacking any purpose relevant to the orders which may be made by the Federal Court in consequence of a finding that there was an irregularity in or in connexion with the election. For this reason, I conclude that the expression 'irregularity in or in connection with an election', as used in the 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. Accordingly, the matters complained of are not capable of constituting an irregularity in or in connexion with an election."
Counsel for the respondents claimed that this was a distinguishing feature of the two legislative schemes. They claimed that the West Australian Act did not have a provision similar in terms to s 161. There were two answers to that. First, there are other provisions in the West Australian legislation which give some support for similar considerations. These are contained in ss 69(4), (5)(a) and (7); 56(l)(a)(d); 55(l)(e) and 57. Secondly, and more importantly in my view, the rationale behind the reasoning in The Queen v. Gray; Ex parte Marsh (1985) 157 CLR 351, relied upon by all members of the court in Re Collins, was based on avoiding an "intrusion into the secrecy of the ballot".
In my opinion, the dicta of the various Judges of the High Court who have dealt with the words used, both in Gray and Re Collins is binding on us in a case which cannot in any relevant way be distinguished.

29 The Federal Court adopted the same broad approach to the meaning of ‘irregularity’ regarding election enquiries under the Fair Work (Registered Organisations) Act 2009 (Cth): Clancy, in the matter of an application for an enquiry in relation to an election for offices in the Australian Nursing and Midwifery Federation [2017] FCA 460 per Siopis J at [69] to [70] (see too: Thompson v Reynolds [2009] WAIRC 00024; (2009) 89 WAIG 28).
30 There is one notable difference between ss 66(2)(e) and (f) of the Act compared to the corresponding provisions of the FW (RO) Act in s 206, as pointed out by Ms Fenn in her submissions. Under s 206(5) of that legislation, there is an additional requirement, not present in s 66 of the Act, that as well as a finding of an irregularity, the Court must conclude that the election may have been, or may be, affected by it.
Standing
31 The ANF and WAEC contended that Ms Fenn only had standing to challenge the election for the office of Secretary, that being the office she nominated for, and she was not able to challenge the result of the election generally for all officers. For the following reasons, this contention must be rejected.
32 The starting point must be the terms of the statute. By s 66(1)(a), a person who is, or has been, a member of an organisation may make an application to the Chief Commissioner to ‘enquire into an election for an office in an organisation …’ By s 7 of the Act, an ‘office’ is defined to mean:
office in relation to an organisation means —
(a) the office of a member of the committee of management of the organisation; and
(b) the office of president, vice president, secretary, assistant secretary, or other executive office by whatever name called of the organisation; and
(c) the office of a person holding, whether as trustee or otherwise, property of the organisation, or property in which the organisation has any beneficial interest; and
(d) an office within the organisation for the filling of which an election is conducted within the organisation; and
(e) any other office, all or any of the functions of which are declared by the Commission under section 68 to be those of an office in the organisation,
but does not include the office of any person who is an employee of the organisation and who does not have a vote on the committee of management of the organisation;

33 As noted above, ‘irregularity’ in relation to an election, is defined to mean that relating to an election ‘for an office’. As a matter of interpretation, in a written law, by s 10(c) of the Interpretation Act 1984 (WA), words in the singular number include the plural and vice versa. This is, of course, subject to a contrary intention or object in the particular Act, or where the subject matter or context suggests otherwise: s 3(1)(b) Interpretation Act.
34 Section 66 is contained in Division 4 of Part IIB of the Act, which makes provision for industrial organisations and associations. The word ‘office’, as a defined term in s 7, and as it relates to an organisation, appears extensively in the Act, in ss 52, 52A, 55, 56, 57, 64, 68, 69, 70, 71, 71A, 74 and 80. These provisions of the Act refer to the registration and control of organisations and the obligations of officers, occupying an office in an organisation. In particular, I note s 69, which sets out the procedure for an election ‘for an office’ in an organisation being conducted by the Registrar, or by the WAEC. If the submissions of the ANF and the WAEC are to be accepted, then it is difficult to see how, under s 69(1), an election in an organisation can be for more than a single office holder position.
35 There are, however, other reasons why this challenge to Ms Fenn’s standing cannot succeed. A principal object the of the Act in s 6(f) is to encourage the democratic control of organisations. As to this matter, in my decision regarding the enforcement proceedings in The Registrar, Western Australian Industrial Relations Commission, referred to above, I said at [56] to [57] as follows:
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.

36 It is consistent with this object, and also the ANF Rules, that current or former members of an organisation be able to invoke the jurisdiction of the Chief Commissioner under s 66 of the Act, in relation to an election. Importantly, there is no requirement for a person making an application under s 66(2)(e) of the Act, to have been a candidate in an election. Although, the jurisdiction is no doubt invoked more commonly by such persons. The only attribute to satisfy the standing requirement is current or former membership of an organisation, as required by s 66(1)(a). I see no reason not to construe s 66(2)(e) of the Act, in accordance with s 10(c) of the Interpretation Act, and given the objects of the Act in s 6(f), every reason to do so. In my view, the focus of ss 66(2)(e) and (f) is on an election as a process or an event, the substance of which may include single or multiple offices in an organisation.
37 It would be incongruous to say the least, if, on an election enquiry under s 66(2)(e), the Chief Commissioner determined that there existed a systemic irregularity that infected an entire election, but, because an applicant could only challenge the election for one office holder position which they contested, the remainder of the elected officeholders would continue to be regarded as validly elected. Their continuation in office would be tainted with illegitimacy. In my view, such a construction of s 66 of the Act would be wholly inconsistent with the principal object in s 6(f), and could not have been the intention of the Parliament when enacting such provisions.
38 Accordingly, Ms Fenn has standing to seek the orders and declarations she does, in relation to the elected office holders as set out at [5] of her amended application and [12] above of these reasons.
Non-compliance with orders
39 The background to this issue is set out in the affidavit of Ms Fenn. Whilst I found her to be a credible witness from her cross-examination, the ANF objected to much of her affidavit in support of her application. The ANF objections related to relevance, hearsay and assertions of vexatious content. On a fair reading of it, the affidavit also contained material that was unsubstantiated opinion, and not helpful to the Commission in the disposition of these proceedings. In this respect, I refer to [28], [66], [71], [86] and [93]. I will not place any weight on that evidence. In other respects, those parts of the evidence objected to will be matters of weight.
40 There are other aspects of Ms Fenn’s affidavit the subject of complaint from the ANF, that may be said to relate to her motivation for her decision to stand for the office of Secretary, both in the 2018 election and the 2022 election. To the extent that those parts of her affidavit make allegations against the ANF, Mr Olson and Ms Reah, without those matters having been put to Mr Olson or Ms Reah, I will not have regard to those matters.
41 The ANF filed an affidavit by Mr Olson. No request was made by Ms Fenn to cross-examine him. Likewise, whilst Ms Reah was not called to give evidence by the ANF, as there is no property in a witness, it was open to Ms Fenn to call Ms Reah, by summons, if necessary, if she intended to pursue the issues alleged in her affidavit. However, despite this, as to the submission as to whether I should draw a Jones v Dunkel ((1959) 101 CLR 298) inference by the ANF’s failure to call Ms Reah to give evidence, and also the alleged failure by Mr Olson to give a more fulsome explanation of why my reasons and orders of September 2022 were not distributed timeously to members of the ANF, I will refer to this issue further below.
42 It was uncontroversial, as set out at [9] to [11] of the Statement, that there was a change of leadership in the ANF following Mr Olson’s decision to not contest the election for the Secretary position, after about 25 years in that office. However, the assertion in Ms Fenn’s written submissions at [36] and [39] and the corresponding passages in Ms Fenn’s affidavit referred to in the submissions, as to the alleged motivations by the ANF, Mr Olson and Ms Reah, are not matters I can place any weight on.
43 What I can conclude is that over a period of time, on Ms Fenn’s evidence, she formed the opinion that the then leadership of the ANF was not providing the level of service to the members of the union that she considered they deserved. This led her to decide to stand for election for the position of Secretary both in 2018 and in 2022. This was her democratic right as a member of the ANF, and she exercised it.
44 It was also uncontroversial, as noted above, that as a result of orders I made under s 66 of the Act in early August 2022, the time for the election to be conducted was extended to 30 November 2022 at the latest, and the requirements of r 20 of the ANF Rules were waived. As noted above in these reasons, and as set out in the Statement at [21] to [32], the Registrar requested, and the WAEC agreed, on 15 August 2022, to conduct the election for office holders of the ANF. In my view, given the steps then undertaken by Mr Ardeshir as the Returning Officer on that day, the election process can be taken to have been commenced from the time of the publication of the Election Notice in the West Australian newspaper on 22 August 2022 (see ATB80-81).
45 As to this ground of challenge, it was contended by Ms Fenn that the delay in providing a copy of my reasons and order of 21 and 23 September 2022 in the enforcement action brought by the Registrar, to members of the ANF, until after the declaration of the election result, was deliberate. It was submitted by Ms Fenn that this was done by the ANF to avoid scrutiny by members of the union as to the failure by the then Secretary and others, to ensure compliance with the Rules as to the timing of the election. This was said to have been done to avoid any adverse views that may have been formed by members in their decision as to who to vote for. The evidence of Mr Olson in his affidavit and the submissions of the ANF generally, that the absence of a date for compliance in the relevant part of my order of 23 September 2022, was said by Ms Fenn to be ‘disingenuous, opportunistic and self-serving’ (written submissions at [49]).
46 Whilst Ms Fenn submitted that it should have been expected that Mr Olson would have dealt with these and other matters as to assertions about the ANF conduct in his affidavit, as I have already mentioned, Mr Olson was not requested to attend the hearing to be cross-examined on his evidence. In the case of a witness who files an affidavit and is then cross-examined, the cross-examination is not limited to matters contained in the affidavit and the witness is at large. The witness may be cross-examined on any matter relevant to the issues arising in the proceedings.
47 In considering the contentions advanced by Ms Fenn in relation to this first alleged irregularity, it is necessary to return to my decision in the enforcement proceedings. In Registrar WAIRC, the issue was the failure by the ANF to comply with its Rules, (specifically r 20) to make a request for an election to be conducted by the Registrar, within the time specified in the rule, that being between 1 July and 31 August of the relevant year. The matter before me in those proceedings involved some complexity, in terms of the operation of the relevant provisions of the Act as to elections, and the interpretation of the ANF Rules in relation to these matters. My reasons for decision ran to some 26 pages and 91 paragraphs. After considering the evidence and the arguments of the parties, I expressed some criticism of the ANF and concluded at [82] to [83] as follows:
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.

48 As to the order sought by the Registrar, that notice of my decision be given to members of the ANF, I observed at [86]:
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.

49 I should also say that in the proceedings leading to the making of the orders, Mr Clancy, the then Senior Industrial Officer and Vice President of the ANF gave evidence as to reservations that he had that the enforcement proceedings were being heard at a time when the election was about to take place. He was concerned that candidates in the election, including Ms Fenn, may seek to use the outcome of the proceedings for their own purposes: at [53].
50 As a result, the relevant order that I made on 23 September 2022 was order 2 in the following terms:
(2) ORDERS that the respondent take all reasonable steps (including by distributing a copy of the herein reasons for decision and declaration and orders) to notify its members of its failure to comply with rule 20 of its registered Rules.

51 As noted earlier in these reasons, on 20 October 2022, following the declaration of the election result by the WAEC, an email was sent to ANF members by Ms Reah, enclosing a message from the President of the union Ms Fowler, in relation to the election results and also, enclosing a copy of my decision and orders in the enforcement proceedings. The message read ‘Please also find attached the decision of the WAIRC in relation to the timing of the election’. (ATB at p 1659). There is no further explanation of what, as I have said above, was a lengthy decision dealing with some complex questions of law.
52 From its terms, my order imposed two requirements on the ANF. The first, was to take reasonable steps to notify members of the union’s failure to comply with r 20 of its Rules. The second, was to distribute to members a copy of my reasons for decision and orders. The parties and their written and oral submissions focussed on the latter part of my order. However, the distribution of my reasons and orders, would not of itself, meet the requirements of the order as a whole. Simply distributing them, without explanation, as occurred on 20 October 2022, in an email from Ms Reah, with a message from Ms Fowler the President to the effect ‘Please find attached the decision of the WAIRC in relation to the timing of the election.’, was not consistent with the obligation imposed on the ANF by the order. There was nothing in the email from Ms Reah to explain the content of the decision and order.
53 Nothing in that communication would have drawn members’ attention to the fact that the ANF had failed to comply with r 20 of its Rules, as was required. It was unambiguously clear from par [86] of my reasons, set out above, that the Commission expected openness and transparency by the ANF with its members on this issue. What occurred was anything but. Not only was the issue of non-compliance not communicated clearly as required, but the non-compliance was cloaked in a veneer of inconsequence, as if the decision and order simply dealt with the ‘timing’ of the election. It did not. It dealt with much more than that.
54 In these circumstances, as Ms Reah would have been the person to give evidence about the timing and content of the message in the 20 October 2022 email to members, I do find that the failure by the ANF to call Ms Reah to explain the late distribution of my decision to members, without proper explanation, leads to a Jones v Dunkel inference.
55 However, despite this conclusion, a larger issue arises as to whether the failure by the ANF to timeously distribute a copy of my decision and orders in the enforcement proceedings, without any proper explanation of the ANF’s non-compliance with r 20 of its Rules, was a matter that could give rise to an irregularity, given their content. Put another way, could the timing and distribution of my decision, with or without any explanation, be a matter capable of constituting an irregularity for the purposes of ss 7 and 66(2)(e) of the Act? If the answer to that question is no, then the related issues such as the motives of the ANF, and the conduct of its relevant officers, either by express words or overt conduct, or inferences sought to be drawn from it, are not relevant and are not capable of being taken into account.
56 Returning then to the principles established in both R v Gray; Ex Parte Marsh (1985) 157 CLR 351 and Re Collins; Ex Parte Hockings (1989) 167 CLR 522, discussed and applied in Harken above. It is clear that an ‘irregularity’ for the purposes of ss 7 and 66(2)(e) of the Act must involve a matter in connection with the election process itself. Matters concerned with the formation of voting intention, in terms of who voters may be inclined to vote for, impermissibly stray into the secrecy of the ballot process. Whilst the situations that may fall into this impermissible area of enquiry are not closed, the High Court decisions in both R v Gray and Re Collins were concerned with the distribution of pamphlets and other publications and the use of union resources to promote certain candidates in an election, without such material and resources being available to other candidates. A similar factual situation arose in Harken.
57 In this case, Ms Fenn was clearly alive to the difficulties created for her by these authorities, in relation to this ground of challenge, by her attempts to characterise my decision and orders in the enforcement proceedings as matters in connection with the ‘machinery of the election’. It was submitted that the enforcement proceedings were ‘connected with and operated on the Extension of Time Proceedings’ (written submissions at [56c]). It was submitted that the outcome of the enforcement proceedings required the ANF to take a step during the election to inform members of the ANF’s non-compliance. It was contended that the failure to take this step ‘caused the election to be conducted, in the view of the members, as if there had not been non-compliance with the Rules’ (written submissions at [56e]).
58 The extension of this theme, in Ms Fenn’s submissions, was that this conduct by the ANF contravened r 3 of its Rules, which deals with the objects of the union, and was an irregularity ‘because the conduct deprived members of knowledge and information which may have influenced the manner in which they could decide to cast their vote…’ (written submissions at [57]). It is this last part of Ms Fenn’s submissions on this ground, that, whilst it must ultimately be stated, reveals the difficulties she faces in establishing it.
59 Before getting to this point, however, there is another difficulty with Ms Fenn’s arguments. There are three limbs to the first part of s 66(2)(e) of the Act. They are:
(a) an inquiry into an election for an office in an organisation;
(b) an alleged ‘irregularity’ (as defined in s 7 of the Act) in connection with that election (my emphasis); and
(c) the making of such orders and directions as the Chief Commissioner considers necessary;
if an allegation of an irregularity is established.
60 The proceedings that came before me under s 66 of the Act in early August 2022, on the application of the ANF, sought the waiver of r 20 of the ANF’s Rules, to enable a timetable to be established for the conduct of an election to take place at a point in time in the future. In that case, there was evidence before me that the ANF had requested the Registrar to arrange for the conduct of an election and the WAEC had informed the Registrar that there was insufficient time to do so because of the lateness of the ANF’s request: see Clancy at [4].
61 As a result of those proceedings, whilst I expressed some concerns with the delay in the request for an election and that this was the second occasion where orders to waive r 20 of the ANF Rules were sought by it, I made the orders so that an election could take place. I observed in my reasons that, whilst I had the above concerns, I would say no more about those matters because I noted that the Registrar already had proceedings on foot, in relation to the alleged non-compliance by the ANF with r 20 of its Rules, which ultimately led to my orders in the enforcement proceedings, being made in September 2022.
62 What follows from the above is that first, the extension of time proceedings were not proceedings in connection with an ‘election for an office in an organisation’ for the purposes of s 66(2)(e) of the Act, because no election could take place unless I made the orders as I did. Plainly, the reference to ‘election’ in s 66(2)(e) is a reference to an election that is being or has been conducted. The orders I made in early August 2022 facilitated the subsequent conduct of the election. As I have mentioned above, the election got underway on the confirmation by the WAEC of the appointment of the Returning Officer, Mr Ardeshir, and the taking of preliminary steps to establish a timetable and put arrangements in place for the conduct of the election, leading to the Election Notice in late August 2022.
63 Second, from the Registry records of the Commission, the application in Registrar WAIRC, under s 66 of the Act, in relation to the contravention of r 20 of the ANF Rules, was filed on 25 July 2022. The Registrar has standing of her own motion, under s 66(1)(c) of the Act, to make an application to the Chief Commissioner in relation to the rules of an organisation, their observance or non-observance, or the manner of their observance. Thus, the application made by the Registrar was filed well before the election took place. In my view, they were discreet proceedings brought by the Registrar, as she is authorised to do, in the nature of enforcement, in response to the ANF’ s non-compliance with its obligation to request an election in the time specified in r 20 of its rules.
64 I therefore do not consider those proceedings can be regarded as proceedings ‘in connection with the election’, which election commenced in or about late August 2022, and concluded with the declaration by the WAEC on 18 October 2022, for the purposes of s 66(2)(e) of the Act, despite the width of this phrase (see Nimmo, in the matter of an application for an inquiry relating to an election for an office in the Australian Education Union (NT Branch) [2011] FCA 38 per Reeves J at [64]). Those earlier proceedings were properly characterised in my view, as proceedings in connection with compliance and non-compliance by an organisation with its rules. The primary relief sought in those proceedings was a declaration that the ANF had failed to comply with its rules. That is a subject matter of the preliminary part of s 66(2) of the Act. It has no part to play in s 66(2)(e) and (f).
65 As I have already noted, s 66(2)(e) proceedings in relation to an election are discrete and quite separate from proceedings in relation to the enforcement of the rules of an organisation: Harken. The order which I made, for a copy of my reasons for decision and order to be provided to members of the ANF, was an ancillary order to the primary relief sought and granted, in those enforcement proceedings.
66 In the alternative, if I am incorrect and the enforcement proceedings were proceedings in connection with the election, then I am not persuaded that if there was a failure to comply with the order by the ANF, it could constitute an irregularity. This is because, in my view, the provision of my reasons and orders, with or without explanation, could only possibly serve the purpose of influencing voting intentions, and the argument is put by Ms Fenn that they may have influenced voting intentions. Had my reasons and orders been distributed to members of the ANF at the outset of the election or some time prior to the close of the ballot, other candidates may have sought to use the decision and orders and any explanation, to criticise the ANF and its leadership. This may have, in turn, led the ANF to defend itself, and the other candidate likewise.
67 In my view, this sort of conduct, and the use of my reasons and orders for this purpose, could only be reasonably regarded as a form of ‘electioneering’. Either way, the only possible impact on members who may have taken the time to read my lengthy reasons, could be an attempt to influence those voters to vote for one candidate over the other, which the High Court has said is an ‘intrusion into the secrecy of the ballot’: Re Collins per Gaudron J at 531.
68 For these reasons, I am not persuaded that there has been an irregularity in relation to the election on this basis.
Failure by returning officer to extend the ballot
Preliminary question
69 In determining this alleged irregularity, a preliminary issue arises as to the obligations imposed on a Returning Officer in Mr Ardeshir’s position, under the Act, the Regulations and r 23(4)(a) of the ANF Rules. In this connection, the Registrar and the parties made further written submissions. The point that arises is whether the Returning Officer is obliged, as a mandatory duty, to take all reasonable steps to ensure no irregularity occurs in connection with an election. Alternatively, whether a Returning Officer has a discretion in this regard. The question arises in this case because Ms Fenn contended that Mr Ardeshir had a duty to act to extend the closing date for the ballot, once he became aware that there may be delays by Australia Post in the delivery of ballot papers to members of the ANF.
70 The contention regarding a mandatory duty was said to arise from r 23(4)(a) of the ANF Rules, which is in the following terms:
(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.

71 On the other hand, the WAEC contended that Mr Ardeshir, as the Returning Officer for the election, had a discretion whether to take action or not. This was submitted to arise from the terms of s 69(5) of the Act which provides:
(5) Notwithstanding anything contained in the rules of the organisation, the person conducting the election may take such action and give such directions as the person considers necessary in order —
(a) to ensure that no irregularities occur in or in connection with the election; or
(b) to rectify the register of members of the organisation; or
(c) to remedy procedural defects which appear to the person to exist in those rules.

72 There is a further overlay to these contentions, and that is the question of what obligations are imposed on a Returning Officer, by the Regulations. I will return to this issue a little later.
Registrar
73 The Registrar made detailed and helpful written submissions in relation to these issues. The WAEC and Ms Fenn replied to the Registrar’s submissions. Additionally, in her written submissions, Ms Fenn referred to reg 11 of the Regulations, dealing with the steps a Returning Officer is obliged to take in relation to the commencement and close of a ballot for an election for office in an organisation. It was submitted that, in the context of the evidence led in this case, that the Returning Officer should have had regard to the outer time limit for the conduct of the ballot, that being 30 November 2022, as contained in my order of 3 August 2022. Further, in establishing the time required to send and return ballot papers by post, Mr Ardeshir should have had regard to the deteriorating situation with Australia Post, as a mandatory requirement.
74 Whilst I consider the matters raised by Ms Fenn in her reply submissions are within the scope of my direction of 1 May 2023, which directed the parties to file written submissions on the relationship between provisions of the Act and Regulations which regulate or relate to the conduct of an election, and the rules of an organisation, in an election under s 69 of the Act, the WAEC took some exception to the reference to reg 11 in Ms Fenn’s submissions and contended that it was a ‘new matter’. I do not consider this necessarily to be so. Nonetheless, I provided the Registrar and the other parties a further limited opportunity to respond to Ms Fenn’s written submissions on this issue. None indicated any wish to do so.
75 The Registrar set out in her written submissions relevant provisions of the Act in relation to registered organisations and their registration and the relationship between those provisions and the Rules of an organisation. As to the registration of an organisation under Division 4 of Part II of the Act, the Registrar contended that a number of provisions of the Act are of significance. It was noted that in relation to the registration of an organisation, the Commission in Court Session must refuse an application for registration if the rules of an organisation in relation to elections do not satisfy s 56(1) of the Act, notably that they must ‘ensure as far as practicable, that no irregularity can occur in connection with an election’: s 56(1)(d)(iii). Notably too, attention was drawn to s 57 of the Act, which is in the following terms:
57. Elections by direct voting system to be by secret postal ballot
(1) Every election by a direct voting system for an office in an organisation must be by secret postal ballot.
(2) The regulations may make provision for and in relation to the conduct of an election in accordance with the requirements of this section.
(3) Where the rules of an organisation as in force at the date of the coming into operation of this section provide for an election or elections to which this section applies to be by a secret ballot other than a secret postal ballot, the Registrar may, upon application by the organisation in accordance with the regulations, by instrument in writing under the Registrar’s hand, exempt the organisation in respect of an election from the application of this section if the Registrar is satisfied that the conduct of the election in accordance with those rules —
(a) is likely to result in a fuller participation by members of the organisation in the ballot than would result from a postal ballot; and
(b) will afford members entitled to vote an adequate opportunity of voting without intimidation.
(4) This section, and the regulations made for the purposes of this section, have effect notwithstanding anything contained in the rules of an organisation.
(5) This section does not apply to an election any step in which was taken, in accordance with the rules of the organisation, before the date of the coming into operation of this section.

76 Reference was also made by the Registrar to s 69 of the Act, which permits an election to be conducted by the Registrar and it was submitted that the terms of s 69(5) set out above, confer a discretion on a person conducting an election to do certain things and that this discretion is to be exercised ‘Notwithstanding anything contained in the rules of an organisation…’
77 As to the Regulations, the Registrar submitted that most appear to have been made under s 113(1)(f) of the Act, read relevantly with ss 57(2), 69(2) and 69(12) of the Act, respectively. In particular, regs 5 to 22, deal with procedures and steps to be taken in the conduct of an election, consistent with s 57(2) of the Act. The general submission was made by the Registrar that whilst the rules of an organisation are not made by the Commission, and nor are they made under the Act per se, they are subject to and, to an extent, are regulated by the Act.
78 In the context of this general background, the broad submission was made by the Registrar that in the case of any inconsistency or conflict between the Act and the Regulations made under it, and the rules of an organisation, the former will prevail. The Registrar submitted that there are a number of reasons for this. First, an organisation’s rules, whilst not made under the Act or by the Commission, are given statutory effect by the legislation. Given that upon registration an organisation and its members are subject to the jurisdiction of the Commission and the Court (the Industrial Appeal Court) under the Act, and the Commission has the capacity to refuse registration of an organisation if its rules do not meet certain statutory requirements, then construed as a whole, this means that rules of an organisation are ‘subject to’ the Act and Regulations, in the ordinary sense, and are subsidiary and should be seen as subsidiary.
79 Second, the subsidiary nature of rules is demonstrated by the requirement that certain subject matters are to be included in rules and the regulation making power as to required subject matter.
80 Thirdly, where under s 61 of the Act, reference is made to members being bound by the rules of an organisation, ‘subject to this Act’, this demonstrates the subsidiary relationship between rules of an organisation and the Act, with the latter prevailing in the case of an inconsistency.
81 Finally, the Registrar made reference to the broad powers under s 66 of the Act, by which the Chief Commissioner may disallow any rule which, in his opinion, is contrary to or inconsistent with any Act or law. In further support of this submission, specific reference was made to s 66(2)(ca), empowering the Chief Commissioner to give directions on a disallowance of a rule, to the effect of validating or giving effect to anything done under a disallowed rule. This was submitted to suggest that upon a disallowance, a rule is rendered void ab initio, (and thus never having had effect) whilst there existed inconsistency.
82 It was submitted that the decision of Sharkey P in The Registrar v The Australian Liquor, Hospitality and Miscellaneous Workers Union, Miscellaneous Workers Division, Western Australian Branch (1997) 77 WAIG 1391 at 1393, appeared to support the Registrar’s general approach. Although she made that submission with a caveat to the effect that the reasons for judgement did not make it entirely clear whether his Honour was referring to the submissions made by counsel, or whether they were a statement of his understanding of the general law. In my view, from his Honour’s reasons read as a whole, the latter is to be preferred.
WAEC
83 On behalf of the WAEC, it was submitted that the prevalence of s 69(5) of the Act over r 23(4)(a) of the ANF Rules is maintained. The WAEC otherwise adopted the Registrar’s submissions on these matters. The WAEC reiterated that the Returning Officer was not required to comply with r 23(4)(a), but in any event, on the evidence, he did so.
Ms Fenn
84 In response, Ms Fenn’s general submission was that she did not cavil with the Registrar’s analysis as to the operation of s 69 of the Act. Insofar as the Registrar referred to elections which may not be conducted under s 69, as set out at [14] to [15] of the Registrar’s submissions, Ms Fenn submitted that those matters were beyond the scope of the matters in issue in these proceedings and are hypothetical.
85 Ms Fenn referred to relevant provisions of the Regulations, in connection with an election conducted under s 69 of the Act. These provisions are to be read with relevant parts of a union’s rules. In particular, Ms Fenn submitted that having regard to regs 5, 6(1)(d), 7(1) and (2), 8(1), 11(d), 14, 18(1) and (4) and 20(1), in the case of an election conducted under s 69 of the Act, the procedure for each election may be different, depending on upon the content of the relevant union’s rules and the interaction of those rules with the Regulations.
86 As to the power and requirement to prevent irregularity, Ms Fenn made a number of submissions. Her overarching submission was that the combined effect of the Act, the Regulations, and the relevant rules of an organisation concerning elections, are such that a Returning Officer must ensure that no irregularity occurs in connection with an election. It was submitted that this results from any provision of an organisation’s rules meeting the requirements of s 56(1)(d)(iii) imposing a requirement to prevent irregularity, or, by the requirement imposed by s 69(5)(a) of the Act, in the event that the relevant provision in an organisation’s rules contains a lesser standard than that provided in the Act. As I understood the submissions, they were reasoned as follows.
87 The Commission in Court Session is required to scrutinise the proposed rules of an organisation for seeking registration which must meet the requirements of s 56(1)(d)(iii). It was submitted that an organisation, including a rule consistent with s 69(5)(a) of the Act, within its rules as a whole, may meet the requirements of s 56(1)(d)(iii). Alternatively, the Registrar, in relation to an organisation registered before s 56 came into effect, may require an organisation to bring its rules into conformity.
88 The submission was made that despite these provisions, s 69(5)(a) was enacted as effectively a ‘fallback’ provision, providing a minimum standard for compliance. Ms Fenn accepted that the words ‘Notwithstanding anything contained in the rules of the organisation’, require an organisation’s rule(s) to give way to s 69(5)(a) of the Act where there is a conflict and agreed with [18] of the Registrar’s submissions in that respect (see also Jabbcorp (NSW) Pty Ltd v Strathfield Golf Club [2021] NSWCA 154). Despite this concession, however, Ms Fenn submitted that in circumstances where an organisation’s rules provide for a higher standard in relation to ensuring that no irregularity can occur in connection with an election, then it would prevail over s 69(5)(a). This was so, according to Ms Fenn, because, if it were not the case, an organisation would have no basis to include a more stringent requirement in its rules, which would negate the introductory words in s 69(5)(a) just referred to and would undermine s 56(1)(d)(iii).
89 On these bases, Ms Fenn contended that the terms of r 23(4)(a) of the ANF Rules, is not displaced and there is no conflict. Both the rule and s 69(5) have a common purpose. The mandatory intent of r 23(4)(a) is consistent with the intention of the Act in relation to the avoidance of irregularities in connection with an election.
90 An alternative submission was put by Ms Fenn to the effect that even where a conflict occurs between r 23(4)(a) and s 69(5), there is no displacement of the effect of the rule because its operation involves no constraint on the requirement and power imposed on a Returning Officer under the Act. A Returning Officer acting under r 23(4)(a) is not prevented from exercising any authority or power referred to in s 69(5)(a), rather it is required to be exercised. The upshot of these submissions according to Ms Fenn, was that there was an obligation on Mr Ardeshir as the Returning Officer to comply with r 23(4)(a) of the ANF Rules in relation to the election and he was bound to comply.
91 In relation to reg 11 of the Regulations, Ms Fenn made the general submission that from the terms of reg 11, it is implicit that a Returning Officer when setting a date for the issuance of ballot papers and the closing date for the ballot, that those dates must enable a sufficient time for the ballots to be posted to voters, for the ballots to be completed and for them to be returned by post. In my view, when read as a whole, especially reg 11(b), this is an explicit obligation.
92 Ms Fenn submitted that, on the evidence, Mr Ardeshir was unaware of the end date of the election that I fixed, of 30 November 2022, in my order of 4 August 2022. Ms Fenn contended that it was Mr Ardeshir’s duty to know the outer limit of the timing of the election, as required by reg 11(a). It was submitted therefore, that the Returning Officer failed to have regard to this mandatory consideration. Additionally, Ms Fenn submitted that Mr Ardeshir was required to have regard to reg 11(b), in terms of the time required to send and return ballot papers by post. The submission was that this involved an assessment of the prevailing postal conditions and an allowance made to ensure compliance with reg 11(b). In this regard, given the end date of 30 November 2022, this provided sufficient flexibility for Mr Ardeshir, in light of the deteriorating postal conditions, to enable a proper judgement to be made.
93 In effect, Ms Fenn contended that the Returning Officer adopted an inflexible approach to the election timing of a ‘standard’ three weeks as is the WAEC usual practice, or by referring to the minimum 14day requirement specified by r 23(1)(g) of the ANF Rules. She submitted this did not satisfy the obligation imposed on the Returning Officer to exercise his powers to ensure that no irregularity occurred in the election. Furthermore, Ms Fenn submitted that no Returning Officer, acting reasonably and having regard to the terms of reg 11, would require the lodgement of ballot packages for the election on the King’s Birthday public holiday. This is especially in circumstances where the postal conditions were deteriorating, and where the ‘standard’ three-week period for a closing date of 17 October 2022, was adopted.
94 It was submitted that a Returning Officer, acting reasonably, would have taken advantage of the maximum end date for the election of 30 November 2022, to extend the ballot closing date beyond 17 October 2022, given all of the circumstances. It was thus submitted by Ms Fenn, that the Returning Officer’s failure to act in this regard did not comply with reg 11 of the Regulations, leading to ultimate irregularities in the conduct of the election.
ANF
95 The ANF made written submissions in reply to the Registrar’s submissions concerning the interaction between the Act, the Regulations and the ANF Rules. The ANF was in general agreement with the Registrar’s submissions as to the relationship between the Act, the Regulations and its Rules. In particular, having regard to s 57 of the Act, providing for elections by direct voting systems to be by secret postal ballot, the ANF submitted that it is clear from this provision that in the event of any conflict between the terms of the Act, the Regulations in relation to elections, and unions rules, then the latter must give way to the former.
96 As to the conduct of an election, the ANF contended that for an election for office holders of the union, there are two alternatives. The first alternative is that the union conducts its own election in accordance with the Rules. It is noted, however, that r 20(3) requires the Returning Officer to be an officer of the WAEC. In the case of a union run election, the cost of the election is borne by the union; no request Is made to the Registrar under s 69 of the Act; the union would be required to deal with the WAEC directly in relation to the election; the Registrar would have no involvement in the election process; and the terms of r 23(4)(a), referred to above, would be required to be followed by a Returning Officer to ensure no irregularities or procedural difficulties occur in relation to the election.
97 Alternatively, the election process is one the subject of a request under s 69 of the Act, which occurred in this case. The process is somewhat different in that the Registrar makes arrangements with the WAEC for the conduct of the election. The cost of the election is borne not by the union but by the State; that s 69(5) of the Act, giving the Returning Officer a discretionary power to take steps to avoid irregularities applies; and also, by s 69(7) of the Act, any irregularity in the request for an election, or a breach of the rules of an organisation in the conduct of an election, or compliance with directions given by a Returning Officer, will not invalidate an election.
98 Accordingly, the overarching submission of the ANF was that given the combined effect of ss 69(5) and 69(7) of the Act, contrary to Ms Fenn’s submissions, the relevant statutory provisions in the Act prevail over the relevant provisions of the ANF Rules. As to the interpretation of s 69(5), the ANF submitted that the word ‘notwithstanding’ should be construed as meaning and being synonymous with ‘despite’: Attorney General (Cth) v Oates [1999] HCA 35; (1999) 198 CLR 162.
99 Finally, as to the matters raised by Ms Fenn concerning reg 11 of the Regulations, the ANF submitted that this matter did not arise until the close of the evidence in the proceedings. However, the ANF also submitted that Ms Fenn’s case in relation to postal delays and the alleged late receipt or non-receipt of ballots was based largely on hearsay evidence and little was put before the Commission by way of direct evidence, as to actual postal delay. It was submitted that there were no delays in the post, and, in any event, the Returning Officer received only a few requests for replacement ballot papers.
Disposition of preliminary issue
100 As to this preliminary issue, in my view, for the reasons identified by the Registrar in her submissions, the Act and the Regulations prevail to the extent that either are inconsistent with a union’s rules. The laws of the State are paramount. In this case, the mandatory obligation imposed on a Returning Officer, under r 23(4)(a) of the ANF Rules, is inconsistent with the discretionary power of a Returning Officer under s 69(5) of the Act. In the Registrar’s submissions, reference is made to Eddy Lau Constructions Pty Ltd v Transdevelopment Enterprise Pty Ltd [2004] NSWSC 754. In this case, as to the meaning of ‘notwithstanding’ when used in a statute, Barrett J observed at [12]–[13]:
… In the present instance, regard may thus be had to cases which have considered qualifications introduced by the word "notwithstanding".
The process of analysis to be followed in such cases was described by Irvine CJ, Cussen J and McArthur J in In re Bland Bros and the Council of the Borough of Inglewood (No 2) [1920] VLR 522:
As to the introductory words, the section should first be construed without them, and then, if there is anything in the other provisions of the Act inconsistent with the interpretation so arrived at, these other provisions must yield.
(See too: Piper v Corrective Services Commission of New South Wales (1986) 6 NSWLR 352; Perret v Robinson [1988] HCA 41; (1988) 169 CLR 172).
101 When s 69(5) is read in this way, without the introductory words, it enables, as a matter of discretion, a person conducting an election to take certain action and make certain directions for the purposes set out in pars (a) to (c). When one then reads r 23(4)(a) of the ANF Rules, the latter is inconsistent as there cannot be simultaneous compliance with both. A Returning Officer cannot, under s 69(5), decide not to take certain action, as matter of discretion, when r 23(4)(a) requires such action to be taken. The latter must yield to the former. They are inconsistent: The Registrar v The Shop, Distributive and Allied Employees’ Association of Western Australia (1996) 76 WAIG 1705 per Sharkey P at 1707.
The evidence
102 Ms Fenn testified that in her experience nurses’ roster patterns and working hours are varied and many who work in remote areas of the State do not access their mail regularly. She also said that many work long shifts and may have family responsibilities, adding to their long work hours and general disruption in their lives. She testified that, in late October 2022, she checked the Australia Post website and there was information on it regarding delivery times estimates for intra- and inter-state mail delivery. The information she found was copied and annexed to her affidavit at SJF9. This material includes the following information:
(a) on a national basis, delivery time estimates for same state deliveries for regular letters was up to 4 business days depending on origin and destination (current at 17 October 2022);
(b) in relation to Western Australia, items posted to Western Australia were experiencing delivery delays, Australia Post was delivering over the weekend where possible, and Australia Post was apologetic for any inconvenience caused (current at 18 October 2022);
(c) customers with an enquiry about an undelivered domestic item should wait until 10 business days of the expected delivery date had passed without the item arriving before contacting Australia Post with their enquiry.

103 Furthermore, Ms Fenn said that the Australia Post website had information in relation to deliveries around public holidays which stated ‘Please allow for additional delivery time if you’re sending time-sensitive material around the time of national, state, regional or local public holidays’.
104 In connection with possible delivery delays, Ms Fenn said that she received complaints from members about the non-receipt of ballot papers. She testified that in response she contacted the WAEC and the Electoral Commissioner by telephone and email to report what members had told her. This was over the period of about 7 to 11 October 2022. Ms Fenn testified that she encouraged those who contacted her to get in touch with the WAEC to report non-receipt of ballot papers. Ms Fenn placed a notice on her Facebook page in the following terms:

105 After the election result was declared, between about 18 October and 23 October 2022, Ms Fenn said that she requested contact from members who were a part of her Facebook support group, which she entitled ‘WA Nurses & Midwives Advocacy’ to advise if they had not received ballot papers. Ms Fenn accepted in cross-examination that she did not contact the ANF about this. Bundles of responses to these posts on her Facebook page were annexed at SJF-12 to her affidavit.
106 At SJF-12 to Ms Fenn’s affidavit were some 27 messages from named individuals who assert that they did not receive ballot papers. The surnames of these individuals included Holland; Patel; Espinosa; Sumner; Walding; Malony; Baker; Russell; Walker; Moon; Stephen; Clarke; Clelland; Pink; Thames; Takawira; Hagley; Strong (2); Montell; Neve; Rooney; Margaretta; Savill; Broderick; Kjenseth and Arnold.
107 Ms Fenn testified that she also received emails from members who did not receive ballots, which were at annexure SJF-14 to her affidavit. These emails included three members from Geraldton; Rossiter; Donnelly; and Parsons and four others, Irvine; Paul; Tully and Shirley.
108 From the Statement at [94] to [116], a further five members did not receive ballot papers or receive them in time to vote. These included Ward; Read-Smith; Dowling; Luke and Hagley.
109 There were also emails received by Mr Olson from members regarding the non-receipt of ballot papers and these include from Lumsden on 8 October who stated ‘quite a few nurses at Bentley have not got ballot papers’. Furthermore, from White on 16 October who did not receive a ballot paper and who lives in East Victoria Park.
110 Then, at 1644-1646 of the ATB, there appears email exchanges between Ms Fenn and Mr Kennedy, the Electoral Commissioner on 11 October 2022. Whilst Ms Fenn was not cross-examined about this email exchange, there appears a list of names attached to an email from a Chris Jenkins to Ms Fenn dated 11 October 2022, which was forwarded to Mr Kennedy. That list contained postcodes and names of what I understand to be ANF members who asserted that they did not receive ballot papers. This understanding arose from an exchange between myself and Ms Fenn’s counsel (see 101-103T). This appears to be in response to an email from Ms Fenn to Mr Kennedy of 7 October 2022 (see 1643 ATB), where Ms Fenn then asserts to Mr Kennedy that members, at a list of postcodes set out in the email, had not received their ballot papers.
111 These email exchanges, as set out in the ATB, were the impetus for the WAEC to make enquiries of Australia Post, which I will deal with in more detail when considering the evidence of Mr Ardeshir below. Excluding from the list of names in the forwarded email from Ms Jenkins, those who were referred to earlier by Ms Fenn from information she received through her Facebook Page, the total number of names provided to the WAEC with postcodes was 25. The total number of members named in all of the various communications was some 66 members.
112 Mr Ardeshir is an experienced officer employed by the WAEC and has had approximately 10 years of experience in the conduct of elections, including elections for local governments and unions. Mr Ardeshir has conducted about 50 non-Parliamentary postal elections and testified that he has not had occasion to extend the time for the return of ballots in any of them.
113 As to the timing of the election for the ANF ballot, Mr Ardeshir testified that he made contact with Mr Olson to discuss preliminary dates for the conduct of the election. It was his evidence that, generally speaking, for non-Parliamentary elections by postal ballot, the WAEC usual timing is three weeks. This is the usual practice that is adopted in elections of this kind. Mr Ardeshir’s evidence was that he adopted this approach for the purposes of the ANF election and it was conducted in accordance with the union’s rules.
114 In that respect, Mr Ardeshir referred to the minimum 14day period specified in the ANF Rules, for the mailout of ballots. In this case, that would mean a last day for lodgement of ballots for distribution by post of 3 October 2022, whereas the actual lodgement with Australia Post was on 27 September 2022. Whilst Mr Ardeshir was questioned about the public holiday declared on Thursday 22 September 2022, as the National Day of Mourning to mark the passing of Her Majesty Queen Elizabeth the Second, Mr Ardeshir did not consider that this had any impact on the ballot result. Nor did the Monday 26 September 2022 public holiday affect the timing of the receipt of ballots in Mr Ardeshir’s view.
115 It was Mr Ardeshir’s evidence that at no stage did he consider extending the date of the election. His evidence was that to do so has consequences. To extend the date of an election after many or most voters had already cast their ballot, would be unfair on them as it would amount to changing the rules of the game halfway through. Mr Ardeshir’s said there was no good cause shown at any time, as to why the dates for the election should be extended.
116 As to the role of Australia Post, Mr Ardeshir said that the WAEC has no control over the delivery of ballots to voters. In referring to his email of 29 September 2022 to Mr Olson, he referred to the ‘limitations of the current postal landscape’. His evidence was that he meant the general limits that apply when a postal ballot is conducted and that Australia Post experiences deteriorating conditions for all elections. In this respect, Mr Ardeshir gave an example of delivery drivers only having a certain capacity on each delivery trip. In relation to Australia Post, Mr Ardeshir said that these postal delays are factored into the timetable for each election, and it was no different in this case.
117 Mr Ardeshir referred to concerns being raised by Ms Fenn about Australia Post deliveries and possible delays. He said that the WAEC made contact with Australia Post to investigate. His evidence was that the response provided by Australia Post, after conducting an investigation in relation to the complaint, was that there were no delays in processing at the distribution centres for mail delivery. Mr Ardeshir also spoke directly with Ms Fenn about concerns that she had raised in this regard, and he informed her that there are always issues in relation to postal voting and it is a limitation of a postal voting election, which occurs in all voluntary postal election ballots.
118 As to the question of non-receipt of ballots or the replacement of ballot papers, it was Mr Ardeshir’s evidence that there is an onus on electors to ensure that they are properly enrolled to vote, and this was the ANF’s responsibility. Where a member claims to be eligible to vote, but they are not on the Roll of Electors, then it is for the member to satisfy the WAEC that they are eligible to vote, before ballot papers can be sent to them. Mr Ardeshir made the point that, if an elector has not received ballot papers, they need to contact the WAEC. This is an onus which is on all voters for all elections. He testified that the WAEC cannot possibly follow up on thousands of potential voters to ensure that they receive ballot papers. Mr Ardeshir’s evidence was that this onus applies in all elections, including local government and other non-Parliamentary elections.
119 Mr Ardeshir referred to the contact he had with Mr Olson on 29 September 2022 to review an email that Mr Olson was proposing to send to members about the timing for the vote and receipt of ballot papers. Mr Ardeshir’s evidence was that included in the email to members was a request that if members had not received ballot papers by 11 October 2022, then they should contact the WAEC, and members were also given the telephone number at the WAEC to make contact. He said that despite this request, only a very small percentage of the total number of voters made such contact. Where contact was made, and the WAEC was satisfied that the member was eligible to vote, then replacement ballot papers were sent by express post, despite no requirement that express post be used. The email also reminded members that ballot papers must be received by Monday 17 October 2022. After that date they would not be taken into account and, therefore, ballots should be returned as soon as possible after being received.
120 In cross-examination, Mr Ardeshir testified that having regard to all these matters, he had no concerns in relation to the receipt or non-receipt of ballot papers for the ANF election. Of the small number of electors whose address for receipt of ballot papers was incorrect on the Roll, they were provided with replacement ballot papers. Mr Ardeshir also testified that, when the WAEC contacted Australia Post to investigate the possible delays in receipt of ballot papers, he did discuss the possibility of an extension with Mr Olson. However, Mr Ardeshir was not of the view any extension was necessary.
121 It was also put to Mr Ardeshir in cross-examination, that the provision of a number of postcodes in email exchanges between Ms Fenn and the WAEC, where Ms Fenn asserted members in those areas had not received ballot papers, was evidence of delivery failure. It was Mr Ardeshir’s evidence that, in relation to this issue, as the Returning Officer, he had no specific information to act upon. There had been no direct contact from the voters concerned in those areas with the WAEC to check whether they were eligible to vote and to receive replacement ballots. His evidence was had they done so, and he was satisfied that they were eligible to vote, it was very likely they would have received ballots in time to return them by the election date.
122 Furthermore, in response to questions put to him in relation to the Australia Post enquiries, Mr Ardeshir’s evidence was that he took the Australia Post responses as being evidence that there were no problems with Australia Post as no ballots were left on hand at the delivery centres. Whilst Mr Ardeshir accepted that the response from Australia Post did not refer to possible delivery delays, he could not agree with the benefit of hindsight, that that was any reason to extend the time for the election. Mr Ardeshir testified that the WAEC went to Australia Post when Ms Fenn raised her concerns. They identified no problems from their end. His evidence was that the WAEC did all it could as they investigated the matter and determined that there were no delays in the processing of ballots. He said that, from the results of the Australia Post enquiries, there was nothing further for the WAEC to investigate or make a decision on as to whether the election timing should be extended.
123 It was also put to Mr Ardeshir by Ms Fenn that the 23 members contained in exhibit A2, who did receive replacement ballot papers, could have been affected by delays by Australia Post. Whilst Mr Ardeshir initially indicated that could have been the case, an objection was taken to the questions put by counsel for Ms Fenn, on the basis that there was no evidence as to the reasons for members requesting replacement ballot papers, which reasons could have included a number of others than non-receipt by Australia Post. However, despite this, Mr Ardeshir testified that this list of 23 names would not be considered a reason to extend the ballot, as it represented only a very small number of the total number of ballots posted out to members.
124 Mr Ardeshir also gave some evidence as to the 2018 ANF State election and accepted that there was a higher participation rate of 18% in that election, as opposed to a 12% participation rate for the 2022 election. Despite this, Mr Ardeshir was firmly of the view that there were no irregularities in relation to the ANF election.
125 Reference was also made by Ms Fenn to the ANMF federal branch election in December 2021, as set out at 1842 of the ATB. In this regard, Mr Ardeshir noted that the extension of the timetable by the AEC for the federal branch election, of a further 14 days, was because of concerns regarding the coronavirus pandemic and its impact on members fully participating in the election. Mr Ardeshir also noted that the participation rate in that election, as set out at 1845 of the ATB, was 11%, a figure less than the ANF State election participation rate.
126 Finally, as to the 446 late return ballots received, it was Mr Ardeshir’s evidence that this was a very small number of the 35,988 total ballots sent to members, and was less than the late return ballots for the 2018 ANF State election.
127 I have already concluded that, in this case, in accordance with an election conducted under s 69 of the Act, the Returning Officer, as the person conducting the election, has a discretion to act in accordance with s 69(5). It is no small thing to overturn an election for officeholders in an organisation. Where the will of the members is expressed in a ballot, it is only in cases where there has been a ‘demonstrable interference with the full and free expression of the right to vote’, that the ballot outcome should be set aside: Rogers v Sideris and Ors and Tomlinson (1983) 64 WAIG 262 per O’Dea P at 264. Due deference is to be given to the judgement and decisions of an experienced Returning Officer: Sideris per O’Dea P at 263 and 264.
128 As to the general role of a Returning Officer in the conduct of an election, judicial consideration has been given to the capacity to challenge the exercise of a discretion by a Returning Officer in the discharge of their functions. In this respect, Keely J in Re Birch; Re Australian Workers Union (SA Branch) (No2) (1991) 37 IR 420, in hearing an election inquiry under the then Industrial Relations Act 1988 (Cth) observed at 424:
The question before the Court is not whether it was desirable that the returning officer should have advertised those matters to the members. It is not for the Court to decide whether he should have taken that course. Mr Marshall referred the Court to Re Carter; Re Federated Clerks Union of Australia, Victorian Branch (No 1) (1989) 32 IR 1 at 4 where Gray J said:
"... the Court must act with care. It has no jurisdiction to sit on appeal from the returning officer, for the purpose of determining whether his or her decision was correct. If faced with the task of deciding what was an appropriate direction, the Court may have taken a different view from that taken by the returning officer. The Court is not charged with that function. Unless the direction of a returning officer is wrong in law, or such that no reasonable returning officer could have given it, or the exercise of the power to give a direction is not a bona fide exercise of that power, for the purpose for which the power is given, the Court should not interfere."
Gray J was there dealing with a somewhat different question, namely, whether a direction of a returning officer had given rise to an irregularity; in the present case the alleged irregularity related not to a direction but to an alleged failure to take action to ensure that no irregularities occurred (ie a failure by him to advertise certain matters (see par 10(a) above)). However, in my opinion the principle enunciated by Gray J in Re Carter as to the limited role of the Court is equally applicable to an alleged irregularity consisting of a failure by the returning officer to take action.

129 (See too Re Application for an enquiry into an election for officers in the Transport Workers’ Union of Australia, Western Australian Branch (FCA Lee J unreported 11 April 1990 at 39; contra Re Communication Workers’ Union of Australia Postal and Telecommunications Branch, New South Wales (1996) 67 IR 246 per Moore J at 257.)
130 For present purposes, I prefer the approach of Keely J, Gray J and Lee J in the cases cited above. It is not for me to place myself in the Returning Officer’s chair and to decide for myself whether I would have made the same decisions as the Returning Officer did in this case, based on what he had before him during the conduct of the election. It needs to be established that the Returning Officer’s decision making, and conduct was affected by an error, whether it be of law, or by failing to have regard to relevant considerations or taking into account irrelevant considerations, in making a decision or determination, or not making one, as the case may be.
131 It is with these observations in mind that I turn to consider the relevant statutory provisions and provisions of the ANF Rules, in light of the evidence that I have outlined above.
132 The starting point must be the ANF Rules as to the elections, and in particular, the conduct of a ballot. Also, given that the election the subject of these proceedings was conducted under s 69 of the Act, the Regulations are also relevant. There is no issue raised in these proceedings as to steps taken by the Returning Officer in relation to nominations for office, or other preliminary obligations imposed on him under the Regulations. The issue in these proceedings relates to the conduct of the ballot, in particular the time frames allocated by the Returning Officer for the preparation, dispatch, and receipt of ballot papers, in accordance with the nominated election date of 17 October 2022.
133 The obligation on a Returning Officer under the Regulations in relation to an election ballot conducted under s 69 of the Act is specified in reg 11. It provides as follows:
11. Commencement and close of ballot
Where more than one candidate is nominated for election for an office, the returning officer shall determine the date of commencement of issuing ballot papers and the time and date of the close of the ballot having regard to —
(a) the date of expiration of the term of office of the holder of the office;
(b) the time required to send and return ballot papers by post;
(c) the time required to complete the election; and
(d) the provisions of the rules of the union relating to the times and dates of the commencement and close of the ballot in respect of the election.

134 As to reg 11(d), this refers to a union’s rules in relation to the commencement and close of a ballot, as a part of the obligation on a Returning Officer to determine the relevant dates. In this respect, r 23(1)(g) of the ANF Rules provides as follows:
(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.

135 Thus, the period for the conduct of a ballot is at least 14 days. It seems clear enough, from reg 11 read as a whole, that this is an important consideration. The time period specified in a union’s rules for the conduct of a ballot is a matter a Returning Officer is required to have regard to, amongst a number of considerations. Whilst Ms Fenn complained about the timetable for the election, there was no breach of r 23(1)(g). This rule was complied with in this case. However, the obligations imposed by regs 11(b) and (c) are also material to a Returning Officer’s consideration. As to reg 11(c), which deals with the time required to complete the election, this would normally be the period set out in a relevant union rule. In this case, that is r 20. However, for reasons earlier explained, the election could not be conducted within this period, and the relevant period became that dealt with in my reasons and orders of 3 August 2022 and 4 August 2022, referred to above. In accordance with those reasons and orders, the election was to be conducted as soon as possible, with the process to commence ‘forthwith’, and the latest possible date for completion of the election was 30 November 2022.
136 Accordingly, it was incumbent on the Returning Officer to be aware of the latest date for the completion of the election by 30 November 2022, and on the evidence, he was not. With respect to Mr Ardeshir, he should have been aware of this date as a part of his decision making and the obligations imposed on him by reg 11. This is to ensure that any decisions made by a Returning Officer, for the purposes of reg 11, are fully informed decisions. Whether this ultimately led to an irregularity for the purposes of s 66(2)(e) of the Act, however, is a matter I deal with further below.
137 As to the evidence concerning alleged late or non-receipt of ballot papers, much of the evidence of Ms Fenn was second hand. Aside from the Statement, setting out those members who raised questions as to the non-receipt of ballot papers and those who were sent replacement ballot papers (at [62] to [72] and [94] to [116] Statement), there was no direct evidence before the Commission from those who alleged they did not receive ballot papers or received them too late to be counted.
138 Even taking the numbers of members asserting they did not receive ballot papers or received them too late at its highest, there was no direct evidence before me as to the specific cause. I cannot regard the indirect evidence before me as being ‘weighty’: Pullin per Gray J at [21]. Even so, as noted above, and even assuming the non-receipt of ballots was due to postal delays (about which I have no direct evidence), can this factor, in and of itself, constitute an ‘irregularity’ for the purposes of ss 7 and 66(2)(e) of the Act?
139 In this respect, I refer to Pullin, being a case in which similar allegations were raised as are in these proceedings. In Pullin, an election took place for officeholders in the New South Wales branch of the Federated Liquor, and Allied Industries Employees Union of Australia. The election was conducted by the AEC. An issue arose in that case as to the financial status of members of the union, raised after the primary roll of electors had been prepared, which meant supplementary rolls had to be prepared also. A second issue related to ballot papers being sent to members’ work addresses, and whether the employers concerned had passed them on to the relevant member. Neither of these issues arise in this case.
140 The applicant in Pullin complained that an irregularity occurred in the election because of the timing of the posting of ballot papers to those on the supplementary roll of electors. It was contended that the Returning Officer in that case should have extended the time for the election. As to this argument, based on the evidence, Gray J observed at 15-16 as follows:
The applicant’s original claim was that, because of the late posting of ballot papers to these voters, the returning officer ought to have extended the closing date of the ballot, and that an irregularity occurred because of his failure to do - that. No irregularity could be established on that basis. No provision of the branch rules or of the Act, and no principle of law, imposes on a returning officer any duty to extend the period during which votes may be cast. Indeed, there are circumstances in which a decision to extend the closing date might give rise to an irregularity; it might be claimed that the result of an election turned on votes received outside the voting period laid down originally, and that notice of the extension of the voting period had not been given to all voters.

Even if it could be said that the returning officer in the present case had made a decision not to extend the ballot (as opposed to not making a decision to extend it), it would not be open to the Court simply to substitute its view of whether such a decision should have been made for the view of the returning officer, and to find that an irregularity had occurred as a result of the decision made. The grounds on which a decision of a returning officer can be attacked in an election inquiry appear to be limited to those applicable to any administrative decision. In Re Application by Porter for an inquiry into an election in the Transport Workers' Union of Australia (Federal Court of Australia, Gray J., 23rd June 1989, unreported), at p. 76, it was said:

"The Court does not review directions given by a returning officer under a provision such as s.170A(l) [of the Conciliation and Arbitration Act 1904].

141 In Pullin, Gray J concluded, on the basis of some evidence before him, that an unknown number of members may not have received ballots because their employers did not pass them on to the members. Alternatively, others may not have received ballots because of the failure of persons to pass on the financial status of members in time for a member to be placed on the primary roll of electors and to be posted ballot papers. His Honour concluded at 21 that this conduct constituted an irregularity. As I have mentioned, however, no such conduct occurred in this case. All 35,988 ballot papers were lodged with Australia Post for delivery at the same time on 27 September 2022.
142 I also note that regardless of the absence of factors arising in cases such as Pullin, in this case, the lodgement of ballot papers on 27 September 2022, even allowing for the unexpected public holiday on 22 September 2022 and the proclaimed public holiday on 26 September 2022, still provided 20 days for the delivery and return of ballot papers. All of this was in accordance with the ANF Rules.
143 As I have already said above, the evidence before me is somewhat scant as to the reasons some members may not have received their ballot papers. Some of them may not have maintained correct addresses in the ANF membership database, which under r 7(2) of the ANF Rules, is a member responsibility. I am not able to conclude that all of those who claimed to not receive ballot papers, did not receive them for other reasons such as lost papers; being absent at the time of the receipt of papers; or whether they may not have been passed on by family members, etc. Of course, this is all speculative.
144 As to the broader issue of the non-receipt of ballot papers and whether, in the context of union elections, such could constitute an irregularity, in Nimmo, again, similar allegations to those raised in this case were traversed. This case involved an election enquiry under the Fair Work Act 2009 (Cth), in relation to an election for the office of Branch Secretary of the Australian Education Union, Northern Territory Branch, conducted by the AEC.
145 In that case, one complaint advanced was that ballot papers that were posted to some members were returned unclaimed or not received at all. In considering these complaints, Reeves J concluded the situation before him was distinguishable from that before the court in Pullin. Also, Reeves J commented generally as to the issue of the non-receipt of ballot papers by post in an election for an office in an organisation, and observed at [33] to [36] as follows:
33 In any event, I do not consider the mere non-receipt of a ballot paper, in the circumstances of this case, can be said to involve an irregularity as defined in subparagraph (b) of s 6 of the Act. In r v Gray; Ex parte Marsh (1985) 157 CLR 351 (“Ex parte Marsh”), the High Court considered an almost identical provision to subparagraph (b) in relation to an alleged irregularity in a union election under the Conciliation and Arbitration Act 1904 (Cth). In construing the definition of the word “irregularity”, Gibbs CJ observed (at 364–5) that the definition was an inclusive one and extended to the ordinary meaning of that word. Then (at 367–8) his Honour referred to the Oxford English Dictionary definition of that word and said that: “The 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.” These observations were subsequently applied by all the members of the Court in Re Collins; Ex parte Hocking (1989) 167 CLR 522 (“Re Collins”) at 524–5 per Brennan and Deane JJ; 526 per Toohey and McHugh JJ; and 528–9 per Gaudron J.
34 The obvious purpose of these provisions of the Act is to ensure that elections for important positions in industrial organisations are conducted fairly and democratically. The words “full and free” in subparagraph (b) must therefore be construed to advance that purpose. However, those words must also be construed having regard to their context in the Act as a whole and, among other things, the practicalities of the situation to which they apply. In this regard, it is important to note that if Mr Nimmo’s contention were correct, it would essentially mean that a Returning Officer conducting an election of this kind under the Act would have to guarantee the delivery of all ballot papers to all eligible voters before it could be said that there had been a full recording of the votes of all persons who are entitled to vote. In this case, that would mean guaranteeing the delivery of ballot papers to 1,904 members living throughout the Northern Territory. In my view, such a construction would place an impossible burden on the Returning Officer. The obvious impracticality, expense and uncertainty that would be created in this, and all similar elections under the Act if that approach were to be adopted, tell heavily against subparagraph (b) being construed in this way: see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]–[70] and [97]–[98].
35 Furthermore, I consider the context of subparagraph (b) requires the act or omission concerned to be linked to, or involve, some departure from some norm or standard. As Ex parte Marsh shows, that is the ordinary meaning of the word “irregularity”. That is also what is required by subparagraph (a) – a breach of a rule of the organisation – and subparagraph (c) – a breach of s 190 of the Act. At the same time, this does not mean that I consider the act or omission must involve some intentional wrongdoing. Nor do I consider it means, at the other end of the spectrum, that inefficiency, mere error, or neglect, would suffice.
36 It follows that I consider Mr Nimmo needs to show, on the balance of probabilities, that the non-receipt of these 21 ballot papers was linked to, or involved, a departure from some norm or standard. In my view, he has failed to do that. He did not allege that any of the rules of the Union had been breached and he accordingly eschewed any reliance on subparagraph (a) of the definition of “irregularity”. Similarly, he did not rely upon subparagraph (c) of the definition. Nor did he point to any established rule, practice, or accepted principle that had not been followed by Ms Roper, or someone else connected with this election. Instead, he relied solely on the non-receipt of the ballot papers without producing any evidence to explain how that involved some departure from some specified norm or standard. It hardly needs to be said that there is any number of regular explanations for the non-receipt of a ballot paper through the mail. They include a change of address (already mentioned above), a failure by a member of a household to pass on the mail, an absence on leave, or through illness, or even some delay or error within Australia Post.

146 Similarly, in this case, I cannot conclude that there has been a departure from some rule, established practice, or generally accepted principle governing the conduct of an election: R v Gray per Gibbs CJ at 364-365. On the contrary, on the evidence before me, r 23(1)(g) of the ANF Rules was met. The uncontradicted evidence of the Returning Officer, Mr Ardeshir, an experienced Returning Officer, is a period of three weeks for the conduct of such an election is normal and is applied to all non-Parliamentary postal elections, including those for local government elections involving hundreds of thousands of ballots. It must be accepted that a postal ballot will be subject to some limitations, but those limitations apply to all such ballots. The conduct of the ballot by the WAEC in this case did not involve any departure from a rule, established practice, or generally accepted principle. On the evidence, it was consistent with it.
147 Ms Fenn referred to two decisions of the Commission under s 66 of the Act that were said to relate to postal delays. The first was Dwyer v President and Returning Officer, State School Teachers’ Union of WA (Inc) (1990) WAIG 3980. In this case, Mr Dwyer was a prospective candidate in an election for office in the State School Teachers’ Union. He posted his nomination in the correct form on 7 August 1990, but it was not received at the union office until 22 August 1990, some five days after the closing date for nominations for office. Mr Dwyer made application under s 66 of the Act for orders from the President that his nomination be taken to be valid. It was unclear on the evidence before the Commission what the cause of the delay was.
148 Whilst orders were made by the President in favour of Mr Dwyer, the case is distinguishable on its facts from the present matter. It concerned a nomination for office, in circumstances where the cause of the lateness was not ascertainable. It was not a matter of a challenge to an election outcome under s 66(2)(e) of the Act. The case did not involve any of the considerations that I have outlined above.
149 The second case was Avenell and Another v The Returning Officer, State School Teachers’ Union of WA (Inc) (1993) 73 WAIG 2939. This matter concerned nominations for branch delegate participation in the union’s 1993 conference. A second application was dealt with at the same time, involving a similar issue. It appeared that the nomination form did not arrive in the post at all. Accordingly, the Returning Officer could not regard the nominations as valid. Having regard to the circumstances, the President granted the orders sought. In doing so, however, the President, at 2940, cautioned that such errors would not be remedied on every occasion that arises. As in the Dwyer case, this matter is distinguishable on the same basis. Additionally, it is fair to observe that the grant of orders was exceptional.
150 I have noted above that Mr Ardeshir should have been aware of the outer limit of 30 November 2022 to complete the election. However, this was some nine weeks after the depositing of the ballot papers with Australia Post on 27 September 2022. Such a distant date does not bear on the appropriateness of the Returning Officer adopting the usual timetable of three weeks for a postal ballot election such as the ANF election, and therefore is not material, in my view, for the purposes of s 66(2)(e) of the Act.
151 It must also be said that ANF members bore some responsibility in relation to the conduct of the election. The email from Mr Olson, which Mr Ardeshir contributed to, which was sent to members on 29 September 2022, urged members who had not received ballot papers by 11 October 2022 to contact the WAEC on the telephone number provided to enquire about a replacement ballot paper package. Very few did. Only 23 members took this step, and they received replacement ballot papers by express post. There was no evidence before me as to why the other members, referred to by Ms Fenn in her evidence, did not do the same. Those persons referred to at [94] to [116] of the Statement certainly did not. As Reeves J observed in Nimmo, the AEC (and in this case, the WAEC) could not possibly guarantee the delivery of each ballot paper. In this case, some 36,000 of them. It would be an impossible task to do so. Accordingly, as in Nimmo, ss 7 and 66(2)(e) of the Act could not be construed to oblige the WAEC to provide such a guarantee.
152 It is also material to note that the 2022 State election for the ANF did not depart from the timing of the 2018 State election. The number of late returned ballots of 446 for the 2022 election was less than the number of late returned ballots for the 2018 election. Also, there was a total number of unclaimed and returned to sender ballot papers of 463 (ATB 1689-1719). There was no suggestion on the evidence that this was unusual. What this latter evidence does show, in my view, is the limitations of a postal ballot generally. Specifically, not all ANF members maintained accurate address records, as is their responsibility under the ANF Rules.
Conclusion
153 On all of the evidence before me, I cannot conclude that the Returning Officer was under any obligation, as a matter of law, on the principles discussed above, to extend the election in this case. Further, I cannot conclude on the evidence that the election was conducted in such a manner that involved a departure from some rule, established practice, or generally accepted principle governing the conduct of an election, so as to constitute an irregularity requiring my intervention under s 66(2)(e) of the Act. Whilst I do not doubt the good intentions of Ms Fenn, and her desire to contest the election and stand for office, the application must be dismissed.