APPEAL AGAINST A DECISION OF THE COMMISSION IN MATTER NUMBER PRES 10/2022 GIVEN ON 10 OCTOBER 2023

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2024 WAIRC 00833

DELIVERED : TUESday, 24 SEPTEMBER 2024

FILE NO. : FBA 7 OF 2023

Applicant

AND

The Australian Nursing Federation, Industrial Union of Workers Perth

First Respondent

The Returning Officer, Western Australian Electoral Commission

Second Respondent

The Registrar, Western Australian Industrial Relations Commission

Intervenor

ON APPEAL FROM:

Jurisdiction : Western Australian Industrial Relations Commission

Coram : Chief Commissioner S J Kenner

Citation : 2023 WAIRC 00806 (Primary Decision)

File No : PRES 10 of 2022

CatchWords : Industrial Law (WA) – Appeal against decision of the Commission – Application for inquiry into an election of The Australian Nursing Federation (ANF) pursuant to s 66 of the Industrial Relations Act 1979 (WA) – Whether the ANF’s conduct was an irregularity – Whether the ANF’s conduct was ‘in connection with’ the election – Whether there was a rule, established practice or accepted principle that was departed from – Whether the Returning Officer’s conduct was an irregularity – Whether the Returning Officer’s conduct affected the full and free recording of votes or correct ascertainment or declaration of the results of voting – Appeal dismissed.

Legislation : Conciliation and Arbitration Act 1904 (WA)

Industrial Relations Act 1979 (WA)

Industrial Relations (Union Elections) Regulations 1980 (WA)

Result : Appeal 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 : Belinda Burke Legal Pty Ltd

Second Respondent : State Solicitor’s Office

Intervenor : State Solicitor’s Office

Case referred to in reasons:

Ammon v Colonial Leisure Group Pty Ltd [2019] WASCA 158; (2019) 55 WAR 366

Clancy v The Australian Nursing Federation Industrial Union of Workers Perth [2022] WAIRC 00325; (2022) 102 WAIG 1235

Clancy v The Australian Nursing Federation Industrial Union of Workers Perth [2022] WAIRC 00330; (2022) 102 WAIG 1240

Harken v Dornan and Ors (1992) 72 WAIG 1727

Evans v Crichton-Browne [1981] HCA 14; (1981) 147 CLR 169

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541

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; (2011) 192 FCR 111

Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465

Owen v Wilson [2023] WASC 178

R v Gray; Ex Parte Marsh [1985] HCA 67; (1985) 157 CLR 351

Re Collins; Ex Parte Hockings [1989] HCA 42; (1989) 167 CLR 522

Re Application for an enquiry into an election for officers in Transport Workers’ Union of Australia, Western Australian Branch (FCA Lee J unreported 11 April 1990)

Re Birch; Re Australian Workers Union (SA Branch) (No 2) (1991) 37 IR 420

Re Federated Clerks Union of Australia, Victorian Branch (No 1) (1989) 32 IR 1

Re Federated Liquor and Allied Industries Employees Union of Australia (NSW Branch); Ex parte Pullen (1990) 98 ALR 699

River Hill Contracting Pty Ltd v Moore [2023] WASCA 111

Secure Parking (WA) Pty Ltd v Wilson [2012] WASCA 230

Steven Moore (a pseudonym) v The King [2024] HCA 30

The Registrar, Western Australian Industrial Relations Commission v The Australian Nursing Federation Industrial Union of Workers Perth [2022] WAIRC 00681; (2022) 102 WAIG 1315

Reasons for Decision

Contents

Relevant background

Compliance with September Order

Postal ballot period

The Primary Decision

Ground 1.1: Was the ANF’s conduct in relation to the September Order an ‘irregularity’?

Ground 1.2: Was the ANF’s conduct ‘in connection with’ the election?

Ground 2.1: Was there a rule, established practice or accepted principle that ANF elections have a 21-day ballot period?

Ground 2.2: Was the Returning Officer’s failure to consider the latest date for the election an irregularity?

Ground 3: Was the Returning Officer’s conduct in not exercising his discretion to extend the ballot period under s 69(5)(a) an irregularity?

Misunderstanding the applicable law

Legal unreasonableness

Ground 4: Did the Returning Officer’s conduct affect the full and free recording of votes or the correct ascertainment or declaration of the results of voting?

5         In seeking orders for the election to be declared void, and for a fresh election to be conducted, Ms Fenn pressed two broad grounds for irregularity relevant to this appeal. The first concerned the ANF’s conduct in delaying until after the election its compliance with the Chief Commissioner’s orders made on 23 September 2022: [2022] WAIRC 00684; (2022) WAIG 1327 (September Order), which required it to distribute the Chief Commissioner’s reasons for holding that the ANF had failed to comply with its rule about the timing of elections.

6         The second was the Returning Officer’s conduct in not extending the close of the ballot period, despite a one-day delay in lodgement of ballot packages caused by the unexpected National Day of Mourning public holiday.

7         For reasons published by him on 10 October 2023 the Chief Commissioner dismissed Ms Fenn’s application. In short, the Chief Commissioner concluded Ms Fenn’s first ground did not involve conduct in connection with the election and neither of Ms Fenn’s grounds involved an ‘irregularity’ for the purpose of s 66(2)(e).

8         In this appeal, Ms Fenn maintains that the conduct of the 2022 election did involve ‘irregularity’. She advances four grounds by which she says the Chief Commissioner erred in finding otherwise and dismissing her application for an inquiry (Appellant’s Outline of Submissions [3]):

a.  Ground 1 – by concluding that the ANF’s non-compliance with the September Order was incapable of constituting an irregularity for the purpose of s 7 and s 66(2)(e) of the IR Act.

b. Ground 2 – by concluding that the 20-day ballot period and/or non-compliance with regulation 11 did not involve a departure by the Returning Officer from a rule, established practice or accepted principle governing the conduct of the election.

c. Ground 3 – further and in the alternative to Ground 2, by concluding that the Returning Officer’s conduct in not extending the date of the election was not wrong in law, unreasonable for a returning officer, or not a bone fide exercise of the discretionary power conferred on him by s 69(5)(a) of the IR Act.

d. Ground 4 – by failing to find or infer on the totality of the evidence that the ballot packages being lodged later than planned likely led to the late receipt or non-receipt of ballot packages by members and likely hindered voting and the correct ascertainment and declaration of results.

9         The Chief Commissioner’s findings which are the subject of the grounds of appeal involve the application of legal standards, rather than the exercise of a discretion. Accordingly, the correctness standard applies in this appeal, such that the Full Bench must determine for itself the correct outcome, while making due allowance for such ‘advantages’ the Chief Commissioner had having heard the proceedings at first instance: Steven Moore (a pseudonym) v The King [2024] HCA 30; Secure Parking (WA) Pty Ltd v Wilson [2012] WASCA 230 [58]-[60]; Ammon v Colonial Leisure Group Pty Ltd [2019] WASCA 158; (2019) 55 WAR 366 [124]-[129]; River Hill Contracting Pty Ltd v Moore [2023] WASCA 111 [73].

Relevant background

Compliance with September Order

10      Rule 20 of the ANF Rules required that an election be held in the period between 1 July 2022 and 31 August 2022.

11      As of 7 July 2022, the ANF had not called an election.

12      On 12 July 2022, the ANF’s then Secretary, Mr Mark Olson, wrote to the Registrar to request an election. By this time, it was too late for the election to be conducted between 1 July 2022 and 31 August 2022.

13      The ANF’s member, Michael Clancy, commenced proceedings under s 66 of the IR Act for an order waiving compliance with r 20 and to enable the late conduct of the 2022 election (Clancy Proceedings).

14      On 25 July 2022, the Registrar, Western Australian Industrial Relations Commission (Registrar), of her own motion, commenced proceedings in relation to the contravention of r 20 of the ANF Rules (Registrar’s Proceedings).

15      On 28 July 2022, Mr Olson, who had been the ANF Secretary for some 24 years, resigned from that office. The ANF Council appointed Ms Reah to fill the casual vacancy created by Mr Olson’s resignation.

16      On 3 and 4 August 2022, the Chief Commissioner published his reasons and orders in the Clancy Proceedings: Clancy v The Australian Nursing Federation Industrial Union of Workers Perth [2022] WAIRC 00325; (2022) 102 WAIG 1235 (Clancy Reasons); [2022] WAIRC 00330; (2022) 102 WAIG 1240 (Clancy Corrigendum); [2022] WAIRC 00331; (2022) 102 WAIG 1240 (Clancy Order). The effect of the Clancy Order was to:

a. waive the requirement for the ANF’s election to be conducted between 1 July 2022 and 31 August 2022; and

b. deem the ANF’s current office holders to continue in office.

17       The Clancy Order was expressed as operating until 30 November 2022.

18      On 11 August 2022, the ANF wrote to the Registrar requesting that an election be conducted for the offices of:

a. a Senior Vice President;

b. two Vice Presidents;

c. a Secretary;

d. two Executive Members; and

e. seven Councillors.

19      On 11 August 2022, the Registrar issued a decision declaring the request for an election to be duly made, and confirming that the Registrar would make arrangements with the Western Australian Electoral Commissioner for an election to be held as prescribed in s 69(4) of the IR Act.

20      On the same day, the Registrar wrote to the Electoral Commissioner to make arrangements for the Western Australian Electoral Commission to conduct the election.

21      On 15 August 2022, the Returning Officer was appointed and proposed to the Registrar and to Mr Olson the following timetable for the election:

• 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

22      The election process commenced on 22 August 2022 when an Election Notice was published in the West Australian newspaper.

23      Three nominations were received for the office of Secretary on or before 12 September 2022 being from Ms Fenn, Ms Reah and Ms Ziggi Murphy.

24      By 12 September 2022, Mr Olson had provided the Returning Officer with a corrected roll of the ANF’s 35,992 members.

25      On 21 and 23 September 2022, the Chief Commissioner published reasons for decision in the Registrar’s Proceedings: The Registrar, Western Australian Industrial Relations Commission v The Australian Nursing Federation Industrial Union of Workers Perth [2022] WAIRC 00681; (2022) 102 WAIG 1315, (Registrar’s Proceedings Decision) and issued the September Order. The Chief Commissioner:

a. was satisfied that the ANF had contravened rule 20(1) of its Rules in that it had 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: [82].

b. was 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: [83]; and

c. considered an order that notice be given of his decision to members of the ANF would be consistent with principles of openness, transparency, and the importance of democratic processes, as emphasised in the objects of the IR Act: [86].

26      By the September Order, the Chief Commissioner ordered that:

[T]he [ANF] 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.

27      Ballot packages were lodged with Australia Post for distribution to members on Tuesday, 27 September 2022.

28      The ballot closed on 17 October 2022.

29      The 2022 election results were declared on 18 October 2022.

30      The ANF did not notify its members of its failure to comply with r 20 or distribute the September Order and Registrar’s Proceedings Decision to members until 20 October 2022. A copy of the Registrar’s Proceedings Decision and the September Order were distributed via an email from Ms Reah attaching a message from the ANF’s President, Ms Trish Fowler to members which advised members of the 2022 election results. The message said ‘[p]lease also find attached the decision of the WAIRC in relation to the timing of the election’.

Postal ballot period

31      The ANF Rules require that elections be conducted by the Returning Officer from the Electoral Commission as appointed by the Council: r 20(3). Elections are conducted by secret postal ballot with every financial member of the union entitled to vote: r 20(4).

32      The returning officer must conduct elections according to r 23. Relevantly, r 23(1)(g) says:

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

 …

(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.

33      Mr Zubin Ardeshir was employed by the Electoral Commission and was the returning officer appointed for the purpose of the 2022 election. He conducted the 2022 election with the assistance of other officers and employees of the Electoral Commission.

34      Mr Ardeshir’s evidence at first instance was that generally speaking, for non-parliamentary elections by postal ballot, the Electoral Commission’s usual timing is three weeks: Affidavit of Zubin Ardeshir (Ardeshir Affidavit) [14]. This is the usual practice that is adopted by the Electoral Commission in elections of this kind. It is the approach he adopted for the ANF’s 2022 election.

35      According to the three-week timetable, ballot packages were to be lodged with Australia Post for posting to members on Monday 26 September 2022, allowing three weeks for ballot packages to be delivered, received, completed and returned by the date of the ballot, 17 October 2022.

36      Compilation of the ballot packages by the Electoral Commission prior to lodging with Australia Post takes two days and was originally scheduled to take place on Wednesday 21 September and Thursday 22 September 2022, so that the ballot packages could be lodged with Australia post on Friday 23 September 2022, as Monday 26 September 2022 was the King’s Birthday public holiday.

37      However, on 15 September 2022, a National Day of Mourning public holiday was proclaimed for 22 September 2022. The ballot packages were therefore prepared on Wednesday 21 September and Friday 23 September 2022. The ballot packages were then lodged with Australia Post on Tuesday 27 September 2022. The planned timetable was therefore reduced by a day.

38      A total of 35,988 ballot packages were lodged with Australia Post to be processed for delivery by post on 27 September 2022.

39      On 29 September 2022, Mr Olson sent an email to the Returning Officer asking for his feedback on a proposed email to be sent to each ANF member. The email was approved by Mr Ardeshir with some minor changes, then sent to all ANF members. The email said:

We have been advised by the WA Electoral Commission, who conduct all ANF elections, that the ballot papers for the 2022 ANF Election will start arriving from today and will still be arriving next week, given the limitations of the current postal landscape.

They advise that if you have not received your ballot paper by 11th October, you should contact them on 9214 0463 to enquire if you are eligible for a replacement package.

The election closes on Monday 17th October at 10.00 am and any ballot papers received after this will not be counted.

We encourage all ANF members to participate in the election process and our advice is to fill out the ballot paper and get it in the post as soon as you can after receiving it.

40      Mr Olson’s evidence was that the reason he sent the email to the Returning Officer for checking was to make sure the ANF gave members correct advice in relation to when ballot packages may be arriving: Affidavit of Mark Olson (Olson Affidavit) [19]-[21].

41      According to Mr Ardeshir’s evidence given in cross-examination, members started receiving ballot packages from Wednesday 28 September 2022: Transcript of 27 and 28 April 2023 Hearing (Transcript) pg. 51.

42      On an unknown date, Mr Olson and Mr Ardeshir had a discussion during which Mr Olson asked Mr Ardeshir if he was going to extend the voting period, and Mr Ardeshir said no. Mr Ardeshir said that he told Mr Olson that there ‘weren’t any factors in front of me that would… warrant extending the election period for any period of time’.

43      On Friday 7 October 2022, Ms Fenn contacted the Electoral Commission providing 24 postcodes ‘where members have advised they have not received their ballot papers’. Prompted by this email, the Electoral Commission made contact with Australia Post on 10 October 2022 requesting that the complaint of non-delivery be investigated and that Australia Post advise if there has been any problems regarding delivery.

44      Later on 10 October 2022, Australia Post responded to the Electoral Commission advising:

[T]here is no product on hand from that period and there were no delays of processing in that window either.

The delivery of these areas is spread over lots of different Delivery Centres which tells us it’s not an issue specific to DC’s. PMC confirmed the receival of the attached lodgements on the day and processed.

45      Between 7 and 13 October 2022, the Electoral Commission sent replacement ballot packages to 23 members, 20 of whom had contacted the Electoral Commission directly to request a replacement ballot package, and three of whom had their names supplied by Ms Fenn.

46      Ms Fenn’s evidence was that as at late October 2022, Australia Post’s website contained the following information (Affidavit of Samantha Fenn (Fenn Affidavit) [89] and Annexures SF-9 and SF-10):

a. 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. On 18 October 2022 Australia Post reported currently experiencing delivery delays for items posted to WA.

c. Customers with an enquiry about an undelivered domestic item should wait until 10 business days of the expected delivery date before contacting Australia Post with their enquiry.

d. No mail deliveries will take place on public holidays. Customers should ‘[p]lease allow for additional delivery time if you’re sending time-sensitive material around the time of national, state, regional or local public holidays’.

47      Between 8 and 16 October 2022, Mr Olson received emails from members regarding the non‑receipt or late receipt of ballot packages.

48      Nevertheless, the Returning Officer was not concerned about the receipt or non-receipt of ballot packages. The numbers of non-receipt reported to him were too small, and the reasons for non-receipt were indeterminate. It did not cause him to consider there was any irregularity or cause for extending the ballot period.

49      By 17 October 2022, 4,392 ballot papers had been returned for the election of the Secretary.

50      Between 18 and 28 October 2022, 446 late ballot papers were received, including 149 received on 18 October 2022. This was less than the number of late ballot papers received in the 2018 ANF election.

51      After the election results were announced to members, five members contacted the ANF to express concerns about not receiving ballot papers in time to vote. The Electoral Commission had no records of contact from those members. Some of those members alleged they did not receive the ballot papers at all.

52      Ms Fenn gave evidence that after the ballot closed, between 18 and 23 October 2022, she saw a number of comments or posts on two Facebook pages by around 27 individuals who stated they either did not receive a ballot package or received it too late: Fenn Affidavit [96]-[97]. She additionally received emails from around nine individuals reporting the same thing: Fenn Affidavit [103]-[111] and Annexures SF-12 to SF-22.

The Primary Decision

53      After setting out the relevant background facts, the Chief Commissioner set out the approach taken in election challenges under s 66:

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. …

54      The Chief Commissioner dealt with the ANF’s opposition to Ms Fenn’s standing to challenge the result of the election generally for all offices, as opposed to only the office she had nominated for. The Chief Commissioner rejected the ANF’s contentions. His reasons and conclusion in this regard are not in issue in this appeal.

55      Turning to the alleged irregularity concerning non-compliance with the September Order, the Chief Commissioner first considered the nature of the ANF’s conduct. He noted Ms Fenn’s submission that the ANF’s delay complying with the September Order until after the declaration of the election was deliberate, and that it was done to avoid scrutiny by members as to the failure of the then Secretary and others to ensure compliance with the ANF’s Rules as to the timing of the election, and to avoid adverse views which might impact on voting.

56      The Chief Commissioner noted that in the Registrar’s Proceedings leading to the September Order, Mr Clancy, had given evidence to the effect that he had reservations that the proceedings were being heard at a time when the election was about to take place, and he was concerned that candidates may seek to use the outcome of the proceedings for their own purposes: [49].

57      The Chief Commissioner concluded that the ANF’s email to members of 20 October 2022 would not, of itself, meet the requirements of the September Order and was inconsistent with the obligation imposed on the ANF to take reasonable steps to notify members of its failure to comply with its rules. At [53], he said:

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.

58      He went on to find, at [54], that the failure by the ANF to call Ms Reah to explain the late distribution of the Registrar’s Proceedings Decision to members, without proper explanation, led to a Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 (Jones v Dunkel) inference against the ANF.

59      The Chief Commissioner then proceeded to consider whether the ANF’s failure could constitute an irregularity for the purposes of s 7 and s 66(2)(e) of the IR Act. At [56], he said:

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.

60      He noted that both the Clancy Proceedings, and the Registrar’s Proceedings were commenced prior to the election process itself commencing and were each discrete proceedings, which could not be regarded as ‘in connection with the election’, despite the wide import of the phrase: [62]-[64]. The Chief Commissioner characterised the September Order as ‘an ancillary order to the primary relief sought and granted, in those enforcement proceedings’: [65].

61      In the alternative, if the Registrar’s Proceedings were in connection with the election, a failure to comply with the resulting orders could not constitute an irregularity because, as the Chief Commissioner said at [66]:

[T]he 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.

62      Such conduct would therefore be ‘electioneering’ as described in Re Collins; Ex Parte Hockings [1989] HCA 42; (1989) 167 CLR 522 (Re Collins) per Gaudron J at 531: [67].

63      As for the second alleged ground of irregularity, to do with the failure to extend the ballot period, the Chief Commissioner identified that a preliminary issue arose as to the Returning Officer’s obligations under the IR Act, r 23(4)(a) of the ANF Rules and the Industrial Relations (Union Elections) Regulations 1980 (WA). Specifically, does the Returning Officer have a mandatory duty to take all reasonable steps to ensure no irregularity occurs in connection with an election? Or, does the Returning Officer have a discretion under s 69(5) of the IR Act in this regard?

64      After summarising the parties’ and intervenor’s respective submissions in relation to this issue, the Chief Commissioner concluded that r 23(4)(a) of the ANF Rules is inconsistent with the discretionary power of a Returning Officer under s 69(5) of the IR Act, and the Act prevails over the inconsistent rule: [100]. The Chief Commissioner held at [101] that s 69(5):

[E]nables, 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.

65      The Chief Commissioner then considered the evidence concerning the postal ballot and the Returning Officer’s conduct of it relevant to the allegations that ANF members had not received ballot packages in time to participate in the ballot on 17 October 2022. At [128]-[130], the Chief Commissioner said:

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.

66      The Chief Commissioner referred to the Returning Officer’s obligations under reg 11 which provides:

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.

67      The Chief Commissioner noted that the reference in reg 11(d) to times and dates of commencement and close of the ballot is a reference to r 23(1)(g) of the ANF Rules, the effect of which is that the period for the conduct of a ballot is at least 14 days: [134]-[135]. He found there to be no breach of r 23(1)(g) because the ballot was conducted over a period of 20 days: [142].

68      Regulation 11(c) refers to the time required to complete the election, which in the present case was in accordance with the reasons and orders in the Clancy Proceedings: [135].

69      The Chief Commissioner therefore concluded that it was incumbent on the Returning Officer to be aware that the latest date for completion of the election was 30 November 2022 and, on the evidence, he was not: [136]. However, in circumstances where the ballot packages were lodged with Australia Post on 27 September 2022, and the 30 November date was some nine weeks after that point in time, the Returning Officer’s lack of awareness of that date was not material, for the purpose of s 66(2)(e): [150].

70      As to the evidence of alleged late or non-receipt of ballot packages, the Chief Commissioner noted that the evidence was second hand, with no direct evidence from those who alleged they did not receive the ballot packages, nor as to the cause of non-receipt: [137]-[138]. Specifically, there was no direct evidence that the non-receipt of individual ballot packages was due to postal delays. He therefore did not regard the indirect evidence as ‘weighty’: [138].

71      Even assuming that the delays or non-receipt was due to postal delays, the Chief Commissioner rejected the notion that this constituted an irregularity. He noted that:

a. In Re Federated Liquor and Allied Industries Employees Union of Australia (NSW Branch); Ex parte Pullen (1990) 98 ALR 699 (Pullen) similar allegations were raised of irregularity occurring in an election because of the timing of the posting of ballot papers: [140]. In that decision, Gray J at 270 rejected the submission that the failure to extend the ballot period was an irregularity because:

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, 23 June 1989, unreported) at 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]. …”

b. The lodgement of the ballot papers on 27 September 2022 and even allowing for the unexpected public holiday and proclaimed public holidays in the intervening period, still provided 20 days for the delivery and return of ballot papers, which complied with the ANF’s rules: [142]. The ANF rules were met: [146].

c. The non-receipt of ballot papers was not, on the evidence, linked to a departure from some rule, established practice or generally accepted principle governing the conduct of the ANF’s elections. Rather, the evidence as to why some members did not receive their ballot papers was scant. There may have been reasons for non‑receipt other than postal delays: [143], [146]. Relevant to this conclusion, was that the number of late returned ballots for the 2018 election was higher than for the 2022 election. There was no suggestion that this was unusual. Rather, it demonstrated the limitation of a postal ballot generally: [152].

d. It must be accepted that a postal ballot will involve limitations, which apply to all such ballots: [146].

72      Accordingly, the Chief Commissioner concluded that the Returning Officer was not under any obligation, as a matter of law, to extend the election. Nor on the evidence was the election 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 intervention under s 66(2)(e) of the IR Act: [153].

Ground 1.1: Was the ANF’s conduct in relation to the September Order an ‘irregularity’?

73      Section 66 of the IR Act relevantly provides:

(1) The following persons may apply to the Chief Commissioner for an order or direction under this section —

(a) a person who is or has been a member of an organisation; or

(b) a person who has applied for and not been admitted to membership in an organisation; or

(c) the Registrar acting on the complaint of or on behalf of a person referred to in paragraph (a) or of the Registrar’s own motion.

(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 non-observance 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;

(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.

74      Section 7 defines what is an ‘irregularity’ for this purpose:

[I]rregularity, 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.

75      Ms Fenn accepts that the Chief Commissioner correctly described the applicable principles derived from R v Gray; Ex parte Marsh [1985] HCA 67; (1985) 157 CLR 351 (R v Gray); Re Collins and Harken v Dornan and Ors (1992) 72 WAIG 1727 (Harken). An irregularity must concern a matter in connection with the election process and does not extend to attempts to influence voting intention or ‘electioneering.’

76      Ms Fenn’s submissions focus on two aspects of the Chief Commissioner’s reasons. First, she says the Chief Commissioner was wrong in fact and in law to conclude that the conduct she complains about, the ANF’s non-compliance with the September Order, was not ‘in connection with’ the election process. Relying on Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465, she says ‘in connection with’ covers matters that occur prior to the principal thing, as long as they are related to the principal thing, and covers matters that are involved in or bound up with, or have to do with, the principal thing. She says the Chief Commissioner erroneously treated the 2022 election that was enabled by the Clancy Proceedings as an entirely different and unrelated election to the 2022 election required by r 20. However, the delayed election involved the same offices that were to be the subject of the election required by r 20.

77      The second aspect of the Chief Commissioner’s reasons that Ms Fenn challenges is his conclusion that the conduct was not an ‘irregularity’ because it was ‘electioneering’. In this regard Ms Fenn says the conduct was not ‘electioneering’ but rather was a deliberate attempt to hinder the full and free recording of votes because members were deprived of knowledge and information about the ANF’s affairs which they were entitled to possess in deciding for whom to cast their vote.

78      Ms Fenn says it is not clear whether the Chief Commissioner concluded that the Union’s conduct was non-compliant with the September Order. On the one hand, the Chief Commissioner criticised the Union’s communication to members purportedly in compliance with the September Order because it was late and was insufficiently transparent: [51]-[55]. On the other hand, at [66] he says:

… 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.

79      Ms Fenn argues that the conduct was non-compliant because it was implicit in the Registrar’s Proceedings Decision and the September Order that immediate compliance was required.

80      The Registrar’s Proceedings Decision, taken together, should be read as having reached the conclusion that the ANF’s conduct was non-compliant with the September Order. But is that non-compliance an ‘irregularity’?

81      In R v Gray, the alleged irregularities involved the publication of certain pamphlets and advertisements by, or on behalf of, a candidate for an election. The applicant contended that this conduct amounted to an irregularity, on the following basis, as set out by Gibbs CJ at 356:

1. … misleading and misled voters in the election and thereby caused them to alter their votes, or refrain from voting, which change in voting intention affected the result of the election.

2. … the effect of which is and was to hinder or prevent the full recording of votes by all persons entitled to vote and the correct ascertainment or declaration of the results of the voting and/or which constituted an irregularity.

3. … the effect of which was and is to hinder or prevent the full recording of votes by all persons entitled to vote and the correct ascertainment or declaration of the results of the voting and/or which constituted as [sic] irregularity.

82      Chief Justice Gibbs considered the meaning of ‘irregularity’ for the purpose of s 4(1) of the Conciliation and Arbitration Act 1904 (Cth), s 159(1) of which conferred a right to apply for an inquiry in respect of an election in which an irregularity is alleged to have occurred. His Honour said, at 365:

It would appear from the context provided by s. 4(1) that the Parliament intended the definition of “irregularity” to be inclusive and not exclusive, or in other words that the definition was intended to comprehend such things as the word would ordinarily mean as well as those specifically included. Although the things specifically included in the definition are so widely defined that at first it does not seem easy to envisage other things which would not come within the specific terms of the definition but would still be irregularities in the ordinary meaning of the word, it is possible to suggest examples — for instance, a threat made contrary to s. 171(2) which induced the withdrawal of a candidature, or a case (suggested by Gray J.) in which, without breach of the rules, a returning officer failed to make available any reasonable facility for the receipt of nominations, so that persons who desired to be candidates were prevented from nominating.

83      His Honour noted that the conduct in question did not involve a breach of the union’s rules, nor an attempt to prevent or hinder a correct ascertainment or declaration of the results of the voting. The question was whether the conduct was acts ‘whereby the full and free recording of votes by all persons entitled to record votes, and by no other persons…is, or is attempted to be, prevented or hindered’: 365-366.

84      Chief Justice Gibbs referred to the Court’s consideration of similar wording in Evans v Crichton-Browne [1981] HCA 14; (1981) 147 CLR 169, where it was held that the words ‘in or in relation to the casting of his vote’ referred to the act of recording or expressing the political judgment the elector made, rather than the formation of the judgment. The words refer to the act of obtaining, marking and depositing a ballot paper, not the mental process of making a decision or choice: 366-367.

85      Chief Justice Gibbs then proceeded to consider the conduct involved in the matter before the Court, at 367-370:

The question then arises whether the conduct alleged — the distribution of the pamphlets and the publication of the advertisements — could arguably have amounted to an irregularity within the ordinary meaning of that word. According to the Oxford English Dictionary “irregularity”, in its relevant sense, means “want of conformity to rule; deviation from or violation of a rule, law, or principle … deviation from what is usual or normal”. 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. The question is whether it can be said that the alleged conduct of Mr. Bali and his supporters did depart from some rule, practice or principle of that kind.

…

Although it was clearly correct to say that it is a wrong that electors should be tricked or misled, and although it is true that the Parliament may legislate against such a mischief in the case of a union election as well as in the case of an election to the Commonwealth Parliament, it does not follow that the Parliament intended that every statement by which voters might be misled, or every failure to disclose information which voters might consider material, should be an irregularity within the meaning of Pt IX of the Act. It was pointed out in Evans v. Crichton-Browne, that “the result of many elections might be rendered uncertain if any untrue or incorrect statement of fact, opinion, belief or intention might have the effect of invalidating the election if the statement was intended or likely to mislead or improperly interfere with any elector in the formation of his political judgment”. The uncertainty might be even greater if non-disclosure was a ground for avoiding an election. It is entirely a matter for the Parliament to decide whether considerations of that kind should outweigh the need to attempt to ensure absolute purity in the electoral process. It cannot be assumed that the Parliament intended to enable an election to be challenged under Pt IX on the ground that statements were made which might in some way mislead the electors in making their decision as to how to vote or that facts were not revealed which might have influenced the electors in their choice. If the Parliament had so intended, it could easily have expressed that intention, but it has not done so.

It may be assumed, without deciding, that the pamphlets and advertisements published on behalf of Mr. Bali might have conveyed to the electors a false suggestion that Mr. Bali had the support of the Prime Minister and of the Australian Labor Party, although on the proper understanding of the documents they could not have been reasonably understood to suggest that Mr. Bali was an endorsed candidate. Any misleading suggestion was, however, made by statements true in themselves and by the use of genuine photographs. For the reasons I have given, the publication of those pamphlets and advertisements could not properly have been held to be an irregularity, either within the ordinary meaning of the word or within the extended meaning given by the definition in s. 4(1) of the Act. (footnote omitted)

86      Mason, Wilson, Brennan, Deane, Dawson JJ all agreed with the Chief Justice’s reasons for concluding that the conduct complained about did not constitute an irregularity within the meaning of that word in the Conciliation and Arbitration Act 1904: 374, 378, 382, 383, 392.

87      This reasoning was affirmed and applied by Gaudron J in Re Collins: 531-532. The same reasoning was adopted by the Western Australian Industrial Court of Appeal as applying equally to the provisions of s 66 of the IR Act in Harken: 1730.

88      Like the situation in R v Gray, in this case the conduct Ms Fenn is concerned about does not involve a breach of the ANF Rules, nor an act or omission by which a correct ascertainment or declaration of the results of voting is, or is attempted to be, prevented. The only way that the conduct could amount to an irregularity, is if the conduct is:

a. an act or omission by which the full and free recording of votes is, or is attempted to be, prevented or hindered; or

b. an irregularity within the ordinary meaning of that word – a departure from some rule, established practice or generally accepted principle governing the conduct of the election.

89      Ms Fenn does not cavil with the applicability of the principles in these cases to the present matter. The way Ms Fenn seeks to bring the conduct within the realm of an irregularity as described is articulated as follows (Appellant’s Outline of Submissions [49]):

a) the effect of the Union’s non-compliance was to cause the election to be conducted – from the perspective of the voting members - as if there had not been non-compliance by the Union with Rule 20, and as if the Union had not been ordered to take the step of notifying members of that non-compliance;

b) the Union’s non-compliance involved an attempted hinderance of the full and free recording of votes or the correct ascertainment or declaration of the results of the election, because the vote was of members who were deprived of knowledge and information about the organisation affairs of the Union which they were entitled to possess in deciding for whom to cast their vote, and which knowledge and information the Chief Commissioner had ordered the Union to provide to members;

c) the conduct was deliberate, involving the Secretary of the Union and candidate for the position of Secretary in the election, and of a kind the Commission, acting pursuant to ss. 6(f), 26(1)(c) and 61 of the IR Act, ought not abide.

90      Elaborating on this submission orally, Counsel for Ms Fenn argued the conduct was of a particular kind, that it was ‘improper conduct’ and therefore within the category contemplated by Toohey and McHugh JJ when they said in Re Collins at 526:

It is conceivable that, in a particular case, conduct said to have hindered the full and free recording of votes by certain members of an organization cannot be assessed without some inquiry into the votes cast by those members: see, for instance, Re Amalgamated Metals Foundry and Shipwrights Union; Ex parte Adamson [(1984) 4 FCR 319]. In cases of alleged bribery or coercion it may be unnecessary to go so far; it may be enough that conduct aimed at bribing or coercing union members took place, especially if on a large scale. (footnote omitted)

91      Counsel also referred to Gaudron J’s statement at 531 that ‘bribery, intimidation and coercion aside, irregularities are directly associated with the machinery processes or formal steps involved in an election’.

92      Ms Fenn says that the High Court has, by these statements, allowed for or carved out exceptional circumstances where there could be types of conduct not directly associated with the machinery processes involved in an election which would still amount to an irregularity because of the improper nature and large scale of the conduct.

93      Ms Fenn says the ANF’s non-compliance with the September Order was conduct on a large scale and was improper conduct of a kind that a court or tribunal would not stand for.

94      The first difficulty with this argument is that if the High Court did exempt any categories of conduct, they are limited to bribery, intimidation and coercion. There is no suggestion that non‑compliance with the September Order is or can be categorised as bribery, intimidation or coercion.

95       Second, Ms Fenn’s submission that the ANF’s conduct is an irregularity falls squarely within the realm of what the High Court has said does not amount to irregularity. The conduct was, in essence, a failure to disclose information which might otherwise have influenced elector’s choice in the election. But the High Court has said this is not conduct contemplated to be an ‘irregularity:’ R v Gray, 370.

96      The Chief Commissioner’s characterisation of the conduct at [67] as being ‘reasonably regarded as a form of ‘electioneering’’ is a short-hand way of saying the conduct is not an irregularity as defined by s 7(1) applying the principles espoused in R v Gray, Re Collins and Harken. There is no error.

Ground 1.2: Was the ANF’s conduct ‘in connection with’ the election?

97      Because we consider Ms Fenn has failed to establish error in the Chief Commissioner’s finding that the non-compliance with the September Order was not an irregularity capable of triggering the right to apply for an inquiry into an election, it is unnecessary to deal with the other allegation within Ground 1 which alleges error in the finding that the conduct was not in connection with an election.

98      Ground 1 should be dismissed.

Ground 2.1: Was there a rule, established practice or accepted principle that ANF elections have a 21-day ballot period?

99      The Chief Commissioner concluded that the election did not involve a departure from a rule, established practice or accepted principle governing the conduct of the election.

100   At [146] of the Primary Decision, the Chief Commissioner said:

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. (emphasis added)

101   Ms Fenn says this conclusion is wrong because it is inconsistent with the Chief Commissioner’s correct finding that the Electoral Commission’s standard practice in all non‑parliamentary elections involved a 21-day ballot period and the ballot period in this case was 20 days.

102   In relation to the ballot period, Ms Fenn’s Counsel described the argument as ‘quite simple’: the evidence before the Commission that the Electoral Commission’s standard practice was to have a 21-day ballot period was clear and uncontested. That means that there was an established practice that the ballot period be 21 days. Similarly, it was clear and uncontested that the actual ballot period was 20 days, not 21 days. It was not to the point that the Rules specified a 14-day ballot period.

103   The evidence, though, was not quite as simple as Ms Fenn says.

104   First, Mr Ardeshir’s evidence was that three weeks was the Electoral Commission’s standard timing ‘for lodgement of ballot packages’: Ardeshir Affidavit [14]. By this he meant lodgement with Australia Post.

105   During his cross-examination, Mr Ardeshir stated (Transcript pg. 48):

I can’t speak to what the internal… mechanisms for Australia Post delivering their packages are. That’s for them. They’re an independent company.

But in general, the three weeks has always been the standard time we allow. (emphasis added)

106   However, he also said that this timeframe was not applied strictly, and that unexpected changes would modify the general rule.

107   Mr Ardeshir described the three-week period as ‘a rough period’: Transcript pg. 51. He explained that this ‘rough’ three-week period catered for unexpected events occurring, such as printers breaking down, or a fire at the print house (Transcript pg. 51-54):

[I]t… wasn’t locked in. It was not like it had to be going out Friday no matter what, and that’s part of any legislation or rules. It wasn’t.

…[I]t’s not anything that’s… on par with legislation or the ANF rules itself, because the ANF rules do not mention three weeks. That’s something that we instigate as a general rule, which means it’s a general rule, it’s not hard and fast. If factors come in to play like the Queen’s… day of mourning, et cetera, unfortunately, that will eat into it sometimes.

108   He also referred to his prior experience of having to delay lodgement by a day or two, due to things like problems with printers: Transcript pg. 52.

109   The evidence therefore fell short of proving that there was an ‘established practice’ for a 21‑day ballot period. It just showed that there was a usual, but flexible practice of allowing three weeks from the date of lodgement of ballot packages with Australian Post to the date of the ballot. As the Returning Officer’s Counsel correctly pointed out, it was part of the usual practice that the general rule could be modified. It is not correct to say the evidence was that there was an established practice of a strict 21-day ballot period.

110   If the three-week period was not strict, nor a hard and fast rule, then a deviation from the period could not be a departure from an ‘established practice’.

111   There is another difficulty with Ms Fenn’s case that a 21-day ballot period was an established practice. That is, to so find would conflict with the ANF’s r 23(1)(g) by which the Returning Officer must:

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. (emphasis added)

112   There cannot be a rule, established practice or principle for sending ballot packages both 21 days before the ballot and not later than 14 days before the ballot is to be held. The concept of a rule, established practice or accepted principle does not permit the co-existence of options or a range of options.

113   Ms Fenn has not established the Chief Commissioner erred by finding the timing of the ballot did not involve a departure from an established practice and so did not constitute an irregularity.

Ground 2.2: Was the Returning Officer’s failure to consider the latest date for the election an irregularity?

114   Ms Fenn also says the conclusion that there was no departure from a rule, established practice or accepted principle was wrong in circumstances where the Chief Commissioner found the Returning Officer had failed to comply with reg 11 of the Regulations by failing to give mandatory consideration to the latest date by which the election was to occur, being 30 November 2022.

115   Ms Fenn submits:

76. This conclusion appears to be as a result of the Chief Commissioner’s earlier conclusion that the Returning Officer’s failure to comply with reg 11 was not material: Decision at [150]. However, whether or not the non-compliance with reg 11 was material or immaterial was irrelevant at the stage of evaluating the existence of an irregularity (by reason of the departure from reg 11).

77. The proper approach was to first evaluate whether non-compliance with reg 11 was irregular, and if so, considering at the stage of the question of relief whether the noncompliance was trivial or otherwise: see Robertson v Civil Service Association of Western Australian Inc [[2003] WASCA 284; (2003) 83 WAIG 3938] at paragraph 8 above.

78. Having accepted that the ballot period was only 20 days, and that the Returning Officer did not comply with reg 11, the Chief Commissioner should have found that irregularity was established, and moved to consideration as to whether there was any reason to decline to declare the election void and order a fresh election.

116   At [133]-[136] of the Primary Decision, the Chief Commissioner said:

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.

117   Neither the Clancy Order nor the Clancy Reasons, expressly state that the election had to be conducted by 30 November 2022. Rather, this was the practical effect of the orders operating until 30 November 2022. The expiry of the orders was subject to the qualification ‘unless this order is extended, varied or revoked’.

118   In these circumstances, it is arguable that the latest possible date for the completion of the election was not 30 November 2022. Relatedly, it was not necessarily incumbent on the Returning Officer to be aware of this date. However, these matters are not challenged in this appeal.

119   Returning to the consequences of these findings at [150] of the Primary Decision, the Chief Commissioner said:

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.

120   And at [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.

121   Ms Fenn’s Counsel conceded at the hearing of the appeal that non-compliance with reg 11 would only render the Returning Officer’s conduct ‘irregular’ if it was material in the sense described by the High Court’s in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 (LPDT) at [4] and [7]:

4. A statute which contains an express or implied condition of a conferral of decision-making authority is not always to be interpreted as denying legal force and effect to every decision that might be made in breach of that condition. Only by construing the statute so as to understand the limits of the statutory conferral of decision‑making authority is it possible to determine, first, whether an error has occurred (that is, whether there has been a breach of an express or implied condition of the statutory conferral of decision‑making authority) and, second, whether any such error is jurisdictional (that is, whether the error has resulted in the decision made lacking legal force).

…

7. In most cases, however, an error will only be jurisdictional if the error was material to the decision that was made in fact, in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred. That is because it is now accepted that a statute which contains an express or implied condition to be observed in a decision‑making process is ordinarily to be interpreted as incorporating such a “threshold of materiality” in the event of non‑compliance. (footnotes omitted)

122   Ms Fenn’s Counsel said that if these principles apply in relation to reg 11, then the Chief Commissioner was correct to consider materiality, because reg 11 involves discretionary decision-making. However, Ms Fenn says the Chief Commissioner erred in finding the Returning Officer’s failure to have regard to the 30 November 2022 date was not material.

123   In LPTD at [16] the High Court discussed the test of materiality in cases of jurisdictional error:

In sum, unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion).

124   Ms Fenn says the fact that the Returning Officer acted to preserve the 21-day period by bringing forward the lodgement date to account for the King’s Birthday public holiday, combined with his evidence that the Electoral Commission thought three weeks was a ‘good enough’ period of time for the conduct of a postal election, meant that:

[I]t could not be said to be fanciful or improbable to suggest that if the Returning Officer had been aware that he had many weeks to spare up to 30 November 2022, that he would’ve extended the date of the election by, at the very least, a day, to Tuesday, 18 October 2022, if not more, such that the ballot period would involve the full 21 day standard Electoral Commission ballot period. (emphasis added)

125   The problem with this approach is that reg 11 concerns the determination of the dates to start issuing ballot papers and to close the ballot. These two dates are interconnected. The ballot papers cannot be issued without a known date for close of the ballot because r 23(1)(g)(i) requires the date for close of the ballot to be stated in the ballot papers. The relevant determination, then, was the determination made prior to the sending of the ballot papers, to set the dates for posting ballot packages and for the close of the ballot.

126   If, as the Chief Commissioner found, the Returning Officer was obliged to take into account the 30 November 2022 date when exercising his functions under reg 11, the point in time at which that obligation operated was when the Returning Officer made his original determination of the two interconnected steps referred to in the previous paragraph. Regulation 11 is not directed at extending the date of an election, once the date has already been set in accordance with reg 11.

127   This explains why, at [150], the Chief Commissioner refers to the 30 November 2022 date being nine weeks after the date the ballot papers were deposited, and why he refers to the adoption of the usual timetable of three weeks for a postal ballot.

128   The Chief Commissioner described the consequence as not material ‘for the purposes of s 66(2)(3) of the Act’: [150]. Regardless of whether the assessment of materiality pertained to the Returning Officer’s determination under reg 11(d) regarding the times and dates for the commencement and close of the ballot for the election, the outcome would have been the same. There was no realistic possibility that the determined dates could have been different, even if the Returning Officer was aware that 22 November 2022 was the latest date for concluding the election.

129   Firstly, the reason why the usual period of three weeks became shortened by a day was that a special public holiday was proclaimed for the date when the Electoral Commission had planned to prepare the ballot packages. But this fact could not have been known by the Returning Officer when the relevant dates were determined. The dates were proposed to Mr Olson on 15 August 2022: Ardeshir Affidavit [11]. The election was commenced by the publication of a Notice on 22 August 2022. It was announced to members on 29 August 2022.

130   The proclamation of the National Day of Mourning special public holiday was not made until 15 September 2022.

131   As the Chief Commissioner said, there was simply no reason for the Returning Officer to set a date for close of the ballot any later than a date three weeks after the scheduled lodgement of ballot packages with Australia Post. The scheduled lodgement date was originally Monday 26 September 2022.

132   Second, in the context of seeking to accommodate an additional day for the ballot period, a latest date of 30 November 2022 was irrelevant and inconsequential. It was not suggested that the Returning Officer believed the election had to be completed by 17 October 2022. Any lack of awareness of the 30 November 2022 date did not deprive the Returning Officer of the ability to determine a later ballot date, had he considered it justified.

133   Third, the Returning Officer did not regard a 21-day period as a ‘hard and fast’ rule. Rather, as discussed above, the effect of his evidence was that the three-week general period allowed for the fact that disruptions may occur which would reduce the actual ballot period to less than three full weeks.

134   Accordingly, the Chief Commissioner was correct to conclude that any failure of the Returning Officer to inform himself of the 30 November 2022 latest date was not material. When the determination that the close of the ballot be 17 October 2022 was made, there was no reason for it to have been any different.

135   Ground 2 is not made out and should be dismissed.

Ground 3: Was the Returning Officer’s conduct in not exercising his discretion to extend the ballot period under s 69(5)(a) an irregularity?

136   At [115] of the Primary Decision, the Chief Commissioner observed:

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 said there was no good cause shown at any time, as to why the dates for the election should be extended.

137   At first instance, and on appeal, Ms Fenn argued that the Returning Officer’s failure to extend the date of the election to accommodate the unexpected National Day of Mourning public holiday was legally unreasonable and did not involve a bona fide non-exercise of the Returning Officer’s power under s 69(5)(a) of the IR Act. Ms Fenn says that the Chief Commissioner erred in concluding at [153] that on the evidence, the Returning Officer did not have an obligation, as a matter of law, to exercise that power to extend the date of the election.

138   It is uncontroversial that the Returning Officer had a discretionary power, derived from s 69(5)(a), to extend the date of the election and he did not do so. Section 69(5)(a) says:

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.

139   Ms Fenn accepts that the relevant test for establishing an irregularity in relation to this aspect of the Returning Officer’s conduct was akin to the approach that applies to review of administrative decisions to determine whether jurisdictional error exists. It was not for the Chief Commissioner to substitute his own view of what was an appropriate exercise of the discretion.

140   Rather, as the Chief Commissioner stated at [130], Ms Fenn needed to establish that the Returning Officer’s decision making and conduct was affected either by an error of law, or was such that no reasonable Returning Officer could have made such a decision, or that the exercise of the power was not bona fide for the purpose it was given: per Keely J in Re Birch; Re Australian Workers Union (SA Branch) (No 2) (1991) 37 IR 420 at 424 per Gray J in Re Carter; Re Federated Clerks Union of Australia, Victorian Branch (No 1) (1989) 32 IR 1 at 4, Lee J in Re Application for an enquiry into an election for officers in Transport Workers’ Union of Australia, Western Australian Branch (FCA Lee J unreported 11 April 1990) at 39.

141   Ms Fenn argued, first, that the Returning Officer misunderstood the applicable law, and second, that the Returning Officer’s decision ‘exceeded the bounds of reasonableness’ in the following relevant circumstances (Appellant’s Outline of Submissions [83]):

a. The Returning Officer and the Electoral Commission were aware of Australia Post delays and deteriorating postal conditions.

b. This was the first election the Returning Officer had been involved in affected by an unplanned public holiday.

c. The Returning Officer had accommodated the King’s Birthday public holiday by bringing forward by one day the planned lodgement of ballots.

d. Ballots were lodged a day later than planned by reason of the unexpected National Day of Mourning public holiday.

e. Ballot packages were being posted all over the state to 36,000 members against the backdrop of two public holidays.

f. Mr Olson had referred to postal delays in an email to members on 29 September 2022 to which the Returning Officer was privy. That email urged members who had not received ballot papers by 11 October 2022 to contact the Electoral Commission to request a replacement ballot paper.

g. Mr Olson had drawn the Returning Officer’s attention to the fact of the Australian Electoral Commission having extended an election for the federal union earlier in the year and had asked the Returning Officer if he was going to extend the date of the election.

Misunderstanding the applicable law

142   At first instance, and on appeal, Ms Fenn argued that s 69(5)(a) obliged the Returning Officer to act proactively, not responsively, to prevent irregularities whereas the Returning Officer proceeded on the basis that he needed to be satisfied that an irregularity had occurred before taking any action.

143   Ms Fenn says it was apparent the Returning Officer misunderstood the law governing his discretion, establishing jurisdictional error, but this submission was not dealt with by the Chief Commissioner.

144   It is unnecessary to deal with the principles about what constitutes jurisdictional error in this regard.

145   The evidence Ms Fenn relies on to establish a misunderstanding of the applicable law is Mr Ardeshir’s evidence given during cross-examination where he said, ‘[s]o obviously, first, I would have to determine that – that irregularity had occurred, and then to determine what actions I would, if any, I need to take’: Transcript pg. 57.

146   This evidence, however, was given by him in response to questions about r 23 of the ANF Rules. After being shown r 23(4)(a), he was asked by Ms Fenn’s Counsel, ‘how do you interpret that rule?’: Transcript pg. 57.

147   Rule 23(4)(a) contains some similar terms to s 69(5)(a). It says:

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.

148   Significantly though, r 23(4)(a) uses the mandatory ‘shall’ whereas s 69(5)(a) uses ‘may’.

149   Mr Ardeshir was not asked about his interpretation of s 69(5)(a), nor was it put to him that he misunderstood it. Ms Fenn cannot rely on Mr Ardeshir’s evidence about r 23 to substantiate a case that the Returning Officer misunderstood the applicable law as it concerned s 69(5)(a). Ms Fenn points to no other evidence to establish that the Returning Officer acted under a misunderstanding of the law. There was nothing for the Chief Commissioner to ‘deal with’.

150   This part of ground 3 is not made out.

Legal unreasonableness

151   What remains of this ground of appeal is Ms Fenn’s ‘outcome unreasonableness’ submissions. Outcome unreasonableness was described by Smith J in Owen v Wilson [2023] WASC 178:

157. Thus, a decision may be held to be unreasonable if the result lacks an evident and intelligible justification, having regard to the subject matter, scope and purpose of the statutory power. The task of the court in determining whether a decision is legally reasonable or unreasonable involves the evaluation of the nature and quality of the decision in the context of the subject matter, scope and purpose of the relevant statutory power, combined with associated common law principles concerning reasonableness in decision‑making.

158. There is a fine line between reviewing the reasonableness of a decision‑maker’s reasons for decision and a merits review. (footnote omitted)

152   This ground can be made out if it is shown that the result of the decision maker’s exercise of a power is so unreasonable that it could not be reached if proper reasoning had been applied in the circumstances: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 per Nettle and Gordon JJ at [78]-[83]. However, the test for unreasonableness is stringent. Courts will not lightly interfere with the exercise of a discretionary statutory power: Smith J in Owen v Wilson at [160] citing Kiefel CJ in SZVFW. The line between judicial review on the basis of legal unreasonableness, and a merits review, is a fine one, but it must be maintained: LPDT [15].

153   Ms Fenn submitted that no reasonable returning officer, knowing what the Returning Officer knew about the matters listed at [141] above, would have taken the decision to do nothing. Ms Fenn’s Counsel emphasised the particular factor that the Returning Officer had previously sought to lodge the ballot packages a day earlier than originally planned to accommodate the 26 September public holiday to maintain and preserve a 21-day ballot period.

154   She submitted that it defied common sense that the Returning Officer would not similarly act to push back the election date to maintain the same 21-day period in light of another public holiday affecting the timetable. Ms Fenn submits these actions are internally contradictory and illogical.

155   The circumstances Ms Fenn relies on as demonstrating unreasonableness include circumstances that existed before the ballot packages were lodged with Australia Post on 27 September 2022, and circumstances that arose after that date. Necessarily then, Ms Fenn’s case is that the Returning Officer’s discretion ought to have been exercised some time after 27 September 2022, that is, after the ballot packages had been sent to all members. The ballot packages, consistent with the election notice and r 23(1)(g), notified members of the date for close of the ballot.

156   In evaluating the evidence and understanding the circumstances in which the relevant discretion was being exercised, it is important to remember that a postal ballot does not involve irregularity merely because one or more eligible voters do not receive their postal ballot packages or receive them late: 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) 192 FCR 111; [2011] FCA 38 [33]-[36].

157   As Mr Ardeshir explained in his evidence, postal ballots have significant advantages over in‑person elections: Ardeshir Affidavit [56]-[60]. They enable and generally result in a far greater participation rate than in-person elections. However, they have known shortcomings. Amongst the shortcomings are:

a. the Electoral Commission must rely on the accuracy of the information provided to it as to members’ current postal addresses;

b. the Electoral Commission must rely on Australia Post to deliver the ballot packages to members eligible to vote, and to the Electoral Commission when returned;

c. the Electoral Commission must rely on members and other residents at the address to collect, and where relevant, pass on, the ballot packages from the mail; and

d. the Electoral Commission must rely on members voting to complete and return their ballots and has no control over the timing of the return of ballots.

158   Receipt of ballot packages by all members eligible to vote in time to do so cannot be guaranteed, in any circumstances. This fact on its own does not amount to irregularity. The source of, or reason for, the non-receipt of ballot papers by eligible voters must be identified as the potential irregularity.

159   Dealing with this evidence at first instance, the Chief Commissioner noted at [138] of the Primary Decision that there was no direct evidence before him as to the specific cause of any members not having received ballot papers or receiving them too late. But even assuming that the non-receipt of ballot papers was due to postal delays, the Chief Commissioner regarded Gray J’s reasoning in Pullen applied. At [140], the Chief Commissioner said:

The applicant in [Pullen] 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].

160   The Chief Commissioner also noted that the lodgement of ballot packages on 27 September 2022, and taking into account the two public holidays, still provided 20 days for the delivery and return of ballot papers, which accorded with the ANF Rules: [142].

161   While the Chief Commissioner did not expressly set out in his reasons why the Returning Officer’s decision not to extend the ballot was legally reasonable, it is implicit that in circumstances where no irregularity was involved, the exercise of the discretion was reasonable. The decision not to extend the ballot period was one that could result from proper reasoning.

162    Ms Fenn has not shown why the factors listed at [141] meant, in all of the circumstances, that the Returning Officer could not properly have reasoned that the ballot period need not be extended once the ballot packages had been lodged with Australia Post.

163    In this regard, it was clearly a relevant consideration that the ANF Rules required that ballot packages be posted not later than 14 days prior to the date the ballot is to be held: r 23(1)(g). The unexpected public holiday would have no impact on compliance with that rule.

164    It was a relevant consideration that there would be consequences of extending the ballot period. As the Chief Commissioner stated at [115] of the Primary Decision, which summarises Mr Ardeshir’s evidence (Transcript pg. 75), this would amount to changing the rules of the game halfway through: [136] above.

165   It was also relevant that the ANF had informed members to contact the Electoral Commission if they had not received ballot papers by 11 October, and that the Electoral Commission had in place a process to send replacement ballot papers by express post to any eligible members if they made such contact.

166   Further, it was an agreed fact that between 7 and 13 October 2022, the Electoral Commission was contacted by 20 individuals with requests for replacement ballot papers for 23 members, being a very small number of the total number of ballot papers posted out to members.

167   Ms Fenn submitted that the decision not to extend the ballot period conflicts with the earlier decision to bring forward the date for preparation of the ballot packages and lodgement with Australia Post to account for the King’s Birthday public holiday. But extending the ballot period after ballot packages had been issued is a fundamentally different action compared with planning the lodgement of the ballot packages with Australia Post. It is inappropriate to compare these two things. Extending the ballot after the ballot packages had been sent means altering the election date. Such a step involves different considerations to the planning, preparation and lodgement of the ballot packages. There is nothing illogical or conflicting about attempting to preserve a three-week period between lodgement and the election date when planning the lodgement of ballot packages. But deciding to change the date of close of the ballot, while the election is on foot, is another matter.

168   For these reasons, it cannot be said that the Returning Officer’s decision not to extend the ballot was legally unreasonable. His decision had an evident and intelligible justification. Accordingly, Ground 3 fails.

Ground 4: Did the Returning Officer’s conduct affect the full and free recording of votes or the correct ascertainment or declaration of the results of voting?

169   Ground 4 concerns the effect of the Returning Officer’s challenged conduct which effectively limited the ballot period to 20 days. It concerns the second element of the definition of ‘irregularity’ namely that the conduct operated to prevent or hinder the full and free recording of votes.

170   Having concluded at [153] of the Primary Decision, that the Returning Officer was not under any obligation, as a matter of law, to extend the election, the Chief Commissioner was not required to, and did not, undertake an analysis of the second element of ‘irregularity’, that is, whether the failure prevented or hindered the full and free recording of votes.

171   Ms Fenn noted that Ground 4 is enlivened only if either of Grounds 2 or 3 are upheld, such that there is found to have been an irregularity. As we would not uphold either of those grounds, it is similarly unnecessary for us to deal with Ground 4.

172   As none of Grounds 1 to 3 succeed, the appeal should be dismissed.