2005 WAIRC 00854

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES MR MICHAEL FREDERICK WILLIAMS
APPLICANT
-AND-
THE SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES' ASSOCIATION OF WESTERN AUSTRALIA
RESPONDENT
CORAM HIS HONOUR THE PRESIDENT P J SHARKEY
DATE FRIDAY, 1 APRIL 2005
FILE NO. PRES 10 OF 2004
CITATION NO. 2005 WAIRC 00854

CatchWords Industrial Law (WA) - discrimination - rights of organisations to decide rules - nomination of officers - interpretation of rules of organisations - tyrannical or oppressive rules - Conciliation and Arbitration Act 1904 - Industrial Relations Act 1979 (as amended), s6(e), s6(f), s7, s26(1)(c), s29, s61, s66, s66(2)(a), s66(2)(a)(ii), s66(2)(a)(iv), s66(2)(a)(v), s110, s110(1) - Equal Opportunity Act 1984, s53(1), s53(1)(2), s54, s54(1).
Decision Application proven and rule disallowed.
Appearances
APPLICANT MR M F WILLIAMS, ON HIS OWN BEHALF

RESPONDENT MS S BURKE (OF COUNSEL), BY LEAVE


Reasons for Decision

THE PRESIDENT:

INTRODUCTION

1 This is an application by the above-named applicant, Mr Michael Frederick Williams, pursuant to s66 of the Industrial Relations Act 1979 (as amended) (hereinafter referred to as “the Act”).
2 At all material times, Mr Williams was a financial member of the respondent organisation, (hereinafter referred to as “the SDEA”). He was also employed as a store worker.
3 At all material times, the respondent organisation was an organisation registered as such pursuant to the Act and therefore an “organisation”, as defined in s7 of the Act. Thus, I had jurisdiction to hear and determine this application.
THE ACT – RELEVANT SECTIONS
4 Pursuant to s61 of the Act, upon and after registration, the SDEA, as an organisation as defined, is subject to the jurisdiction of the Industrial Appeal Court and the Commission and to the Act, which includes s66. Further, pursuant to s61, all of the organisation’s members are bound by the rules of the organisation during the continuance of their membership.
5 It is also relevant to point out that s110(1) of the Act, which reads as follows, applies:-
“110. Disputes between organisation or association and its members
(1) Every dispute between an organisation and any of its members, or between an association and any organisation represented therein, shall, subject to section 66, be decided in the manner directed by the rules of the organisation, or, as the case may be, by the rules of the association.”

6 S7 of the Act defines “office” and “officer” as follows:-
““office” in relation to an organisation means — 
(a) the office of a member of the committee of management of the organisation;
(b) the office of president, vice president, secretary, assistant secretary, or other executive office by whatever name called of the organisation;
(c) the office of a person holding, whether as trustee or otherwise, property of the organisation, or property in which the organisation has any beneficial interest;
(d) an office within the organisation for the filling of which an election is conducted within the organisation; and
(e) any other office, all or any of the functions of which are declared by the Full Bench pursuant to section 68 to be those of an office in the organisation,
but does not include the office of any person who is an employee of the organisation and who does not have a vote on the committee of management of the organisation;

“officer” means a person who carries out, or whose duty is or includes the carrying out of, the whole or part of the functions of an office in an organisation;”

7 S66(2)(a) of the Act confers jurisdiction on the Commission, constituted by the President, and the power to:-
“disallow any rule which, in the opinion of the President — 
(i) is contrary to or inconsistent with any Act or law, or an award, industrial agreement, order or direction made, registered or given under this Act;
(ii) is tyrannical or oppressive;
(iii) prevents or hinders any member of the organisation from observing the law or the provisions of an award, industrial agreement, order or direction made, registered or given under this Act;
(iv) imposes unreasonable conditions upon the membership of a member or upon an applicant for membership; or
(v) is inconsistent with the democratic control of the organisation by its members;”


RULES
8 Sub rule 8(d) of the SDEA’s rules, reads as follows:-
“8 – NOMINATION OF OFFICERS
…..
(d) No known communist may nominate for, or hold, any office in the Union.”


9 There are other sub rules which prohibit persons from eligibility to be a candidate for office and/or to hold any office in the SDEA. They are sub rules 8(c), (l), (m) and (n) and they read as follows:-
“(c) Only those persons shall be eligible to nominate as a member of the Board or Organiser or Officer of a Branch who are members of the Union and financial and with at least one (1) years' continuous membership prior to the date of nomination; but branch officials for new branches may be new members.

(l) A person shall not be eligible to be a candidate for any full time paid officer's position if at the date set for the closing of nominations he is sixty five years of age or more and every candidate for such position shall sign and lodge with his nomination a declaration that he is eligible under the provision of Rule 8 (1).

(m) A person shall not be eligible to be a candidate for any office in the union or a branch if there is reasonable ground for believing that –

(i) within twelve months prior to the date of his nomination, he was a member of any body of persons, incorporated or unincorporated, which by its constitution or propaganda or otherwise advocates or encourages the overthrow by force or violence of the established government of the Commonwealth or of a State or of any other civilized country or of organised government; or

(ii) he himself advocates or encourages, or has, within twelve months prior to the date of his nomination, advocated or encouraged the overthrow by force or violence of the established government of the Commonwealth or of a State or of any other civilized country or of organised government.

(n) A person shall not be eligible to hold or continue to hold office in the union or a branch if there is reasonable ground for believing that –

(i) He is a member of any body of persons, incorporated or unincorporated, which by its constitution or propaganda or otherwise advocates or encourages the overthrow by force or violence of the established government of the Commonwealth or of a State or of any other civilized country or of organised government; or

(ii) he himself advocates or encourages, or has, within twelve months prior to the date of his election, advocated or encouraged the overthrow by force or violence of the established government of the Commonwealth or of a State or of any other civilized country or of organised government.”

10 The application is made, as I have said, in the first place, for the President to disallow the sub rule 8(d).
11 The assertion in the particulars of the claims is that the application is made on the following grounds:-
1. Sub rule 8(d) is contrary to or inconsistent with any Act or law.
2. Is tyrannical and oppressive.
3. Imposes unreasonable conditions upon the membership of a member.
4. The rule is inconsistent with the Equal Opportunity Act 1984 (as amended) (hereinafter referred to as the “EO Act”), in that:-
(a) It is unlawful for an employer to discriminate against a person on the ground of a person’s religious or political conviction:
(i) In the arrangements made for the purposes of determining who should be offered employment.
(ii) In determining who should be offered employment.
12 In short, the grounds relied on in order to seek a disallowance of sub rule 8(d) are those expressed in s66(2)(a)(i), (ii) and (iv) of the Act.
13 By the particulars, the applicant also sought an order that the Secretary of the SDEA declare vacant any office of the SDEA, subject to the rule and hold fresh elections for all such positions. The application was opposed on a number of grounds.

BACKGROUND
14 I should first observe that it was not in issue and indeed it is quite clear from its words that sub rule 8(d) prohibits any “known communist” from being nominated as a candidate to hold office in the SDEA and also prohibits a “known communist” from holding office in the SDEA.
15 The sub rule, rule 8(d), was inserted in the rules of the SDEA by direction of the Registrar of the Arbitration Court of Western Australia, a forerunner of this Commission, by virtue of a resolution of the Board of Management of 10 March 1952. It was then registered as sub rule 8(f) of the rules of the Western Australian Shop Assistants and Warehouse Employees Industrial Union of Workers, Perth on 21 August 1952 by the Registrar.
16 The amendment emanated from a resolution of the rules committee of the abovementioned union which, for the purposes of these proceedings, was accepted to be the respondent or its forerunner.
17 1952, it should be remembered, was the height of the Cold War, with Australia at war in Korea, and with the two major communist powers, the USSR and the People’s Republic of China regarded as the enemies of and at war, albeit a cold war, with Western nations, including Australia. Since then, with the exception of China, however, many countries have eschewed communism of the Marxist/Leninist type, including Russia and States which were its former vassals, and China to some extent, de facto. In particular, the Cold War ended about 1990.
18 I take judicial notice of these matters and a number of other similar matters referred to later in these reasons according to the approach taken by the High Court in the Communist Party Dissolution Bill case – The Australian Communist Party and Others v The Commonwealth and Others 83 CLR 1 to which I refer hereinafter. That case, of course, turned on whether a Bill which purported to effect the dissolution of the appellant Australian Communist Party was constitutionally valid, relying on the defence power contained in the Constitution. There was a specific proscription in it, and I put it in broad terms, of Marxist/Leninist communism. It is not relevant to the substantive legal principles which fall to be considered in this case. However, matters of judicial notice and matters of communism and the relevant history thereof in this country are discussed by the High Court in that case.
19 I note that no communist, known or otherwise, is prohibited from membership of the SDEA. In fact, there is no prohibition in the rules upon membership of the SDEA for any similar reason.
20 There was also no evidence that any communist is a member of the SDEA or that any communist was ever prohibited from a nomination for candidature for office in the SDEA. There was no evidence that any communist was ever removed from office in the SDEA. That is not to say, of course, that the prohibition in sub rule 8(d) has not prevented a “known communist” from seeking office in the SDEA. There is, however, no evidence of that fact.
21 The SDEA in Western Australia, at the time of the making of the application, namely 21 December 2004, had a financial membership of 21,196.
22 Mr Joseph Warrington Bullock, the General Secretary, who was called to give evidence by the applicant, informed the Commission that he was unaware of any known communists among the membership. The last elections for office in the SDEA were conducted in August 2004 and the nominees for each office were declared by the Returning Officer to have been elected unopposed. The elections were purported to be held pursuant to rules 8 and 9 of the rules.
23 Mr Williams was not nominated and did not stand for election to office in those elections because he was not eligible, not having been a member of the SDEA for a period of no less than 1 year’s continuous membership as required by sub rule 8(c).
24 No person was refused nomination for election and none has been refused nomination for election at the 2004 elections under sub rule 8(d), within the knowledge of Mr Bullock, going back in this State to 1970. That evidence was not contradicted.
25 On 23 February 2004, Mr Williams, an employee of Coles Myer retailers, agreed in writing to become a member of the SDEA and pledged himself to comply with the rules of the SDEA and with any amendments or additions made to those rules from time to time. He was not given any information concerning what the rules were then or subsequently. Mr Bullock said that he first became aware of these proceedings when the application was served on the SDEA. Before that, he was unaware of any query or complaint by any person concerning sub rule 8(d).
26 Mr Williams, who was called on behalf of the respondent, made it clear in his evidence in chief that he filed the application on 21 December 2004 because he was concerned about the operation of sub rule 8(d). In addition, he made the decision to make the application in December 2004 and then made it on 21 December 2004.
27 His evidence was that he had become aware of sub rule 8(d) in approximately October 2004, when he found the rules of the SDEA on this Commission’s website. As a result of his concern about “other matters through the workplace”, he searched through the website. He read most of the rules, he said. He was concerned that an election for President had occurred. He said that he was also concerned that the President, who is an “officer”, as defined in s7 of the Act, was elected to office, subject to sub rule 8(d). He looked at sub rule 8(d), he said, because he might choose to stand later for office, that is at some future election. He is and was concerned because of sub rule 8(d) about future elections.
28 The manner in which he looked at the rule, he said, was as follows:-
“Well, I was looking at it as what I thought was a rule out of the McCarthy era that I thought wasn’t appropriate to the unions? of a democratic union prohibiting people from standing for their political persuasion.”

29 Some weeks later, Mr Williams wrote to the Registrar and asked whether these rules were consistent with the statutory provisions which he identified. This was on 23 November 2004. He did not contact Mr Bullock about sub rule 8(d) between October 2004 and the commencement of the proceedings on 21 December 2004. He took no other steps to have the rule amended, varied or deleted. There was no reason why he did not take any steps other than this application to have the rule dealt with or considered, he said.
30 Mr Williams said in evidence that his complaint was that the rule singled out and identified a group of people and prevented them from standing for the election, a democratic process in the union. He made it clear in evidence that he had not nominated for office in the August 2004 election. He also said that the rule would not have affected his candidature had he nominated for office in August 2004. It could, he said, affect his candidature in the future if he became a “known communist”. He said that the rule smacks of “McCarthyism”. He would object, he said, if it identified anybody by political connection (for example, a Nazi). In this case, the words “known communist” cause him offence. He said that he is concerned, too, that persons would be branded communists or Nazis for example when they were not. What concerned him about the election, he said, was simply that there had been an election held and future elections would be held under this rule.
31 It is fair to say that elections have been held under this rule since 1952.
32 Mr Williams will have twelve months’ continuous membership by 23 February 2005 which would make him, after that date, eligible to stand for election for office in the SDEA. He was, however, he said, unaware of any imminent elections in the SDEA. He explained that he sought an order for a new election because it seemed to be the logical consequence of “creating” new rules for the SDEA.
33 If this application were successful, Mr Williams would then be eligible for candidature in a new election provided that he was a financial member, and was otherwise eligible in that he complied with sub rules 8(d), (l), (m) and (n); that is, if a fresh election were ordered in this matter by the Commission, constituted by the President. It was not suggested by anyone that he would be ineligible to nominate for the candidature for office at any future election.


ISSUES AND CONCLUSIONS
34 First, it is necessary to observe that, insofar as the rules require interpretation, the principles which I am bound to apply and have always applied are as follows:-
“Generally speaking the correct approach to the interpretation of a union rule is to interpret it in the same manner as any otherr (sic) document. It must be remembered however that union rules are not necessarily drafted by skilled draftsmen. It is therefore necessary I think in construing a union rule not to place too literal adherence to the strict technical meaning of words but to view the matter broadly in an endeavour to give it a meaning consistent with the intention of the draftsman of the rule.”

(See HSOA v Honourable Minister for Health (1981) 61 WAIG 616(IAC) at 618 per Brinsden J, with whom Smith J agreed; see also R v Aird; Ex parte AWU [1973] 129 CLR 654 at 659.)
35 It is, of course, necessary to and I interpret the sub rule, in the context of the whole of the rules and in the context of the whole of rule 8.
36 I have not been able to find a relevant judicial definition of the word “known”. However, its ordinary natural meaning derived from the Macquarie Dictionary (3rd edition) is given it by defining it as the past participle of “know”. “Know”, in its most apposite definition there supplied is:-
“6. to be cognisant or aware, as of some fact, circumstances, or occurrence; have information, as about something.”

37 I should preface these observations, too, by referring to definitions of “communism” and “communist” in the Macquarie Dictionary (3rd edition). I drew these definitions to the attention of the parties during the proceedings in order to give them an opportunity to comment on them.
38 The following definitions appear and I quote the most apposite definitions:-
“Communism 1. a theory or system of social organisation based on the holding of all property in common, actual ownership being ascribed to the community as a whole or to the state. 2. a system of social organisation in which all economic activity is conducted by a totalitarian state dominated by a single and self-perpetuating political party. 3. →communalism.”

39 In turn, “communalism” is defined to mean:-
“a theory or system of government according to which each commune is virtually an independent state, and the nation merely a federation of such states.”

40 A “communist” is defined to be:-
“1. an advocate of communism. 2. (often cap) a person who belongs to a communist party. 3. (a term of abuse applied to one who is relatively less conservative than the speaker). - adjective - 4. relating to communists or communism.”

41 “Communist Party” means:-
“a political party professing the principles of communism.”

42 There was a discussion of communists and communism by the High Court in the Communist Party Dissolution Bill case – The Australian Communist Party and Others v The Commonwealth and Others (HC) (op cit). Discussions of what a “communist” is appear in the judgment of some of the judges, for the purposes of deciding the validity of the Communist Party Dissolution Bill (see pages 177-178 per Dixon J:-
“The required support may take the form of the advocacy or support by the body either of the objectives the policies the teachings or the practices of communism. The communism must be as expounded by Marx and Lenin. Theoretically there may be a difficulty in saying how the provision applies if the body subscribes to some but not to all of the objectives, policies, teachings or practices, but probably it has no practical importance.”

and at page 196-197, where His Honour says:-

“It is needless to enter into a discussion of the avowed principles of communism, whether in earlier stages of development or in their present state. In a political theory based upon the supposed irreconcilable antagonisms inherent in a capitalistic system, the inevitability of its decomposition, the necessity of a period of revolutionary transformation from a capitalist to a communist society, the struggle between bourgeoisie and proletariat, the dictatorship of the proletariat during a longer or shorter period of further evolution, the progressive extension of the revolutionary process over the earth and the need to assist and expedite its spread not merely that its supposed benefits may be more widely enjoyed but for the protection of existing systems of communism from counter action and the revolutionary process of development from delay and temporary defeat; in such a political theory there are beliefs calculated to produce action and the interpretation which a parliamentary government places upon events domestic and foreign will be affected by the complexion it gives to the tenets and precepts of the adherents of the philosophy. That complexion need not be the same as the adherents themselves would claim for their doctrines. A harsher or more sinister interpretation may be placed upon some of the sentiments than communists themselves may say is correct. But that is beside the point. The significance of such things must be judged by the Government in the light of all the circumstances of which it is informed.

If it is unnecessary to discuss the principles of communism, it is even less necessary to examine notorious international events. The communist seizure of Czecho-Slovakia, the Brussels Pact of Western Union, the blockade of Berlin and the airlift, the Atlantic Pact, the passing of China into communist control, the events in reference to the problem of Formosa, the entry of the North Korean forces into South Korea and the consequent course of action adopted by the United Nations, and the sustained diplomatic conflict between communist powers and the Anglo-American countries and other western powers at meetings of the Security Council and the General Assembly are all too recent. So far as the internal affairs of this country enter into the question whether events had extended the operation of the defence power, it is enough to refer to the serious dislocations of industry that have occurred – a matter the significance of which it would be within the province of the Government to judge, availing itself of its sources of information.”

43 At page 208, McTiernan J said this:-
“The Communist Party is the name of a world-wide movement which is organized as a political party in many countries and is the major and dominant party in the Union of Socialist Soviet Republics; the Australian Communist Party, like the communist parties in other countries, is a political party formed in accordance with Lenin's conception of a world-wide political movement which would strive to establish a proletarian dictatorship and to impose Marxism everywhere; and by reason of these circumstances the Australian Communist Party manifests strong sympathy with the foreign and domestic policy of the government of the Union of Socialist Soviet Republics. It follows that if war occurred in which that State was the enemy or there was imminent danger of such a war, the Commonwealth could take preventive measures against communists and communist bodies just as it could against alien enemies resident in this country. But I cannot agree with the view that at the time this Act was passed there was a situation which provided a constitutional foundation for this Act.”


44 One ordinary natural meaning applicable to “communist” in sub rule 8(d) is without doubt a person who is an advocate of and/or who belongs to a communist party which espouses the second abovementioned definition of communism, namely a system of social organisation in which all economic activities are conducted by a totalitarian state dominated by a single and self-perpetuating political party.
45 Such a philosophy, if translated to the SDEA, by a communist, so defined, would mean that the democratic government of the organisation, an object of the Act, was something in which that person did not believe. However, a communist can also be a person who espouses a theory or system of social organisation based on the holding of all property in common, actual ownership being ascribed to the community as a whole or to the State. If that person or party does not espouse violent revolution or subversion to achieve such an aim, then he or she is a very different person from a communist, as defined, in definition 2 above. He or she would not hold views incompatible with the welfare of the other members of the organisation or of the organisation as a democratic institution. The same can be said about a communist who is a “communalist”, as defined.
46 There is some doubt, and indeed some uncertainty about what a communist is in sub rule 8(d). People have assumed, and there was some assumption in these proceedings, that communist means plainly and only “one who believes in or seeks to achieve by violence (or subversion) a system of social organisation in which all economic activity is conducted by a totalitarian state dominated by a single and self-perpetuating political party”. It seemed accepted, to some extent, but not entirely, that sub rule 8(d) had its genesis in the Cold War and the only communists subject to its prohibition were Marxist/Leninist communists, as defined in the dictionary definition 2 (supra). However, I did not understand that that definition was alone accepted by the applicant. There was also insufficient extrinsic evidence to resolve any ambiguity, if ambiguity exists in sub rule 8(d).
47 I would therefore look to the definitions referred to above and construe “communist” as being a person who espouses any of the three forms of communism referred to in the definition above.
48 It is certainly, as in all s66 matters, for the applicant to establish its case, that is to establish that the rule should be disallowed for the reasons alleged (see Doyle v AWU (1986) 68 ALR 591 (FCFC) at 599). The standard of proof cast upon the applicant for establishing his case is according to the balance of probabilities.
49 The first matter to observe is that the principles to be applied in matters such as this were laid down in Doyle v AWU (FC) (op cit) and other cases considered and applied by this Commission, constituted by the President in Veenstra v WALEDFCU 77 WAIG 3202.
50 It is a primary principle that organisations, as defined, choose their own rules and that the rules are evidence of a contract between members (see Doyle v AWU (FC) (op cit) at page 599).
51 It is trite to observe that the mere imposition of a condition or restriction on the right to nominate is not, ipso facto, tyrannical or oppressive or otherwise exceptionable within the meaning of s66 of the Act. Indeed, restrictions on rights to nominate candidates do not of themselves vitiate a direct voting system (see Municipal Officers’ Association of Australia v Lancaster and Another (1981) 37 ALR 559 (FCFC) and Lovell v FLAIEU [1978] 35 FLR 72).
52 Neither the right to be a member of an organisation nor the right to vote carries with it the right to stand for election (Doyle v AWU (FC) (op cit) at pages 595-596; Leveridge v SDAEA (1977) 31 FLR 385 and Lovell v FLAIEU (op cit).
53 A union is entitled to give its own weight to policy matters in deciding upon its rules and it is not for a court to substitute its views for those of the union (see Doyle v AWU (FC) (op cit) at page 600 and Wiseman v PREIU (1978) 20 ALR 545 (FCFC) at 561).
54 A rule is not liable to be struck down merely because it is thought to be unwise (see Rule v AWU (1985) 70 ALR 754 per Wilcox J) or undesirable (see Municipal Officers’ Association of Australia v Lancaster and Another (FCFC) (op cit) at 589).
55 The matter for decision by the Commission is not “what would, in the view of the court, constitute the most desirable provisions to be contained in the rules of the organisation”. The matter is whether the Commission, constituted by the President, is persuaded that the conditions, obligations or restrictions imposed by the actual rules of the organisation upon applications for membership or members are “oppressive, unreasonable or unjust, within the meaning of those words”, or, for the purposes of the Act, s66(2)(a), “tyrannical or oppressive” (see Municipal Officers’ Association of Australia v Lancaster and Another (FCFC) (op cit) generally and the cases cited therein). I would add that, as Deane J said in Municipal Officers’ Association of Australia v Lancaster and Another (FCFC) (op cit) at 589, quoting various authorities including Wiseman v PREIU (FCFC) (op cit) at 561:-
“The constraints and restrictions imposed, by positive and negative requirement of the Act and Regulations, upon the freedom of the members of an organisation to select, for themselves, the rules which they consider appropriate for their particular organisation, are real and significant. It cannot, however, be too strongly stressed that, subject to those constraints and restrictions, the content of the rules of a registered organisation is primarily a matter for the members …
This court has no authority generally to supervise the content of the rules or to require that the rules comply with what those constituting the court might see as preferable, desirable or ideal. To put the matter differently, it is for the members, or those entrusted by the members in that regard, to decide the content of the rules. The function of this court is to determine, in accordance with ordinary judicial procedure, whether some provision or provisions of the rules adopted by, or on behalf of, the members can properly be described not merely as undesirable but as oppressive, unreasonable or unjust.”

56 I respectfully adopt that point of view for the purposes of the application of s66 of the Act.
57 It was submitted to the Commission in this case that these were all cases where the applicant was not alleging actual or identifiable oppressions.

Is the Rule Tyrannical or Oppressive?
58 The federal test for many years has been whether a rule is “oppressive, unreasonable or unjust”. In Cameron v AWU [1959] 2 FLR 45, the Commonwealth Industrial Court held that it is doubtful whether the words “oppressive” and “unjust” have any independent significance.
59 The equivalent in the Act is s66(2)(a)(ii), which empowers the President to and confers on him the jurisdiction to disallow any rule for a number of reasons and, in particular, if it is “tyrannical or oppressive”. Those were the words used in the old federal legislation and particularly under the Conciliation and Arbitration Act 1904 (Cth).
60 The Commission in this matter is exercising a judicial power and is not at liberty to substitute its modes of thought for those of an organisation (see Wiseman v PREIU (op cit)). Further, the Commission does not look merely to the object of the Act to determine whether the rule specifically is contrary to one or more of the objects of the Act. It is necessary for the Commission to have regard to all of the circumstances in the light of those objects and the purposes of registration (see Cameron v AWU (op cit) at pages 50-51 and Wiseman v PREIU (op cit) and also Cassidy v APWU [1967] 11 FLR 124). However, the Commission can look to the objects of the Act. (Unlike the Federal Court, it is not required to have regard to the objects by statute.) That, in this matter, cannot refer to all of s6(f) which is, to some extent, absorbed by s66(2)(a)(v) and which would therefore require to be pleaded as a ground of the application.
61 However, s6(e) and the underlined part of s6(f) hereunder, of the Act are of assistance and read as follows:-
“(e) to encourage the formation of representative organisations of employers and employees and their registration under this Act and to discourage, so far as practicable, overlapping of eligibility for membership of such organisations;

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

62 The words “tyrannical or oppressive” appeared in the Conciliation and Arbitration Act 1904, but that did not define or sufficiently define the words “tyrannical or oppressive”.
63 I do not think “tyrannical or oppressive” are words which should be separated any more than should, for example, the words “harsh, oppressive or unfair” in s29 of the Act. Those two words are used objectively in the subsection and each of them is to be given its strong ordinary meaning.
64 In my opinion, too, the word “or” in the phrase “tyrannical or oppressive” is conjunctive, not disjunctive. The words “tyrannical” and “oppressive” are, to a great degree, synonymous. They are also almost synonymous with the words used in the federal Act, but not quite. “Oppressive”, in its most relevant sense, is defined to mean (see the Macquarie Dictionary (3rd edition)):-
“1. burdensome, unjustly harsh or tyrannical, as a king, taxes, measures etc.”

Perhaps most helpful is Deane J’s definition of “oppressive” in Municipal Officers’ Association of Australia v Lancaster and Another (FCFC) (op cit), where, at page 589, His Honour said:-
“To be oppressive, a condition, obligation or restriction must be burdensome, harsh and wrongful. (see, for example, Scottish Co-operative Wholesale Society v Meyer (1959) AC 324 at 342; Re Jermyn St Turkish Baths Ltd [1971] 3 All ER 184 at 199; and Allen v Townsend (1977) 16 ALR 301 at 337).”

“Tyrannical” means:-
“arbitrary or despotic; despotically cruel or harsh; severely oppressive.”
(See the Macquarie Dictionary (3rd edition).)

“Plainly, their meanings overlap and definition is liable to adulterate the strength which the words possess”

(See per Deane J in Municipal Officers’ Association of Australia v Lancaster and Another (FCFC) (op cit) at pages 589-590.)

65 The rule by which a union or organisation of employees determines who may run for office is not, on its face, tyrannical or oppressive. Such provisions are common, it was submitted, and in fact they are. However, none of the examples cited in cases dealt with a person’s political convictions as a qualification for, or disqualification from, standing for office in an organisation.
66 These cases deal with things like the minimum years of membership which must be served before a person is qualified to stand for office, or good character and repute (see McKay v AWU (1968) 12 FLR 182 at 186) and other similar qualifications, all different from this disqualification here or even the qualifying requirement that one not be a know communist, which is the reverse of sub rule 8(d).
67 Thus, it was submitted that the limitation on candidacy imposed by sub rule 8(d) is a proper limitation and the mere fact that the limitation operates to exclude persons who espouse a set of beliefs is not a sufficient ground for a finding that the rule is either tyrannical or oppressive.
68 Of course, Mr Williams’ submission was that the rule was tyrannical or oppressive because members who hold a particular set of political beliefs are disqualified from being nominated for office and therefore from holding office.
69 The SDEA’s answer to that was that communism, as defined and as generally understood, is well known to be antithetical to the principles of democracy and trade unionism. They were referring to the communism of Marx and Lenin. My attention in that context was drawn by Mr Rogers of Counsel for the SDEA to the suppression of trade unions in Eastern Europe and China under communism, the absence of any free electoral systems in such regimes, and the limitations on free speech in the communist regimes. To that may be added the existence of the gulags, the absence of independent courts and the free press, the apparatus as in Nazi Germany and other states of totalitarianism. One should also add that French and Italian communism, by contrast, form parties which engage themselves in the democratic government of those countries.
70 It was therefore submitted that, if Mr Williams wished to rely on this ground, that he must establish that the nature of communism is not such as to allow for the retention of the rule. The rule does not obviously prevent membership by persons who are “known communists”. It does not prevent membership obviously by persons who are not “known communists”’ but who are communists.
71 It is a rule, I observe, which is obviously designed to prevent communists being engaged in, or becoming the government of, the SDEA as an organisation of employees and thus exercising control of it.
72 In my opinion, it is, on the evidence, tyrannical or oppressive to prevent a person who is a communist and who is a member of the SDEA being eligible to be nominated for office, given that he or she is entitled to become a member. There is a further safeguard in that that person still has to be elected to office. There is a distinguishing factor from Nazism or from a person who believes in a terrorist ideology, in that there are various shades of communism and the Cold War which involved conflict between Western countries and totalitarian communist countries has ended.
73 In a democracy such as this, one must be careful that persons do not suffer disadvantage because they hold political beliefs which are different from the mainstream. S66 of the Act can be used in that respect. Certainly aggressive Marxist/Leninist communism, as defined, is totalitarian, undemocratic and inimical to the objects of the Act, particularly s6(f). However, that is only one type of communism.
74 In any event, sub rules 8(m) and (n) prevent any person being eligible for office in the SDEA or holding or continuing to hold office when such a person is a member of bodies or is a person who advocates or encourages the overthrow by violence of the Commonwealth or a State of Australia or any other civilised country or of organised government. The same prohibition applies to any person who himself advocates or encourages such overthrow by force of any such government.
75 That, of course, prevents a person who espouses revolutionary communism personally and/or by belonging to such a communist party from nominating for election to any office in the SDEA. Those are rules which are not attacked in these proceedings and I do not think that they could be successfully challenged under the Act. Sub rule 8(d) bars a person from nomination who is a communist who does not espouse the overthrow of lawful governments by violence, as much as it does a communist who does do so.
76 The rule is “tyrannical or oppressive” and has been established to be so because it is, on those words, tyrannical or oppressive, which on the authorities, overlap and, as defined, arbitrary or oppressive, burdensome and harsh, tyrannical, harsh and wrongful. It has been so established by the applicant, in all of the circumstances of the case, because:-
(a) Persons who are communists are, whilst permitted to be members on the one hand, are prohibited on the other hand from participating fully and freely in the SDEA and its government by seeking office or by holding office.
(b) Their fellow members, by such a rule, are prevented from voting for a person who is a communist.
(c) Given the ending of the Cold War and the real threat posed to Australia and other countries by it, and the fact that most former Marxist/Leninist communist countries now do not espouse Marxist/Leninist communism, or are not threats because of it, proponents of that philosophy are not capable of doing such harm by subversion or violence as they once were capable of doing. However, the real vice is that persons who do not believe in achieving a communist system by violence or by the overthrow of governments in this country or other democratic governments by subversion or violence are excluded from being elected by their fellow members to office, although they are eligible for membership.
(d) That the sub rule is wrong because it is tyrannical and oppressive, and it is tyrannical and oppressive because it singles out persons not singled out for exclusion from membership because of their political beliefs, when their political beliefs, however different, might be consonant nonetheless with their duties as citizens in a democratic society.
(e) Sub rule 8(d), on a fair reading, prohibits all communists in any event, including those as defined above, who do not espouse and/or advocate the creation of a totalitarian communist state by violence, subversion or at all, from holding office in the organisation or seeking office. (Two of the definitions of communism above are examples of that.)
(f) Persons who advocate violence themselves or as members of parties for the overthrow of governments in Australia and elsewhere, are correctly and unequivocally prohibited from nominating for election to office or holding office within the SDEA by other sub rules of rule 8, as I have explained above.
(g) An unwarranted penalty in the circumstances of the 21st century is imposed on persons for their political beliefs in a democracy.
(h) Further, the sub rule fails to encourage and indeed actually prevents the full participation by members of an organisation in the affairs of an organisation, namely the SDEA.
I would add that a rule or sub rule which prevented a person from membership and/or from holding office because he or she was a communist or a person advocating, by him or herself and/or through membership of any political group or party, that governments in this country should be overthrown by violence or subversion or that democratic governments in other countries should be overthrown by violence or subversion, would not be a rule which could properly be adjudged to be tyrannical or oppressive.
Imposition of Unreasonable Conditions Upon the Membership of A Member
77 In relation to the allegation that sub rule 8(d) imposes unreasonable conditions upon the membership, to be unreasonable the conditions must be harsh and immoderate (see in Municipal Officers’ Association of Australia v Lancaster and Another (FCFC) (op cit) per Deane J at page 589).
78 The sub rule imposes no condition at all on membership of the organisation, qua member, but it imposes a harsh and immoderate condition upon its members by excluding persons from the right to hold office when they would otherwise have been able to stand for office, merely because of their political beliefs, without identifying the sort of political beliefs and/or advocated actions, which might properly require their exclusion from office. It imposes a disqualification on a member standing for office who is a “known communist”. For that reason, the ground is made out.

S54 of the Equal Opportunity Act – Alleged Contravention
79 It was submitted by Mr Williams that sub rule 8(d) was contrary to law and, in fact, contrary to s54 of the EO Act. That subsection, s54(1), reads as follows:-
“54. Discrimination against applicants and employees
(1) It is unlawful for an employer to discriminate against a person on the ground of the person’s religious or political conviction —
(a) in the arrangements made for the purpose of determining who should be offered employment;
(b) in determining who should be offered employment; or
(c) in the terms or conditions on which employment is offered.”

80 The rule does not have anything to do with employment, as referred to in s54(1), or at all. What the rule does is deal with the nomination of persons to stand for offices if they are “known communists”. “Office” and “officer”, respectively, are defined in s7 of the Act as follows:-
““office” in relation to an organisation means — 
(a) the office of a member of the committee of management of the organisation;
(b) the office of president, vice president, secretary, assistant secretary, or other executive office by whatever name called of the organisation;
(c) the office of a person holding, whether as trustee or otherwise, property of the organisation, or property in which the organisation has any beneficial interest;
(d) an office within the organisation for the filling of which an election is conducted within the organisation; and
(e) any other office, all or any of the functions of which are declared by the Full Bench pursuant to section 68 to be those of an office in the organisation,
but does not include the office of any person who is an employee of the organisation and who does not have a vote on the committee of management of the organisation;

“officer” means a person who carries out, or whose duty is or includes the carrying out of, the whole or part of the functions of an office in an organisation;”

This rule has no effect upon and has nothing to do with employees. It deals with “officers”, as defined in the Act, and how they are elected to office. That ground fails.
81 In that context, I would add that the admitted failure to elect organisers when the rules provide that they are officers might mean that their appointments are void because they have not been elected (see sub rule 8(h) and sub rule 9(b)), such appointments may themselves be a breach of the rules. However, that is not a matter for me to determine in these proceedings and I make no final judgment about it.

THE EQUAL OPPORTUNITY ACT 1984
82 The more relevant sections are contained in s53(1) and (2) of the EO Act, which read as follows:-
53. Discrimination on ground of religious or political conviction
(1) For the purposes of this Act, a person (in this subsection referred to as the “discriminator”) discriminates against another person (in this subsection referred to as the “aggrieved person”) on the ground of religious or political conviction if, on the ground of — 
(a) the religious or political conviction of the aggrieved person;
(b) a characteristic that appertains generally to persons of the religious or political conviction of the aggrieved person; or
(c) a characteristic that is generally imputed to persons of the religious or political conviction of the aggrieved person,
the discriminator treats the aggrieved person less favourably than in the same circumstances or in circumstances that are not materially different, the discriminator treats or would treat a person of a different religious or political conviction.
(2) For the purposes of this Act, a person (in this subsection referred to as the “discriminator”) discriminates against another person (in this subsection referred to as the “aggrieved person”) on the ground of religious or political conviction if the discriminator requires the aggrieved person to comply with a requirement or condition — 
(a) with which a substantially higher proportion of persons who are of a different religious or political conviction comply or are able to comply;
(b) which is not reasonable having regard to the circumstances of the case; and
(c) with which the aggrieved person does not or is not able to comply.”

83 In this case, the SDEA is discriminating against a “known communist” because the SDEA requires such a person to comply with the requirement which a substantially higher proportion of persons of different political conviction are able to comply with. There is also a breach of s53(1) of the EO Act, potentially, for similar reasons.
84 However, sub rule 8(d) is not contrary to law, in this case the EO Act, because there must be a proven discrimination against a person. There is no evidence of that in this case occurring or having ever occurred. Mr Williams does not and did not aver or give evidence that he is a communist of any description or that he is or will be discriminated against. He did mention that he had some fear but it is not certain why that was. There is no, or no sufficient evidence, that the rule is operating in breach of the EO Act. It is correct, as was submitted on behalf of the SDEA, that the EO Act operates only where actual discrimination is proven. It contains no power in anybody to strike down a rule such as is sought here. There has certainly been no actual discrimination proven, and no contravention of the EO Act therefore proven.

EXERCISE OF POWER
85 Next, it was submitted that, even if the case for the applicant were otherwise established, then the application should not be acceded to. This, it was submitted, was because the application “appears” not to be bona fide.
86 This, it was also submitted, it was open to find on the facts because Mr Williams is not a communist or alleged communist, because he is unaware of any person who has been adversely affected by the rule, that none has been affected by it since 1970 at least, that he was ineligible to stand for office at the last elections, that he took no steps to canvass the SDEA’s opinion before bringing this application and that he commenced proceedings without any warning to the SDEA.
87 I should also add that s110 of the Act, subject to the exercise of jurisdiction under s66, requires matters of dispute to be decided in accordance with the rules of the organisation concerned where there is a dispute between a member and the organisation. The Act was not complied with in that respect. However, given the fact that there is no evidence that the matter would have been dealt with in accordance with the rules, I do not regard that as of any weight as a relevant factor in these proceedings. In particular, there was no suggestion that the matter should be adjourned to be dealt with in accordance with the rules by either side. I therefore infer that the SDEA’s position is and was not negotiable, even if the matter were dealt with in accordance with the rules. Thus, I see no reason for my dealing with this matter.
88 It is not of consequence either, or of significance, that Mr Williams seeks to strike down the results of the election held in August 2004. As he put it, it just seemed to follow logically on from what he sought as his primary remedy.
89 None of these matters, on Mr Williams’ evidence, were evidence of lack of bona fides.
90 There was some reference by Mr Rogers to other cases where rules disqualified persons from holding or nominating for or being elected to office within organisations on various grounds and those rules were disallowed. That, he submitted, was only in circumstances where the facts, as I understood the claim, supported the conclusion in the sense that there was an actual instance proving the oppressive or other exceptionable nature of the rule.
91 However, I do not read Municipal Officers’ Association of Australia v Lancaster and Another (FCFC) (op cit) as being an example of that, nor do I see it to be a requirement that there be an actual incident or set of facts proven relating to the rule before one can determine that the provisions of s66(2)(a) of the Act can be enlivened and jurisdiction exercised.
92 I have regard to all of the circumstances of the matter, including the Act, s6(e), which encourages the formation of representative organisations controlled by their members and the full participation of members in an organisation’s affairs (see s6(e) and (f) which I have quoted above). I have regard clearly to the right of members to decide what rules govern their organisation, subject to the Act, and the law generally.
“A basic principle of democratic control is that if a person has the right to vote in elections, then subject to special provisions which may apply to a collegiate system and to sectional representation, has the right to nominate as a candidate for office for which he is entitled to vote. Democracy has not been reduced to the stage where the right to nominate for election to an office can be made conditional upon the candidate satisfying standards of eligibility, fitness or experience let alone dependent upon a period of inactive membership of the electorate. Of necessity, democracy permits the electorate to elect to office persons who may not be the most suited to perform duties of that office.”
(See Municipal Officers’ Association of Australia v Lancaster and Another (FCFC) (op cit) at 573.)
93 I am persuaded that being a known communist, without further disqualifying prescription on other grounds as I have explained this above is, of itself, in this democracy at this time not a disqualifying factor which can exist as a rule of an organisation consonant with the Act, in the terms in which sub rule 8(d) currently exists.
94 It is therefore, in the interests of the members and the organisation (s26(1)(c) of the Act) that I disallow the sub rule, it having been established that the sub rule is tyrannical or oppressive, according to the power of the words of s66(2). The sub rule is also contrary to the objects of the Act and should be disallowed for that reason, in all of the circumstances. Further, the equity, good conscience and substantial merits of the case require that I make an order, for the reasons which I have expressed above.
95 I will hear the parties on the question of whether I should make an order to disallow the sub rule under s66(2)(a) of the Act or direct the SDEA to alter the rule within a specified time.
96 For all of those reasons, I find the application proven and will make orders disallowing the rule. I will issue a minute of proposed order accordingly.