Case: Re Wall; Re inquiry relating to an election for an office in the Ansett Pilots Association [2000] FCA 1568 (2000) 102 IR 379
Outcome: cited
There are difficulties about both views. That of Keely J leads to difficult problems of definition, and possibly greater likelihood of litigation. The views expressed in the Hickson cases appear to take little or no account of the provision in s 143(5) of Sch 1 to the WR Act, which excludes from the reference in s 143(1)(c) to a nomination being defective the situation in which the nomination is defective "because the person is not qualified to hold the office to which the nomination relates". In addition, Hickson concerned a nomination that was manifestly defective, in that one of the nominators turned out to be not capable of being a nominator, by reason of being unfinancial. Such a defect is manifestly capable of correction, either by the payment of arrears of dues, or by the substitution of another financial member. Interestingly, although Goldberg J in Re Wall; Re inquiry relating to an election for an office in the Ansett Pilots Association [2000] FCA 1568 (2000) 102 IR 379 at [19] [29], said that he agreed with the view of Wilcox J in Hickson , and that nothing justified drawing a distinction between a defective nomination and one that is fundamentally flawed, his Honour stated his conclusion in terms that the relevant nomination was to be considered as defective and capable of being remedied, rather than being a nullity. In the circumstances of the present case, I do not have to decide these issues and I prefer to express no concluded view about them. 30 As a result of reaching the conclusions I have expressed as to the validity of the last in time nominations, I made declarations identifying the various irregularities that have occurred in the elections. Those are true declarations of right, made in the exercise of the power granted to the Court by s 21(1) of the Federal Court of Australia Act 1976 (Cth), because they resolve a controversy between the parties about the validity of nominations, and lay down the basis on which the returning officers can act in the continued conduct of the elections. The irregularities are the acceptance of the nominations of: Mr Reid for State Secretary, Victoria; Mr Wisniewski for State Secretary, Victoria; Mr McMinimee for Assistant State Secretary (Metals and Engineering Members), Victoria; and Mr Campbell for Regional Secretary/Assistant State Secretary, Food and Confectionery Division, Victoria. 31 Section 206(5) of Sch 1 to the WR Act provides: 'The Court must not declare an election, or any step taken in relation to an election, to be void, or declare that a person was not elected, unless the Court is of the opinion that, having regard to the irregularity found, and any circumstances giving rise to a likelihood that similar irregularities may have happened or may happen, the result of the election may have been affected, or may be affected, by irregularities.' It is almost axiomatic that the continuance of an election in which a person not entitled to be a candidate is treated as a candidate, or a person entitled to be a candidate is not treated as a candidate, may affect the result of the election. It is unnecessary to look at the question whether circumstances exist that give rise to a likelihood that similar irregularities may have happened or may happen. The absence of the name of a proper candidate from the ballot papers, and the presence of the name of a candidate whose name should not be present on the ballot papers, have the potential to falsify the result of the election. The former prevents those voters who would have chosen to vote in favour of the absent but entitled candidate from exercising their right to vote. The latter is likely to cause some voters to throw away their votes on a candidate for whom they do not have a right to vote. If a sufficient number should do so, that candidate may be elected, and the result of the election would be thereby falsified. The only way to ensure that the result of the election is not affected is to ensure that only the names of candidates entitled to be nominated for particular offices, and the names of all candidates entitled to be nominated for particular offices, appear on the ballot papers in respect of those offices.