Case: Re Thomas and South Australian Branch of the Australian Workers' Union (unreported, Federal Court of Australia, Keely J, 11 June 1992)
Outcome: considered
The 'first in time' view is said to find some support in Re Thomas and South Australian Branch of the Australian Workers' Union (unreported, Federal Court of Australia, Keely J, 11 June 1992). The relevant rule of the organisation there in question was r 74(g). It provided that no member should be eligible to nominate for or hold at any one time more than one salaried office. There was also a provision that candidates, with the consent of their nominators, might withdraw their nominations for any positions. In the course of his reasons for judgment, Keely J said: 'I am not prepared to accept the applicant's submission that each of the nominations lodged (i.e. before any withdrawals) was necessarily contrary to r.74(g). However I accept that each of any multiple nominations was contrary to r.74(g) if those multiple nominations were either lodged by the candidate at the same time or lodged in such a way that the returning officer is unable to determine which one (if any) was lodged first; in each of those two sets of circumstances I accept that all of the nominations so lodged are contrary to r.74(g).' 13 His Honour then rejected the submission that a candidate could lodge as many nominations as he or she liked provided that sufficient of them were withdrawn to comply with the substantive part of r 74(g) by the time the returning officer considered the final nominations, after the period for nominations had closed. His Honour took the view that the submission flew in the face of the plain meaning of r 74(g), the purpose of which was to prevent multiple nominations. In his Honour's view, the provision of the rules of the organisation permitting candidates to withdraw their nominations was not intended to give a candidate who had lodged multiple nominations in breach of r 74(g) an opportunity to overcome the effect of the breach by withdrawing one or some. 14 In the paragraph I have quoted from Thomas , it is not clear that Keely J was of the view that, if it were possible for the returning officer to determine which of a candidate's nominations had been lodged first in time, then the first in time should prevail. All that his Honour said was that, only if nominations were lodged simultaneously, or it was impossible to determine which of them had been lodged first, could it be said that all were invalid. It is true that there is some attraction in the simplicity of the reasoning that it is only the existence of the nomination that is first in time that brings about any conflict between a rule such as r 5.5 and any nomination subsequently received by a returning officer. This reasoning suggests that the second nomination does not invalidate the first, but it is the presence of the first that causes the second to be invalid. It is not necessarily reasoning that is supported by authority. 18 It can be seen that the 'nothing valid' argument gains no real support from either Bogar judgment. Each did nothing more than state the effect of what is now r 5.5. No conclusion can be drawn that, in all circumstances, every nomination received for an office to which r 5.5 applies will be invalid. The contention, put by counsel for the Union, that the Union has organised its affairs on the basis of this interpretation, which has become settled, cannot be accepted. It is an unattractive contention, because rules of organisations ought to be construed in favour of eligibility to stand for election, if that be possible. This approach is consonant with all of the learning relating to the participation by members in the conduct of the affairs of an organisation, and the democratic control of organisations, both ends to which the legislation aspires in its terms. There is no particular reason why every one of multiple nominations should be treated as invalid, in circumstances in which it is possible to identify one that would be the cause of the others being in contravention of r 5.5. If anything, at least where the order in which nominations have been lodged can be determined, the 'nothing valid' argument is inconsistent with the assumption that appears to have underlain what Keely J said in Thomas , and the result in the second Bogar case. 21 There is therefore no reason not to apply the principle of implied surrender and, to the extent necessary, its related principles about election between inconsistent rights, beyond the acquisition of another office, or of membership of another branch, to matters such as the lodging of nominations in circumstances where two or more nominations cannot stand alongside each other, because of the existence of a rule such as r 5.5. Indeed, such an extension could provide the key to the situation to which Keely J alluded in Thomas , namely that multiple nominations arrive at the same time, or in circumstances in which it is impossible for the returning officer to determine which arrived first. In such cases, the returning officer might require the candidate concerned to elect expressly as to which of the nominations he or she wished to retain. In cases such as the present, when it is possible to determine in which order the nominations were lodged, the law attaches to the lodging of a later nomination the consequence that the candidate concerned can no longer rely on the former. The later nomination is an implied withdrawal of the earlier nomination, not by way of implied intention to withdraw, but by way of imputed intention to withdraw. 23 Keely J in Thomas did not consider any of these issues. His Honour's reasoning is sparse, to the point where it is not even possible to assume that his Honour did adopt the 'first in time' option, from the fact that his Honour made reference to the problem of simultaneous receipt of nominations, or receipt of nominations in circumstances in which it is unclear in which order they have been received. In my view, if it had been necessary, his Honour might well have taken the view that the principle of implied surrender operated, so that the last nomination received would prevail, and that the problem of simultaneous nominations would be resolved by applying the doctrine of election between inconsistent rights. As I have said, the result in the second Bogar case is explicable on the basis that North J was dealing only with one of the two nominations, there was no evidence of the timing of the two nominations, and the case may simply have been one of the candidate's election between inconsistent rights. No authority stands in the way of the adoption of the 'last in time' view. The authorities to which I have referred about previous applications of the principle of implied surrender support the argument that it applies to a situation such as that of multiple nominations, when only one can be valid. I accept that argument. It remains to apply the principle to the facts of the case. 24 The adoption of the view that the last nomination received from each of the relevant candidates is taken to involve an implied withdrawal of all of the previous inconsistent nominations leads to the conclusion that the elections should proceed on the basis that: Mr Reid is a candidate for National Secretary, but not for State Secretary, Victoria; Mr Wisniewski is a candidate for Assistant State Secretary (Metals and Engineering Members), Victoria but not for any of the other three positions for which he was nominated; and Mr McMinimee is a candidate for Assistant National Secretary (Metals and Engineering Members) and not for Assistant State Secretary (Metals and Engineering Members), Victoria. But for one further factual matter, Mr Campbell would have to be treated as a candidate for National Secretary, but not for Regional Secretary/Assistant State Secretary, Food and Confectionary Division, Victoria. 25 On 22 February 2007, Mr Campbell sent by facsimile transmission a hand-written letter, dated 'Thursday 22 5.23 pm', addressed to Mr Pryor, and apparently received at 9.26 am on the following morning. The letter simply says: 'I wish to withdraw my nomination for the Position of NATIONAL SECRETARY of the A.M.W.U.' It is apparently signed by Mr Campbell. There is nothing unequivocal about it.