C2017/4332, Transcript of Proceedings [2017] FWCTrans 509 (6 December 2017)

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PN1

VICE PRESIDENT HATCHER: Yes. Can I take the appearances? Mr Dowling, you appear for the appellant?

PN2

MR C DOWLING: Yes. Good morning, Vice President and members of the Full Bench. I seek permission to appear on behalf of the appellant.

PN3

VICE PRESIDENT HATCHER: And Mr Rawson, you appear for the Registered Organisations Commission?

PN4

MR C RAWSON: Yes your Honour. I do. I seek leave under section 596 of the Fair Work Act to appear for the Registered Organisations Commissioner.

PN5

VICE PRESIDENT HATCHER: All right. Is there any opposition to either party being granted permission to be represented by lawyers?

PN6

MR DOWLING: No, your Honour.

PN7

MR RAWSON: No, your Honour.

PN8

VICE PRESIDENT HATCHER: All right. Well, I grant that permission. Mr Dowling.

PN9

MR DOWLING: Thank you very much, your Honour. I just confirm firstly the documents filed and relied upon by the appellant in this matter. The appellant filed an application on 7 August 2017. The members of the Full Bench might have noted that it was an application rather than a notice of appeal. Can I just clarify that on our reading of rule 56 it had not been amended to reflect the amendment to section 604.

PN10

Section 604 added the ability for the Full Bench to hear an appeal from the Registered Organisations Commissioner. Unfortunately as we read it, rule 56 didn't pick up the same amendment. That led us to rule 58 which enabled us to file an application, otherwise than a notice of appeal under rule 56 and that's why we took that course.

PN11

SO that, as we say, was filed on 7 August 2017. The appellant then filed an outline on 28 August 2017 and a statement to Mr John Payne, also of 28 August. I will come to the statement briefly. I have spoken to my learned friend about it. There is no opposition to the statement being tendered in the proceeding. We were in the rather unusual position of their not being any exhibits below, and therefore the normal correspondence that might be an exhibit and might come before the Full Bench that way when not in evidence below, because of the proceeding below. So we filed a statement of Mr Payne which largely picks up those - the relevant correspondence and applications filed below. That's the purpose for it, save some other matters which I will come to.

PN12

The other document filed on 28 August was the submissions on permission and I won't - given that permission has been granted, there is no need for me to refer to it. Lastly, there was a reply outline filed yesterday, 18 September. We appreciate there were no orders for reply, but we thought it prudent and in an effort to save time we set out our submissions in reply, particularly with respect to the question about the Commission's participation today. We thought it prudent to put the Commissioner on notice of that and outline our position to the Full Bench.

PN13

Can I just confirm that the Full Bench has each of those documents that I have referred to?

PN14

VICE PRESIDENT HATCHER: Yes, we do. I will mark the statement of John Payne dated 28 August 2017 as exhibit 1 in the appeal.

EXHIBIT #1 STATEMENT OF JOHN PAYNE DATED 28/08/2017

PN15

MR DOWLING: Thank you, your Honour. Now, can I just - there are, I think, three corrections with respect to the documents that I've just identified. The first - the appellant's outline filed 28 August, can I make a correction at paragraph 63 of that document?

PN16

The Bench will there see a reference to ResMed Ltd v AMWU, standing for the proposition that rules of a registered organisation should be given a sensible practical construction. There is a specific reference to a paragraph number 24. That is an error. It should be a reference to paragraph numbered 14.

PN17

VICE PRESIDENT HATCHER: Are you moving from that submission now?

PN18

MR DOWLING: No. I simply want to identify a correction for the reply submissions and then I will go back and start on that submission.

PN19

VICE PRESIDENT HATCHER: Well, I think there may be some other Errol is in it. Firstly, paragraph 40.

PN20

MR DOWLING: Yes.

PN21

VICE PRESIDENT HATCHER: It says "Paragraphs 43 to 45 above." That doesn't appear to be correct. I am just wondering whether it was meant to say 33 to 35, or 43 to 45 below, but it doesn't make sense as it stands.

PN22

MR DOWLING: No. It doesn't. That is an incorrect cross-reference. I think perhaps the best answer or the best place to find the paragraphs that deal with the proposition that's set out at paragraph 43 really are ground 1(b) which run from paragraph 56 to 67. I can't now say that that was intended that that be the cross-reference, but - - -

PN23

VICE PRESIDENT HATCHER: And in paragraph 28, that date at the outset. Is that correct? Should that say 2017?

PN24

MR DOWLING: It should.

PN25

VICE PRESIDENT HATCHER: Yes. All right.

PN26

MR DOWLING: Thank you very much, your Honour. There are just two corrections to the submissions in reply filed and served yesterday. The first appears at paragraph 25(b), the last paragraph of the submission. The very last line of that subparagraph refers to an extension sought on 14 May of 2017 . That should say "16 May of 2017", and the very last word on the same page should say "appellant" and not "defendant."

PN27

Can I start with just a brief background, so as to create the framework for the questions that are before the Full Bench. The background to the application or the notice of appeal concerns the decision and/or requirement for the appellant to elect 133 branch conference delegate positions. For background, can I explain to the Full Bench that the branch has a branch executive and a branch council, but it also have a branch conference that sits at least once a year with a large number of delegates.

PN28

VICE PRESIDENT HATCHER: Mr Dowling, are you going to provide us with a copy of the rules?

PN29

MR DOWLING: We have a copy of the rules. We have extracted in our submissions both the primary submissions and in one place there were submissions in reply of what we say are the salient rules. We don't think it is necessary to go beyond those salient rules. The rules themselves do run for some 273 pages, I think. So we were conscious of not providing copies of that, unless it was required or requested. We can certainly do so.

PN30

VICE PRESIDENT HATCHER: It is only if we had some queries about the rules, whether there was some convenient way we could refer you to them, but we might leave that to you. The issue I was going to raise immediately about the branch conference, and it may not matter at the end of the day, but I have some doubt in my mind whether delegates to the branch conference are officers of the union as defined, I think, in section 9 of the Registered Organisations Act.

PN31

MR DOWLING: We certainly formed the view that they are.

PN32

VICE PRESIDENT HATCHER: Because the only function I can identify is that they provide advice to the branch council executive about policy, but the definition seems to require some determinative power.

PN33

MR DOWLING: We think - and Mr Payne instructing me will confirm it, but we think rule 20 of the relevant branch rules provides a power for the conference to do certain things. It's rule 21 that provides when they shall meet or when the national branch council should determine they meet, but for our part, we had formed the view that the conference - rule 49 of the relevant part of the national rules, that forming the relevant branch rule provides that the branch conference will determine branch policy on any matter specific to members, which affects members in more than one branch industry division.

PN34

VICE PRESIDENT HATCHER: That's rule 49 of the national rules, is it?

PN35

MR DOWLING: Of the relevant branch rules.

PN36

VICE PRESIDENT HATCHER: The relevant branch rules.

PN37

MR DOWLING: Your Honour will appreciate the rules are divided into the national rules and each of the relevant branches, and that deals with the relevant branch we are dealing with. So it's 49(a). I hope that goes some way to - - -

PN38

VICE PRESIDENT HATCHER: Right. Thank you.

PN39

MR DOWLING: Thank you, your Honour. So as I was saying, the branch conference must sit at least once a year, but by rule 21 again of those branch rules, the branch council can determine that it sit more often. That is important for something we will say about the need to provide for democratic control in respect of replacing positions on the branch conference.

PN40

Relevantly, as I said, there were - the subject of the Commissioner's decision - 133 positions in respect of the branch conference and they fall into two groups. Those that were necessary to be elected as the result of casual vacancies, and by casual vacancies I mean they were caused by either the death, the resignation or removal or ceasing to hold office; one of those things. And it may be - again, just by way of background - if people cease to hold employment, they will cease to be eligible to be on the branch conference for that particular part of the conference.

PN41

So the casual vacancies group are those that are required to be elected as the result of those things; resignation, removal or ceasing to hold office or death, as in one case.

PN42

VICE PRESIDENT HATCHER: So that's the rule 42(a) of the national rules definition.

PN43

MR DOWLING: That's right.

PN44

VICE PRESIDENT HATCHER: So how many of those were there?

PN45

MR DOWLING: We will confirm the numbers for you during my submissions.

PN46

VICE PRESIDENT HATCHER: Were they vacancies that had arisen after the initial 12-month period of the term. Is that right?

PN47

MR DOWLING: They all fall into that category. The Bench will have seen there is some significance between - they are four-year terms and is significant - we understand the Commission disagrees with us, but as the result of rule 42, if they become vacant after the first 12 months, that is you are into the next three years - this is worded rather oddly, but the operation is this; if they become vacant after the first 12 months we say rule 42 operates so as to allow the organisation to appoint or elect. If, on the other hand, they become vacant in the first 12 months, there must be an election.

PN48

Now, getting back to your Honour's question, all of the casual vacancies became vacant after the first 12 months.

PN49

VICE PRESIDENT HATCHER: When it's an option to appoint or elect, election by whom? By the same constituency? It's not an election by the branch council executive?

PN50

MR DOWLING: No. By the same constituency.

PN51

VICE PRESIDENT HATCHER: Right.

PN52

MR DOWLING: Sorry - the answer to your Honour's question a moment ago, the number is 20.

PN53

VICE PRESIDENT HATCHER: 20.

PN54

MR DOWLING: Now, the second group of branch conference delegates that were the subject of the election and the subject of the decision are those that have become vacant as the result of insufficient nominations. And that's the balance, 113.

PN55

VICE PRESIDENT HATCHER: This is rule 43(a).

PN56

MR DOWLING: That's right.

PN57

VICE PRESIDENT HATCHER: Just so I understand this, when was the election conducted, which resulted in insufficient nominations and a need under rule 43(a) to conduct another election?

PN58

MR DOWLING: There were two. By that, I mean there was a first election - there was a first election that was declared on 15 May 2015.

PN59

VICE PRESIDENT HATCHER: That's the quadrennial election?

PN60

MR DOWLING: That's right. That filled some of the positions, but not all. There was then a second election held, which was declared on 8 August 2016. That filled some more of them, but again not all of them.

PN61

VICE PRESIDENT HATCHER: So this was a third attempt, was it?

PN62

MR DOWLING: Yes.

PN63

VICE PRESIDENT HATCHER: If puzzles me that - it slightly puzzles me, speaking for myself only, that rule 43 would be read as requiring repeated elections as distinct from just one second attempt. That is, the approach seemed to be taken that where you have insufficient nominations the rule doesn't require one further election to try to fill them, it requires you to keep on going. Is that right? That could have absurd consequences, couldn't it?

PN64

MR DOWLING: It could. That's as we can attend that it requires you to keep on going until you fill the positions. We are in a - I don't know if it is fair to say "unusual", but it might be an unusual position in that there is a very large number of delegates conference and perhaps if I can take an example, one of the regions where there are - the Metro North Hospital has 24 delegates on the branch conference and in the first quadrennial election from May of 2015, there were only three filled and 21 unfilled.

PN65

The second time around, there were then 21 to be filled and only five were filled the second time around. So there still remains 16 unfilled. Now, one might anticipate, given the two elections that had taken place that there might be some unfilled the third time around as well and that highlights the concern that your Honour raises.

PN66

VICE PRESIDENT HATCHER: Given you have referred to authorities which say you give rule a sensible and practical construction, is this still sort of descending into absurdity that you have to keep on doing it? There must come a point when you have exhausted any possibility that people will nominate for these position.

PN67

MR DOWLING: Yes. That must be right, if it's given a practical and sensible interpretation. We don't contend for the moment that you would stop at two, because there were still 16 unfilled. But if you've gone around a third time and you still have a number unfilled - - -

PN68

VICE PRESIDENT HATCHER: Well, I don't know how that work. I mean either - as a matter of interpretation, either you would read it as requiring repeated elections every time or you would read it as requiring one election. I don't know that there is some in between result where you'd give up. Anyway - - -

PN69

MR DOWLING: Yes. Well, certainly on its face, 43 would require a further election and we don't say, in the case of the example that I gave, 24 positions, three filled, you stop at that point. For our part, we accept you should attempt to fill.

PN70

There might be a question between us. I understand, from discussions with my learned friend, that in respect of this second category of people, the way they were dealt with by the Commissioner was to treat them as casual vacancies and apply the deadline in rule 33(b) and you will have seen, amongst the things we say, they are simply not casual vacancies. They are not casual vacancies as defined by rule 42, so that rule should not have been applied by the Commissioner.

PN71

Now, I understand it's accepted by the Commissioner that in respect of these vacancies as a result of insufficient nominations, rule 33 is not the appropriate rule and the Commissioner will contend that there is a continuing obligation to fill. The only matter that might be between us on that issue might be whose obligation that is. For our part, we say that obligation rests with the returning officer and that's the way rule 43 reads and the course that the Commissioner urges is that we should keep filing prescribed information each time there's some positions unfilled.

PN72

We say it's not correct that the Electoral Commission is seized of all of the relevant information and consistent with rule 43, the returning officer should conduct a further election to attempt to fill the vacancies that remain unfilled.

PN73

VICE PRESIDENT HATCHER: Again, on one view, those competing positions may illustrate the somewhat absurdity of having repeated elections at all.

PN74

MR DOWLING: but as I say, I raise that to try and define - given your Honour has raised this question, to try and narrow the issues between us. As I understand, it is accepted now by the Commissioner that rule 33 should not been applied. It is accepted between both of us that there was an obligation to conduct a further election. We say that's the returning officers' obligation or the Electoral Commission and they are seized of the relevant information. I'm not sure what it is the Commissioner says in that respect.

PN75

MR RAWSON: Commissioner, I might just clarify the scope of the concession that is made by the respondent. The respondent - the Commissioner concedes that on a proper construction or a proper analysis, the positions which were not filled at the quadrennial election and then not filled at the subsequent election do not meet the definition of a casual vacancy.

PN76

The Commissioner doesn't concede that that means that the rules do not operate further upon those positions. I will come to develop the Commissioner's submission about that in due course.

PN77

MR DOWLING: I think I got to this point - - -

PN78

VICE PRESIDENT HATCHER: I don't know what the concession means then, but anyway - - -

PN79

MR DOWLING: Yes. I will leave that for my learned friend. So I was describing the two groups that we're dealing with; the casual vacancies and those they can as a result of insufficient nominations. Next and relevantly, it's section 182 of the Fair Work Registered Organisations Act that provides that the Electoral Commission must conduct the election for officers in the Registered Organisation, and it is section 189 of that Act that provides the obligation to lodge the prescribe information with the Registered Organisations Commissioner.

PN80

VICE PRESIDENT HATCHER: Once the branch council decided to fill the first category of casual vacancies by an election, at that - by making that decision, the requirement to have the AEC conduct the election and to file the prescribed information then kicked in as it were. Is that right?

PN81

MR DOWLING: That's what we say.

PN82

VICE PRESIDENT HATCHER: Is this the fact that that decision wasn't made until 30 May 2017?

PN83

MR DOWLING: That's right. So we say despite what the Commissioner says, rule 42 enables us to make the choice. We made the choice by way of resolution on 30 May and on 1 June and 9 June filed the prescribed information. We couldn't do so earlier, because the decision had not been made.

PN84

VICE PRESIDENT HATCHER: So on the approach taken by the Commissioner, once you made the decision to have an election, it was already too late to file the prescribed information.

PN85

MR DOWLING: That's right. He says it's 29 April. The decision is not made until 30 May. For completeness, the Bench will find the relevant resolution of the branch executive in respect of the decision to conduct the election at exhibit JWP4 of exhibit 1, which is the statement of Mr John Payne.

PN86

VICE PRESIDENT HATCHER: Do we know the date when these positions became vacant? Is there a range of dates that we - - -

PN87

MR DOWLING: There's a range of dates. I can tell you on my instructions that the first one - we are dealing now with - I take it from your Honours question we're dealing with the casual vacancy group.

PN88

VICE PRESIDENT HATCHER: The first category.

PN89

MR DOWLING: Yes. On my instructions, the first became vacant on 2 June 2016 as the result of the resignation of a delegate and the latest was 16 May 2017 as the result of the resignation of a delegate.

PN90

So the 20 we're dealing with are a range of dates between those two dates. Obviously, that delegate that resigned on 16 May 2017 illustrates one of the points we make and that is that it couldn't possibly be that we are able to lodge the prescribed information for that casual vacancy by 29 April, because it didn't become vacant until 16 May 2017 and, as we understand it, the Commissioner would have us wait until the following year.

PN91

So I think I was at that point in the Act, section 189, that provides for the lodging of the prescribed information to the Commissioner and 189(2) provides that prescribed information must be lodged before the prescribed day. The Full Bench will find the relevant date for the prescribed information lodging at Regulation 138; that is the regulations made under the Fair Work Registered Organisations Act, the Fair Work Registered Organisations Regulations 2009.

PN92

Regulation 138(3) provides for section 189(2) of the Act, the prescribed day is the day occurring two months before the first day when a person may, under the rules of the organisational branch, become a candidate in an election. And the Commissioner form the view that the both of the categories of people we are talking about that that was 29 April.

PN93

I should make clear also that once the prescribed information is filed, whether within time or not, if the Commission is satisfied that an election is required, he must arrange for the Australian Electoral Commission to conduct the election. If he is satisfied that it is required, it doesn't matter whether it is late or not late. He must arrange for the election to be conducted.

PN94

So that takes me to the questions in the proceeding and the related questions, but the first and primary question in the proceeding is whether or what the required time to the filing described information was in respect of both categories of positions on the branch conference.

PN95

The related questions are whether the registered organisation had the ability to appoint rather than elect the casual positions on branch conference. As we understand it, the Commissioner says the answers for that is known, and we say rule 42 and section 146 of the Act make it clear that we can.

PN96

The second related question, where the positions are vacant from insufficient nominations, that is that a casual vacancy, and as identified earlier, it seems to be accepted now that that is not the case. The third related question, whether it was in the circumstances of the facts and circumstances before the Commissioner, it was appropriate to grant an extension if one was necessary, and the last question is whether it is proper for the Registered Organisations Commissioner to conclude as he did that there had been a breach of a civil remedy provision.

PN97

VICE PRESIDENT HATCHER: Just start with the basics; your client applied for an extension of time with respect to filing of prescribed information in a letter dated 16 May 2017.

PN98

MR DOWLING: That's correct.

PN99

VICE PRESIDENT HATCHER: But your position in this appeal now, as I understand it, is that no such extension was in fact required.

PN100

MR DOWLING: That's correct.

PN101

VICE PRESIDENT HATCHER: So what is the consequence of that in terms of the relief we grant in the appeal, if we are persuaded by your arguments?

PN102

MR DOWLING: Well, perhaps can I go back one step and explain? We understand the issue raise and that is we come before you saying no extension was necessary, but - - -

PN103

VICE PRESIDENT HATCHER: Well, we have - the decision on appeal is based on the premise that your client applied for an extension and then the delegate consider that application for an extension, apparently on the assumption that it was required without an analysis of whether it was in fact required.

PN104

MR DOWLING: Yes.

PN105

VICE PRESIDENT HATCHER: But you now say that decision was wrong because you never needed to make the application in the first place.

PN106

MR DOWLING: Yes. Well, we say two things. Firstly, in respect of - I think it was Mr Scott, the relevant official from my client, who made the request, can we put his request in context. Firstly, as seen from the material, this is the first quadrennial election in respect of this branch as a participant of the appellant.

PN107

You will see from the material from Mr Payne, they were a branch under the - registered by the Queensland Industrial Relations Commission and for the first time, prior to this quadrennial election, became part of the appellant. So Mr Scott who is making the inquiry is doing so in respect of the very first quadrennial election that he has conducted, as part of this organisation. He is not a lawyer and in our submission he is attempting to be democratic, and attempting to be diligent.

PN108

VICE PRESIDENT HATCHER: Well, the common wasn't meant as a criticism - - -

PN109

MR DOWLING: No.

PN110

VICE PRESIDENT HATCHER: It was just really directed at where we find ourselves now in terms of the relief that is sought.

PN111

MR DOWLING: Yes. I understand that, your Honour. I put that in terms of the context in which he made the request. On the other hand, of course, the Commissioner I think supports the submissions that he makes today by saying he has a particular expertise in the rules and the regulation of registered organisations.

PN112

And we say it was incumbent upon him to determine - not only to respond to our application, but to determine the proper operation of the rules in respect of take, for example, those offices that are vacant as a result of the insufficient nominations and to say, "It might be, Mr Scott, that you have sought an extension and you are relying on rule 33(b), but what you have presented me with are offices that are vacant as a result of insufficient nominations. It can't be that they are to be dealt with under rule 33(b) and in those circumstances an extension is not required."

PN113

So we say clearly that the Commissioner's role was not simply to respond to the application granted, but especially in circumstances where he comes along and professes expertise to deal with the rules of the organisation and make a proper determination as to whether not only whether it should be granted in response to their request, but whether one was necessary.

PN114

DEPUTY PRESIDENT COLEMAN: Your second ground of appeal, Mr Dowling, is that the delegate - that the Commissioner heard in refusing to allow a later date for lodgement of prescribed information, such refusal was in all the circumstances unjust and unreasonable. So are you omitting that ground of appeal effectively or - - -

PN115

MR DOWLING: Well, no. That's an alternative ground. So you will see that the way it is friend is to say if we are wrong in the submissions we make and if you are against us in the submissions we make, then we say it was an error or in refusing the extension and the extension should be granted. It's only put that way.

PN116

DEPUTY PRESIDENT COLEMAN: I see. It's an alternative to the first principal ground of appeal, which is that the delegate erred in concluding that the failure to lodge the prescribed information before the prescribed dates renders the organisation liable for a civil penalty.

PN117

And then you make a number of points under ground 1, the first of which is that he had no jurisdiction to make such a conclusion. So - and if that's right, there is no jurisdiction and it doesn't really matter what the conclusion was as to whether or not there was a breach of section 189 or not. Isn't that right?

PN118

MR DOWLING: Well, there are two separate issues in respect of ground 1. The first is - and it is a discrete one, Deputy President, and that is that he reached the conclusion about a contravention of section 189, when he doesn't have the jurisdiction to do that and didn't need to do that.

PN119

VICE PRESIDENT HATCHER: I thought - that was it your premise that he did need to do that? That is, make a conclusion in order to deal with the extension application that there has been a failure to lodge within the prescribed time?

PN120

MR DOWLING: Well, there is a distinction between needing to make a conclusion as to what has happened and reaching a conclusion that there has been a contravention of the civil remedy provision.

PN121

VICE PRESIDENT HATCHER: Well, it's not a judicial finding, obviously, but as an expression of an opinion about the state of affairs, it is basically the same thing, isn't it?

PN122

MR DOWLING: Not in our submission, no. In our submission, perhaps all he would need to do is conclude that it appears - reach a conclusion that they are late. That is not the same as reaching a conclusion that they have contravened a civil remedy provision.

PN123

So that's - sorry, in answer to, Deputy President, your question, there is a discrete question about whether he can say that; effectively whether he should have said that. Then there is a second group of grounds within ground 1, which suggest that he was wrong to find the date was 29 April and wrong to apply rule 33(b) in the way that he did.

PN124

And if the Commission is with us on that proposition, the Commission will find we say that 29 April was not the relevant date, because vacancies might arise from time to time throughout the year and we can't commit these people to having an election in June. So if we are right about that, the way the Commission will interpret the rules is to say 29 April isn't the relevant date. So the factual finding about being late is not right.

PN125

If you are against us on that proposition that I've just described, then we come to ground 2 in the alternative, which is to say if the Commission is satisfied that 29 April was the relevant date, then for these reasons we say the decision to refuse the extension was plainly unreasonable or unjust.

PN126

VICE PRESIDENT HATCHER: Under ground 1, was the error that he made a finding that it was late or that he failed to engage in an analysis as to whether it was late or not, and just assume that it was late. What is the nature of the error?

PN127

MR DOWLING: Well, I am not sure those two are mutually exclusive, your Honour. It's both. It was wrong factually to find that they were late, because if you construe the rules properly and sensibly, they are not late. So it was wrong to make that finding and it was wrong not to properly - it was wrong to improperly construe the rules, if you like. So by doing both of those things there was an error.

PN128

VICE PRESIDENT HATCHER: So if we upheld you on ground 1, the remedy would be to simply grant permission and quash the decision full stop. There would be no further action required, with there?

PN129

MR DOWLING: Yes. I should be clear, when you say "ground 1", we have got, of course, ground 1(a), 1(b) and 1(d).

PN130

VICE PRESIDENT HATCHER: But if the error is that there was no requirement to consider an extension because the prescribed information wasn't filed late, then presumably all that would be needed would be to quash the decision and do nothing more.

PN131

MR DOWLING: That's right. No need for an extension, because one is not required.

PN132

VICE PRESIDENT HATCHER: Thank you.

PN133

MR DOWLING: So I think I have identified - I'm sorry, I hope I've answered the question.

PN134

VICE PRESIDENT HATCHER: Yes, thank you.

PN135

MR DOWLING: So I've identified the relevant questions. Can I just at this point now that the framework is clearly established, do two things? That is (1) identify for the Full Bench the salient aspects that we draw from Mr Payne, and I can do that very quickly. There are only four of them and the first is that this was the first quadrennial election, but that doesn't seem to be in dispute between the parties. The Bench will find that at paragraph 14 of Mr Payne's statement, exhibit 1.

PN136

The second is that the appellant through its branchy secretary of the Queensland Together branch wrote on 16 May seeking and an extension and I have already referred to that. The Bench will find that at paragraph 15.

PN137

The third is that the branch executive resolved to conduct an election on 30 May, and that Bench will find that at paragraph 16 in exhibit JWP4. And the fourth is that when Mr Scott, the branch secretary of the Queensland Together branch lodged the prescribed information on 9 June he made - if I can describe it this way - a further application for an extension in that application itself and the Bench will find that that JWP5 and, as we understand it, there is a concession by the Commissioner that he did not consider the ground set out in that further application for an extension on 9 June.

PN138

So they are the - there's some - the first, I think, 13 paragraphs leading up to those four important paragraphs that I've just identified, perhaps we might be criticised for providing too much detail, but they just paint a picture of how it is this branch came within this appellant and how it is that it was the first quadrennial election. That's the purpose of those paragraphs, if the Bench is - - -

PN139

VICE PRESIDENT HATCHER: If the need to lodge prescribed information didn't arise until the branch executive made the decision to have an election on 30 May, that it probably follows doesn't it that the 16 May application for an extension was not competent or valid?

PN140

MR DOWLING: Well, all we can say about that is it is - clearly, from what we understand of the facts and from what my instructions are, Mr Scott contemplated such a resolution and, in contemplation of such a resolution, he sought an extension.

PN141

Indeed, one of the criticisms that the Commissioner made against my client was to say that when it ultimately sought the extension, if one was required, it did it after the deadline. We say two things about that in broad. Firstly, that of itself is not uncommon that you would apply for an extension after the deadline, but firstly, we have got the circumstance that your Honour pointed to, and that is we wrote before the resolution on the 30th, seeking the extension on 16 May.

PN142

But I accept what your Honour says. Can a valid extension be granted at that point when there hasn't been a decision as to whether it's an (indistinct) or an election? All we can say is, again, Mr Scott it appears as being prudent in contemplating such a resolution.

PN143

Can I, before I then separately deal with the rules and the grounds, just interpolate on one last matter, and I don't need to go very far beyond the written submissions that we have made, and that is the appropriateness of the participation of the Commissioner today. We have set out what we say in our written submissions and there are really only four points.

PN144

The first concern that we raise, whilst it might be right, the Commissioner as we understand it relies on the Australian Broadcasting Tribunal and Hardiman, as we do, but relies on it to say, well, if there is no power of remission there is no risk that we will be hearing and determining the same matter, and therefore Hardiman doesn't apply.

PN145

For our part, we say the principle is broader than that and applies generally to the risk of impartiality and that is why we raise it, but can we say firstly that the Commissioner is in the rather unusual position, being he is the only Commissioner, of course, and as we understand it, Mr Enwright is his only delegate, so it is our strong anticipation that this appellant will come back before this delegate in respect of an election and in respect of the application of the same rule or rules. And for that reason we say we have a concern about the impartiality or at least the appearance, can I emphasise, of the impartiality when the Commission is here today urging a particular view about rules that he is then going to have to consider in respect of the same parties.

PN146

The second issue we raise is I said apparently there doesn't appear to be the ability to remit and as we read section 607, that's right. It may be an error. Section 604 was amended to add in the Registered Organisations Commissioner or add in the ability of the Full Bench to consider an appeal from the Registered Organisations Commissioner. Section 607(1) was amended, but section 607(3) which deals with the relief powers wasn't - - -

PN147

VICE PRESIDENT HATCHER: Well, there never was, was there, a power to remit to the general manager of the Commission when she had the function?

PN148

MR DOWLING: No, that - - -

PN149

VICE PRESIDENT HATCHER: I assume that's why it wasn't further amended when, of course, it never existed in the first place.

PN150

MR DOWLING: Yes. Now, whether - we can't say and on my readings there is no explanation to it, but given the separate statutory nature of the body now, a remission power would not be so out of place as it would have been when it was the general manager, but nevertheless, section 603 wasn't amended.

PN151

The second issue we point to, of course, was if there - we accept there might be varying likelihoods of this, but if the Full Bench was to determine that an extension was necessary, but do nothing other than quash the decision, then undoubtedly the same application would have to be made by the appellant again before the same delegate in respect of the same did decision, even though it would not technically be a remittal. That as we say, of course, is in the event that the Bench was to quash and do nothing further.

PN152

The third matter we raise is the Commissioner comes here and says, "Well, I want to put submissions about the particular interpretation of rules." We say that is the very issue that we are concerned creates at least the appearance of impartiality and for our part we can't see how the Commissioner's particular view should be something that should override that appearance of impartiality.

PN153

Fourthly, we anticipate that understandably the Bench might say, "Well, if you are right about all of that, there is effectively no contradicta. Of course, the matter proceeded ex parte below and, for our part, we don't see any reason why it couldn't proceed ex parte. We would responsibly, of course, take you through each of the rules and each of the arguments for and against the proposition we put, but we can say nothing more about that.

PN154

The only and last submission we make about the participation of the Registered Organisations Commissioner is that if it is the case that the Commission - the Full Bench determined is it is appropriate that he be heard, that consistent with Hardiman his submission should be limited to his powers and procedures, rather than what he says about the interpretation of the rules for the reasons we described. But we understand, of course, that he is here and his representative is here, but we think it is prudent to outline the risks of the appearance of impartiality that we have identified.

PN155

VICE PRESIDENT HATCHER: Well, I mean, as he say he is here. I mean, let's assume for the sake of argument we accepted what you say. We couldn't, on that basis, simply refuse to hear him, could we? You might express a view about it as to the appropriateness, but it is not a case where we can just say we're not going to hear it.

PN156

MR DOWLING: Well, that might depend on - well, if your Honour's question is directed at you should hear from him on the interpretation of the rules, we would say that is something that you shouldn't ask for his view on. If it is about his powers, procedures and functions and what he should and shouldn't do next, we say it would be appropriate, if you are against us on the first four matters, for you to put to him how it is you would propose to conduct the election or carry out your powers from this point. That would be an appropriate question. I don't propose to say anything further unless there are any other questions on that issue.

PN157

Now, my notes at this point are urging me to identify for you the relevant parts of rule 33, 42 (indistinct) 33(b) and 43, but I think given the discussion we have already had, it appears that the Bench is clear on the operation of those rules. But can I just identify the most convenient place for the Bench to find those rules amongst our submissions

PN158

In our primary submission, by that I mean our outline filed 28 August, rule 33 is set out at paragraph 47. And rule 42 or the relevant parts of it are set out at paragraph 48, and rule 43, that dealing with the obligation to continue where there's insufficient nominations is set out at paragraph 49 of our primary submission is at least the relevant parts of it.

PN159

Can I just say one thing about - - -

PN160

VICE PRESIDENT HATCHER: So just apart from the rule 4(z) which you have quoted in paragraph 50, is there any rule which sort of establishes a hierarchy of rules as between the national and branch laws?

PN161

MR DOWLING: There is. I think it is rule 10. In fact 10(e) of the National Rules, which I will read for the purpose of the transcript provides:

PN162

Branch rules shall, with the exception of rule 56, be consistent with the National Rules and shall be void and have no effect to the extent of any inconsistency. Branch rules may provide for procedures to be followed to amend branch rules, provided that such amendments are not inconsistent with the rules of the union and such amendments are submitted to and approved by the National Executive.

PN163

So that's 10(e). I don't know that it will assist, but on my copy it appears on page 47 of 274 pages.

PN164

DEPUTY PRESIDENT COLEMAN: Can I just ask a question, and this is perhaps not a matter of great significance, but just to help me understand the effect of rule 42. I am just looking at paragraph 48 of your submission where you set out rule 42, and I am looking at rule 42(b) where is says,

PN165

Where a casual vacancy occurs and the unexpired portion of the term of office is more than 12 months or three-quarters of the term, whichever is the greater -

PN166

is that - if we look up to the top of that page, where you have extracted - I am just lining that up with section 146(2) - - -

PN167

MR DOWLING: Yes.

PN168

DEPUTY PRESIDENT COLEMAN: - - - which says that:

PN169

Rules must not permit a casual vacancy -

PN170

Et cetera,

PN171

For so much of the unexpired part of the term as exceeds 12 months or three-quarters of the term, whichever is the greater.

PN172

So I am just wondering there if section 146(2) is not contemplating - so "the period that exceeds 12 months or so much as may remain of the last quarter", it seems to me to be how that reads and then if you look down to rule 42(b), that talks about 12 months or three-quarters of the term.

PN173

Is there something that I am missing there? Have I - - -

PN174

MR DOWLING: It is, we accept, a very awkward language, but our submission is 146 and 42 are consistent and I found it easier if I reversed to the operation and considered it this way, and that is if the person has - if the person who resigns resigns in the first 12 months, then there must be an election and if the person who resigns resigns after the first 12 months, then we can appoint or elect and that, despite the difference in language, we say is what both 146 and 42 says.

PN175

Can we say there is a reason for that. It is the balance between democratic control and practicality exactly, and that is so that if you are into the - after the first 12 months - if you are after the first 12 months, then practically you are able to appoint. Can I - - -

PN176

VICE PRESIDENT HATCHER: Just on that point, it's actually 12 months or after, isn't it?

PN177

MR DOWLING: Yes. We did go all the way back to 1983 when this provision was first inserted in what was then the Conciliation and Arbitration Act and it was inserted in section 183(b) and consistent with the confusion we're talking about, they got it wrong in 1983 and they had to amend it again in 1984 to get it the right way around. So that is why, in our submissions, we say this section has existed from 1984, but I was drawn to the House of Representatives debate, Member Willis - Mr Ralph Willis, as some will remember, said at the time,

PN178

The government believed that the change achieved an acceptable balance between the need to prevent undue inconvenience and cost for organisations and the need to maintain principles of democratic control by members and also that it prevented the possibility of abuse and manipulation of the electoral system.

PN179

Now, I think that last part is referring to if you can appoint at any stage and you are knocking people out a couple of months in, and then you are appointing your candidate, that's open to abuse. Sorry, that was a very long way of answering, Deputy President, your question.

PN180

So despite the language, we read 42 and 146 as consistent and we read it as requiring election if it is within the first 12 months or not requiring an election but allowing appointment 12 months or thereafter.

PN181

Can I say whilst we're dealing with the rules - address what is the obvious difficulty for us or the obvious problem for us and that is rule 33(b), because 33(b) says:

PN182

Nominations for casual vacancies for branch conference will be called in June each year when quadrennial elections are not scheduled.

PN183

And our friend, understandably, points to that and says, "There you go. It says 'will be called in June each year when quadrennial elections are not scheduled.'"

PN184

Now, one thing that the Commissioner doesn't do, consistent with 33(a) is go to rule 42. Their submissions completely ignore rule 42 and the ability for us to appoint, and rule 10, the prevalence of the National Rules, but we still have to address 33(b), and we say this about 33(b): it may be that it was intended to be a gathering up for all in the sense that if there is a whole lot of vacancies, let's gather them all up and hear them and have the election in June, or it may be a reminder, if you haven't filled them, June is the time you should do so.

PN185

But the most significant part, in our submission, is what it cannot be. And what it cannot be - and this is the position urged by the Commissioner - it cannot fetter the ability to hold an election other than in June of each year. For our part, we say it is a bad rule, 33(b). It just doesn't sit with rule 42, because - and we give an example - if there is an quadrennial election in 2015, come 1 July of 2016 someone dies in office, very unfortunately, the Commission would have us - the Commissioner would have us wait until June 2017 to fill it, and that can't be a sensible interpretation of rule 33(b). It can't be that the position is required under the rules to be vacant for a year or close to a year.

PN186

That is why we urge a sensible interpretation of 33 read with 42 to say that you can conduct an election for a casual vacancy at any time and the relevant date is the date - in terms of our relevant group of employees the relevant date becomes the date you make the decision to appoint or elect and once you make - - -

PN187

VICE PRESIDENT HATCHER: Nominations as a concept has no relevance to an appointment purpose.

PN188

MR DOWLING: No.

PN189

VICE PRESIDENT HATCHER: So could it work this way, that 33(b) applies where a decision is made to have an election by the council or the executive but that it's open to avoid its operation and to avoid the way you're talking about by using the appointment power in lieu. That is, the decision to appoint to elect might be influenced by the timing of the vacancy vis‑�‑vis 33(b).

PN190

MR DOWLING: Well, that would have problems as well because let's say the position becomes vacant 12 months and seven days, that would allow us to appoint but there shouldn't be - and let's say that position becomes vacant in my example in July - there shouldn't be a disincentive for the organisation to say "Oh well, let's appoint because if we decide to conduct an election we're already late". The organisation in our submission should be able to say "Well, we think in the circumstances democratic control is best served by us having an election so we want to have one in September or August". So in that circumstance 33(b) would still create a problem, and we wouldn't want it - - -

PN191

VICE PRESIDENT HATCHER: But your approach leaves it with no work to do. That is, treats it as if it's not there.

PN192

MR DOWLING: It just comes back to the two things I said, what it may have been intended to do. It may have been intended to gather up and it may have been intended as a reminder. But what it can't do is fetter elections for casual vacancies at any other time, and if we are forced to the conclusion that it shouldn't be there and (indistinct), that's the position we adopt because it just can't sensibly be read consistent with rule 42, in our submission.

PN193

VICE PRESIDENT HATCHER: All right, unless you say it's rule under rule 10e was it? I don't know how we just treat it as - ignore it.

PN194

MR DOWLING: Yes. Yes, well it might be said that 42 has to prevail in the circumstances because they can't sensibly be read together, and therefore 42 should operate and should operate without a fetter for the elections provided by 42, being June of each year.

PN195

VICE PRESIDENT HATCHER: I mean so when are the quadrennial elections? May are they, or?

PN196

MR DOWLING: Certainly they were declared in May, but they open in March and end up being declared in May.

PN197

VICE PRESIDENT HATCHER: I mean given that there's a requirement to only hold one conference a year and presumably given that it would be in the second half of the year of the elections and only declared in May or whatever, why wouldn't it be perfectly sensible in that context? That is, if this was a body that met weekly or monthly you could understand your point about democratic control. But if it's only meeting yearly then you only have to have one filling up process for casual vacancies a year anyway.

PN198

MR DOWLING: Some caution needs to be exercised there because the rules provide that it shall meet at least once a year and rule 21 provides that the national council can order or resolve that it meet more often than that, and indeed given what we've seen under rule 49 of their ability to decide branch policy we'd have to say that you shouldn't proceed on the basis that it will only meet once a year. You should proceed on the basis that through the branch council it may meet more often and may decide branch policy more often than once a year, and then we're stuck. When I say stuck, then we're forced back to the need for democratic control.

PN199

VICE PRESIDENT HATCHER: Right.

PN200

MR DOWLING: I'm instructed and I will before the end of my submissions try and direct you to the appropriate rule, but I am instructed that because of a transitional rule that applies, remembering that this branch formerly a Queensland registered organisation is now a branch of the appellant because of the transitional rule that applies, the branch conference meets three times a year. But I'll endeavour to direct you to the rule that provides for that, but as I say even without that the rules provide that it can meet more than once a year.

PN201

I have probably canvassed most of what I wanted to say about each of the grounds in the conversations and discussions we've been having, but can I for completeness just go back and deal with each one briefly and separately. Firstly dealing with 1A, now the rule I just mentioned, I'll do it while it's being kindly provided to me. I think I naively said at the start of the day that there was perhaps three rules that we were going to direct your attention to, and the number keeps growing the longer I stand.

PN202

But the relevant together branch rules, that part of the rules that are the together branch rules, provides at rule 55 which is the rule dealing with the rules of debate, 55B, you'll see those rules go from a through to z and then start again with capital A, and at capital B - well, I need to correct something I said. I think the rules start at 55A and then they have a second 55A and they go from there all the way through to Z, just to complicate things. Then they start again at capital A and it's capital - sorry, not capital A, double aa and then bb provides that:

PN203

During the financial years 2015/2016, 2016/2017 and 2017/2018 the branch conference will meet three times each financial year.

PN204

VICE PRESIDENT HATCHER: That's found in the rules of debate, is it?

PN205

MR DOWLING: Yes. Yes, sorry, there appears to be an error in the rules. It does appear under the heading "Rules of debate" but I said there were two small subparagraphs a. It appears rule 55 "Rules of debate" should say nothing more than:

PN206

The branch executive will approve rules of debate of the branch which will be consistent with the national rules.

PN207

And then another small a appears and that starts:

PN208

The purpose of this rule is to provide for structural and representational changes of the central and southern Queensland clerical -

PN209

et cetera, et cetera. It appears there should have been a second heading there and the rule that we are dealing with should in fact be rule 57. It's the last of the rules in this section 56.

PN210

VICE PRESIDENT HATCHER: All right, I understand that.

PN211

Mr Dowling, in relation to regulation 138(3).

PN212

MR DOWLING: Yes.

PN213

VICE PRESIDENT HATCHER: If rule 33(b) does not identify for the purpose of the regulation what the day in which the person first became a candidate in an election, then what rule does provide that identification such that 138 could sensibly operate on the rules?

PN214

MR DOWLING: I think the short answer for the two groups of people that we are dealing with, the casual vacancies and - - -

PN215

VICE PRESIDENT HATCHER: We'll just start with the first group.

PN216

MR DOWLING: There isn't one. In respect of casuals there isn't a rule that provides when a person will become a candidate in an election to fill a casual vacancy on my instructions.

PN217

VICE PRESIDENT HATCHER: I mean then how could the requirement to file a prescribed information ever be complied with absent the existence of such a rule? Well, that's firstly and secondly, doesn't that proposition give greater weight to the fact that we do have to pay attention to 33(b)?

PN218

MR DOWLING: The sensible operation that we urge is that regulation 138 contemplates a two month period and the interpretation that we urge is that that period should run from the date a decision is made as to whether there will be an election to fill a casual vacancy.

PN219

VICE PRESIDENT HATCHER: Right, so the two months - so if the decision is made on 30 May when was the first date the person could become a candidate?

PN220

MR DOWLING: That day.

PN221

VICE PRESIDENT HATCHER: That doesn't work for you because you've got to file two months before that date.

PN222

MR DOWLING: Yes, yes. Yes, it can't work. I mean we accept it's a problem.

PN223

VICE PRESIDENT HATCHER: Is there a requirement in the Act that the rules contain such a requirement?

PN224

MR DOWLING: No, your Honour.

PN225

VICE PRESIDENT HATCHER: Because the regulation is premised upon the fact that such a requirement exists.

PN226

MR DOWLING: It is. It is. I think the difficulty that's created of course is the casual vacancy and the very nature of a casual vacancy.

PN227

VICE PRESIDENT HATCHER: All right.

PN228

MR DOWLING: I think in our examination of the rules of other organisations - just excuse me for one moment. We've not in our searches found rules of other organisations that have the equivalent of 33(b). Which is some had nothing to that effect, some had something with a consistent theme, but we've not seen anything that has a requirement for a specific date in respect of a casual election. Now I should be cautious in that submission. I'm not going to contend that such a rule doesn't exist elsewhere amongst all of the registered organisations but it's certainly, in our submission, not the norm for the very reason and for the very difficulty that we're confronted with.

PN229

Now I wanted to very briefly deal with each of the separate grounds only insofar as they haven't been exhausted already. Can I just very briefly deal with the separate and discrete, if I can call it that, ground 1(a) which is the finding by the Registered Organisations Commissioner of a contravention. It's paragraph 7 of the decision that we direct the Bench's attention to, where it is that the delegate says:

PN230

The failure to lodge the prescribed information before the prescribed date therefore renders the organisation liable for a civil penalty provision under section 189(2).

PN231

And it's in support of that finding that the Commissioner says today that that statement expresses a view that a breach of the civil penalty provision has occurred, and for our part we say it wasn't necessary for the Commissioner to find that a breach of the civil remedy provision had occurred and it's not something that he had jurisdiction to conclude. And we come back to the discussion that I had with your Honour the Vice President about reaching a conclusion that the material might have been filed late versus reaching the conclusion that there was a contravention of the civil remedy provision, and that's what it is erroneously that we say the Registered Organisations Commissioner did at paragraph 7. Unless there are any questions about that ground that's all I propose to say on it, save for relying on the written submissions.

PN232

1b - and we've canvassed a lot of this territory - but 1b is our group of casual vacancies all of whom have served more than 12 months, therefore under rule 42 we are provided with the ability to appoint or elect. The two relevant propositions are firstly, we have that choice by virtue of rule 42. The Commissioner disagrees with that proposition. Secondly, once choosing an election you must construe 33 and 42 to enable us or perhaps put, as I did before, not so as to fetter the ability of the organisation to conduct the election at a time other than June.

PN233

VICE PRESIDENT HATCHER: Section 143(1)(d)(i) requires the rules of an organisation:

PN234

to make provision for the manner in which persons may become candidates for election.

PN235

And then it can presumably encompass the time at which they would need to nominate to become a candidate. So your submission is if we ignore the second limb of rule 33 there is no rule that complies with that requirement for casual vacancies?

PN236

MR DOWLING: Firstly dealing with the question in two parts and dealing with all positions save for the casual vacancies, there's no doubt that the rules provide consistent with that section for the calling of - for the creating of candidates. The difficulty that is created is imposing a process for candidates in respect of casual vacancies and our submission is that 33(b) just does not successfully achieve that purpose. When read sensibly and when read so as to balance the need for democratic control, consistent with the very purpose of the Fair Work Registered Organisations Act to provide for democratic control, it does not achieve that purpose and that is its fault.

PN237

VICE PRESIDENT HATCHER: But it's not the task to apply some policy's perspective to the rules. I mean at the end of the day provided that the rules provide with the minimum requirements of the Act it's up to the union to work out what rules apply. There's no basis for us to ignore them or read them down because from a policy perspective they may be undesirable. That's what the union has decided to have as its rule.

PN238

MR DOWLING: But the circumstance we're presented with is the conflict between rule 42 and rule 33. For completeness it's rule 40 of the national rules that provides for the nomination of candidates broadly and 32 in respect of the branch rules. But that's the dilemma we have and that's the dilemma that faced the Commissioner, reading 33 together with 42. We are not and we don't seek to pick a rule in isolation and come before the Full Bench and say "Well, this one's bad. Can we do away with it?" But as a result of the very circumstance that was before the Registered Organisations Commissioner, he had to reconcile 42 and 33. So what we proffer is a sensible and practical way to interpret the rules so as to deal with that inconsistency.

PN239

VICE PRESIDENT HATCHER: In relation to rule 43c, this is the second category.

PN240

MR DOWLING: Yes.

PN241

VICE PRESIDENT HATCHER: Do I take it that you would say that the requirement for the returning officer to immediately conduct an election once you have insufficient nominations for the first election can't sit with rule 33?

PN242

MR DOWLING: That's right, but of course we're now dealing with the second category of people when we are dealing with 43c, and we say of course those people are not casuals as defined by 33 or read with 42. These people did not - the positions did not become vacant as the result of resignation, death.

PN243

VICE PRESIDENT HATCHER: So what is the significance of the use of the words "as though a casual vacancy existed"?

PN244

MR DOWLING: I think on most - - -

PN245

VICE PRESIDENT HATCHER: Because if it says pursuant to rule 42 then you get stuck in the conundrum that this requires a returning officer to immediately conduct an election, but rule 42 says after the first 12 months you can do it by appointment. How do they sit together?

PN246

MR DOWLING: They don't sit together comfortably, because of course 42 is dealing with circumstances where someone might have been in the office for a particular period of time. So when we're talking about vacancies as the result of insufficient nominations, then 42 is not going to do any work.

PN247

VICE PRESIDENT HATCHER: Well, it says "pursuant to rule 42". I mean what weight do you give those words? None?

PN248

MR DOWLING: What we say is they can't do any work for vacancies that arise as the result of insufficient nominations. Now we should emphasise that - and it has been said before that the rules have to be given a sensible and practical approach. But can we also emphasise his Honour Katzmann J went a bit further in one of the cases that we rely upon, and that's the Australian Workers Union v Leighton Contractors, which has prompted me to provide to the Bench the five cases that we rely on, and this is the first of them. I don't need to take you to it other than to - and this sort of arises from your Honour's questions about some of the difficulties with some of the language used. But his Honour Katzmann J with whom his Honour McKerracher J agreed, set out the often quoted phrase from Kucks v CSR which deals with interpreting awards, where it said that:

PN249

The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading.

PN250

And her Honour then emphasised:

PN251

And meanings which avoid inconvenience or injustice may reasonably be strained for.

PN252

Now her Honour then went on to say "Well look, I know that's an often used phrase in respect of interpreting awards, but for my part" - and his Honour McKerracher J agreed - "I think it should be applied to union rules as well". So we just emphasise that necessarily of course there are going to be infelicities and difficulties with the way these rules fit together. We can't avoid that of course, but what we have to do ultimately is try and avoid inconvenience or injustice, and perhaps more pointedly in respect of registered organisations rules for registered organisations is avoid anything that might result in an undemocratic functioning.

PN253

That's what we are endeavouring to do. We are somewhat surprised that the Commissioner would urge an interpretation that is less democratic in fact, that would require positions to sit vacant. What we're trying to urge is to provide that casual vacancies can be filled and insufficient nomination vacancies can be filled. We accept 43 can't sensibly sit with 42 in the context of that second group of people, and we accept that 33(b) can't sensibly sit with 42 in respect of the first category of people.

PN254

Just moving from 1b to 1d in this category that we're dealing with now in answer to your Honour's question about rule 43, the submission is really threefold and that is rule 43 requires the immediate conducting of a further election. Secondly, rule 33 does not apply and if you're against us on those two, that even if rule 33 does apply, that 29 April is not the relevant date, and I think we've dealt with the second too. Just to be clear on the first, the duty created by 43c is upon the returning officer we say to conduct a further election.

PN255

We accept the practical difficulty that your Honour identified at the outset, which is at what point does it stop. But for our part we still urge the interpretation that is consistent with 43c and that is the conducting of further elections to fill those positions that had arisen as the result of the insufficient nominations.

PN256

VICE PRESIDENT HATCHER: C is read in the context of 43. Rule 43a is referring to the quadrennial election isn't it? So when 43c talks about:

PN257

an election conducted in accordance with these rules

PN258

Isn't it talking about the quadrennial election, so that if the quadrennial fails to give sufficient nominations a further election must be conducted, that is one election and that's the end of it. Otherwise you're building this internal circularity where the election conducted under 43c is itself an election conducted under these rules which simply goes on forever.

PN259

MR DOWLING: Yes. Yes, of course this second group of vacancies are vacant as the result of the quadrennial but there has been the second election and if you're - - -

PN260

VICE PRESIDENT HATCHER: You've had your further election.

PN261

MR DOWLING: That's right. If your Honour is right, it stops there. And we accept that is open because, just to be clear and to give the Bench the dates, the first quadrennial or the quadrennial election in respect of these second category of people, the insufficient nomination people, was declared on 15 May 2015 and then the further election that was held with respect to them was declared on 8 August 2016.

PN262

Now we accept what your Honour says and that may well be right, that the further or a further election has been conducted and that is the end of that process, and if that's right, Mr Scott was being overly diligent or overly cautious and filing prescribed information with respect to the still remaining vacant positions and the Commissioner was wrong to say they were late and was wrong to say there was a need to do so.

PN263

VICE PRESIDENT HATCHER: But the Commissioner never identified a need to conduct this further election absent Mr Scott's letter.

PN264

MR DOWLING: That's correct. Now unless there are any questions in respect of those grounds 1(a), (b) and (d) there's nothing I say further. There's a missing (c), I should just explain. (c) was describing to the Full Bench how it was you might deal with those positions that had become vacant in the first 12 months, but there are relevantly none of those so we say we don't need to add any difficulty to the difficulties you already face. We don't need to worry about what it was we previously had at 1(c).

PN265

So that only leaves the second ground which is if you are against us in respect of there not being a need to seek an extension of time, those reasons and matters we point to to say the refusal to grant the extension was unreasonable or plainly unjust in the circumstances, and I can do this relatively succinctly. If I can direct the Bench's attention to paragraph 78 of the primary submissions, the one dated 28 August. There we set out those first factors we rely on. To give context to the task that was being undertaken by Mr Scott that it was - in respect of this quadrennial election he had lodged prescribed information in respect of 403 officers.

PN266

It was the first quadrennial election, as Mr Payne has set out in his statement. After the first election for the 403 officers there was a further election for 177 and then the next time there was those 133 branch officers, branch delegate positions - sorry, branch conference positions where the prescribed information was filed on 1st and 9th June. We point to all of that to say this is not a recalcitrant applicant insofar as sitting on their hands and doing nothing. Clearly there had been an extensive amount of work done and a diligent process followed. So we point to that firstly for that reason.

PN267

Secondly, the issue that we've already identified, and that is the decision to conduct the election in respect to our first group of persons was not made till 30 May 2017, and you'll see the resolution at JWP4, and immediately following that on 1st and 9th June the prescribed information was filed. The next matter that we point to is - and again, reference has already been made to it - the correspondence of 16 May in anticipation of the resolution, the correspondence that's sent seeking the extension and Mr Scott raising the potential for overlap and confusion.

PN268

It appeared to us that he was criticised for that, and he should not have been criticised, in our submission. It was a prudent thing for him to raise. Then nextly he seeks an extension again on 9 June, this time explaining that it is likely that there will be consequential vacancies as a result of the collegiate election, and saying it would be prudent to wait for that to lodge, "and that's the second reason I want an extension". It's accepted by the Commissioner that that ground was not addressed at all.

PN269

VICE PRESIDENT HATCHER: So can you just clarify what this other election was?

PN270

MR DOWLING: Perhaps I'll start by identifying, in answer to that, what it is that Mr Scott says. He says:

PN271

There was a collegiate election underway in Queensland Together branch to fill vacant positions.

PN272

Since it was likely that there would be consequential vacancies as a result of that election, we wanted that election completed before commencing the process to fill branch conference positions so that the PI could be lodged for consequential vacancies at the same time. The collegiate election, and he gives the numbers, was declared on 30 May of 2017 and you will see these other positions, and there are three of them and they are referred to in the decision of the delegate. He lists all 133 branch conference delegates and then at the very end there are three branch council delegates. So they are the other positions to which Mr Scott was referring when he said:

PN273

That will be declared on the 30th of May so I'll add those to the prescribed information.

PN274

VICE PRESIDENT HATCHER: They were casual vacancies in a proper sense or not? Or were they insufficient nomination elections?

PN275

MR DOWLING: They're insufficient nominations I'm instructed, your Honour - sorry, my apologies. I am instructed they were casual vacancies arising on the branch council.

PN276

VICE PRESIDENT HATCHER: And why it was anticipated there would be consequential elections?

PN277

MR DOWLING: I think - I am being instructed on my feet but I see it's consistent with what Mr Scott said. I think because of the way the electoral college worked and their collegiate election that he has referred to at 2014 279 and 2017 37. Yes, there's a couple of issues that arise. Certainly you can't hold two offices as I understand it. The council comes together to - no, I withdraw that. I'll confirm why that is so by reference to the conference rule I think. So I'll have that clarified whilst I deal with the last of the matters on this ground.

PN278

Save clarifying that issue, that's the fourth of the matters that we raise in support of the extension. It's raised, it's not addressed, it's in some part borne out and it provides a basis for an extension if the Commission is to find one is necessary. The last thing that we raise, and this is addressed at paragraph 25 of our reply submissions, the last thing that we raise in respect of this ground is what it is that the Commissioner describes as the strong weight, using his word, given to the fact that the extension of time was not made until after the 29 April 2017 deadline.

PN279

And we say three things about that. Firstly - and I touched on these earlier - it is commonly the case that an extension of time will be sought after the time has relevantly expired. It shouldn't be if it is intended by the Commissioner, that that be somehow a disentitling factor. That shouldn't be so. No doubt the Commission's experience in respect of unfair dismissal extensions, they are all sought of course after the relevant deadline has expired. So we say that firstly. Secondly, we say it does not - that conclusion ignores what I've already said about the 30 May decision and the 16 May application in respect of the adjournment.

PN280

Lastly, it ignores the decision on 30 May and the lodging of prescribed information immediately thereafter on 1st and 9th June. So for those reasons we say the strong weight given to that factor was unreasonable or unjust, or plainly unjust in the circumstances. Now if I can just return I think - would you just excuse me one moment? I'm sorry.

PN281

The position is this, as I am instructed. The branch conference which is provided for by rule 20 of the relevant branch rules provides that it will be comprised of delegates representing industry subdivisions and delegates representing members residing in regional zones as determined by the branch council. So it is for the branch council to determine some of the constitution of the branch conference, and therefore as I understand Mr Scott's request he's saying "Let us elect the branch council first" and once we elect the branch council then we can consistent with rule 20 identify the branch conference.

PN282

Now I'm not sure how eloquently that's done or whether in fact I have truly represented what it was that Mr Scott was seeking to raise, but we're certainly left in this position. There is an overlap. He raises it as a reason for the adjournment, a reason for the extension, and it's not addressed. We have set out some written submissions dealing with public interest and permission to appeal. Unless there are any questions on that issue I'm content to rely on the written submissions.

PN283

VICE PRESIDENT HATCHER: I think the Commissioner conceded that the 9 June ground for the extension wasn't taken into account in the decision.

PN284

MR DOWLING: Yes.

PN285

VICE PRESIDENT HATCHER: If we found that constituted an appealable error such that it justified quashing the decision, we're then back to the point where you say you don't seek an extension any more because you say one is not required, and that's the end of the matter isn't it?

PN286

MR DOWLING: Yes, but that - - -

PN287

VICE PRESIDENT HATCHER: If the Commissioner wants to take proceedings in the Federal Court that you didn't comply with the prescribed information requirement he can, but for the purposes of this case does it require us to go any further than that?

PN288

MR DOWLING: We had certainly - - -

PN289

VICE PRESIDENT HATCHER: I mean we can't make a binding conclusion as to whether an extension was required or not.

PN290

MR DOWLING: No. Well, you could make a determination that the refusal of the extension was plainly unjust and unreasonable in all of the circumstances and say an extension was justified in the - and substitute your own decision to say an extension of time was justified in all of those circumstances.

PN291

VICE PRESIDENT HATCHER: But we'd have to form the opinion contrary to your primary ground that an extension was required.

PN292

DEPUTY PRESIDENT COLMAN: That is your primary ground, isn't it?

PN293

MR DOWLING: That's correct.

PN294

DEPUTY PRESIDENT COLMAN: The primary argument.

PN295

MR DOWLING: That's correct, and as I said at the outset it is put in the alternative, and if you're with us on the primary ground you could quash. That's right.

PN296

VICE PRESIDENT HATCHER: We could quash it but it doesn't stop the Commissioner going to the court and saying notwithstanding our opinion you breached the Act anyway.

PN297

MR DOWLING: Yes. Yes, well that would be open - that's right, that would be open if the Full Bench expressed a strong and well considered view about the operation of the rules. The Commissioner would still be able to go to the court and seek a breach of section 189 as we understand it.

PN298

DEPUTY PRESIDENT COLMAN: If your primary position is that no extension was required is it necessary then for us to look into that question, or is it enough just to say if you contend that no extension was required, none was given, so there couldn't have been any error? Wouldn't that be one possibility?

PN299

MR DOWLING: That would be one possibility. The Full Bench could alternatively say "We think your interpretation of 42 read with 43 and 42 is straining too much and we think an extension of time was necessary, but we think one should be granted in the circumstances anyway". That's open.

PN300

VICE PRESIDENT HATCHER: All right.

PN301

MR DOWLING: So I - - -

PN302

VICE PRESIDENT HATCHER: It seems to me that a decision that we would make would only protect your legal position if we determined that an extension was required and we granted one.

PN303

MR DOWLING: Yes. Yes.

PN304

VICE PRESIDENT HATCHER: That's the only thing that would in effect immunise you from further action in the Federal Court.

PN305

MR DOWLING: That is so, and if it's not clear it's one of the concerns that my client has and it's not appropriate to consider the discussions that have gone on between their representatives, but of course it has been open for the appellant to say "Well, we think the Commissioner's wrong" and do nothing about it, or wait to face the prosecution. But what they did have was a decision of the Commissioner purporting to conclude that there had been a contravention of section 189.

PN306

So the starting point for my client was how is it that the Commissioner can come to that conclusion at all? It doesn't have jurisdiction to do that, and then once that issue is raised the related issue is "Well, he's wrong about that anyway, even if he does have some ability to do it" and then we get to the alternative ground which is if we're wrong about one and two, we should have got the extension anyway. That's how we came to be here. But I should put some legislative framework around the disposition that we have provided.

PN307

The permission to appeal for the reasons we've set out in our written submissions, the reference to the relevant legislative provision as the Full Bench would be well aware is section 604(1)(b)(ii). The ability to quash is provided for by section 607(3)(a) and we say the ability for the Bench to determine if an extension is required, whether it should have been, or to find that an extension is appropriate is provided for by 607(3)(b).

PN308

DEPUTY PRESIDENT COLMAN: Could I just clarify, in the event that we were to quash the decision does that not create a difficulty in relation to the decision to make arrangements for the conduct of the election? Would that have to be carved out or not?

PN309

MR DOWLING: We were careful, we did identify - and perhaps we might have done it other than in a footnote, but you will see footnote 14 on page 10 of the primary submissions where we there say:

PN310

The appellant does not challenge the decision to hold the election and make arrangements for the conducting of that election by the Australian Electoral Commission.

PN311

And I think as I said at the outset the way we say section 189 operates on its face is that whether it's late or not late there's an obligation, if the Commission is satisfied, to conduct the election and as we understand it the Commissioner was satisfied that it was required and therefore conducted the election.

PN312

DEPUTY PRESIDENT COLMAN: I'm just wondering whether actually we're talking about a variation of the decision rather than a potential quashing of the decision, but maybe that's a technical matter for reflection.

PN313

MR DOWLING: Yes, well it may be that we're quashing that part, and that is the refusal to grant the extension, and leaving in place that part that provides for the holding of the election, and they're separately dealt with by section 189. If you just excuse me one moment, sorry. Unless there are any questions, they're the submissions of the appellant.

PN314

VICE PRESIDENT HATCHER: Thank you.

PN315

Mr Rawson.

PN316

MR DOWLING: Thank you very much.

PN317

MR RAWSON: If it's convenient I might start by making some remarks about what we see as the appropriate role of the Commissioner in the proceeding. Mention has been made of Hardiman and the Hardiman principle. I think at its most fundamental level the Hardiman principle comes down as Mr Dowling said to concepts of impartiality, the purpose of the principle, and it's necessary to treat many of the decided cases with some caution because they're not necessarily entirely on all fours with each other.

PN318

But the thread that runs through the cases as they've sought to apply Hardiman, and indeed the High Court decision itself, are that the purpose of the principle is to ensure perceptions of impartiality remain in respect of the decision maker who may again be seized with the subject matter of the matter that is the subject of the appeal.

PN319

VICE PRESIDENT HATCHER: That's the difficulty, isn't it? I mean the whole nature of the Registered Organisations Commissioner is that he has to deal with a confined group of repeat players who come back time and time again about the same issues in a regular cycle?

PN320

MR RAWSON: Yes, indeed, and the Commissioner does that in a number of ways. He does it on a day to day basis through his interaction with those participants, you know, in a variety of ways including many ways, many interactions that are fundamentally about the Commissioner providing assistance to registered organisations. He also does it from time to time through the process of decisions such as this, and of course in another species of interactions entirely through the use of the regulatory enforcement arm of the Commission.

PN321

One could step even further beyond that and observe that many of the issues that arise and interpretation of one organisation's rules will tend to arise in the interpretation of other organisations' rules that may be to similar effect or even identical.

PN322

VICE PRESIDENT HATCHER: All those submissions tend to reinforce the need to apply the Hardiman principle to the Commissioner then, don't they?

PN323

MR RAWSON: We don't cavil at all with the suggestion that the Hardiman principle applies. What I seek to do is to make some remarks about its application in these circumstances, because in applying the principle what is fundamental to that principle is the perception that might be created of the Commissioner by reason of his participation in this proceeding in a hypothetical future instance when he comes to determine the same issue arising under the same rules with the same parties in the future.

PN324

Now with that in mind there are three fundamental aspects of the present circumstances that we say interact and cumulatively speak very strongly to the conclusion that there could be no reasonable perception of partiality on the part of the Commissioner by reason of the submissions that the Commission seeks to make in this appeal. The first of those is the plain fact is there is no other available contradictor in this matter, and that's a matter that has been recognised in all of the authorities as a relevant matter going to the circumstances in which an administrative decision maker might play a role in an appeal from that decision.

PN325

It has been said against us that there was no contradictor in the matter before the Commissioner at first instance. That's so but, with respect, that's not really to the point. The nature of the proceedings before the Commissioner at first instance are fundamentally different to the nature of proceedings on appeal before a quasi-judicial body such as this Commission, and in those circumstances there is a desirability that the submissions of an appellant be met and responded to by another party.

PN326

There is no other party in this proceeding other than the potential involvement of the Commissioner and that is the first of the three matters that we say affects considerations of perceptions of impartiality. The second of those matters is the fact that there is no prospect of a remittal to the Commissioner as a result of any decision that this Commission might make in the hearing of the appeal. True it is that the same issue may arise in a further matter involving this appellant or indeed in matters involving other parties under rules that may have some similarity in the future.

PN327

That's not the same, it's not qualitatively the same in my submission as a situation where a decision maker appears before an appellant body to make submissions about the disposition of the appeal in circumstances where one potential outcome or one potential way in which the appellant body may resolve the matter is to remit the subject matter of that dispute or that matter back to the original decision maker for reconsideration.

PN328

The hypothetical - and I don't mean by suggesting it's hypothetical to suggest that it's ephemeral or unlikely, but the potential future requirement for the Commissioner to consider issues that are arising today before this Commission in another context is one that ought not give rise to any apprehension that the Commissioner cannot bring an impartial mind to those matters, or should be prevented from putting submissions about the disposition of this appeal.

PN329

VICE PRESIDENT HATCHER: That sounds like you're lifting the Hardiman principle to some sort of apprehension of bias standard?

PN330

MR RAWSON: The principle turns fundamentally on the need to ensure the impartiality of the administrative decision maker in the hypothetical, or recognising the possibility that the decision maker may be required to reconsider the matter that is before the appeal court involving the same parties. In that sense there is a link to issues of bias. That at its most fundamental is the concern which the High Court in Hardiman was keen to comment on, and I say comment on because of course it's worth remarking that the Hardiman principle is not a substantive rule of law per se.

PN331

It's a principle about the conduct of proceedings and even in Hardiman itself the articulation of the principle was in the context of remarks made by the High Court in the disposition of the matter after the decision maker had participated fully in the matter before the High Court. But it's not a freestanding substantive rule of law that operates as a bar to participation by administrative decision makers.

PN332

It's a principle regarding the conduct of proceedings to which administrative decision makers themselves should have regard to when considering whether to participate in an appeal from one of their decisions, and if so, when considering the nature and scope of any involvement that they should take while participating in the appeal. And with that in mind if I might, I might turn to the third factor that we say informs consideration of what, if any, application the Hardiman principle should play in this appeal and that is the nature of the involvement which the Commissioner seeks to engage in, in this appeal, is one which in my submission on no view would excite concern amongst either the appellant itself or indeed against any reasonably informed party that the Commissioner could not bring and would not bring an impartial mind to the resolution of a similar issue arising in a future matter, whether involving the same party or a different party.

PN333

VICE PRESIDENT HATCHER: What interest does the Commissioner have in expressing views about the interpretation of the ASU's rules, issues which were never even canvassed in the decision under appeal?

PN334

MR RAWSON: So the Commissioner has - - -

PN335

VICE PRESIDENT HATCHER: I mean it's not as if you're assisting us about the meaning of the Act and the Commissioner's powers. You're descending into the arena to start debating what the union's rules mean.

PN336

MR RAWSON: Sorry, your Honour, I missed that?

PN337

VICE PRESIDENT HATCHER: So it's not as if you're assisting is about the interpretation of the governing Act or about the powers of the Commissioner. You're descending into the arena to engage in debate about the meaning of intricate aspects of the ASU's rules. How is that part of the role of the Commission?

PN338

MR RAWSON: We accept that we do seek to make submissions about the proper interpretation of the ASU's rule or the branch's rules and the national rules in this instance. We say that's consistent with the statutory functions with which the Commissioner is charged. Under section 329AB of the Registered Organisations Act:

PN339

The Commissioner has a responsibility to promote effective management of -

PN340

sorry:

PN341

- efficient management of organisations and high standards of accountability of organisations through office holders to their members and to promote compliance with financial reporting and accountability requirements under the Act.

PN342

And in due course under paragraph C of that section:

PN343

To do anything incident to or conducive to the performance of those functions.

PN344

And we say that does contemplate a role of the Commissioner at least in a case such as this where there is no other contradictor and the role that the Commissioner seeks to play is confined to submissions about the scope of the Act and of the union rules.

PN345

VICE PRESIDENT HATCHER: So that a submission is being advanced today about the rules which travel beyond the decision. They're matters about which the Commissioner has formed an opinion.

PN346

MR RAWSON: I accept that's so, your Honour, yes. In fact on one view a majority of the argument this morning travels beyond the framework of the issues that were considered by the Commissioner at first instance or indeed submitted to the Commissioner by the appellant. That notwithstanding, the plain industrial or regulatory reality is that the Commissioner does on a day to day basis sit down with a copy of the rules of organisations and seek to interpret those rules to apply them to applications that come before it and to make decisions about those applications that necessarily are informed by the Commissioner's view of the rules.

PN347

The Commission couldn't function without the process or without the obligation to inform itself of the operation of the rules relating to the organisation that it regulates and to make decisions based upon its assessment of those requirements.

PN348

VICE PRESIDENT HATCHER: But presumably the Commissioner in the normal context would do so in a way which was procedurally fair, that is hear what the union would have to say about it and then make a decision in the context of exercising statutory functions? But you're not exercising a statutory function here. You are simply - when I say you, the Commission, apparently has formed an opinion about the rules simply for the purpose of defending these proceedings.

PN349

MR RAWSON: No, with respect, I think that's a critical distinction which I do need to make clear. The purpose for which we come here today is not a partisan purpose of upholding the decision made at first instance. The purpose is to make submissions about the legal issues that are raised by the appeal and only those issues for the purpose of ensuring compliance with the Act from the perspective of ensuring the proper conduct of the appeal, including by ensuring that an appropriate contradictor is brought before the Commission to make submissions about the legal issues arising in the appeal, and I don't seek to go beyond that. It's not a case where the Commissioner seeks to lead evidence or challenge any evidence in the appeal, and the Commission will have had regard to the written submissions that have been filed today.

PN350

In my submission those submissions are an appropriate dispassionate but nevertheless appropriate submission of legal issues that arise in this appeal, necessarily put as a contradictor to the appellant but for the express purpose of ensuring that those issues are ventilated before this Commission on appeal, and allowing the Commission ultimately to accept or reject those submissions as it chooses. And it's our submission that - so the third part of our submission on the role of the Commissioner is that having regard to the nature of the submissions which we have put in writing and the further submissions which we propose to make today, set alongside the first two factors that I've referred to, no reasonable person in the position of the appellant or indeed any other reasonably informed person would apprehend that the Commissioner thereby lacks partiality or would lack or may lack partiality the next time the Commissioner comes to consider an application from this appellant or even to consider an application from this appellant arising under the same rules.

PN351

The arguments today and the submissions which I seek to put are in a sense narrowly confined legal submissions. In due course this Bench will either accept those arguments, reject those arguments, or accept some and reject others and the next time the Commissioner comes to consider this issue in the context of an application by this applicant it's entirely uncontroversial and unsurprising that one would expected that the Commissioner would do that dispassionately and informed by any ruling made by this Full Bench in relation to this proceeding. So those are the submissions of the Commissioner on what we see is the appropriate role to be played by the Commissioner in this matter.

PN352

VICE PRESIDENT HATCHER: All right.

PN353

MR RAWSON: So if I can turn to ground 1(a) which is the first ground of appeal there's not much of substance which the Commissioner would seek to add to the written submissions that we've filed on this point. Save to correct or clarify what we say is a slight mischaracterisation of the position in our written submissions by my learned friend, and that is the Commissioner does not accept at all that in his written reasons he made a finding of contravention of section 189 of the RO Act.

PN354

In our submission the statement and the reasons which this ground attacks should be understood as merely an observation by the Commissioner that a consequence of his decision to refuse to extend time was that the branch was in breach of a civil penalty provision. That should not be understood as a finding to that effect and far less for relevant purposes should it be understood as a finding of - - -

PN355

VICE PRESIDENT HATCHER: Well, it's the expression of opinion, isn't it?

PN356

MR RAWSON: Indeed. Indeed.

PN357

VICE PRESIDENT HATCHER: And what basis was there to form that opinion? That is, the only thing the delegate was asked to do was to grant or not grant an extension.

PN358

MR RAWSON: In my submission the issue before the Full Bench on appeal is whether by making that observation or expressing that opinion, however characterised, the Commissioner was making a decision by which the appellant was aggrieved and in my submission to read the observation or opinion that way strains the language beyond the point that it could reasonably be expected to be, and requires the reader to infer that the decision maker misapprehended the nature of the power he was exercising and sought to exercise judicial power.

PN359

In my submission that's an extremely unnatural reading of the words in the reasons and one which the Full Bench ought not to infer, and it's on that basis we say that the expression of the opinion or observation however it's characterised is not at all the expression or the articulation of a decision. It's not a decision to impose a civil penalty. It's not even a decision to seek a civil penalty or to commence proceedings seeking the imposition of a civil penalty.

PN360

It's merely the expression of an observation by the Commissioner to underlie the importance placed by the Commissioner on the requirements of the Act that prescribed information be lodged by the prescribed date, and in my submission that's an appropriate step for a regulator such as the Commissioner to take. The legislature has seen fit not only to impose that requirement but to make it a requirement a breach of which renders someone liable to sue for a civil penalty. That underlies or it should be taken to underlie the importance placed by the legislature on that obligation.

PN361

The Commissioner has the statutory functions I've outlined earlier, and in my submission it was appropriate and consistent with those functions to make an observation in the terms which he did. And moreover and more to the point for the purposes of this appeal it could not reasonably be said that that observation amounted to anything of the nature of the making of a decision under the Act.

PN362

VICE PRESIDENT HATCHER: The implicit decision is that there was a requirement to file prescribed information by - what was it - 29 April?

PN363

MR RAWSON: Yes, well I hope that's explicit. So it certainly was a part of the delegate's reasoning that prescribed information which was filed on 1st and 9th June was required to be filed by 29 April unless the Commissioner determined to extend time to 9 June, and the Commissioner declined to do that and merely added an observation about the gravity of the obligation that he considered had not been observed by the appellant.

PN364

DEPUTY PRESIDENT COLMAN: But the last sentence in paragraph 7 of the decision is rather categorical, isn't it? It says:

PN365

The failure to lodge the prescribed information renders the organisation liable for a civil penalty.

PN366

But you say in the context of the statutory scheme that's to be read as meaning renders the organisation exposed to the possibility of or exposed to the potential of there being proceedings for a civil penalty?

PN367

MR RAWSON: I do. I do, your Honour, and indeed the word "provision" is appended to the description of civil penalty in that section which itself, in my submission, serves to underline the proposition that by no reasonable interpretation of that provision was the Commissioner seeking to impose a civil penalty.

PN368

DEPUTY PRESIDENT COLMAN: Clearly he couldn't impose one.

PN369

MR RAWSON: Indeed, and I mean it's put against us that the fact that he purported to do so was an impermissible attempt to assume judicial power. Our response to that is that the inherent unlikelihood that the Commissioner would be misinformed about the nature of his own powers and functions ought to inform the interpretation given to that sentence; and that when read in context, that sentence does no more than record an observation of the Commissioner that the consequence of his decision - I should say the delegate, not the Commissioner.

PN370

The recorded observation of the delegate, the consequence of his decision not to extend time is that the appellant is in breach of a provision which is a civil penalty provision, and that is not a decision of itself which the Commissioner or delegate has any authority to make as a decision under the Fair Work Act. It doesn't bear the statutory character of a decision under the Registered Organisations Act and it far less bears the character of a decision of which the appellant is aggrieved.

PN371

VICE PRESIDENT HATCHER: So in substance we should treat it as a piece of fluff that doesn't form part of the decision proper?

PN372

MR RAWSON: I cavil with the description of it as a piece of fluff, your Honour, but as an observation and an observation which, in my submission, he was entitled to make and which was consistent with his statutory functions. If I can turn to ground 1B and this is the ground that relates to the 20 casual vacancies that arose more than 12 months after the conclusion of the quadrennial election. We submit that a proper construction of the branch's rules does not lead to the conclusion that there was no obligation to call for an election for those positions.

PN373

The starting point in our submission is rule 33 of the branch rules, subrule 33(a):

PN374

Casual vacancies arising in any office will be filled in accordance with the national rules.

PN375

MR RAWSON: Subrule (b):

PN376

Nominations for casual vacancies for branch conference will be called in June each year when quad renewal elections are not scheduled.

PN377

It's been put against us today that the delegate's decision on this ground, and indeed, I think the delegate's submissions in this appeal on this ground, ignore national rule 42. We say that's not correct. The true proposition, we say is that rule 42 did not arise as at the prescribed date, being 29 April 2017 because whatever might be said about what the branch could have done by reference to rule 42, whatever might be said about the possibility that the branch might have filled those vacancies by appointment - - -

PN378

VICE PRESIDENT HATCHER: Do you accept that's a decision they could have made?

PN379

MR RAWSON: We accept that that's certainly a course which rule 42 provides, as being open.

PN380

VICE PRESIDENT HATCHER: Does it follow from that, that the obligation to follow the requirements of the Act applying to elections, including prescribed information, were only enlivened once the decision was made to fill, on 30 May, to fill the vacancies by way of election?

PN381

MR RAWSON: That's the point at which I think we do depart from the appellants. Whatever might have been done under rule 42, whether the positions might have been filled by appointment, or even by some other process, whatever might have been done, the fact is, that nothing was done under rule 42. In that context, one comes to the obligation imposed by rule 33, the branch rule 33.

PN382

VICE PRESIDENT HATCHER: But rule 33(b) only applies to an election. The word nomination only has sensible application to an election process. Just let me finish the question. Wouldn't you sensibly read 33(b) as applying and in respect of a decision to fill the vacancy by way of an election?

PN383

MR RAWSON: If a vacancy had been filled by appointment prior to the prescribed day, then on a proper construction of rule 33(b), there would be no casual vacancy for rule 33(b) to apply to at that date. So, rule 33(b) can only operate on a vacancy that exists.

PN384

VICE PRESIDENT HATCHER: For which there is to be an election.

PN385

MR RAWSON: Well, our submission is that a construction of rule 33(b) which is consistent with the objects of the Act, would be that rule 33(b) imposes a mandatory requirement to call for nominations in June each year of any position for which there is at the prescribed time of a casual vacancy.

PN386

VICE PRESIDENT HATCHER: Even if the next day you decide you're going to fill it by appointment?

PN387

MR RAWSON: Indeed. If a decision was made on 30 April to fill it by appointment, that would be a decision made after the prescribed day. But if a decision had been made on 28 April to fill that position by appointment, then that would be a different case to this case. This case arises because on the date which, on our construction of the rules, the appellant was required to lodge prescribed information for positions which were on that date, casually vacant.

PN388

VICE PRESIDENT HATCHER: The Act only operates with respect to where there's required to be an election. I'm still not getting how you say there was required to be an election on that date?

PN389

MR RAWSON: We say that there was required to be an election on that date, because rule 33(b) requires that if there is a casual vacancy, there will be a nomination for that election called in June of a year where a quadrennial election is not scheduled.

PN390

VICE PRESIDENT HATCHER: What happens to the power to fill it by appointment?

PN391

MR RAWSON: Well, that power was available.

PN392

VICE PRESIDENT HATCHER: It somehow disappears on a certain date, does it?

PN393

MR RAWSON: As I think was suggested this morning, the purpose of these types of provisions are to try and create a harmonious mid-point between the principles of democratic control and principles of practicality and the scheme created by the Act and indeed by these rules, which of course are made consistent with the legislative provisions such that when a vacancy in four year term interpolating the requirements of the Act now to the particular situation which the branch found itself, where a four year term - where a causal arises in a four year term inside of the first 12 months of that term, there is an obligation to conduct an election, if that position can't be filled by appointment.

PN394

Once we get to the quarter mark, so one year mark, the first year anniversary of the quadrennial election, there's now less than three quarters of the term outstanding, the Act permits the rules and the rules in fact do so provide a choice to the branch as to whether those casual vacancies that arise on or after that date will be filled by appointment, or by election.

PN395

VICE PRESIDENT HATCHER: You say the choice somehow disappears on 29 April?

PN396

MR RAWSON: What I do say is that where that choice has not been exercised by 29 April - and I accept that in practical terms, probably amounts to much the same thing, where that choice has not been exercised so as to provide for appointment by 29 April, then rule 33(b) obliges the branch to lodge prescribed information in support of an election. We say that proposition is entirely - - -

PN397

VICE PRESIDENT HATCHER: The rule doesn't do that; the rule simply talks about nominations.

PN398

MR RAWSON: Nominations for casual vacancy - well it - - -

PN399

VICE PRESIDENT HATCHER: It doesn't require anything about prescribed information.

PN400

MR RAWSON: No, sir, what rule 33(b) requires is that there will be an election in June and then we go to the Act to work backwards to the obligation to lodge prescribed information.

PN401

VICE PRESIDENT HATCHER: But the result of that interpretation has, in effect, 33(b) prevailing over the national rule which says you have a choice between election and appointment. That seems, speaking myself, to reverse the priority of the rules.

PN402

MR RAWSON: Our submission is that that choice remains available to the branch, but that in circumstances where that choice is not exercised, and we say this is such a case where the fact is, those positions were not filled by appointment then the other half of the two considerations that the Act and the rules made under the Act grapple with, principles of democratic control, it's entirely consistent with those principles that the Act would say well, if you're not going to fill that position by appointment, there needs to be an election.

PN403

We say that 33(b) is such a requirement. It's a requirement to fill a casual vacancy by election and the mechanism provided by the national rule is to fill it by election or appointment. But the two rules do sit harmoniously in my submission, because the national rule provides a choice - election or appointment, and the branch rule prescribes a consequence where that choice is not exercised and where the vacancy exists and persists on a particular date.

PN404

VICE PRESIDENT HATCHER: What happens if a vacancy arises on 30 April?

PN405

MR RAWSON: If the vacancy arises on 30 April, then 33(b) would not require prescribed information to be lodged in respect of that vacancy on 29 April.

PN406

VICE PRESIDENT HATCHER: So what, it would operate the following year, would it?

PN407

MR RAWSON: It would operate the following year, so the branch would then have 364 days to determine for itself, whether it wished to fill the appointment, fill the position by appointment, I should say. But if the position remained unfilled - - -

PN408

VICE PRESIDENT HATCHER: On that interpretation the decision can't be right because there were persons, weren't there, to a position that only became vacant after that date?

PN409

MR RAWSON: That's certainly been said in submissions, this morning, but I don't think the evidence discloses which positions they are.

PN410

VICE PRESIDENT HATCHER: Is there any evidence Mr Enright took that into account when he made the decision?

PN411

MR RAWSON: I'm not sure that there's any evidence that - - -

PN412

VICE PRESIDENT HATCHER: Or any indication in the decision?

PN413

MR RAWSON: The evidence before Mr Enright was the application made by the extension of time and the lodging of prescribed information. The Full Bench has that evidence because it's exhibited to Mr Payne's statement. I don't want to do any injustice to the appellant's submissions. I'm happy for them to draw my attention to it if I've missed it, but as I apprehended, there's nothing in either the 16 May request for an extension of time or the prescribed information that was then lodged on the 1st and the 7th that disclosed to the delegate that one or more of these 20 casually vacant positions had only arisen since 29 April.

PN414

VICE PRESIDENT HATCHER: There's no information either way that is - and this demonstrates the difficulty. If that's right, then it could alternatively be in the position that they all became vacant after 30 April. In which case, how could the delegate possibly have expressed the opinion that he did?

PN415

MR RAWSON: The delegate has determined the application that was made to him. The application that was made to him, was an application for an extension of time.

PN416

VICE PRESIDENT HATCHER: I can understand that point, but I thought you went further and said he expressly made a decision that there had been a failure to comply with the requirement to file prescribed information. But on your own analysis, that finding could not have been made unless you knew exactly when a vacancy of the position became vacant. On your analysis, if they became vacant after 30 April onwards, that finding must be wrong.

PN417

MR RAWSON: In my submission, the tenor of the application made to him, was that these were vacancies that had arisen.

PN418

VICE PRESIDENT HATCHER: The tenor?

PN419

MR RAWSON: Yes, your Honour - that had arisen as at the date at least the day of 16 May, when the first application for an extension of time was made. Now, I accept that that itself is 17 days after the prescribed date, but the matter, in my submission, was put to the delegate on the footing that these were vacancies that had arisen over an extended period of time and indeed, this is relevant more to ground 1(d) than to 1(b), but the vast majority of the positions were said to be vacant were positions that had never been filled, and there 113 of those.

PN420

VICE PRESIDENT HATCHER: But we haven't got to those - we're still in this first category at the moment.

PN421

MR RAWSON: But I mention it now, because if - - -

PN422

VICE PRESIDENT HATCHER: In respect of the 20, the delegate had no information which would allow him to determine, on your own analysis, whether the information had been lodged on a prescribed time or not. Is that correct?

PN423

MR RAWSON: In my submission, there was no information before the delegate that identified the particular date on which any of these vacancies identified in the prescribed information as casual vacancies, became casually vacant.

PN424

VICE PRESIDENT HATCHER: Well, in respect of the 20 then, how can the decision stand on your own analysis?

PN425

MR RAWSON: In my submission, the decision can stand because the application that was made to the Commissioner, was an application to extend the time to provide prescribed information for those positions. It's implicit in the making of that application, in my submission, that an extension of time was required. There was no facts put by the appellant to the delegate that were inconsistent with that implication and the delegate then determined the application before him.

PN426

VICE PRESIDENT HATCHER: I thought you were saying earlier that the delegate had the obligation on his own part to form an opinion about these matters, irrespective of what the ASU put.

PN427

MR RAWSON: He had an obligation to determine the application for an extension of time. He had an obligation to grant that, if he was satisfied that he should do so and to refuse it otherwise. In forming a decision not to extend time, he nevertheless has an obligation under section 189 to conduct the election, once he's satisfied that the prescribed information has been lodged. Those are, in my submission, the compass of obligations that were before the Commissioner.

PN428

VICE PRESIDENT HATCHER: Right.

PN429

MR RAWSON: In the course of making those decisions, I think what I said earlier in respect of ground 1(a), was that he additionally sought to make an observation about the consequence of the facts as he saw it, that the information had been lodged beyond the prescribed date and in circumstances where an extension of time was not forthcoming and the delegate determined he would make an observation about the gravity of that act. I submitted in respect of ground 1(a) that that was an appropriate course for the delegate to take. I didn't see that he was obliged to do so.

PN430

Our primary submission about ground 1(b), is that a proper construction of rule 33 should be understood as imposing a mandatory requirement to call for nominations of a construction rule 33 read in conformity with the requirements of the Act. A mandatory requirement to call for nominations in June of each year for election within a casual vacancy that had not otherwise been filled prior to the time for nominations by appointment.

PN431

VICE PRESIDENT HATCHER: Just be clear, the construction of the rule that you're advancing now with the consequences we've discussed, is something the Commissioner has developed in response to the appeal, or something that his delegate held in his mind at the time he made the decision?

PN432

MR RAWSON: I can't seek to lead evidence from the Bar table about what was in the delegates mind.

PN433

VICE PRESIDENT HATCHER: I mean, it's a reasonable thing to say that the delegate just dealt with the application and took it at face value and made a decision about it.

PN434

MR RAWSON: I do say that.

PN435

VICE PRESIDENT HATCHER: That's one thing and I can understand fully why that proposition would be foot. It's another thing to say that he must have been correct because of some particular construction of the rules which appears to have arisen in the mind of the Commission at some stage, but which creates all sorts of difficulties in terms of information about how the delegate could have reached his decision.

PN436

MR RAWSON: I accept that remark, and I should be clear about the basis on which I put the submission that I've put. The submission that I've put is not put as a submission of the actual reasons of the delegate in his decision on the application for him. I don't, and indeed, could not seek to go beyond the scope of the main paragraph Statement of Reasons in making submissions to this Bench about what the actual reasons of the delegate were.

PN437

This submission is designed and solely designed as a submission for consideration of the Full Bench about the proper construction of rule 33.

PN438

VICE PRESIDENT HATCHER: I know it's been raised, we have to follow through its consequences, don't we?

PN439

MR RAWSON: The Commission may accept that as a correct construction of the rule, or it may consider that proposed construction of the rule and determine that it does not accept it.

PN440

VICE PRESIDENT HATCHER: If we accept it, then absent any evidence about the dates of the vacancies beyond the response I got to a query that was given on instructions, then it's not open to the Full Bench to form a conclusion that there was a failure to file prescribed information, is it?

PN441

MR RAWSON: If the Full Bench - - -

PN442

VICE PRESIDENT HATCHER: That's even accepting your construction.

PN443

MR RAWSON: So, if the Full Bench came to the conclusion, as a matter of fact in this appeal that the evidence did not disclose - the evidence before the Full Bench did not disclose whether any of the prescribed information was filed on or after the prescribed time, because the dates on which the casual vacancies arose, is not disclosed on the evidence before the Full Bench, then I accept that the Full Bench would not form a view, would presumably not find that a contravention of section 189 had occurred.

PN444

That, to some extent, might dispose of the issues raised in this appeal.

PN445

VICE PRESIDENT HATCHER: Well, that's as to the first category, so let's turn to the second category. These are the insufficient nominations. Do you adopt the positions which appears to be initially advanced by the ASU that rule - what is it, rule 43(c) requires a repeated cycle of elections that continue so long as there's insufficient nominations?

PN446

MR RAWSON: I can't make that submission, your Honour. I must observe whatever the meaning of rule 43(c) the fact is, that in this matter, no immediate further election occurred. Rule 43(c) contemplates - - -

PN447

VICE PRESIDENT HATCHER: We're told there already had been a further election.

PN448

MR RAWSON: Yes, but that wasn't immediate.

PN449

VICE PRESIDENT HATCHER: Whether it was immediate or not, that election occurred. It's then a question of whether rule 43(c) then operated upon that further election to require another election.

PN450

MR RAWSON: We say that the further election which occurred, did not occur by operation of rule 43(c).

PN451

VICE PRESIDENT HATCHER: I see, so how did it happen?

PN452

MR RAWSON: It occurred by operation of - in the same way as this election would occur, by operation of the obligation, the implication from rule 33(b) that any position which is casual and vacant on the June - it's probably an inaccurate description to call it the June anniversary of the quadrennial election, but I think the Bench knows what I mean. Any vacancy which is casually vacant - - -

PN453

VICE PRESIDENT HATCHER: But these aren't casual vacancies in the proper sense. They're only called casual vacancies by reference to what rule 43(c) says.

PN454

MR RAWSON: Indeed, and on one view, 43(c) does not actually call them casual vacancies but simply provides that they be dealt with in a mode consistent with the mode prescribed to casual vacancies. We don't rely on 43(c), we say 43(c) was not the provision under which the elections were conducted in 2016.

PN455

VICE PRESIDENT HATCHER: I'm missing - so what were they conducted under?

PN456

MR RAWSON: They were conducted in the same ways that these elections under rule 33.

PN457

VICE PRESIDENT HATCHER: I thought we just went through this. Unless 43 operates, they aren't casual vacancies, isn't that right?

PN458

MR RAWSON: We accept that, your Honour. We accept that whatever the nature in which this application came before the Commissioner, and the fact is that the application did come before the Commissioner.

PN459

VICE PRESIDENT HATCHER: Again, I accept that as a reasonable proposition, but we've - the submissions have now travelled beyond that point. If there was no obligation to hold an election under 43(c) or elsewhere, then there can't have been a failure to file prescribed information, can there?

PN460

MR RAWSON: We can see and accept that there was no - that the positions which were never filled, are not positions which can be described as casual vacancies.

PN461

VICE PRESIDENT HATCHER: Yes.

PN462

MR RAWSON: In that sense, the rules - there is some uncertainty as to what provision the rules make for them. There is a mechanism provided by rule 43(c) for an immediate election.

PN463

VICE PRESIDENT HATCHER: You say it's not a 43(c) election and there's no other requirement to have an election, is there?

PN464

MR RAWSON: Our submission in this appeal is that the Commission turned to ground 1(d). The Commissioner, in the proceeding before him, was fixed with an application for an extension of time in respect of those submissions, that is an application for an extension of time in which to lodge prescribed information in relation to those provisions.

PN465

VICE PRESIDENT HATCHER: Again, I can understand the delegate dealt with the application on its face, but sitting as we are now, I'm struggling to see whether there was any requirement to hold an election for that second category positions which could have given rise to the prescribed information requirement in the first place.

PN466

MR RAWSON: We accept, with respect, your Honour that that's the case. That the application that was made to the Commission, was an application that was not in law, required by the applicant.

PN467

VICE PRESIDENT HATCHER: It was invalid. If there's no requirement to file prescribed information, there can be no power to grant an extension.

PN468

MR RAWSON: Yes. Our submission is simply that the Commissioner, understandably dealt with the application before him notwithstanding the concession I've made that the matter was before the Commissioner on the basis that the appellant was desirous of an extension of time in which to conduct, not to conduct the elections, but to log the prescribed information for the conduct of those elections.

PN469

There was a second limb to the argument that ground 1(b) which I haven't yet addressed. It's been put against us, or our submission that in some way our submission actually undermines, rather than reinforces the principle of democratic control because one consequence of our submission is that the position might remain unfulfilled for essentially the better part of a full year, depending on when the calendar year the vacancy arises.

PN470

I think there's two responses to that, if I may. The first is that whatever might be said to that extent the fact is that this application arises precisely because positions had been unfilled for a considerable period of time and on the construction which on the findings made by the delegate, the Act required that prescribed information to be lodged in order to facilitate a June election in circumstances where, but for the interpretation we urge, that requirement would not arise.

PN471

To say that in some cases the construction that we proffer might lead to a longer period before elections - - -

PN472

VICE PRESIDENT HATCHER: Well, it means that any vacancies that arise after 30 April in a given year, can't be filled by election until June the following year.

PN473

MR RAWSON: In our submission, it means that there's no requirement to conduct an election until June the following year.

PN474

VICE PRESIDENT HATCHER: But I thought you said you can't conduct one because the June nomination date is immutable, or is that somehow, not the case?

PN475

MR RAWSON: The first response of course, is that the position could be filled by appointment. Secondly, I'm instructed that in fact, elections from time to time are sought outside vacancies, or outside periods mandated by particular rules and that in fact, as a matter of practice, elections are arranged for such elections.

PN476

VICE PRESIDENT HATCHER: So, what's the prescribed date for those elections?

PN477

MR RAWSON: The prescribed date for those elections would still be 29 April, but to deal specifically with the case - let's take the worst case example of a casual vacancy that arose on 30 April 2017, the prescribed date would be 29 April 2018, but that would not foreclose, ensuring the vacancy by appointment prior to that time, and it would not foreclose filling the vacancy by a requested election prior to that time.

PN478

The last ground I need to deal with, your Honour, is to do with ground two, which is the ground of the failure to extend time. I acknowledge, I think appropriately, the submission of the appellant, that this is an alternative submission and that indeed, if the Commission determines that an extension of time is not required, it would not extend time and therefore this is an alternative ground.

PN479

The branch gave two different, but related reasons, in my submission for requiring and extension of time. In its letter of 16 May, it said it did not wish to confuse its members and then in paragraph 7 of the statement the company, in the prescribed information on 9 June, gave a further reason, being that it wanted to wait and see the result of collegial elections to see if there were any consequential vacancies.

PN480

We accept in our submissions that the delegate's decision does not address the second of those reasons. In my submission that concession has been overstated by the appellant. We don't concede it wasn't considered by the delegate; we do concede the delegate's reasons do not give expression to any consideration and I must accept that there's no other evidence before the Commission other than the statement of reasons as to what considerations the delegate considered. But, I want to record - - -

PN481

VICE PRESIDENT HATCHER: I'm not sure what the distinction is. I mean, we can only look at the statement of reasons to determine whether something was taken into account or not.

PN482

MR RAWSON: Indeed.

PN483

VICE PRESIDENT HATCHER: Without delving into the mind of the delegate.

PN484

MR RAWSON: I accept the inevitability of that proposition, but I do want to record the concession of the reasons do not give express expression to that consideration, is not in terms a concession that it was not considered. Whatever may be the case with respect to that second issue, in our submission the delegate didn't err in his reasoning on his ultimate conclusion in the necessary sense, that would require intervention by this Bench on appeal.

PN485

There is, in my respect, some considerable importance to be given to the statutory scheme in this regard. Section 189(2) of the RO Act does require prescribed information to be lodged before the prescribed date or such later date as the Commissioner allows. I'm sure it is that's a discretionary power to extend time and moreover, it's a statutory power that has no express constraints in the statute on the exercise of it. So, in one sense, at least it might be said to be at large. Having said that - - -

PN486

VICE PRESIDENT HATCHER: It's a large preface to the period of the extension and the matters which may be taken into account in considering the extension.

PN487

MR RAWSON: Indeed. Having said that, there's a general presumption of a legislative intention that a discretionary power which is conferred by statute must be exercised reasonably a for a purpose consistent with the statute. I don't think that's a controversial proposition and in that respect, regard should be had to the scope and purpose of the statutory authority - of the particular statutory provision.

PN488

One feature that this Full Bench in my submission would appreciate is that the obligation on the Electoral Commission to conduct the election, subsists whether the information is provided by the prescribed date or otherwise. So, the election must take place, and the election involves machinery of organisation that takes time and there is a statutory purpose in ensuring that the information is received in sufficient time so as to enable the Electoral Commission to perform those tasks that the statute requires of it. It goes the Electoral Commission the practical period of time that it needs to conduct the elections properly and efficiently.

PN489

Those are considerations which we say inform the exercise of the discretion that the Commissioner, or his delegate was required to undertake.

PN490

VICE PRESIDENT HATCHER: Is there anything to suggest that a late filing here, in some way prejudiced the conduct of the required elections if any elections were required?

PN491

MR RAWSON: There's no evidence about that. But, that doesn't, in my submission, deny the proposition that the delegate can approach an application for an extension of time from the standpoint of recognising that the statutory scheme hasn't picked this date out of thin air; has erected a presumptive requirement that information be provided by a particular deadline and provided a mechanism by which it can be relieved by the delegate, but in circumstances where the delegate would be expected to do so, only when persuaded that it was appropriate to do so, having regard to the overall purpose of the statutory scheme.

PN492

In that sense, in my submission, it is a matter which the delegate was entitled to consider and give due weight to, but the initial request itself, was made after the date on which the prescribed information was required to be lodged. Now, it's been put against us that that may have amounted to the delegate incorrectly imposing some form of mandatory requirement that an application for an extension of time be made before the date for the filing of the prescribed information.

PN493

That's not our submission. Our submission is that the fact that the application was made only on 16 May and that the further reasons were provided only on 9 June, is a matter which consistently with the scope and purpose of the Act, the delegate was entitled to give due regard to.

PN494

VICE PRESIDENT HATCHER: But that doesn't answer the problem about your concession, does it? I mean if there's a failure to take into account a relevant consideration in a discretionary decision, it's not excused by the fact that he did take into account other relevant considerations.

PN495

MR RAWSON: Sorry, your Honour?

PN496

VICE PRESIDENT HATCHER: If the consideration was of sufficient importance that it would normally lead to the conclusion that the discretion miscarried and it has to be excised again, it may all lead to the same result. That's not the point. The point is whether there's appealable error.

PN497

MR RAWSON: I accept that this submission does not address that criticism. This submission is addressed only to the criticism that - if I can use administrative law language, I think your Honour is suggesting to me that that submission doesn't address the relevant consideration that we're said to have overlooked. I'd accept that. This submission is only intended to address the suggestion that one of the factors we did give due weight to, was something akin to a new relevant consideration. We say it was a very relevant consideration, one informed by the statutory purpose of the scheme.

PN498

The next proposition is that the two reasons that were proffered by the branch were in essence, expressions of opinion by the branch itself as to what it wished to do. The branch is entitled to make submissions to that effect. But those submissions are made in the context of a statutory scheme, that at least presumptively, imposes a mandatory requirement. True it is, it's a mandatory requirement that can be relieved against by a discretionary decision of the Commissioner.

PN499

But in my submission, it's in that context that one comes to look at the reasons which were proffered. Firstly, that it might confuse members, and secondly, that it wanted to see the results of other elections to see if there were any consequential vacancies. There was some discussion during the appellant's argument about the way in which those consequential vacancies arose or might arise in the course of the collegiate elections. I think it's a fair characterisation of that discussion to say that there hasn't been, even today, a clear articulation of precisely why that was a real and abiding concern.

PN500

But moreover, in my submission, there was no explanation at all in the 9 June request for an extension of time of why that was an abiding consideration that ought to attract itself to the Commissioner. It's in those circumstances that the Commissioner came to consider what weight, if any, should be afforded that factor.

PN501

In my submission, that factor is not a factor of any particular - or such intrinsic inherent weight that it was bound to attract itself to the Commissioner and be given weight in the exercise of his discretion when balanced against the other matters which the delegate did consider. It's a statement of opinion, or perhaps more accurately, desire by the branch that - or apprehension of what might happen. It's unexplained on 9 June and in my submission, still not completely explained as to why it was a live submission, a live apprehension and it's moreover not explained at all why it's an apprehension of sufficient moment that it ought to attract itself to the delegate as a reason that overrides what we say is the presumption inherent in the statutory scheme that the deadline set by the applicant will be complied with.

PN502

Even accepting for the purposes of this submission the point which is not conceded that is, that this factor was not considered, it's not in my submission, a factor which the Commissioner was bound to consider, or his delegate was bound to consider in his decision in the sense that would be necessary to demonstrate appellable error by the delegate.

PN503

I do have a short submission about the possible orders that the Full Bench might make on the disposition of this matter. I don't think, at the end of the day, the parties - at least in practical terms going to be at odds about this, but I think there is an element of technicality to it.

PN504

The delegate's decision comprised two components. The first component was a decision to refuse to grant an extension of time to the branch in which to file prescribed information required by section 189. The second limb was a decision that the election for the casual vacancies was required and that it would organise for the Electoral Commission to conduct the election. Notwithstanding that I think in terms of the release sought in the appeal is for the decision to be quashed, I think it's common ground between the parties that an election for casual vacancies should occur and that the Electoral Commission should organise it.

PN505

In my submission, if the Full Bench was against the Commissioner insofar as the Commissioner determined not to extend time, the relief granted would be no larger than to quash that aspect of the Commission's decision and it would not be to quash the decision in its entirety.

PN506

VICE PRESIDENT HATCHER: I understand that submission. If the appeal was upheld on the second ground, on the basis of your concession or some other reason, and the position of the ASU is that now it no longer seeks an extension because it says one is not required, is the appropriate course then to simply quash what you describe as the first limb of the decision and then do no more? That is the ASU no longer seeks an extension; there is no call for us to make a fresh decision, is there?

PN507

MR RAWSON: For our part, we think that's correct. It might be something on which my learned friend might like to say something further as well. But on the hypothesis that the appellant's position is that no extension of time is required. No extension of time should be regarded as still being sought, and therefore no extension of time should be granted if this Commission concludes that that is the correct state of affairs and that contrary to submissions that I put this morning, there is no requirement to lodging the prescribed information by 29 April.

PN508

VICE PRESIDENT HATCHER: No, that's not the way I put it. I said we put on the basis that if we upheld the second ground of appeal, that is the discretionary exercise miscarried because the relevant consideration had not been taken into account. Then on the basis that the ASU itself no longer seeks an extension, no longer asks anybody to grant an extension, because its position is that it's not required, we don't need to do anything else; we don't even need to form a view about that, do we?

PN509

MR RAWSON: Yes, we accept that.

PN510

VICE PRESIDENT HATCHER: Yes.

PN511

MR RAWSON: Yes, your Honour. The alternative hypothesis I suppose, is that - which may or may not be one that the appellant still urges you to consider, but if it is, the alternative interim outcome is that the Commissioner hold one aspect of ground one. Therefore, I think that insofar as that ground had been upheld, would not determine ground two, and the Commission would then give expression to our conclusion that at least in some respect, there was no requirement to file prescribed information by 29 April.

PN512

If that's the primary position for which the appellant contends and if that's a position that finds favour with the Commission on appeal, in my submission it follows that there's no occasion for the Commission to make a decision about an extension of time and there was no occasion for the Commission to make a decision. There is still a requirement that the election still occur. In my submission on that hypothesis, there would be no occasion for any relief at all.

PN513

Unless the Commission has any questions for me, those are the submissions I put in, Commissioner.

PN514

VICE PRESIDENT HATCHER: Anything briefly in reply, Mr Dowling?

PN515

MR DOWLING: Yes, briefly. I'm conscious of the time, your Honour. I think I can complete what it is I have to say before quarter past one.

PN516

Can I just deal very briefly and firstly with the issue of the Commissioner's involvement? We maintain our submission and we maintain our concern. It seems to be accepted that Hardiman applies. It seems to be accepted that the Commissioner will deal with repeat players, in the words of your Honour. It seems to be accepted that the same issues may arise, although it's distinguished faintly from a remission.

PN517

But despite that, the Commissioner says well, he's not defending his decision; he's simply putting an interpretation of the rules. That, in our submission, is not consistent with his oral submissions or his written submissions. The oral submissions say quite squarely at paragraph 39, that the respondent submits the delegate did not err in his reasoning, or his ultimate conclusion. Seems to be directed at defending the failure to err.

PN518

For the first time in oral submissions today, we heard a new and strange interpretation of 33 which is not contained in the written submissions, which was not put to Mr Scott about how it is that rule 33 overrides rule 42. That, in our submission, is another indication of how it is that the Commissioner is straining for an interpretation to defend his position, rather than genuinely trying to assist the Commissioner.

PN519

As to ground 1(a), it seems to be accepted that it was an expression of an opinion that leaves the concern that we have and that is the basis for expressing the opinion. It was described as an observation that it is a breach, but one that the Commission was entitled to make. Well, that's where we clearly differ. We say he was not entitled to make it. We say most importantly, he was not required to make it. Didn't need to come to a conclusion that there had been a breach. He might or could have come to a conclusion that there was a late filing; he did not need to come to a conclusion, that is what he was not entitled to do.

PN520

If we can deal then nextly and briefly with the interpretation that is put in respect of rule 33 and rule 42. Firstly, it's said that nothing was done under rule 42. Of course, in our interpretation, that's not right, because rule 42 requires a decision to be made as to whether there is to be an appointment or election. That's the first thing that needs to be done under rule 42 and that's what happened in the present circumstances.

PN521

It's then said that there's a mandatory requirement to call the election in June and rule 33 is interpreted in such a way that it completely reads down rule 42. It's said to override rule 42, as we understand it, in circumstances where if the decision is not made by 29 April, as your Honour pointed out, then the power to appoint disappears according to the Commissioner. That is inconsistent with rule 10 that talks about the prevalence of the national rule; it completely rules down rule 42 and in circumstances where there's no words in rule 33(b) to reflect that interpretation at all.

PN522

If that interpretation is the one that was intended by the framers to pick up cuts in CSR again, one would expect to see that 33(b) might make reference to the fact that it is intended to modify the power to appoint in rule 42 and intended to remove that power to appoint in certain circumstances. Now, if that is what it was intended to do, it's extraordinary that it is crafted in the way it is in rule 33.

PN523

Can we pick up and perhaps clarify the record, it might be said against our interests in respect of the question that your Honour the Vice President raised about whether it was the Commissioner had before him any information about the dates that the positions became vacant. The only information that's before the Full Bench and that we understand was relevantly before the delegate, can be found in the prescribed information that was filed on 9 June and the Bench will find that at exhibit JWP6 to the statement of Mr John Payne of 28 August. It's the very last attachment.

PN524

You'll see there that that is the prescribed information for elections - sorry, do all members of the Full Bench have that document? You'll see signed by - - -

PN525

VICE PRESIDENT HATCHER: Did you say JWP6?

PN526

MR DOWLING: Yes, that's correct. It's a document headed Prescribed Information for Elections, signed by Mr Scott on 9 June 2017.

PN527

VICE PRESIDENT HATCHER: Yes, yes.

PN528

MR DOWLING: It does say at paragraph 4, the resignation letter is attached for each casual vacancy. As I understand, and provided to my instructors in the form in which it's attached and the form in which it's attached does not attach any resignation letters.

PN529

VICE PRESIDENT HATCHER: Did the actual document sent to the delegate attach them?

PN530

MR DOWLING: What I'm instructed to be clear is, that the prescribed information that is attached to Mr Payne's statement is the one taken from the file of the registered organisation of the Commissioner. The one appearing on the file of the registered organisation of the Commissioner does not have - but certainly the copy that we obtained from the file, does not have the resignation letters that are described at paragraph 4.

PN531

I know I'm creating difficulties rather than clearing them up, but I wanted to be clear, it might be said that he had that sort of information because of paragraph 4, but it appears to be the case that he didn't have the information because the ROC file, the Registered Organisation's Commission's file doesn't have the resignation letters attached to it. Can I say further, of course, that - - -

PN532

VICE PRESIDENT HATCHER: Was this sent by email or post or? They may have been emailed and not printed out or something.

PN533

MR DOWLING: That is possible. I'll have that clarified immediately as to how it was forwarded to the Registered Organisations Commissioner. But can I perhaps add this to the conundrum and that is - on my instructions it was emailed and on my instructions Mr Scott is not present but relevant officials of the appellant are. As far as we are aware, the resignation letters referred to in paragraph 4 were attached, but they didn't find their way onto the - - -

PN534

VICE PRESIDENT HATCHER: Mr Rawson can you assist?

PN535

MR RAWSON: I might be able to assist on that point, because I'm instructed that we believe they would be attached to and that they would be maintained on part of the Commission's file which is not publicly searchable, but which is nevertheless, retained. Although I think that's put on the basis of expectation rather than having made enquiries about it in the last three minutes. We agree that it's very likely.

PN536

VICE PRESIDENT HATCHER: Perhaps the parties can both check this and send us a note in the next couple of days, if that's convenient.

PN537

MR RAWSON: It might be, unless my friend has a concern about this, whatever be the case, what would ever be located by way of resignation letters attached to this document on this Commission's file, we're in a position to provide it to the Full Bench, should you determine that's appropriate.

PN538

VICE PRESIDENT HATCHER: I'll let the parties confer about that and if they agree we should have it, they can send it to us.

PN539

MR RAWSON: Yes, thank you, your Honour.

PN540

MR DOWLING: We're certainly content with that course, your Honour. Can we add to it what we foresee as a problem for the Commissioner, even if the material appears on the file? It is clear from the decision and everything that's occurred subsequent, that what the Commissioner didn't do is in any way account or describe or breakup the relevant 20 into classifications as to who is late and who is not late.

PN541

On my instructions, it is undoubtedly clear that one of the resignations was 16 May of 2017. Now, on the Commission's interpretation, that person wasn't late; that person was a year early. If it is this, despite everything he's said and done, he had regard to those dates, he certainly didn't inform us that he had regard to the dates and he certainly didn't exclude the person who wasn't late from the relevant casual vacancies, because on the interpretation he puts today, that was at least one person. He either had no information, or if he had the information he didn't use it in such a way as to break up the people, or indeed to put us on notice of the way in which he did deal with it.

PN542

There's nothing we say in response to what's put about ground 1(d), so that takes it to the last matter, which is ground 2. As we understand it, it's accepted by the Commissioner, that there was no information before him as to any prejudice that could be caused. It's clear from his reasons that prejudice was not a matter that was addressed. It seems, if it's alternatively put - I don't understand it to be so, if it's alternatively put, that he did address it.

PN543

There was certainly no attempt by him to distinguish between branch conference delegates and any other office holder to say well, there might be some prejudice if this is an election for a significant position which is going to have some function immediately. But if it's a branch conference delegate and I understand the few occasions on which they sit, no prejudice is created, there's no information that is dealt with in that way, or dealt with at all.

PN544

The second and last submission that seems to be put against us or last matter to which I need to respond, is that the grounds in the 9 June prescribed information were really nothing more than an expression of what it was the appellant wanted to do, rather grounds for an adjournment. That, in our submission, is an unfair and inappropriate characterisation of what it is Mr Scott did. There's no doubt that he set out the basis for the adjournment. He's not simply saying this is what I'd like to do; he's saying this is the reason I would like the date extended.

PN545

As to clarifying which these positions were, if I can take the Bench to the same document JWP6. Attached to the prescribed information is the annexure that sets out all the elections that are required and the penultimate page at the very bottom, where it leaves the branch conference position and goes to the branch council delegate positions and there describes the three consequential vacancies. What we say is apparent enough from the prescribed information, and I say apparent enough.

PN546

It should be made clear this was not addressed in the reasons. It is made clear enough that what Mr Scott is saying is that I would like to extent the time because the three consequential vacancies that appear at the end of the table, are the consequential vacancies that arose as the result of the collegiate electoral system. He's raising that as a ground for an extension. It's not addressed at all.

PN547

With respect, we say the Commissioner doesn't get to have his cake and eat it too on this issue. Either he addressed it or he didn't, clearly the reasons don't.

PN548

VICE PRESIDENT HATCHER: There's reference there in second column from the right, declaration attached. Is it not attached?

PN549

MR DOWLING: Well, I can only assume, and we'll discover whether that falls into the same category as the other resignations that are described as being attached. We say that position was made clear - was not addressed.

PN550

Unless there are any other matters, they are the submissions of the appellant.

PN551

VICE PRESIDENT HATCHER: Right. I thank the parties for their submissions. We propose to reserve our decision and we'll now adjourn.

ADJOURNED INDEFINITELY牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋 [1.16 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #1 STATEMENT OF JOHN PAYNE DATED 28/08/2017.............. PN14

Fair Work Commission Transcripts

C2017/4332, Transcript of Proceedings [2017] FWCTrans 509 (6 December 2017)