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Thursday, 27 March 1980
Page: 1077

Senator MULVIHILL (NEW SOUTH WALES) - I direct a question to the Attorney-General. By way of preface, I refer to what was known as the Sweeney declaration, a decision in the Federal Court by Mr Justice Sweeney, which virtually said that although preferential voting was insisted upon in union ballots if a cross was put instead of a number the vote was valid. Does that declaration mean that, henceforth, in any trade union ballot run either by a union or under the Commonwealth Electoral Act the preferential system will be disregarded? In Commonwealth elections, will the marking of a cross constitute a valid vote, whereas figures now are required?

Senator DURACK (WESTERN AUSTRALIA) (Attorney-General) -On 4 March Senator Mulvihill asked me a question in relation to this matter. It involved consideration of a recent decision of Mr Justice Sweeney in the Federal Court in re Gleghorn.

Senator Mulvihill - That is the AJA.

Senator DURACK - In relation to an Australian Journalists Association ballot. He specifically asked certain questions which he has repeated this morning. I have had the opportunity of considering the reasons that have been advanced in this case and I am able to answer some of the questions that Senator Mulvihill has raised in relation to the effect of this problem on trade union ballots. The finding of the court was that the returning officers instructions on how to vote were not mandatory and that substantial compliance with those instructions was sufficient. The Court went on to hold that, although the voters in question had not followed the instructions in that they had used crosses or ticks instead of the figure ' 1 ', they had sufficiently indicated their intention. The decision was expressed to apply only to an optional preference ballot where there was only one position to be filled and only two candidates, and where the relevant union rules do not provide that such votes are informal. A trade union would need to change its present rules only if its terms were such that the decision in re Gleghorn was applicable to ballots conducted under those rules, and it wished to avoid the implications of that decision. The decision would not require returning officers of the Australian Electoral Office to change their practice of giving instructions, subject to union rules, that figures shall be used. However, the decision in re Gleghorn would be relevant to the question whether in similar cases a vote cast by means of a cross or tick was informal. So the situation in other trade union elections appears to follow from union rules. The union can govern and change the rules. In Federal elections this question is governed by section 133 of the Commonwealth Electoral Act and I am giving further consideration to the question whether there was anything said by Mr Justice Sweeney in that case which, although it would not be directly binding, may have some implications for that section of the Act.

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