The following is a Legal Opinion handed down by the Grand Registrar's Committee in response to an appeal lodged by RW Bro Glen Green, an unsuccessful Candidate for the office of Grand Master, regarding the manner in which the election process was carried out in March 2020. The appeal was subsequently withdrawn on 4 December 2020. The Grand Master's comments to the Grand Secretary re the complaint can be viewed here. The response by the complainant to the legal opinion is here.
Matters for Consideration
THE POSITION AT LAW
- There is a “general assumption that members of unincorporated non-profit associations do not intend to be contractually bound by the association’s rules. The courts assume that there are no legal obligations between members unless the rules actually make it clear that there are. This means that in most situations members cannot maintain a court action based upon an alleged breach of the rules”: Corporations and Associations Law – Principles and Issues (Gooley; Zammit; Dicker; and Russell, 7th edition). This assumption was affirmed in Australia in Cameron v Hogan (1934) 51 CLR 358. Starke J observed (at 384) the courts do not, as a general rule, interfere in the internal affairs of voluntary associations, societies or clubs.
- In Scandrett v Dowling (1992) 27 NSWLR 483 Mahoney JA said (at 503): “Where there is a breach of the rules of a voluntary association the court will not always intervene to restrain that breach….. In considering whether such a breach should be restrained by injunction or the subject of a declaration, it will ordinarily be of assistance to consider three matters: whether the rules of the voluntary association were intended to create legally binding rights and obligations between the members; (if they were) whether there has been a breach of rules creating such rights and obligations; and (if there has) whether the rules or the breach are such that it was intended that legal consequences should flow from the breach and (if it was) whether those consequences warrant intervention to restrain the breach.
Whether, considered as a whole, the rules of a particular voluntary association were intended to create such rights and obligations must be determined according to the nature of the association, the terms of the rules, and the general context.”
- These remarks by Mahoney JA were applied with approval by Kourakis CJ in Harrington v Coote (2013) 119 SASR 152.
- These observations with respect to the position at law are made because of an apparent presumption in earlier correspondence that the question of the validity of the election would give rise to an entitlement to take proceedings in the Supreme Court. There is no doubt that there are situations in which particular disputes about the rules of voluntary associations have led to judicial intervention. There is, however, a clear discretion in the Court as to whether to intervene or not.
- Cases in which the Court has intervened have involved cases where there are disputed proprietary rights; cases where there is a clear indication that the rules of the association are legally binding; cases in which the application of public policy justifies judicial intervention or where procedural fairness issues are concerned; cases relating to the enforceability of unreasonable restraint of trade; and in cases in which a “right” to work in chosen field are involved.
- In Cullen v Galloway Cattle Society of Australia Inc (1998) 27 ACSR 648, Young J said: “The court has been concerned on many occasions recently where small technical points have been taken by small minorities of members of a corporation or club, where something has affected an election….. One way of dealing with the problem is just to refuse in the court's discretion to grant a declaration. If something is a nullity then it seems to me to matter little whether the court makes a declaration or not, it is still a nullity. However, there may be some matters which could be called mere irregularities which do not go to the heart of the matter, in which the court may just pass over something that happened at a meeting which should not have happened but it did not really affect the result.”
- In that particular matter, relating to an association which had registered under the Associations Incorporation Act, Justice Young also gave consideration to the question of whether certain rules of the Galloway Cattle Society were mandatory or merely directory.
- In Dobrijevic v Free Serbian Orthodox Church, Diocese for Australia & New Zealand Property Trust  NSWSC 637, White J accepted the submission that: “Where an unincorporated association adopts practices which are inconsistent with the provisions of their rules or constitution, especially where those practices are adopted over an extended period, those practices may become part of the terms and conditions of the rules governing the association.
- A consideration of practices adopted at only two elections involving regional venues would obviously not constitute an extended period of time. However, such a practice, eg. in the manner of nomination of scrutineers, may require detailed consideration.
WERE ALL OF THE PROCEDURAL PROVISIONS WITH RESPECT TO THE ELECTION FOLLOWED?
- It is proposed to examine this question by reference to the formal grounds of complaint set out in RW Bro Green’s letter of 22 April 2020:
- Ground 1 – Failure to take into account informal votes.
- The counting of votes, both at the Sydney Masonic Centre and also at each of the regional venues required notification of the number of informal votes, if any. In the event, there was one informal vote notified from the counting in Wollongong and a total of 10 at the SMC. The clear intention in the Constitutions is that the successful candidate must achieve a majority of all votes cast, including the informal votes. The stipulation is described as 50% plus one. The total number of votes cast, including informal votes, was 868. The successful candidate therefore required at least 435 votes. As indicated, the unsuccessful candidate gained 417 votes and the successful candidate 440 votes. This complaint does not affect the validity of the election.
- Ground 2 – Appointment of presiding officers
Ground 6 – Nomination of regional centres
- It is convenient to deal with these two grounds together. Pursuant to the constitutional requirements with respect to a contested ballot, regional polling venues are to be presided over by a Brother appointed by the Executive Council and notified by the Grand Secretary. There is no constitutional method prescribed as to the manner in which such persons might be nominated or selected, but on a practical basis it must require a degree of liaison between appropriate Grand Lodge officers and the regional centres as to identifying persons who are available and willing to perform such a role.
- In the present matter, it appears that a list of regional venues that had indicated a willingness to be a streaming centre was compiled. That list included centres which had been so utilised in the 2019 election. The list, together with persons identified as appropriate to be presiding officers, was approved at the meeting of the Executive Council on 12 February 2020. Although listed as an item for approval in General Business, no formal minute or formal notification of “appointment” was made.
- On 13 February 2020 the Grand Secretary sent an email to the members of the Executive Council advising as follows: “Further to my earlier email listing of Streaming Centres for the upcoming March 2020 Grand Communication, the Chairman of the Board of Management, on legal advice, wishes to recommend the addition of the Gosford and Wollongong centres to the list. Please confirm your approval (or otherwise) by return email as soon as possible.”
- It is understood that an earlier perspective had not considered Gosford and Wollongong to be “regional”. It is not presently known whether the members of the Executive Council responded to that advice by email or otherwise.
- On 24 February 2020 the Grand Secretary sent a further email to the members of the Executive Council: “Please note that there is now a recommendation for Kelso (Bathurst) and Queanbeyan to be included in the listing of Streaming Centres for the upcoming March 2020 Grand Communication. Please confirm your approval (or otherwise) by return email, as soon as possible”.
- With the exception of RW Bro Les Hicks, whose affirmative email of 24 February 2020 has been provided, it is not presently known whether other members of the Executive Council responded by email or otherwise.
- The final list of 36 regional venues was described in a confidential communication sent by email, as the Masonic Centres “nominated” by the Executive Council. That list included the addition of the four centres identified in the emails sent by the Grand Secretary after the Executive Council meeting on 12 February 2020, namely Gwynneville (Wollongong); Gosford; Kelso (Bathurst); and Queanbeyan.
- It would appear clear that regional centres that wished to be included in the list of centres which would receive the “live streaming” were added pursuant to requests which were submitted to Grand Lodge. It is considered that they were likely all approved by the Executive Council notwithstanding the absence of any formal memorandum to that effect. It might be noted in passing that there is a possible question as to whether the Executive Council “approved” the additional four centres which were added after the 12 February 2020 Executive Council meeting. As indicated above the manner of “approval” is not clear on the material provided to date. In the event that the votes from those centres were simply excluded, but the whole ballot not invalidated, RW Bro Green achieved 64 votes at those centres and the Grand Master 40. An arithmetical recalculation would not change the outcome of the election.
- To the extent that the formal complaint raises concerns about some Lodges which were not included in the list of nominated or appointed regional centres, in the absence of any evidence that they made a request to be included but were not, these are complaints which appear to be more political than touching upon questions of compliance with procedure.
- The approval of the list provided to the Executive Council, would, in our view, constitute “appointment” of those centres. As pointed out by the High Court of Australia in Gollin & Co Ltd v Karenlee Nominees Pty Ltd (1983) 153 CLR 455 at 470: “the meaning of the words “appoint” and “appointed” varies according to the context in which they are used. In some cases, the appointment of a person to fill a particular role or to perform a particular task will require nothing more than communication between appointor and prospective appointee.”
- Each Regional Masonic Centre that sought inclusion as a “live streaming” centre provided the name and contact details of a “contact person”. Such additional regional centres that were added to the list, namely Bathurst, Gosford, Wollongong and Queanbeyan similarly provided details of their “contact person”.
- The identified “contact persons” would appear to have been the people “approved” by the Executive Council to act as the Presiding Officer at the respective regional venues.
- Whether such a method of proceeding constituted an “appointment”, and whether such a nomination or appointment could be delegated by the recipient would appear to not be contemplated within the prescribed rules.
- The apparent approval of the list of “contact persons” as “presiding officers” might be viewed however, as simply giving lip service to the “appointment” of presiding officers contemplated being made by the Executive Council. In circumstances to which we will turn shortly, RW Bro Muir was listed as the “contact person” for both Wallsend and New Lambton. So far as the position at Wallsend was concerned, at the District 14 Committee Meeting on 6 March 2020, RW Bro Jeff Stone was designated or appointed to be the Returning Officer for the upcoming Grand Communication. This apparent or possible lack of compliance with the procedural provisions would not, in our opinion, necessarily invalidate the election. However, it provides another example of where some tightening up of the procedural requirements might need to be considered
- However, for the reasons that we have indicated above with respect to the “appointment” of the regional venues, we are of the view that the approved list of contact persons is likely a sufficient “appointment”, particularly in the absence of any manner of appointment being contained within the rules. If, contrary to such “appointment”, the local regional venues have themselves appointed the presiding officer, consideration of the ramifications, if any, will be required.
- However, it is our view that strict compliance or otherwise with procedural provisions for the appointment of the regional centres and the appointment of a suitable Brother to act as presiding officer, plays no relevant part in a consideration of the validity of the election itself.
- Ground 3 – Neutrality of presiding officers
Ground 5 – Members of the Grand Master’s Task Team acting as presiding officers
Ground 17 – Use of Grand Master’s Newsletter
- The various grounds of attack in the complaint document impugning the impartiality and integrity of identified individuals and the group identified as the Grand Master’s Task Team raises matters for broader consideration than the question of compliance with the procedural provisions.
- Some of the factual statements and assertions giving rise to some of these complaints would appear to simply be incorrect.
- Ground 4 – appointment of a Brother as Presiding Officer simultaneously at two Regional Centres.
Ground 11 – Failure of New Lambton regional centre to open.
- These grounds of complaint can be dealt with together. They relate to the circumstances of RW Bro Tom Muir being the nominated “contact person” for two Masonic Lodge Halls – namely New Lambton and Wallsend. It would appear that he thereby, by default, was appointed as the “presiding officer” at both centres.
- It is appropriate to note that some members of the Grand Registrar’s Committee were particularly concerned at the apparent circumstance that the Lodge at New Lambton had been specified as an appointed regional venue, but that it did not operate as such. In the original response from the Grand Secretary it had been asserted that: “ ‘two carloads’ (whatever that may mean in terms of numbers of voting Brethren) failed to vote due to that centre remaining closed.”
- Accepting at face value the various contentions in the items of correspondence which have been received it would appear that a decision to hold the streaming of the March Grand Communication at the Wallsend Masonic Hall only, and not at the New Lambton Masonic Hall, was a decision which was taken at the District 14 Committee Meeting on 3 January 2020. A motion to that effect was recorded in the minutes of that meeting. That decision had been based on the fact that the New Lambton Masonic Hall had been booked since the previous year for another function on 11 March 2020.
- A further District 14 Committee Meeting on 6 March 2020 confirmed that the streaming would be to Wallsend.
- The decision that streaming would be held at Wallsend only, was confirmed to all secretaries prior to the Communication by the DGIW who sent a separate email to those Brethren. A copy of the minutes and a copy of the relevant email has been included in the material provided to the Grand Registrar’s Committee.
- However, it would appear that the unavailability of the New Lambton Masonic Hall was not communicated to Grand Lodge. Consequently, New Lambton was erroneously included in the list of nominated Masonic centres to which streaming would occur.
- Without becoming embroiled in the second-hand hearsay accounts that it was two carloads of Masons who actually did travel to the alternative venue at Wallsend (as opposed to being turned away and not voting), it is the opinion of the Committee that the situation at New Lambton is covered by the terms of clause 6.1.5(e) with respect to regional venues: “provided that if for any reason it is reasonably impracticable to hold a meeting at any one or more of those venues, listed or appointed, the failure to do so will not invalidate the ballot.”
- The actual circumstances whereby RW Bro Muir received two of the voting packages, including ballot papers, is to be understood against the above circumstances. However, the proposition that he was thereby the appointed “presiding officer”, in circumstances where District 14 had in fact nominated and confirmed somebody else to perform that role should be the subject of some consideration in advance of any future election.
- Ground 7 – attendance sheets not used
Ground 8 – destruction of unused ballot papers v return
Ground 9 - lack of accountability and cross-checking of votes cast
Ground 10 – attendance sheets not returned to Grand Lodge
Ground 12 - “cross” v “tick” on ballots
Ground 13 – scrutineers to be appointed by Grand Master
Ground 14- scrutineers to “pledge themselves”
Ground 15 – distribution of ballot papers
Ground 16 – non-distribution of statement
Ground 18 – use of Lodge Rooms
- Some of these matters raise considerations where procedures might be improved and require clear instruction. Some of them might be considered to question the integrity of persons performing critical functions, such as vote counting (eg. Ground 8 para.3). Some of them are strictly procedural. None are viewed as affecting the integrity of the election. These are matters for broader discussion and do not raise issues going to the validity of the vote.
- Whilst there may have been some instances of procedural unconformity, eg. in the appointment of Presiding Officers, there is no basis to find that the election was invalid.
GRAND REGISTRAR’S COMMITTEE