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Workplace Relations Amendment (Registration and Accountability of Organisations) Bill 2002

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2002

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

 

 

 

 

WORKPLACE RELATIONS (REGISTRATION AND ACCOUNTABILITY OF ORGANISATIONS) BILL 2002

 

 

 

 

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Employment and Workplace Relations, the Honourable Tony Abbott MP)



WORKPLACE RELATIONS (REGISTRATION AND ACCOUNTABILITY OF ORGANISATIONS) BILL 2002

 

(Amendments to be move on behalf of the Government)

 

 

OUTLINE

 

The Government is proposing amendments to establish a ‘Registration and Accountability of Organisations Schedule’ within the Workplace Relations Act 1996 rather than creating a separate Act pertaining to registered organisations.

The Government is also proposing substantive amendments to:

·           establish a Registration and Accountability of Organisations Schedule to the Workplace Relations Act (rather than a stand alone organisations Act);

·           ensure that the mere fact that members of an enterprise association own shares in their firm does not necessarily render such an association ineligible for registration by reason of ‘improper control’ by an employer;

·           extend the powers of the Commission to make exclusive representation orders in cases where a dispute is likely to occur which could cause damage or harm to the business of an employer;

·           make a number of amendments designed to protect the security of declaration envelopes and ballot material generally;

·           give the Court power to make orders for rectification of the breach of an organisation’s rules in cases where the relevant individual was no longer a member or officer of the organisation, and to make orders that compensation be made to the organisation as a result of breaches of its rules;

·           delete Part 3 of Chapter 9 of the Bill (concerning general duties of officers and employees of organisations to observe orders and directions of the Court and Commission); and

·           make various minor technical amendments to clauses 6, 94 and 357.

 

FINANCIAL IMPACT STATEMENT

The proposed amendments are not expected to have any impact on Commonwealth expenditure .

 



NOTES ON AMENDMENTS

The Amendments are dealt with in subject groupings in the order set down in the Outline.

Conversion of RAO Bill to WR Act Schedule

Amendment No. 1 - Title, page 1 (line 1)

1.                   Amendment No. 1 would insert the words ‘to amend the Workplace Relations Act 1996 ’ in the title of the Bill.

Amendment No. 2 - Heading to Chapter 1, page 2 (line 1)

2.                   Amendment No. 2 would omit the heading to Chapter 1.

Amendment No. 3 - Heading to Part 1, page 2 (line 2)

3.                   Amendment No. 3 would omit the heading to Part 1 of Chapter 1.

Amendment No. 4 - Clause 1, page 2 (line 5)

4.                   Amendment No. 4 would amend the citation of the Act.

Amendment No. 5 - Clause 2, page 2 (table and note)

Amendment No. 6 - Clause 3, page 3 (lines 3 to 6)

Amendment No. 7 - Schedule 1, page 3, after proposed item 1

5.                   As noted in the Outline, the substantive provisions proposed by the Bill as introduced into the House are to be converted to amendments contained in a new Schedule 1 to the Bill.

6.                   Amendments No. 5 and 6 amend the commencement provisions to account for the fact that the substantive provisions of the Bill are now contained in a schedule to the Bill.

7.                   Amendment No. 6 also omits existing Clause 3, which provides for the application of the Act to the Crown.  A similar clause, proposed Clause 5A, would be inserted into the Schedule by amendment No. 11.  The clause has been amended to replace references to ‘this Act’ with ‘this Schedule’.

8.                   Amendment No. 7 also inserts new Schedule 1 into the Bill; this new schedule will provide for the insertion of Schedule 1B to the WR Act.  The amendment inserts the schedule heading and provides an overview of Chapter 1 to Schedule 1B.

Amendment No. 8 - Heading to Part 2, page 4 (line 2)

9.                   Amendment No. 8 would omit the heading.

Amendment No. 9 - Clause 4, page 4 (lines 4 to 10)

10.               Amendment No. 9 would remove clause 4 of the Bill (which provided a simplified outline of Part 2 of Chapter 1 - this is to be replaced by an overview to the Chapter: see Amendment No. 7).

Amendment No. 10 - Clause 5, page 4 (lines 11 to 28)

11.               Clause 5 set out the objects for the proposed Act, including that of ensuring that organisations are representative of and accountable to their members, and are able to operate effectively.  This reflects existing paragraph 3(g) of the WR Act.  Amendment No. 10 replaces the references to ‘this Act’ with ‘this Schedule’ both in the clause and the legislative note.

Amendment No. 11 - Page 4 (after line 28), after clause 5

12.               Amendment No. 11 would insert a new clause 5A to provide that the Crown, in all its capacities, will be bound by Schedule 1B, although nothing in the Schedule renders the Crown liable to be prosecuted for an offence.  The clause is substantially the same as the clause that was omitted by Amendment No. 6.

Amendment No. 12 - Clause 6, page 4 (line 30)

Amendment No. 14 - Clause 6, page 8 (line 3)

Amendment No. 15 - Clause 6, page 9 (line 14)

Amendment No. 17 - Clause 6, page 11 (line 21)

Amendment No. 18 - Clause 6, page 11 (line 23)

Amendment No. 19 - Clause 6, page 11 (line 24)

Amendment No. 25 - Clause 7, page 13 (line 2)

Amendment No. 26 - Clause 7, page 14 (line 18)

Amendment No. 27 - Clause 8, page 14 (line 25)

Amendment No. 28 - Heading to subclause (2), page 15 (line 9)

Amendment No. 29 - Clause 8, page 15 (line 10)

Amendment No. 30 - Heading to subclause (4), page 15 (line 16)

Amendment No. 31 - Clause 8, page 15 (line 22)

Amendment No. 32 - Clause 9, page 16 (line 3)

Amendment No. 33 - Clause 9, page 17 (line 1)

Amendment No. 34 - Clause 10, page 17 (line 6)

Amendment No. 35 - Clause 10, page 17 (line 16)

Amendment No. 36 - Clause 10, page 17 (line 27)

Amendment No. 37 - Clause 11, page 18 (line 2)

Amendment No. 38 - Clause 11, page 18 (line 8)

Amendment No. 39 - Clause 12, page 18 (line 13)

Amendment No. 40 - Clause 13, page 18 (line 24)

Amendment No. 41 - Clause 13, page 18 (line 27)

Amendment No. 42 - Clause 14, page 19 (line 4)

Amendment No. 43 - Clause 14, page 19 (line 17)

Amendment No. 44 - Clause 14, page 19 (line 21)

Amendment No. 46 - Clause 16, page 20 (line 3)

Amendment No. 47 - Clause 16, page 20 (line 5)

Amendment No. 51 - Clause 19, page 24 (line 26)

Amendment No. 52 - Clause 19, page 24 (line 29)

Amendment No. 53 - Clause 19, page 25 (line 4)

Amendment No. 54 - Clause 19, page 25 (line 30)

Amendment No. 55 - Clause 20, page 26 (line 21)

Amendment No. 56 - Clause 20, page 26 (line 24)

Amendment No. 57 - Clause 20, page 27 (line 2)

Amendment No. 59 - Clause 21, page 28 (line 26)

Amendment No. 60 - Clause 22, page 29 (line 23)

Amendment No. 61 - Clause 25, page 32 (line 8)

Amendment No. 62 - Clause 25, page 32 (line 14)

Amendment No. 63 - Clause 25, page 32 (line 16)

Amendment No. 64 - Clause 26, page 33 (line 1)

Amendment No. 65 - Clause 26, page 33 (line 6)

Amendment No. 67 - Clause 28, page 34 (line 21)

Amendment No. 68 - Clause 28, page 36 (line 12)

Amendment No. 69 - Clause 29, page 36 (line 32)

Amendment No. 70 - Clause 29, page 36 (line 33)

Amendment No. 71 - Clause 31, page 39 (line 26)

Amendment No. 72 - Clause 32, page 39 (line 31)

Amendment No. 73 - Clause 32, page 40 (line 2)

Amendment No. 74 - Clause 36, page 47 (line 2)

Amendment No. 75 - Clause 38, page 48 (line 24)

Amendment No. 76 - Clause 38, page 49 (lines 17 and 18)

Amendment No. 77 - Clause 55, page 63 (line 20)

Amendment No. 78 - Clause 55, page 63 (line 24)

Amendment No. 79 - Clause 57, page 66 (line 13)

Amendment No. 80 - Clause 60, page 71 (line 11)

Amendment No. 81 - Clause 62, page 74 (line 12)

Amendment No. 84 - Clause 65, page 76 (line 27)

Amendment No. 85 - Clause 73, page 83 (line 16)

Amendment No. 86 - Clause 73, page 83 (line 21)

Amendment No. 88 - Clause 87, page 90 (line 7)

Amendment No. 89 - Clause 92, page 95 (line 7)

Amendment No. 92 - Clause 96, page 101 (line 6)

Amendment No. 93 - Clause 97, page 101 (line 17)

Amendment No. 98 - Clause 133, page 129 (line 12)

Amendment No. 99 - Clause 133, page 129 (line 17)

Amendment No. 100 - Clause 133, page 129 (line 21)

Amendment No. 102 - Clause 135, page 130 (line 28)

Amendment No. 103 - Clause 140, page 133 (line 6)

Amendment No. 104 - Clause 140, page 133 (line 7)

Amendment No. 105 - Clause 142, page 135 (line 9)

Amendment No. 106 - Clause 142, page 135 (line 22)

Amendment No. 107 - Clause 142, page 135 (line 24)

Amendment No. 108 - Clause 144, page 138 (line 2)

Amendment No. 109 - Clause 146, page 140 (line 23)

Amendment No. 110 - Clause 150, page 145 (line 4)

Amendment No. 111 - Clause 150, page 145 (line 5)

Amendment No. 112 - Clause 151, page 145 (line 28)

Amendment No. 113 - Clause 151, page 146 (line 1)

Amendment No. 114 - Clause 151, page 146 (line 12)

Amendment No. 115 - Clause 152, page 148 (line 9)

Amendment No. 116 - Clause 156, page 151 (line 5)

Amendment No. 117 - Clause 156, page 151 (line 10)

Amendment No. 118 - Clause 158, page 152 (line 31)

Amendment No. 119 - Clause 158, page 153 (line 5)

Amendment No. 121 - Clause 159, page 153 (line 31)

Amendment No. 123 - Clause 160, page 154 (line 23)

Amendment No. 124 - Clause 161, page 155 (line 2)

Amendment No. 132 - Clause 170, page 166 (line 2)

Amendment No. 133 - Clause 175, page 170 (line 6)

Amendment No. 135 - Clause 186, page 177 (line 15)

Amendment No. 136 - Clause 186, page 177 (line 22)

Amendment No. 139 - Clause 205, page 196 (line 16)

Amendment No. 142 - Clause 230, page 212 (line 30)

Amendment No. 143 - Clause 329, page 219 (line 23)

Amendment No. 144 - Clause 246, page 224 (line 8)

Amendment No. 145 - Clause 249, page 225 (line 27)

Amendment No. 146 - Clause 253, page 228 (line 29)

Amendment No. 147 - Clause 256, page 233 (line 9)

Amendment No. 148 - Clause 257, page 235 (line 3)

Amendment No. 149 - Clause 261, page 238 (line 20)

Amendment No. 150 - Clause 281, page 255 (line 10)

Amendment No. 152 - Clause 285, page 257 (line 33)

Amendment No. 153 - Clause 290, page 259 (line 23)

Amendment No. 154 - Clause 293, page 261 (line 10)

Amendment No. 163 - Clause 329, page 290 (line 5)

Amendment No. 164 - Clause 338, page 297 (line 7)

Amendment No. 165 - Clause 338, page 297 (line 8)

Amendment No. 166 - Clause 338, page 297 (line 9)

Amendment No. 167 - Clause 338, page 297 (line 10)

Amendment No. 168 - Clause 338, page 297 (line 12)

Amendment No. 169 - Clause 338, page 297 (line 13)

Amendment No. 170 - Clause 338, page 297 (line 19)

Amendment No. 171 - Clause 339, page 297 (line 26)

Amendment No. 173 - Clause 340, page 298 (line 4)

Amendment No. 174 - Clause 341, page 298 (line 28)

Amendment No. 175 - Clause 343, page 300 (line 8)

Amendment No. 176 - Clause 344, page 300 (line 10)

Amendment No. 177 - Clause 344, page 300 (line 27)

Amendment No. 179 - Clause 351, page 303 (line 27)

Amendment No. 180 - Clause 352, page 304 (line 2)

Amendment No. 181 - Clause 353, page 304 (line 12)

Amendment No. 182 - Clause 353, page 304 (line 14)

Amendment No. 183 - Clause 354, page 304 (line 25)

Amendment No. 184 - Clause 354, page 304 (line 27)

Amendment No. 186 - Clause 358, page 306 (line 13)

Amendment No. 187 - Clause 359, page 306 (line 28)

Amendment No. 188 - Clause 359, page 307 (line 2)

Amendment No. 189 - Clause 359, page 307 (line 7)

Amendment No. 190 - Clause 359, page 307 (line 10)

Amendment No. 191 - Clause 359, page 307 (line 18)

Amendment No. 192 - Clause 359, page 307 (line 27)

13.               Each of these amendments is consequential to the insertion of Schedule 1B to the WR Act.  They replace all references to the “Act” or “this Act” with references to the “Schedule”, “this Schedule” or “Schedule, the Workplace Relations Act”, as appropriate.

Amendment No. 20 - Clause 6, page 11 (line 24)

Amendment No. 66 - Clause 26, page 33 (line 8)

14.               These amendments would amend the legislative notes to clauses 6 and 26, respectively, to reflect the change in name of the related Consequential Provisions legislation - from Workplace Relations (Registration and Accountability of Organisations)(Consequential Provisions) Act 2002 to Workplace Relations Legislation Amendment (Registration and Accountability of Organisations) (Consequential Provisions) Act 2002 .

Amendment No. 21 - Clause 6, page 12 (line 27)

15.               Amendment No. 21 would substitute a definition of ‘this schedule’ for the definition of ‘this Act’, and provide that it includes regulations made under Schedule 1B of the WR Act.

Amendment No. 23 - Clause 6, page 12 (lines 28 and 29)

16.               Amendment No. 23 would amend the definition of the ‘Workplace Relations Act’ to exclude reference to Schedule 1B of the WR Act as well as any regulations made under clause 338 of that Schedule.

Amendment No. 24 - Page 12 (after line 29), after clause 6

17.               Amendment No. 24 would insert a new clause 6A to provide that in Schedule 1B a reference to a provision is a reference to a provision of that Schedule, unless the contrary appears.  For instance, the reference to ‘section 16’ in subclause 17(1) would be taken to be a reference to section 16 of Schedule 1B.

Amendment No. 45 - Clause 15, page 19 (lines 26 to 32)

18.               Amendment 45 would make clear that Part 2.5 of the Criminal Code does not apply to offences against the Schedule.  Legislative note 1 to Clause 15 would amend two references to ‘this Act’ with ‘this Schedule’.  Legislative note 2 advises that for the purposes of the Schedule corporate responsibility is dealt with by section 344, rather than part 2.5 of the Criminal Code .

Amendment No. 48 - Clause 18, page 22 (line 21)

Amendment No. 49 - Clause 18, page 22 (line 30)

Amendment No. 50 - Clause 18, page 23 (after line 7), at the end of the clause

19.               Amendments No. 48 and 49 would make technical amendments to Clause 18 consequential upon the changes proposed by amendment No. 50.

20.               Amendment 50 would insert new subclause 18(3) to incorporate the provisions previously contained in Schedule 1 of the Bill into Schedule 1B.

Amendment No. 87 - Clause 80, page 86 (line 22)

Amendment No. 97 - Clause 117, page 116 (line 5)

21.               As a consequence of converting the Bill to a Schedule, Amendments No. 87 and 97 would insert a reference to the Workplace Relations Act.

Amendment No. 120 - Clause 158, page 153 (line 23)

Amendment No. 122 - Clause 159, page 154 (line 17)

Amendment No. 193 - Page 308 (lines 13 to 28)

Amendment No. 195 - Schedule 2, page 310 (line 2) to page 317 (line 6)

22.               Amendments No. 120 and 122 would make technical amendments to Clauses 158 and 159, respectively, consequential upon changes proposed by Amendments No. 193 and 195, by substituting references to ‘Part 3 of Schedule 2’ with references to ‘Division 4 of Part 7 of Chapter 11’.

23.               Amendment No. 195 will remove Schedule 2 of the Bill as introduced (the text of this Schedule is to be inserted into the body of a new Schedule 1B, to avoid the need for a Schedule to a Schedule).

24.               Amendment 193 would insert new Part 7 into Chapter 11 to Schedule 1B to the WR Act to incorporate provisions previously contained in Schedule 2 of the Bill.  These provisions deal with matters arising from the dual registration of organisations within both the federal and State systems (ie the registration of organisations under the WR Act and the registration of the branches of such organisations under State workplace relations legislation).

Amendment No. 158 - Clause 317, page 275 (lines 5 to 21)

25.               Amendment No. 158 would substitute a new Clause 317 to provide a new simplified outline of the content of Chapter 11.  The new outline would amend two references in the earlier outline to ‘this Act’ and reflects the proposed addition of Part 7 into Chapter 11.

Amendment No. 178 - Clause 344, page 300 (line 33)

26.               This amendment would amend the legislative note to Clause 344 to replace two references to ‘this Act’ with ‘this Schedule’.

Amendment No. 194 - Schedule 1, page 309 (lines 1 to 18)

27.               Amendment No. 194 would remove Schedule 1 of the Bill to avoid the need for a Schedule to a Schedule.  This amendment is consequential on the amendment to be made by amendment No. 193.

Registration Criteria

Amendment No. 58 - clause 20, page 27 (line 3), after subclause (1)

28.               Chapter 2 of the Workplace Relations (Registration and Accountability of Organisations) Bill 2002 (the Bill) deals with the registration of organisations and enterprise associations. 

29.               The Bill as currently drafted allows the Australian Industrial Relations Commission (the Commission) to register an enterprise association provided it is:

‘free from control by, or improper influence from:

(i)         any employer, whether at the enterprise in question or otherwise; or

(ii)        any person or body with an interest in that enterprise; or

(iii)       any organisation, or any other association of employers or employees.’  (Paragraph 20(1)(b) refers)

30.               Amendment No. 58 will address a decision by the Australian Industrial Relations Commission (AIRC) that found that the Suncorp-Metway-QIDC Enterprise Union (SMQEU) was ineligible for registration on the basis that, among other things, the SMQEU was not free from ‘control or improper influence from…a person with an interest in the enterprise’.  This was due to the fact that members of the SMQEU, including members of its committee of management, held shares in the enterprise and therefore had an interest in the enterprise. 

31.               Amendment No. 58 inserts new subsection 20(1A) to make it clear that the mere holding of an interest in an enterprise in question by members of the association is not, in itself, sufficient to determine that the enterprise association breaches the requirement in paragraph 20(1)(b).  Rather, the focus is on whether the enterprise association is free from control by, or improper influence from the person or organisation.

Exclusive Representation Orders
Amendment No. 101 - Clause 134, page 130 (line 16)

32.               Clauses 134 to 138 of the Bill (which are similar in form to section 118A of the WR Act) would limit the Commission’s power to make exclusive representation orders to situations where there is a demarcation dispute in progress and it is satisfied that conduct of an organisation involved in that dispute is preventing the performance of work, or is harming the business of an employer, or there is an imminent risk that this will occur (subclause 134(2) refers). 

33.               Amendment No. 101 will insert new paragraph (c) into subclause 134(2) to extend the circumstances in which an order can be made, to cover cases where a dispute is likely to occur and that dispute is likely to cause damage to the performance of work or harm to the business of an employer.

Declaration envelopes

In the approved form

Amendment No. 13 - Clause 6, page 5 (lines 2 and 3)

Amendment No. 83 - Clause 65, page 77 (line 8)

Amendment No. 95 - Clause 102, page 103 (line 17)

Amendment No. 134 - Clause 188, page 178 (lines 22 to 30)

34.               Clause 6 of the Bill contains a definition of ‘declaration envelope’; it ‘…means an envelope in the form prescribed by the regulations on which a voter is required to make a declaration containing the prescribed information’.

35.               Subclauses 65(7), 102(2)(d) and 188(b) require the declaration envelope used in the relevant postal ballots to which those provisions refer to be in the ‘approved form’.  ‘Approved’ is defined in clause 6 as, ‘in relation to the conduct of an election or ballot, means approved by the AEC by notice published in the Gazette’ .  The use of the word ‘approved’ is inconsistent with the definition of ‘declaration envelope’.

36.               To ensure consistency with the definition of ‘declaration envelope’, amendment No. 13 will delete the definition of ‘approved’ from clause 6 of the Bill.  Amendment No. 95 will remove the reference to ‘an approved form’ from paragraph 102(2)(d).  Similarly, amendment No. 83 will omit subclause 65(7) as it is redundant. 

37.               Paragraph 188(b) currently makes reference to declarations being in an approved form.  As a consequence of amendment No. 134, and other amendments, clause 188 is being replaced by a new clause.  As well as including a requirement for outer envelopes to be used (explained in more detail below), the clause is being redrafted to remove any references to the ‘approved form’ (amendment No. 134 refers).

38.               Subclauses 65(7), 102(2)(d) and 188(b) are the only places in the Bill where the word ‘approved’ (as defined in clause 6) is used. 

Outer envelopes

Amendment No. 22 - Clause 6, page 11 (line 28)

Amendment No. 82 - Clause 65, page 77 (line 4 to 7)

Amendment No. 90 - Clause 94, page 99 (line 5)

Amendment No. 94 - Clause 100, page 102 (line 7)

Amendment No. 96 - Clause 102, page 103 (lines 18 to 20)

Amendment No. 134 - Clause 188, page 178 (lines 22 to 30)

39.               The Bill provides that declaration envelopes must be used in all secret postal ballots.  In this context, one possible concern is the scope that may exist for identification of declaration envelopes in the course of post from the elector to the Australian Electoral Commission.  

40.               At present, the Bill does not require the AEC to include an outer envelope in the ballot material provided to voters, unless the rules of the relevant organisation require an outer envelope to be used. 

41.               To ensure the security of declaration envelopes when they are returned to the AEC, amendments will be undertaken to require that they be returned in an ‘outer envelope’.  Accordingly, amendment No. 22 amends the definition of postal ballot, to ensure that the AEC must provide each voter with a ballot paper, a declaration envelope and an outer envelope (the form of which is to be specified in the regulations).

42.               Amendments No. 82 and 96 will make amendments to clauses 65 and 102 to reflect this new process.  The amendments in amendment No. 134 will achieve a similar outcome for clause 188 (as well as removing the reference to the ‘approved form’).

43.               Amendments No. 90 and 94 make minor technical amendments to clauses 94 and 100 to correct the terminology used (ie. to ensure the provisions refer to a ‘secret postal ballot’).

Security of Ballot Material Generally

Amendment No. 137 - Clause 193, page 181 (line 20)

Amendment No. 138 - Clause 193, page 181 (lines 21 to 23)

44.               As a general rule, the AEC observes the requirements in the rules of the organisation in ensuring the security of ballot material.  There may be circumstances, however, where the AEC should have the ability to depart from the requirements laid down in the rules of an organisation.  Clause 193(1)(b) thus provides that an electoral official may, in spite of the rules of an organisation, take such action as necessary to ensure that no irregularities occur in relation to the election, or in order to remedy any procedural defects that appear to exist in the rules.  This replicates section 215(1)(b) of the WR Act.

45.               Amendment No. 137 would amend clause 193 of the Bill to make express that the AEC may take whatever steps are necessary to ensure the security of ballot papers and envelopes that are to be used (or have been used) in an election.  Amendment No. 138 will make minor consequential amendments by removing the note to clause 193(1)(b).

Directions to perform and observe rules

Amendment No. 125 - Heading to Part 3, page 156 (line 2)

Amendment No. 126 - Clause 164, page 159 (lines 1 to 13)

Amendment No. 127 - Heading to subclause (9), page 159 (line 14)

Amendment No. 128 - Clause 164, page 159 (line 16)

Amendment No. 129 - Page 159 (line 20) at the end of Part 3

Amendment No. 130 - Page 159, at the end of Part 3 (after proposed section 164A)

Amendment No. 131 - Page 159, at the end of Part 3 (after proposed section 164B)

Amendment No. 159 - Clause 324, page 285 (line 17)

Amendment No. 160 - Clause 324, page 285 (line 20)

Amendment No. 161 - Clause 324, page 285 (line 23)

Amendment No. 162 - Heading to clause 326, page 287 (line 31)

Amendment No. 172 - Clause 339, page 297 (line 32)

46.               Clause 164 of the Bill (which replicates section 209 of the WR Act), would entitle a member of an organisation to apply to the Federal Court for an order directing another person to perform or observe the rules of the organisation.  Such an order can only be directed to a person who is under an obligation to perform or observe the relevant rule or rules of the organisation (see subclause 164(a)).

47.               In Darroch and ors v Tanner (1987) 74 ALR 559, a Full Court of the Federal Court held that it only had the power to give directions to persons who, at the time of the giving of the directions , were under an obligation to perform or observe the rules.  The Court found that it did not have the power to make orders directing a person to take action to rectify a past breach of the rules, unless there was a continuing obligation on the relevant person to perform or observe the relevant rules.  Amendments No. 125 to 131 and 159 to 161 and 172 will amend the Bill to give the Court such a power.

48.               New clauses 164A and 164B will be inserted in the Bill after current clause 164.  Amendment No. 129 would insert new clause 164A, which will give the Federal Court power to make an order in circumstances where a person, who was under an obligation to perform or observe rules of an organisation, has breached those rules.  In particular, the provision would apply when the person either spent funds or used resources, or authorised the spending of funds or use of resources in breach of those rules.  An order could not be made against a person unless that person acted unreasonably in spending the funds or authorising the use or the resources.

49.               If these conditions are satisfied, then the Court could order the person to compensate the organisation for any damage suffered as a consequence of the breach.  The compensation may be by way of payment of money or otherwise.

50.               New clause 164B is similar to clause 164A, but applies in situations where the breach committed by the person does not relate to the spending of funds or use of resources (or the authorisation to do so).  In such a case, the Court may order a person, whether or not they were the person who breached the rules, to take actions that would rectify the effects of the breach of the rules.  In effect, the provision is directed to placing the organisation in the position that it would have been if the breach had not occurred (Amendment No. 130 refers).

51.               Currently, clause 164 includes a number of provisions detailing the procedures or implications consequential on the operation of the provision.  For instance, subclause 164(6) specifies that an order of the Court may not invalidate an election.  Subclauses 164(7) and (8) allow the Court to consider whether the rules of the organisation contravene section 142 and, if so, to make a declaration to that effect.  Subclause 164(8) extends the operation of the procedural provisions in clause 163 to orders made under subclause 164(7).  Finally, subclause 164(9) lays down two definitions, one for ‘election’ and the other explaining the meaning of ‘order under this section’.

52.               These provisions apply equally to proposed clauses 164A and 164B.  Accordingly, amendment No. 126 would delete these subclauses, while amendment No. 131 would insert a new provision, clause 164C, which mirrors subclauses 164(6) to (8) but will apply equally to clauses 164, 164A and 164B.  Amendment No. 127 makes minor consequential amendments to the heading of clause 164 while amendment No. 128 will omit the definition of election from clause 164.  An equivalent definition will be included in new subclause 164C(4).

53.               Amendment No. 125 will make minor consequential amendments to the heading to Part 3 to reflect the changes in amendments No 129 to 131.  Similarly, amendments No. 159 to 161 and 172 make similar consequential amendments to clauses 324, 326 and 339, by including references to the new provisions, as appropriate.

Amendments to remove Part 3 of Chapter 9 of the Bill

Amendment No. 140 - Clause 210, page 199 (lines 7 to 10)

Amendment No. 141 - Division 3, clauses 221 to 228, page 206 (line 2) to page 210 (line 30)

Amendment No. 151 - Clause 281, page 255 (lines 14 to 16)

Amendment No. 155 - Part 3, clauses 294 to 303 page 262 (line 2) to page 266 (line 19)

Amendment No. 156 - Clause 305, page 269 (lines 26 to 28)

Amendment No. 157 - Clause 310, page 271 (lines 18 to 28)

54.               Chapter 9 of the Bill sets out a range of duties of officers and employees of organisations.  Part 3 of Chapter 9 sets out the general duties of officers and employees in relation to orders or directions of the Federal Court or the Commission.

55.               Amendments No. 140, 141, 151 and 155 to 157 will delete Part 3 of Chapter 9 and make other minor technical amendments as a consequence. 

Technical amendments

‘Correct cross-reference’

Amendment No. 16 - Clause 6, page 11 (line 1)

Amendment No. 16 is a technical amendment to correct a cross-reference in Clause 6 to the definition of ‘irregularity’.

‘Withdrawal from amalgamation’

Amendment No. 91 - Clause 94, page 99 (lines 14 to 22)

56.               Part 3 of the Bill sets down a process for organisations to withdraw from amalgamations.  Amendment No. 91 will make technical amendments to clause 94 of Part 3 of the Bill.

57.               Under section 253ZJ of the WR Act, a constituent part of an organisation that amalgamated prior to 31 December 1996 was given three years within which it could apply to the Federal Court for a disamalgamation ballot.  Constituent parts that became part of an amalgamated organisation after that date were allowed 5 years to apply for a ballot.  Clause 94 of the Bill is intended to operate in the same manner as section 253ZJ.

58.               However, there are technical deficiencies with clause 94 as currently drafted.  Amendment No. 91 will correct this reference to ensure that the provision operates as it currently does in the WR Act. 

‘Reference to Consolidated Revenue Fund’

Amendment No. 185 - Clause 357, page 306 (lines 5 to 10)

59.               Paragraph 357(a) of the Bill provides that a court that imposes a monetary penalty under this Act (other than a penalty for an offence) may order that the penalty or part thereof be paid into the Consolidated Revenue Fund.  The reference to the Consolidated Revenue Fund is not consistent with current financial management terminology.

60.               Consequently, Amendment No. 185 amends paragraph (a) of clause 357 to replace the words ‘into the Consolidated Revenue Fund’ with the words, ‘to the Commonwealth’.  This amendment would ensure that the terminology used in the provision reflects current financial management terminology in Commonwealth legislation.