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Workplace Relations (Registered Organisations) Bill 2001

Part 2 Conduct of elections for office and other positions

   

180   Conduct by AEC

Elections for office

             (1)  Each election for an office in an organisation, or branch of an organisation, must be conducted by the AEC. The expenses of conducting such an election are to be borne by the Commonwealth.

Note:          For the meaning of office , see section 9.

             (2)  Subsection (1) does not apply in relation to an election for an office in an organisation or branch while an exemption granted to the organisation or branch, as the case may be, under section 184 is in force in relation to elections in the organisation or branch or an election for the particular office.

Elections for other positions

             (3)  If an organisation or branch of an organisation has made a request under section 185 in relation to an election for a position other than an office, the AEC must conduct the election.

181   Application for organisation or branch to conduct its elections for office

             (1)  A committee of management of an organisation or branch of an organisation may lodge in the Industrial Registry an application for the organisation or branch, as the case may be, to be exempted from subsection 180(1) in relation to elections for offices, or an election for a particular office, in the organisation or branch.

             (2)  An application may not be made by a committee of management of an organisation or branch of an organisation unless the committee of management:

                     (a)  has resolved to make the application; and

                     (b)  has notified the members of the organisation or branch, as prescribed, of the making of the resolution.

             (3)  An application under subsection (1) must be accompanied by a declaration by a member of the committee of management concerned stating that subsection (2) has been complied with.

             (4)  Where an application has been made under subsection (1), the Industrial Registrar must cause a notice setting out details of the application to be published, as prescribed, for the purpose of bringing the notice to the attention of members of the organisation or branch concerned.

             (5)  Where the rules of an organisation require an office to be filled by an election by the members, or by some of the members, of a single branch of the organisation, an election to fill the office is taken to be an election for the branch.

182  Objections to application to conduct elections for office

             (1)  Objection may be made to an application under subsection 181(1) by a member of the organisation or branch of the organisation in relation to which the application was made.

             (2)  The Industrial Registrar or, if the Industrial Registrar directs, another Registrar must, as prescribed, hear the application and any objections duly made.

183   Threats etc. in relation to section 182 objections

             (1)  A person must not, without lawful authority or excuse, use, cause, inflict or procure, any violence, injury, punishment, damage, loss or disadvantage to another person because the other person has lodged an objection under subsection 182(1).

Maximum penalty:    30 penalty units.

             (2)  A person must not, without lawful authority or excuse:

                     (a)  offer or promise any property or benefit of any kind with the intention of influencing or affecting another person because the other person proposes to lodge, or has lodged, an objection under subsection 182(1); or

                     (b)  ask for or obtain, or offer or agree to ask for or obtain, any property or benefit of any kind (whether for that person or another person), on the understanding that the lodging of an objection under subsection 182(1) will be influenced or affected in any way.

Maximum penalty:    30 penalty units.

184   Registrar may permit organisation or branch to conduct its elections for office

             (1)  Where an application in relation to an organisation or branch has been lodged under subsection 181(1) and, after any objections duly made have been heard, a Registrar is satisfied:

                     (a)  that the rules of the organisation or branch comply with the requirements of this Act relating to the conduct of elections for office; and

                     (b)  that, if the organisation or branch is exempted from subsection 180(1), the elections for the organisation or branch, or the election for the particular office, as the case may be, will be conducted:

                              (i)  under the rules of the organisation or branch, as the case may be, and this Act; and

                             (ii)  in a manner that will afford members entitled to vote at such elections or election an adequate opportunity of voting without intimidation;

the Registrar may exempt the organisation or branch from subsection 180(1) in relation to elections for the organisation or branch, or the election for the particular office, as the case may be.

             (2)  A Registrar may revoke an exemption granted to an organisation or branch under subsection (1):

                     (a)  on application by the committee of management of the organisation or branch; or

                     (b)  if the Registrar:

                              (i)  is no longer satisfied as mentioned in subsection (1); and

                             (ii)  has given the committee of management of the organisation or branch an opportunity, as prescribed, to show cause why the exemption should not be revoked.

185   Organisation may ask AEC to conduct elections for positions other than offices

             (1)  If the rules of an organisation or branch of an organisation require an election to be held for a position other than an office in the organisation or branch, the organisation or branch, as the case may be, may request the AEC to conduct the election.

Note:          For the meaning of office , see section 9.

             (2)  The request must be:

                     (a)  in writing; and

                     (b)  signed by an officer of the organisation or branch who is authorised to do so by the committee of management of the organisation or branch; and

                     (c)  given to the AEC.

             (3)  A copy of the request must also be lodged in the Industrial Registry at the same time as the prescribed information in relation to the election is lodged (see section 187).

186   Declaration envelopes to be used for postal ballots

                   If the rules of an organisation provide for elections for office by postal ballot, a vote in the election cannot be counted unless:

                     (a)  the ballot paper on which it is recorded is returned in the declaration envelope provided to the voter with the ballot paper; and

                     (b)  if the postal ballot is conducted by the AEC—the declaration envelope is in the approved form.

Note:          For the meaning of declaration envelope and approved , see section 6.

187   Registrar to arrange for conduct of elections

             (1)  An organisation or branch of an organisation must lodge in the Industrial Registry the prescribed information in relation to an election that is to be conducted by the AEC.

             (2)  The prescribed information must be lodged before the prescribed day or such later day as a Registrar allows.

Note:          This subsection is a civil penalty provision (see section 284).

             (3)  If:

                     (a)  the prescribed information is lodged in the Industrial Registry by the organisation or branch (whether or not before the prescribed day or the later day allowed by a Registrar); and

                     (b)  a Registrar is satisfied that an election is required to be held under the rules of the organisation or branch; and

                     (c)  if the election is not an election for an office—the organisation or branch has made a request under section 185;

a Registrar must arrange for the conduct of the election by the AEC.

188   Organisation or branch must not assist one candidate over another

             (1)  An organisation or branch must not use, or allow to be used, its property or resources to help a candidate against another candidate in an election under this Part for an office or other position.

             (2)  If an organisation or branch of an organisation contravenes subsection (1), the organisation is guilty of an offence punishable on conviction by a fine of not more than 100 penalty units.

189   Organisation to provide returning officer with copy of register

             (1)  If a person (the returning officer ) conducting an election under this Part for an office or other position in an organisation, or branch of an organisation, gives a written request to an officer or employee of the organisation or branch to make available the register of members, or part of the register, kept by the organisation under section 219 to the returning officer for the purposes of the ballot, the officer or employee must comply with the request.

Maximum penalty:    30 penalty units.

             (2)  It is a defence to the offence if the officer or employee complied with the request as promptly as he or she was capable.

Note:          A defendant bears an evidential burden in relation to the matters mentioned in subsection (2).

             (3)  If the register, or the relevant part of the register, is kept in electronic form, the returning officer may require the register to be made available in that form.

             (4)  A request under subsection (1) must specify the period within which the register must be made available. The period must not be less than 7 days after the request is given.

190   Declaration by secretary etc. of organisation

             (1)  If:

                     (a)  a returning officer makes a request under section 189 in relation to the organisation’s register; and

                     (b)  the returning officer gives written notice of the request to the secretary or other prescribed officer of the organisation or branch concerned;

the secretary or other prescribed officer of the organisation must make a declaration, in accordance with subsection (2), that the register has been maintained as required by subsection 219(2).

Note:          This subsection is a civil penalty provision (see section 284).

             (2)  The declaration must be:

                     (a)  signed by the person making it; and

                     (b)  given to the returning officer, and lodged in the Industrial Registry, as soon as practicable but no later than the day before the first day of voting in the relevant election.

             (3)  A person must not, in a declaration for the purposes of subsection (1), make a statement if the person knows, or is reckless as to whether, the statement is false or misleading.

Note:          This subsection is a civil penalty provision (see section 284).

191   Provisions applicable to elections conducted by AEC

             (1)  If an electoral official is conducting an election, or taking a step in relation to an election, for an office or other position in an organisation, or branch of an organisation, the electoral official:

                     (a)  subject to paragraph (b), must comply with the rules of the organisation or branch; and

                     (b)  may, in spite of anything in the rules of the organisation or branch, take such action, and give such directions, as the electoral official considers necessary:

                              (i)  to ensure that no irregularities occur in or in relation to the election; or

                             (ii)  to remedy any procedural defects that appear to the electoral official to exist in the rules.

Note:          For example, an electoral official might take steps, or ask another person to take steps, to ensure the security of ballot papers, or other material, sent to voters at their workplace.

             (2)  A person must not refuse or fail to comply with a direction under subsection (1) so far as the person is capable of complying with the direction.

Maximum penalty:    30 penalty units.

          (2C)  It is a defence to an offence against subsection (2) if the person had a reasonable excuse for not complying with a direction under subsection (1).

Note:          A defendant bears an evidential burden in relation to the matter mentioned in subsection (2C), see subsection 13.3(3) of the Criminal Code .

             (3)  An election for an office or other position conducted by an electoral official, or step taken in relation to such an election, is not invalid merely because of a breach of the rules of the organisation or branch because of:

                     (a)  action taken under subsection (1); or

                     (b)  an act done in compliance with a direction under subsection (1).

             (4)  If an electoral official conducting, or taking a step in connection with, an election for an office or other position:

                     (a)  dies or becomes unable to complete the conduct of the election or the taking of the step; or

                     (b)  ceases to be qualified to conduct the election or to take the step;

the Electoral Commissioner must arrange for the completion of the conduct of the election, or the taking of the step, by another electoral official.

192   Hindering or obstructing electoral official or other person

                   A person must not hinder or obstruct:

                     (a)  an electoral official in the performance of functions in relation to an election for an office or other position in an organisation or branch of an organisation; or

                     (b)  any other person in complying with a direction under subsection 191(1).

Maximum penalty:    30 penalty units.

193   Improper interference with election process

             (1)  This section applies in relation to an election for an office or other position in an organisation or branch of an organisation.

Interference with ballot papers

             (2)  A person must not, without lawful authority or excuse:

                     (a)  impersonate another person to secure a ballot paper to which the impersonator is not entitled, or impersonate another person for the purpose of voting; or

                     (b)  destroy, deface, alter, take or otherwise interfere with a nomination paper, ballot paper or envelope; or

                     (c)  put or deliver a ballot paper or other paper:

                              (i)  into a ballot box or other ballot receptacle; or

                             (ii)  into the post; or

                            (iii)  to a person receiving ballot papers for the purposes of the election; or

                     (d)  record a vote that the person is not entitled to record; or

                     (e)  record more than one vote; or

                      (f)  forge a nomination paper, ballot paper or envelope, or utter a nomination paper, ballot paper or envelope that the person knows to be forged; or

                     (g)  provide a ballot paper; or

                     (h)  obtain or have possession of a ballot paper; or

                      (i)  destroy, take, open or otherwise interfere with a ballot box or other ballot receptacle.

Maximum penalty:    30 penalty units.

Threats in relation to votes, candidature etc.

             (3)  A person must not, without lawful authority or excuse, threaten, offer or suggest, or use, cause, inflict or procure, any violence, injury, punishment, damage, loss or disadvantage with the intention of influencing or affecting:

                     (a)  any candidature or withdrawal of candidature; or

                     (b)  any vote or omission to vote; or

                     (c)  any support or opposition to any candidate; or

                     (d)  any promise of any vote, omission, support or opposition.

Maximum penalty:    30 penalty units.

Offers of bribes

             (4)  A person must not, without lawful authority or excuse, give, or promise or offer to give, any property or benefit of any kind to a person for the purpose of influencing or affecting any of the following:

                     (a)  any candidature or withdrawal of candidature;

                     (b)  any vote or omission to vote;

                     (c)  any support or opposition to any candidate;

                     (d)  any promise of any vote, omission, support or opposition.

Maximum penalty:    30 penalty units.

Acceptance of bribes

             (5)  A person must not, without lawful authority or excuse, ask for or obtain, or offer or agree to ask for or obtain, any property or benefit of any kind (whether for that person or another person), on the understanding that any of the following will be influenced or affected in any way:

                     (a)  any candidature or withdrawal of candidature;

                     (b)  any vote or omission to vote;

                     (c)  any support or opposition to any candidate;

                     (d)  any promise of any vote, omission, support or opposition.

Maximum penalty:    30 penalty units.

Secrecy of vote

             (6)  A person (in this subsection called the relevant person ) must not, without lawful authority or excuse:

                     (a)  request, require or induce another person to show a ballot paper to the relevant person, or permit the relevant person to see a ballot paper, in such a manner that the relevant person can see the vote, while the ballot paper is being marked or after it has been marked; or

                     (b)  if the relevant person is a person performing duties for the purposes of the election, show to another person, or permit another person to have access to, a ballot paper used in the election, otherwise than in the performance of the duties.

Maximum penalty:    30 penalty units.

194   Death of candidate

                   In spite of anything in the rules of an organisation or branch of an organisation, where:

                     (a)  2 or more candidates are nominated for an election in relation to an office in the organisation or branch; and

                     (b)  one of those candidates dies before the close of the ballot;

the election must be discontinued and a new election held.

195   Post-election report by AEC

Requirement for AEC to make report

             (1)  After the completion of an election conducted under this Part by the AEC, the AEC must give a written report on the conduct of the election to:

                     (a)  the Industrial Registrar; and

                     (b)  the organisation or branch for whom the election was conducted.

Note:          The AEC may be able, in the same report, to report on more than one election it has conducted for an organisation. However, regulations made under paragraph 338(2)(c) may impose requirements about the manner and timing of reports.

             (2)  The report must include details of the prescribed matters.

Contents of report—register of members

             (3)  If the AEC is of the opinion that the register of members, or the part of the register, made available to the AEC for the purposes of the election contained, at the time of the election:

                     (a)  an unusually large proportion of members’ addresses that were not current; or

                     (b)  in the case of a register kept by an organisation of employees—an unusually large proportion of members’ addresses that were workplace addresses;

this fact must be included in the report, together with a reference to any relevant model rules which, in the opinion of the AEC, could assist the organisation or branch to address this matter.

Note:          Model rules are relevant only to the conduct of elections for office, not for elections for other positions (see section 145).

Contents of report—difficult rules

             (4)  If the report identifies a rule of the organisation or branch that, in the AEC’s opinion, was difficult to interpret or apply in relation to the conduct of the election, the report must also refer to any relevant model rules, which in the opinion of the AEC, could assist the organisation or branch to address this matter.

Note:          For model rules, see section 145.

Subsection (3) relevant only for postal ballots

             (5)  Subsection (3) applies only in relation to elections conducted by postal ballot.

Note:          An organisation can obtain an exemption from the requirement to hold elections for office by postal ballot (see section 142).

196   Organisation to respond to adverse report on rules

Organisation must respond to “difficult rules” report

             (1)  If an organisation or branch is given a post-election report under section 195 that identifies a rule that was difficult to interpret or apply, the organisation or branch must, within 30 days, give a written response to the AEC on that aspect of the report.

Note:          This subsection is a civil penalty provision (see section 284).

             (2)  The response must specify whether the organisation or branch intends to take any action in relation to the rule, and if so, what action it intends to take.

Organisation must make its response available to members

             (3)  The organisation or branch must also make available to its members the part of the report dealing with the difficult rule or rules (the relevant extract ) and the organisation’s or branch’s response to it.

             (4)  The relevant extract must be made available to members no later than the day on which the response is to be made available by the organisation or branch to members.

Note:          This subsection is a civil penalty provision (see section 284).

             (5)  The response must be made available to members:

                     (a)  if the response is not to be published in the next edition of the organisation or branch journal—within 30 days after it is given to the AEC; and

                     (b)  if the response is to be so published—in the next edition.

Note:          This subsection is a civil penalty provision (see section 284).

             (6)  Without limiting the ways in which an organisation or branch may comply with subsection (3), it complies if it does all of the following:

                     (a)  publishes, in the next edition of the organisation or branch journal, a copy of the relevant extract of the report and the organisation’s response;

                     (b)  within 30 days after the day on which it gives its response to the AEC:

                              (i)  lodges in the Industrial Registry a copy of the relevant extract of the report and a copy of the response given to the AEC under subsection (1), together with a declaration that the organisation or branch will provide a copy of the extract and the organisation’s response to any member who so requests; and

                             (ii)  gives notice in the next edition of the organisation or branch journal, or in an appropriate newspaper, that a copy of the relevant extract of the report and the organisation’s response is available, upon request, from the organisation or branch to each member free of charge;

                     (c)  meets the requirements of any regulations made for the purposes of this subsection.

Declaration that report and response will be available

             (7)  A declaration under paragraph (6)(b) must be signed by the secretary or other prescribed officer of the organisation or branch (as the case requires).

             (8)  A person must not, in a declaration for the purposes of paragraph (6)(b), make a statement if the person knows, or is reckless as to whether, the statement is false or misleading.

Note:          This subsection is a civil penalty provision (see section 284).

Definitions

             (9)  In this section:

appropriate newspaper , in relation to an organisation or branch, means a newspaper, or newspapers, whose circulation covers the main geographical areas where members of the organisation or branch reside.

next edition , in relation to publishing a relevant extract of a post-election report or response in a journal, means the first edition of the journal in which it is reasonably practicable for the report or the response (as the case may be) to be published.

197   Ballot papers etc. to be preserved

             (1)  In spite of anything in the rules of an organisation or a branch of an organisation, where an election for an office in the organisation or branch is conducted by the AEC, the organisation or branch, and every officer and employee of the organisation or branch who is able to do so, and the AEC, must take such steps as are necessary to ensure that all ballot papers, envelopes, lists and other documents relevant to the election are preserved and kept by the AEC for one year after the completion of the election.

             (2)  In spite of anything in the rules of an organisation or a branch of an organisation, where an election for an office in the organisation or branch is conducted by the organisation or branch, the organisation or branch, and every officer and employee of the organisation or branch who is able to do so, must take such steps as are necessary to ensure that all ballot papers, envelopes, lists and other documents relevant to the election are preserved and kept at the office of the organisation or branch, as the case may be, for one year after the completion of the election.

             (3)  If an organisation or branch of an organisation contravenes subsection (1) or (2), the organisation is guilty of an offence punishable on conviction by a fine of not more than 100 penalty units.

          (3A)  It is a defence to an offence against subsection (3) if the organisation had a reasonable excuse for contravening subsection (1) or (2).

Note:          A defendant bears an evidential burden in relation to the matter mentioned in subsection (3A), see subsection 13.3(3) of the Criminal Code .

             (4)  An officer or employee of an organisation or branch of an organisation must not contravene subsection (1) or (2).

Maximum penalty:    20 penalty units.

          (4A)  It is a defence to an offence against subsection (4) if the officer or employee had a reasonable excuse for contravening subsection (1) or (2).

Note:          A defendant bears an evidential burden in relation to the matter mentioned in subsection (4A), see subsection 13.3(3) of the Criminal Code .