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Workplace Relations (Registered Organisations) Bill 2001

Part 4 Disqualification from office

   

208   Simplified outline of this Part

This Part imposes certain limitations and requirements on people who have been convicted of a prescribed offence and who hold, or wish to hold, office in an organisation.

Sections 209 and 210 explain the meaning of certain terms used in this Part.

Section 212 sets out the basic limitation. The remaining sections deal with the ways the rule in section 212 operates and may be modified.

209   Meaning of prescribed offence

                   In this Part, a prescribed offence is:

                     (a)  an offence under a law of the Commonwealth, a State or Territory, or another country, involving fraud or dishonesty and punishable on conviction by imprisonment for a period of 3 months or more; or

                     (b)  an offence against section 61, 82, 115, 183, 189, subsection 191(2), section 192, 193, 197, subsection 200(5) or section 277; or

                     (c)  any other offence in relation to the formation, registration or management of an association or organisation; or

                     (d)  any other offence under a law of the Commonwealth, a State or Territory, or another country, involving the intentional use of violence towards another person, the intentional causing of death or injury to another person or the intentional damaging or destruction of property.

210   Meaning of convicted of a prescribed offence

                   For the purposes of this Part, a person:

                     (a)  is convicted of a prescribed offence whether the person is convicted before or after the commencement of this Part; and

                     (b)  is not convicted of a prescribed offence merely because the person is convicted, otherwise than on indictment, of an offence referred to in paragraph 209(c); and

                     (c)  is not convicted of a prescribed offence referred to in paragraph 209(d) unless the person has served, or is serving, a term of imprisonment in relation to the offence.

Note:          Other terms used in this Part may be defined in section 6.

211   Certificate of registrar etc. is evidence of facts

             (1)  A certificate purporting to be signed by the registrar or other proper officer of a federal court, a court of a State or Territory, or a court of another country, stating that a person was convicted by the court of a specified offence on a specified day is, for the purpose of an application made under section 212, 213 or 214, evidence that the person was convicted of the offence on that day.

             (2)  A certificate purporting to be signed by the registrar or other proper officer of a federal court, a court of a State or Territory, or a court of another country, stating that a person was acquitted by the court of a specified offence, or that a specified charge against the person was dismissed by the court, is, for the purpose of an application made under section 212, 213 or 214, evidence of the facts stated in the certificate.

             (3)  A certificate purporting to be signed by the officer in charge of a prison stating that a person was released from the prison on a specified day is, for the purpose of an application made under section 212, 213 or 214, evidence that the person was released from the prison on that day.

212   Certain persons disqualified from holding office in organisations

             (1)  A person who has been convicted of a prescribed offence is not eligible to be a candidate for an election, or to be elected or appointed, to an office in an organisation unless:

                     (a)  on an application made under section 213 or 214 in relation to the conviction of the person for the prescribed offence:

                              (i)  the person was granted leave to hold office in organisations; or

                             (ii)  the person was refused leave to hold office in organisations but, under paragraph 213(2)(b) or 214(2)(b), the Federal Court specified a period for the purposes of this subsection, and the period has elapsed since the person was convicted of the prescribed offence or, if the person served a term of imprisonment in relation to the prescribed offence, since the person was released from prison; or

                     (b)  in any other case—a period of 5 years has elapsed since the person was convicted of the prescribed offence or, if the person served a term of imprisonment in relation to the prescribed offence, since the person was released from prison.

             (2)  Where a person who holds an office in an organisation is convicted of a prescribed offence, the person ceases to hold the office at the end of the period of 28 days after the conviction unless, within the period, the person makes an application to the Federal Court under section 213 or 214.

             (3)  If a person who holds an office in an organisation makes an application to the Federal Court under section 213 or 214 and the application is not determined:

                     (a)  except in a case to which paragraph (b) applies—within the period of 3 months after the date of the application; or

                     (b)  if the Court, on application by the person, has extended the period—within that period as extended;

the person ceases to hold the office at the end of the period of 3 months or the period as extended, as the case may be.

             (4)  The Court must not, under paragraph (3)(b), extend a period for the purposes of subsection (3) unless:

                     (a)  the application for the extension is made before the end of the period of 3 months referred to in paragraph (3)(a); or

                     (b)  if the Court has previously extended the period under paragraph (3)(b)—the application for the further extension is made before the end of the period as extended.

             (5)  An organisation, a member of an organisation or the Industrial Registrar may apply to the Federal Court for a declaration whether, because of the operation of this section or section 213 or 214:

                     (a)  a person is not, or was not, eligible to be a candidate for election, or to be elected or appointed, to an office in the organisation; or

                     (b)  a person has ceased to hold an office in the organisation.

             (6)  The granting to a person, on an application made under section 213 or 214 in relation to a conviction of the person for a prescribed offence, of leave to hold offices in organisations does not affect the operation of this section or section 213 or 214 in relation to another conviction of the person for a prescribed offence.

213   Application for leave to hold office in organisations by prospective candidate for office

             (1)  A person who:

                     (a)  wants to be a candidate for election, or to be appointed, to an office in an organisation; and

                     (b)  has been, within the immediately preceding period of 5 years, convicted of a prescribed offence or released from prison after serving a term of imprisonment in relation to a conviction for a prescribed offence;

may, subject to subsection (4), apply to the Federal Court for leave to hold office in organisations.

             (2)  Where a person makes an application under subsection (1), the Court may:

                     (a)  grant the person leave to hold office in organisations; or

                     (b)  refuse the person leave to hold office in organisations and specify, for the purposes of subsection 212(1), a period of less than 5 years; or

                     (c)  refuse a person leave to hold office in organisations.

             (3)  A person who:

                     (a)  holds an office in an organisation; and

                     (b)  is convicted of a prescribed offence; and

                     (c)  on an application made under subsection (1) in relation to the conviction for the prescribed offence, is, under paragraph (2)(b) or (c), refused leave to hold office in organisations;

ceases to hold the office in the organisation.

             (4)  A person is not entitled to make an application under this section in relation to the person’s conviction for a prescribed offence if the person has previously made an application under this section or under section 214 in relation to the conviction.

214   Application for leave to hold office in organisations by office holder

             (1)  Where a person who holds an office in an organisation is convicted of a prescribed offence, the person may, subject to subsection (4), within 28 days after the conviction, apply to the Federal Court for leave to hold office in organisations.

             (2)  Where a person makes an application under subsection (1) for leave to hold office in organisations, the Court may:

                     (a)  grant the person leave to hold office in organisations; or

                     (b)  refuse the person leave to hold office in organisations and specify, for the purposes of subsection 212(1), a period of less than 5 years; or

                     (c)  refuse the person leave to hold office in organisations.

             (3)  A person who, on an application made under subsection (1), is, under paragraph (2)(b) or (c), refused leave to hold office in organisations ceases to hold the office concerned.

             (4)  A person is not entitled to make an application under this section in relation to the person’s conviction for a prescribed offence if the person has previously made an application under this section or section 213 in relation to the conviction.

215   Federal Court to have regard to certain matters

                   For the purposes of exercising the power under section 213 or 214 to grant or refuse leave, to a person who has been convicted of a prescribed offence, to hold office in organisations, the Federal Court must have regard to:

                     (a)  the nature of the prescribed offence; and

                     (b)  the circumstances of, and the nature of the person’s involvement in, the commission of the prescribed offence; and

                     (c)  the general character of the person; and

                     (d)  the fitness of the person to be involved in the management of organisations, having regard to the conviction for the prescribed offence; and

                     (e)  any other matter that, in the Court’s opinion, is relevant.

216   Action by Federal Court

             (1)  The Federal Court may, in spite of anything in the rules of any organisation concerned, make such order to give effect to a declaration made under subsection 212(5) as it considers appropriate.

             (2)  Where an application is made to the Court under subsection 212(5):

                     (a)  the person whose eligibility, or whose holding of office, is in question must be given an opportunity of being heard by the Court; and

                     (b)  if the application is made otherwise than by the organisation concerned—the organisation must be given an opportunity of being heard by the Court.

             (3)  Where an application is made to the Court under section 213 or 214, the organisation concerned must be given an opportunity of being heard by the Court.

217   Part not to affect spent convictions scheme

                   Nothing in this Part affects the operation of Part VIIC of the Crimes Act 1914 (which includes provisions relieving persons from requirements to disclose spent convictions).



 

Chapter 8 Records, accounts and conduct of officers