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Workplace Relations (Registered Organisations) Bill 2001

Part 4 Inquiries and investigations

   

309   Registrar or staff may make inquiries

             (1)  A Registrar, or another Registry official on behalf of a Registrar, may make inquiries as to whether the following are being complied with:

                     (a)  Part 3 of Chapter 8;

                     (b)  the reporting guidelines made under that Part;

                     (c)  regulations made for the purposes of that Part;

                     (d)  rules of a reporting unit relating to its finances or financial administration.

             (2)  A Registrar, or another Registry official on behalf of a Registrar, may make inquiries as to whether a civil penalty provision (see section 284) has been contravened.

             (3)  The person making the inquiries may take such action as he or she considers necessary for the purposes of making the inquiries. However, he or she cannot compel a person to assist with the inquiries under this section.

310   Registrar may conduct investigations

             (1)  If a Registrar is satisfied that there are reasonable grounds for doing so, the Registrar may conduct an investigation as to whether:

                     (a)  a provision of Part 3 of Chapter 8 has been contravened; or

                     (b)  the reporting guidelines made under that Part have been contravened; or

                     (c)  a regulation made for the purposes of that Part has been contravened; or

                     (d)  a rule of a reporting unit relating to its finances or financial administration has been contravened.

             (2)  If a Registrar is satisfied that there are reasonable grounds for doing so, the Registrar may conduct an investigation as to whether a civil penalty provision (see section 284) has been contravened.

             (3)  A Registrar may also conduct an investigation in the circumstances set out in the regulations.

             (4)  Where, having regard to matters that have been brought to notice in the course of, or because of, an investigation under subsection (1) or (2), a Registrar forms the opinion that there are grounds for investigating the finances or financial administration of the reporting unit, the Registrar may make the further investigation.

             (5)  An investigation may, but does not have to, follow inquiries under section 309.

311   Investigations arising from auditor’s report

             (1)  Subject to subsection (2), a Registrar must:

                     (a)  where the documents lodged in the Industrial Registry under section 257 include a report of an auditor setting out any:

                              (i)  defect or irregularity; or

                             (ii)  deficiency, failure or shortcoming; and

                     (b)  where for any other reason the Registrar considers that a matter revealed in the documents should be investigated—investigate the matter.

             (2)  The Registrar is not required to investigate the matters raised in the report of the auditor if:

                     (a)  the defect, irregularity, deficiency, failure or shortcoming consists solely of the fact that the organisation concerned has kept financial records for its membership subscriptions separately on a cash basis as provided in subsection 241(4); or

                     (b)  after consultation with the reporting unit and the auditor, the Registrar is satisfied that the matters are trivial or will be remedied in the following financial year.

             (3)  Where, having regard to matters that have been brought to notice in the course of, or because of, an investigation under subsection (1), a Registrar forms the opinion that there are grounds for investigating the finances or the financial administration of the reporting unit, the Registrar may make the further investigation.

312   Investigations arising from request from members

             (1)  Where documents have been lodged in the Industrial Registry under section 257, at least:

                     (a)  if the reporting unit has more than 5,0 00 members—250 members; or

                     (b)  in any other case—5% of the members of the reporting unit;

may request a Registrar to investigate the finances and the financial administration of the reporting unit.

             (2)  On receipt of a request under subsection (1), a Registrar must investigate the finances and the financial administration of the reporting unit concerned. The Registrar, in conducting the investigation, is not limited to the most recent financial year for which documents have been lodged and may investigate years for which documents are yet to be lodged.

             (3)  Where the Registrar receives more than one request in relation to a reporting unit during a financial year, the Registrar is only required to conduct one investigation but may conduct more than one investigation.

313   Investigations arising from referral under section 267

                   If a matter is referred to the Industrial Registrar under section 267, the Industrial Registrar must ensure that a Registrar conducts an investigation.

314   Conduct of investigations

             (1)  This section applies to:

                     (a)  a designated officer or employee of the reporting unit concerned; and

                     (b)  a former designated officer or employee of the reporting unit; and

                     (c)  a person who held the position of auditor of the reporting unit during the period that is the subject of the investigation;

if a Registrar has reason to believe that the person:

                     (d)  has information or a document that is relevant to the investigation; or

                     (e)  is capable of giving evidence which the Registrar has reason to believe is relevant to the investigation.

             (2)  For the purpose of making an investigation, the Registrar may, by written notice, require the person:

                     (a)  to give to the Registrar, within the period (being a period of not less than 14 days after the notice is given) and in the manner specified in the notice, any information within the knowledge or in the possession of the person; and

                     (b)  to produce or make available to the Registrar, at a reasonable time (being a time not less than 14 days after the notice is given) and place specified in the notice, any documents in the custody or under the control of the person, or to which he or she has access; and

                     (c)  to attend before the Registrar, at a reasonable time (being a time not less than 14 days after the notice is given) and place specified in the notice, to answer questions relating to matters relevant to the investigation, and to produce to the Registrar all records and other documents in the custody or under the control of the person relating to those matters.

             (3)  A notice requiring a person to attend must state that the person may be accompanied by another person. The other person may be, but does not have to be, a lawyer.

315   Action following an investigation

             (1)  If, at the conclusion of an investigation, the Registrar who conducted the investigation is satisfied that the reporting unit concerned has contravened:

                     (a)  a provision of Part 3 of Chapter 8; or

                     (b)  the reporting guidelines; or

                     (c)  a provision of the regulations; or

                     (d)  a rule of the reporting unit relating to the finances or financial administration of the reporting unit;

the Registrar must notify the reporting unit accordingly.

             (2)  In addition to taking action under subsection (1), the Industrial Registrar may do all or any of the following:

                     (a)  issue a notice to the reporting unit requesting that the reporting unit take specified action, within a specified period, to rectify the matter;

                     (b)  apply to the Federal Court for an order under Part 2 of Chapter 9 (civil penalty provisions);

                     (c)  refer the matter to the Director of Public Prosecutions for action in relation to possible criminal offences.

Note:          In appropriate circumstances, the Registrar may also make a determination in accordance with section 236 (determination of reporting units).

             (3)  The Registrar may, on application by the reporting unit, extend any periods specified in the notice issued under subsection (2).

             (4)  The reporting unit must comply with the request made in the notice issued under subsection (2).

             (5)  The Federal Court may, on application by the Registrar, make such orders as the Court thinks fit to ensure that the reporting unit complies with subsection (4).

Note:          In appropriate circumstances, where a reporting unit fails to comply with an order under subsection (5), the Registrar may apply to the Federal Court under section 27 (cancellation of organisation’s registration).

316   Offences in relation to investigation by Registrar

             (1)  A person must not:

                     (a)  refuse or fail:

                              (i)  to attend before a Registrar in accordance with a requirement under subsection 314(2); or

                             (ii)  to provide information, or produce a document, that the person is required to provide or produce under subsection 314(2); or

                     (b)  in purported compliance with a requirement under subsection 314(2), provide information, or produce a document, if the person knows, or is reckless as to whether, the information or document is false or misleading; or

                     (c)  when attending before a Registrar in accordance with a requirement under subsection 314(2), make a statement, whether orally or in writing, if the person knows, or is reckless as to whether, the statement is false or misleading;

but a person does not contravene this section merely because of refusing or failing to answer a question.

Maximum penalty:    30 penalty units.

             (2)  It is a defence to an offence referred to in paragraph (1)(a) if the person had a reasonable excuse for the refusal or failure.

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

             (3)  A person is not excused from providing information, or producing a document, that the person is required to provide or produce under subsection 314(2) on the ground that the information, or the production of the document, might tend to incriminate the person or expose the person to a penalty.

             (4)  However:

                     (a)  giving the information or producing the document; or

                     (b)  any information, document or thing obtained as a direct or indirect consequence of giving the information or producing the document;

is not admissible in evidence against the person in criminal proceedings or proceedings that may expose the person to a penalty, other than proceedings under, or arising out of, paragraph (1)(b) or (c).