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Workplace Relations (Registered Organisations) Bill 2001

Part 3 Inquiries into elections for office

   

198   Application for inquiry

When member of organisation may apply for inquiry

             (1)  If a person who is, or within the preceding period of 12 months has been, a member of an organisation claims that there has been an irregularity in relation to an election for an office in the organisation or a branch of the organisation, the person may make an application for an inquiry by the Federal Court into the matter.

Note:          For the meaning of irregularity , see section 6.

When Electoral Commissioner must apply for an inquiry

             (2)  If the Electoral Commissioner believes that the result of an election for an office has been affected by an irregularity in relation to the election, the Electoral Commissioner must make an application for an inquiry by the Federal Court into the matter.

When Electoral Commissioner may apply for an inquiry

             (3)  If the Electoral Commissioner believes that there has been an irregularity in relation to an election for an office, the Electoral Commissioner may make an application for an inquiry by the Federal Court into the matter.

Note:          This section relates only to elections for office. It does not apply to elections for positions other than offices (which can also be conducted under Part 2).

199   Instituting of inquiry

                   Where:

                     (a)  an application for an inquiry has been lodged with the Federal Court under section 198; and

                     (b)  the Court is satisfied that there are reasonable grounds for the application;

the Court must fix a time and place for conducting the inquiry, and may give such directions as it considers necessary to ensure that all persons who are or may be justly entitled to appear at the inquiry are notified of the time and place fixed and, where the Court fixes a time and place, the inquiry is taken to have been instituted.

200   Federal Court may authorise Industrial Registrar to take certain action

             (1)  Where an application for an inquiry has been lodged with the Federal Court under section 198, the Court may authorise the Industrial Registrar to arrange, for the purposes of the inquiry, for a designated Registry official to take any action referred to in subsection (2).

             (2)  If a Registry official is designated by the Industrial Registrar for the purposes of subsection (1), the actions that the official may take are as follows:

                     (a)  inspecting election documents;

                     (b)  for the purposes of any such inspection, entering, with such assistance as he or she considers necessary, any premises used or occupied by the organisation, or a branch of the organisation, concerned in which he or she believes election documents to be;

                     (c)  giving a written notice to a person requiring the person to deliver to him or her, within the period and in the manner specified in the notice, any election documents in the possession or under the control of the person;

                     (d)  taking possession of any election documents;

                     (e)  retaining any election documents delivered to him or her, or of which he or she has taken possession, for such period as is necessary for the purposes of the application and, if proceedings under this Part arise out of the application, until the completion of the proceedings or such earlier time as the Court orders.

             (3)  Before authorising any action under subsection (1), the Court must, if it considers that, having regard to all the circumstances, a person should be given an opportunity of objecting to the proposed action, give such an opportunity to the person.

             (4)  The period specified in a notice given under paragraph (2)(c) must specify a period of at least 14 days after the notice is given.

             (5)  A person must not:

                     (a)  contravene a requirement made under subsection (2); or

                     (b)  hinder or obstruct the Industrial Registrar, or a person acting on his or her behalf, in the exercise of powers under subsection (2).

Maximum penalty:    30 penalty units.

             (6)  A person is not excused from producing an election document under this section on the ground that the production of the document might tend to incriminate the person or expose the person to a penalty.

             (7)  However:

                     (a)  producing the document; or

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

is not admissible in evidence against the person in criminal proceedings or proceedings that may expose the person to a penalty.

             (8)  In this section:

election documents , in relation to an election, means ballot papers, envelopes, lists or other documents that have been used in, or are relevant to, the election.

201   Designated Registry officials must have identity cards

Issue of identity card

             (1)  The Industrial Registrar must issue an identity card to each designated Registry official.

             (2)  The identity card must:

                     (a)  be in the prescribed form; and

                     (b)  include a recent photograph of the official.

Use of identity card

             (3)  A designated Registry official must carry the identity card at all times when taking action under section 200.

             (4)  Before the official takes action under paragraph 200(2)(b) (entering premises), the official must:

                     (a)  inform the occupier of the premises that the official is authorised to enter the premises; and

                     (b)  show the identity card to the occupier.

             (5)  The official is not entitled to enter premises under paragraph 200(2)(b) if he or she has not complied with subsection (4).

Offence: failing to return identity card

             (6)  A person is guilty of an offence if:

                     (a)  the person holds or held an identity card; and

                     (b)  the person ceases to be a Registry official; and

                     (c)  the person does not, as soon as is practicable after so ceasing, return the identity card to the Industrial Registrar.

Maximum penalty:    1 penalty unit.

             (7)  This offence is one of strict liability.

             (8)  However, it is a defence to the offence if the identity card was lost or destroyed.

Note:          A defendant bears an evidential burden in relation to the matters mentioned in subsection (8).

202   Interim orders

             (1)  Where an inquiry into an election has been instituted, the Federal Court may make one or more of the following orders:

                     (a)  an order that no further steps are to be taken in the conduct of the election or in carrying into effect the result of the election;

                     (b)  an order that a person who has assumed an office, has continued to act in an office, or claims to occupy an office, to which the inquiry relates may act, or continue to act, in the office;

                     (c)  an order that a person who has assumed an office, has continued to act in an office, or claims to occupy an office, to which the inquiry relates must not act in the office;

                     (d)  an order that a person who holds, or last held before the election, an office to which the inquiry relates may act, or continue to act, in the office;

                     (e)  where it considers that an order under paragraph (b) or (d) would not be practicable, would be prejudicial to the efficient conduct of the affairs of the organisation or would be inappropriate having regard to the nature of the inquiry, an order that a member of the organisation or another person specified in the order may act in an office to which the inquiry relates;

                      (f)  an order incidental or supplementary to an order under this subsection;

                     (g)  an order varying or discharging an order under this subsection.

             (2)  Where the Court orders that a person may act, or continue to act, in an office, the person is, while the order remains in force and in spite of anything in the rules of the organisation or a branch of the organisation, to be taken to hold the office.

             (3)  An order under this section continues in force, unless expressed to operate for a shorter period or sooner discharged, until the completion of:

                     (a)  the proceeding concerned in the Court in relation to the election; and

                     (b)  all matters ordered by the Court (otherwise than under this section) in the proceeding.

203   Procedure at hearing

             (1)  The Federal Court must allow to appear at an inquiry all persons who apply to the Court for leave to appear and who appear to the Court to have an interest in the inquiry, and the Court may order any other person to appear.

             (2)  The persons appearing, or ordered under subsection (1) to appear, at an inquiry are taken to be parties to the proceeding.

             (3)  For the purposes of this Part:

                     (a)  the procedure of the Court is, subject to this Act and the Rules of Court, within the discretion of the Court; and

                     (b)  the Court is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it considers just.

204   Action by Federal Court

             (1)  At an inquiry, the Federal Court must inquire into and determine the question whether an irregularity has happened in relation to the election, and such further questions concerning the conduct and results of the election as the Court considers necessary.

             (2)  For the purposes of subsection (1), the Court must determine whether an irregularity has happened on the balance of probabilities.

             (3)  In the course of conducting an inquiry, the Court may make such orders (including an order for the recounting of votes) as the Court considers necessary.

             (4)  If the Court finds that an irregularity has happened, the Court may, subject to subsection (5), make one or more of the following orders:

                     (a)  an order declaring the election, or any step in relation to the election, to be void;

                     (b)  an order declaring a person purporting to have been elected not to have been elected, and declaring another person to have been elected;

                     (c)  an order directing the Industrial Registrar to make arrangements:

                              (i)  in the case of an uncompleted election—for a step in relation to the election (including the calling for nominations) to be taken again and for the uncompleted steps in the election to be taken; or

                             (ii)  in the case of a completed election—for a step in relation to the election (including the calling for nominations) to be taken again or a new election to be held;

                     (d)  an order (including an order modifying the operation of the rules of the organisation to the extent necessary to enable a new election to be held, a step in relation to an election to be taken again or an uncompleted step in an election to be taken) incidental or supplementary to, or consequential on, any other order under this section.

             (5)  The Court must not declare an election, or any step taken in relation to an election, to be void, or declare that a person was not elected, unless the Court is of the opinion that, having regard to the irregularity found, and any circumstances giving rise to a likelihood that similar irregularities may have happened or may happen, the result of the election may have been affected, or may be affected, by irregularities.

             (6)  Without limiting the power of the Court to terminate a proceeding before it, the Court may, at any time after it begins an inquiry into an election, terminate the inquiry or the inquiry to the extent that it relates to specified matters.

205   Industrial Registrar to make arrangements for conduct of elections etc.

                   Where the Federal Court makes an order under paragraph 204(4)(c) in relation to an election, the Industrial Registrar must arrange for the taking of the necessary steps in relation to the election, or for the conduct of the new election, as the case requires, by the AEC.

206   Enforcement of orders

                   The Federal Court may grant such injunctions (including mandatory injunctions) as it considers necessary for the effective performance of its functions and the enforcement of its orders under this Part.

207   Validity of certain acts etc. where election declared void

             (1)  Where the Federal Court declares void the election of a person who has, since the election, purported to act in the office to which the person purported to have been elected, or declares such a person not to have been elected:

                     (a)  subject to a declaration under paragraph (b), all acts done by or in relation to the person that could validly have been done by or in relation to the person if the person had been duly elected are valid; and

                     (b)  the Court may declare an act referred to in paragraph (a) to have been void, and, if the Court does so, the act is taken not to have been validly done.

             (2)  Where an election is held, or a step in relation to an election is taken, under an order of the Court, the election or step is not invalid merely because of a departure from the rules of the organisation or branch concerned that was required by the order of the Court.