House of Representatives Committees

Joint Standing Committee on Electoral Matters

Inquiry into the role of the Australian Electoral Commission in conducting industrial elections

Government response

(Tabled on 15 July 1998)

This document has been scanned from the original government response. It may contain some error.


JOINT STANDING COMMITTEE ON ELECTORAL MATTERS

REPORT OF THE INQUIRY INTO THE ROLE OF THE AUSTRALIAN ELECTORAL COMMISSION IN CONDUCTING INDUSTRIAL ELECTIONS

GOVERNMENT RESPONSE

Recommendation 1

That section 215 of the WR Act be amended to provide that when a secret postal ballot is conducted by the AEC it shall be by a standard form of declaration envelope. The form of the envelope should be developed in consultation between the AEC and peak employer and trade union bodies and be prescribed in the WR Regulations. (p20)

Response

Supported.

Recommendation 2

That the WR Act be amended to require that voters' rolls in all industrial elections should be cut-off rolls. The cut-off date should be 30 to 60 days before the opening of nominations. Organisations should be given a reasonable period within which to bring their rules into compliance with this requirement, which should also be contained in the model rules recommended elsewhere in this report. (p22)

Response

Supported in principle.

The Government supports the introduction of mandatory cut-off rolls. However the proposed period appears to be too long and could result in 'stale rolls'. The Government considers a shorter period would be appropriate. Accordingly, the Government will give consideration to the most appropriate time period.

Recommendation 3

That when, having regard to the nature of the organisation concerned, the AEC considers that the membership records of an organisation contain an unduly large proportion of members for whom only a workplace address is recorded, or whose workplace and for residential address is out of date, the AEC should include that fact in the post-election report to be prepared by returning officers (see Recommendation 15).

In addition, the AEC should inform the organisation concerned and request that it take action to ensure that it has current residential and workplace addresses for as many members as possible. Model rules developed in accordance with Recommendation 4 should provide that, as far as practicable, the membership records of an organisation shall contain residential rather than workplace addresses. (p25)

Response

Supported.

Recommendation 4

There should be consultation between the AEC, the AIR, DIR [now DWRSB) and peak employer and union bodies with a view to developing a 'menu' of model rules for the conduct of industrial elections. Any model rules should deal only with the conduct of industrial elections and not with matters such as management structures, terms of office and eligibility to vote and to be a candidate. Organisations should be strongly encouraged but not required to adopt model rules, and should have the further option of adopting such rules in whole or in part. (p32)

Response

Supported.

Recommendation 5

That the WR Act be amended to provide that:

(a) where a post-election report identifies any rule (or rules) of the organisation or branch concerned that was difficult to interpret or apply, the report shall be accompanied by a letter inviting the organisation or branch concerned to hold discussions with a view to amending the rule;

(b) the accompanying letter shall be published in the next journal or newsletter of the organisation or branch concerned, together with the post-election report;

(c) within 30 days of receiving such an invitation the organisation or branch concerned shall respond in writing and a copy of the response shall be published in its next journal or newsletter,

(d) in considering an amendment of the rule (or rules) in question, regard shall be had to any model rules contained in the WR Regulations; and

(c) failure to comply with paragraphs (b) and (c) above is an offence under Part Xl of the Act. (p34)

Response

Recommendations 5(a), (b), (c) and (d) are supported.

Recommendation 5(e) is supported in principle. The Government will give further consideration to the most appropriate sanction for breach of these requirements. The Government notes that not all organisations (or branches) publish a journal or newsletter, and is therefore considering what alternative requirements should apply to such organisations or branches.

Recommendation 6

That:

(a) section 218 of the WR Act be amended to include the Electoral Commissioner as a person who may make an application for an inquiry by the Court into an alleged irregularity; and

(b) the WR Act should be further amended to provide that, where the Electoral Commissioner is satisfied that it is more likely than not that an irregularity has occurred, the Electoral Commissioner must make an application for an inquiry, (p44)

Response

Recommendation 6(a) is supported.

Recommendation 6(b) is supported in principle.

However, the Government does not consider it appropriate to require the Electoral Commissioner to seek an election inquiry in relation to every irregularity, including minor administrative errors. Rather, the Government proposes to amend the Act to require the Electoral Commissioner to make an application for an inquiry into the conduct of an election where he or she believes that an irregularity may have affected the outcome of the election, or where there are allegations of criminal behaviour.

Recommendation 7

That:

(a) the penalties prescribed by sections 310, 3 13, 314, 315, 316 and 317 of the WR Act be increased to $5000 or imprisonment for 12 months, or both, for an individual; and to $10 000 for a body corporate; and

(b) regulation 62 of the WR Regulations be amended to provide that an application for an inquiry into an election must be made not later than three months after the day on which the result of the election is declared, or such longer period as the Court allows. (p51

Response

Recommendation 7(a) is supported in principle.

The precise level of penalties for particular offences is being considered in accordance with current Commonwealth criminal law. policy.

Recommendation 7(b) is supported.

Recommendation 8

That section 221 of the WR Act be amended to make. clear that the Court may make an order that a person may occupy an office to which an inquiry under the Act relates pending the outcome of a fresh election to fill that office. (p52

Response

Supported.

Recommendation 9

That the Commonwealth Electoral Act 1918 (CE Act) be amended to give the AEC authority to conduct elections for non-industrial organisations on a fee-for-service basis, subject to the proviso that the conduct of such elections is not permitted to detract from the AEC's capacity to fulfill its statutory obligations under the WR Act, the CE Act, the Referendum (Machinery Provisions) Act 1984 and the Aboriginal and Torres Strait Islander Commission Act 1989 (ATSIC Regional Council elections). (p67)

Response

Supported.

Recommendation 10

That the WR Act be amended to provide that;

(a) in each industrial election where the rules of the organisation do not require the returning officer to verify the voters' roll, the returning officer shall nevertheless carry out such checks of the roll against records of the organisation as are necessary to satisfy the returning officer that the roll is accurate;

(b) where, following such checks, the returning officer is not satisfied that the roll is accurate, the returning officer may postpone the election until such defects as have been identified in the roll are corrected; and

(c) no application for an inquiry into an election may be made on the ground that any check of the voters' roll by the returning officer was inadequate or that following such a check, the returning officer did not postpone the election. (pp72-73)

Response

Not supported.

The Government believes that responsibility for the accuracy of the electoral roll should be placed on the organisation or branch for which the AEC is conducting an election.

Accordingly, the Government proposes to require organisations to lodge a declaration with the AEC similar to that required to be provided annually to the Industrial Registry under section 268. This would not prevent an inquiry being sought on the basis that there were discrepancies in the roll.

Recommendation 11

That:

(a) section 91A(3) of the CE Act be amended to include elections and ballots conducted under the WR Act; and

(b) the WR Act be amended to provide that no application for an inquiry into an election shall lie on the ground that, in carrying out a cheek of the accuracy of the voter's roll for an industrial election, the returning officer did not check the voters' roll against the Electoral Roll (p75)

Response

Supported.

Recommendation 12

That the WR Regulations be amended to:

(a) include a regulation similar to existing regulations 81 and 980 in relation to the voters' roll for an industrial election, but which provides that whilecandidates in an election may inspect and obtain copies of the voters' roll, members who are not candidates may only inspect the roll and may not obtain copies;

(b) provide that where the AEC is required to provide copies of the voters' roll for an industrial election or for a ballot for an amalgamation or withdrawal from an amalgamation it may do so in electronic form on disk; and

(c) make it an offence to use information obtained from the voters' roll for an industrial election or for a ballot for an amalgamation or a withdrawal from an amalgamation for a purpose other than in relation to the election or ballot in respect of which access to the roll was sought. (p78)

Response

Supported in principle.

The Government agrees that members of an organisation should be able to access the roll, but considers that members who are not candidates should also have the right to inspect and make copies of the roll.

Recommendation 13

That:

(a) the WR Act be amended to provide that where ballot material is to be sent to a workplace the returning officer may direct the employer at the workplace as to disposition of that material; and

(b) section 2 15(1)(b) be amended to provide that, where a returning officer considers that adherence to the rules of an organisation or branch may give rise to an irregularity or produce a procedural defect, the returning officer shall take such actions and give such directions as the returning officer considers necessary to avoid the irregularity or procedural defect. (p80)

Response

Supported.

The Government will also consider whether it is desirable to require organisations conducting their own elections to include such a power in their rules.

Recommendation 14

That regulation 102 of the WR Regulations be amended to include a list of all elections required by the rules of an organisation to be held for offices in the organisation, and each branch of the organisation, during the calendar year commencing on April 1. (p82)

Response

Supported.

The Government will consider whether there is a more effective means of amending the WR regulations (for example amending regulation 6 1) to achieve the objective of the recommendation.

Recommendation 15

That the WR Act be amended to require that, not later than 14 days after the declaration of the ballot for an industrial election, the returning officer who conducted the election shall provide to the Industrial Registrar and the organisation (or branch) concerned, a report on the conduct of the election containing prescribed information. It should also be a requirement that such reports are to be published in the next journal or newsletter of that organisation (or branch). The prescribed information should be the same as is prescribed by regulation 96 and 98Z in respect of ballots for amalgamations and withdrawals from amalgamation, with any necessary changes and with the following additions:

Response

Supported.

The Government notes that not all organisations (or branches) publish a journal or newsletter (see recommendation 5).

The Government also proposes to extend the protection afforded by regulation 119 of the WR Regulations to post-election reports. (Regulation 119 protects the Commonwealth and electoral officials against defamation actions in relation to the publication of candidate's statements.)

Recommendation 16

That the Government consult with the AEC and with peak union and employer organisations with a view to developing legislation prohibiting the use of union resources for electioneering purposes, except as permitted by the WR Act and Regulations or by model rules developed in accordance with Recommendation 4. (P88)

Response

Supported.

The Government believes the prohibition should apply to both employee and employer organisations.

Recommendation 17

That the WR Act be amended to prohibit the publication by any means of 'misleading statements of fact' during an industrial election. (p89)

Response

Not supported.

The Government firmly believes that election advertising should be truthful in its content. However, at this stage any legislation introduced to enforce this principle would be difficult to enforce. It would not be good public policy to enact a commendable legislative principle that was incapable of effective enforcement. In the absence of any effective enforcement mechanism, the current balance of interests between commendable principle and practicality means that voters, using whatever assistance they see fit from electioneering material and other sources, remain the most appropriate arbiters of the worth of each candidates claims.

The Government notes that this response is consistent with its response to a similar recommendation made by the Committee in relation to federal Parliamentary elections in its report into the 1996 federal election.

Recommendation 18

That the WR Act be amended to provide that, in respect of each industrial election, the cost of advertising shall be borne by the Commonwealth only up to an amount determined by the AEC, with the AEC having the statutory power to recoup any excess. The AEC should be required to determine in advance of each election what would be a 'reasonable' amount to be spent on advertising for the election. In determining the amount to be borne by the Commonwealth, the AEC should be required to take account of the following factors:

It should be further provided that where the AEC considers that the Commonwealth should pay less than the full cost of advertising for the election in question, it shall invite the organisation concerned to put its views as to why the Commonwealth should bear the full cost, and shall take those views into account before making a final determination. It should also be provided that, except in exceptional circumstances, the AEC shall not determine an amount that is less than the amount spent on advertising in the previous corresponding election for the organisation concerned. (PP90-9 1)

Response

Supported.

The Government will also consider making similar provision in relation to excessive postage costs (for example, the use of registered mail).

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