Joint Standing Committee on Electoral Matters 
      
      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        is recorded, or whose workplace and for residential address is out of 
        date, the AEC should include that fact in the post-election report to 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:  
      
        - the percentage of workplace addresses to which ballot papers were 
          transmitted;  
        
 - the number of complaints (if any) of irregularities made to the 
          returning officer during the election,  
        
 - action taken by the returning officer in respect of those complaints; 
           
        
 - results of checks of the voters' roll;  
        
 - results of checks (if any) of signatures on the declaration envelopes; 
           
        
 - any rules of the organisation or branch which, because of ambiguity 
          or other reason, were difficult to interpret or apply; and  
        
 - any other matter the returning officer thinks fit. (pp84-85)  
      
 
      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:  
      
        - the amount spent on advertising in the previous corresponding election 
          for the organisation concerned,  
        
 - any significant changes in the type or nature of election advertising 
          by that organisation since the last corresponding election and the reasons 
          for such changes;  
        
 - any changes in the size, structure or nature of the organisation; 
           
        
 - the amount spent on advertising in similar elections by other organisations 
          of a similar size and structure. and  
        
 - any increases in the cost for advertisements of the kind to be 
          used in the election in question.  
      
 
      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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