Joint Standing Committee on Electoral Matters

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

Chapter summary and list of recommendations

The page number after each recommendation refers to the full report, which is available in PDF format.

Chapter One - Introduction

This Chapter outlines the current provisions of the Workplace Relations Act 1996 (WR Act) governing industrial elections and inquiries into disputed elections, traces the development of those provisions and provides information on the conduct of the inquiry.

Chapter Two - Standardisation of Rules

An industrial election is required to be conducted in accordance with the rules of the organisation concerned. Although the rules of different organisations provide for different electoral systems and procedures, there was only limited support for the introduction of a single set of rules to govern all industrial elections. There is scope, however, for some standardisation to improve the efficiency and integrity of industrial elections without infringing on the autonomy of organisations.

The Committee therefore recommends that all postal ballots employ a standard form of declaration envelope to be developed by consultation between interested parties; that the voters' rolls for industrial elections be 'cut-off' rolls, closing 30 to 60 days before the opening of nominations; that where 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, it include that fact in a post-election report and request the organisation to ensure that it has current residential and workplace addresses for as many members as possible; that there be consultations between interested parties to develop a menu of model rules which organisations would be encouraged, but not compelled, to adopt; and that organisations be encouraged to amend election rules that are difficult to interpret or apply.

The Committee does not consider that there should be a move away from postal ballots in favour of attendance or presentation ballots.

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)

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)

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/or residential addresses are 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)

Recommendation 4:

There should be consultations between the AEC, the AIR, DIR 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)

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

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

Chapter Three - Mechanisms for Review

There was limited support for any changes to the institutional arrangements for reviewing disputed elections.

At present an application to the Federal Court for an inquiry into an industrial election can be made only by a member of the organisation concerned or a person who was a member within the preceding 12 months. It is not acceptable that where a returning officer conducting an election becomes aware of a possible irregularity the AEC has no standing to apply to the Court for an inquiry. The Committee recommends that the AEC be given standing to make such an application.

Under the current provisions, a prosecution for an offence in relation to an industrial election must be commenced within 12 months of the commission of the offence. This is because of a combination of factors, including the time within which an application for an inquiry may be made (currently within six months from the declaration of the ballot), the time that an inquiry may take, the level of penalties prescribed by the WR Act, and the interaction between the WR Act and the relevant provisions of the Crimes Act 1918. As a result, the statutory time limit for commencing a prosecution may have expired before sufficient evidence of an offence emerges. The penalties for electoral offences are in any case inadequate, having remained the same since 1972.

The Committee therefore recommends an increase in the level of penalties and a reduction in the time within which an application for an inquiry into an election must be made.

The Committee also recommends an amendment to clarify the power of the Court to make an interim order for the filling of an office to which an election inquiry relates, pending the outcome of a fresh election to fill that office.

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)

Recommendation 7:

That:

(a) the penalties prescribed by sections 310, 313, 314, 315, 316, and 317 of the WR Act be increased to $5,000 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)

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)

Chapter Four - Cost and Capacity

The cost of all industrial elections conducted by the AEC is borne by the Commonwealth. There was no evidence to suggest that the AEC does not provide a cost effective service.

There was limited support for the introduction of any charges for industrial elections. The Committee recommends, however, that the AEC be given authority to conduct elections for non-industrial organisations on a fee-for-service basis, provided that this does not detract from the ability of the AEC to conduct industrial and other elections in a timely and efficient manner.

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 fulfil 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)

Chapter Five - Other Matters

The Committee believes that a returning officer should be required to carry out such checks of the voters' roll for an industrial election as are necessary to confirm that the roll is accurate. Furthermore, the returning officer should have access to all the information contained in the Commonwealth Electoral Roll.

The Committee recommends that the WR Act expressly provide that candidates in an industrial election may inspect and obtain copies of the voters' roll, and that members of an organisation who are not candidates may only inspect the roll and may not obtain copies. It should be an offence to use the information thus obtained for a purpose other than in relation to that election.

The Committee also recommends:

• that returning officers be given the power to direct employers as to the handling of ballot material sent to workplaces;

• that organisations be required to notify the Australian Industrial Registry each year of all elections required to be held during the following 12 months;

• that after each industrial election the returning officer be required to prepare a post-election report containing prescribed information;

• consultations between interested parties and the Government to develop legislation to prohibit the use of union resources for electioneering;

• a prohibition on the publication of 'misleading statements of fact' during an industrial election; and

• measures to ensure that the Commonwealth is required to bear only a reasonable amount of the cost of advertising for an industrial election.

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 the 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)

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 check of the accuracy of the voters' roll for an industrial election, the returning officer did not check the voters' roll against the Electoral Roll. (p75)

Recommendation 12:

That the WR Regulations be amended to:

(a) include a regulation similar to existing regulations 81 and 98O in relation to the voters' roll for an industrial election, but which provides that while candidates 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)

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 215(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)

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 1 April. (p82)

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 regulations 96 and 98Z in respect of ballots for amalgamations and withdrawals from amalgamations, 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)

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)

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)

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 of 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. (pp90-91)

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