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is recorded, or whose workplace and for residential address is out of
date, the AEC should include that fact in the post-election report to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).