Industrial Relations Regulations (Amendment) 1991 No. 366
EXPLANATORY STATEMENT
Statutory Rules 1991 No. 366
Industrial Relations Regulations (Amendment)
(Issued by the Authority of the Minister for Industrial Relations)
Subsection 359(1) of the Industrial Relations Act 1988 (the Act) provides that the Governor-General may make regulations for the purposes of the Act.
Part IX Division 7 of the Act deals with the amalgamation of organisations registered under the Act. Sections 252 and 253A of the Act provide that a designated Presidential Member of the Australian Industrial Relations Commission (ie the President or a Deputy President), if satisfied of certain matters, must approve the submission of an amalgamation to ballot.
Subsection 253J(1) of the Act provides that, if a designated Presidential Member approves the submission of a proposed amalgamation to ballot, the Australian Electoral Commission (AEC) must, in relation to each of the existing organisations concerned in the amalgamation, conduct a secret postal ballot of the members to determine whether they approve of the principal amalgamation. Subsection 253J(6) provides that a ballot conducted under this section is to be conducted as prescribed.
Subregulation 94(1) of the Industrial Relations Regulations (the Regulations) prescribes that the electoral official conducting the ballot (or ballots) must ascertain-the result by conducting a scrutiny in accordance with that regulation. This scrutiny includes rejecting informal votes (paragraph 94(2)(a) of the Regulations). A vote is informal if the ballot paper or the envelope containing it is marked in a way that permits the voter to be identified (paragraph 94(4)(b) of the Regulations).
To ensure the security of votes, the AEC has developed a procedure in which voters' names and signatures and serial numbers are placed on a detachable slip on the envelope containing the ballot paper. A ballot in which this procedure is used in commonly known as a 'declaration ballot'. On 4 November 1991 the Federal Court decided ( Olney J. in Christopher Kelly v The Transport Workers' Union of Australia, Industrial Division of the Federal Court, No VI 72 of 1991 Unreported) that marking the envelopes in this manner rendered the votes informal under paragraph 94(4)(b) of the Regulations even though the marked slips were removed from envelopes before the envelopes were opened and the security of the ballot was not breached.
As regulation 94 was not intended to prevent the use of 'declaration ballots', the Regulations have been amended to provide for the adoption of such a system in relation to an amalgamation ballot in appropriate cases.
An amendment was made to regulation 87 to allow the inclusion on the ballot paper, issued in relation to an amalgamation ballot, of directions to voters. This ensures that the electoral official is able to give all necessary directions to ensure that no irregularity occurs in the ballot and that the voter is aware of all necessary requirements to enable a formal vote to be made.
The amendment to regulation 89 ensures that the Regulations clearly identify the envelope which is the subject of a regulation where a ballot involves the use of more than one envelope. A declaration ballot will normally involve the use of at least two envelopes.
The amendment to regulation 92 provides for the return of a ballot paper to the electoral official and provides that a voter must comply with any directions given by an electoral official in order to ensure that no irregularity occurs in the conduct of the ballot.
The amendment to regulation 94 removes the reference to the envelope containing the ballot paper so as to ensure that a declaration ballot which involves the marking of at least one envelope with the voters name and or signature does not result in the vote becoming informal. In addition, the amendments to regulation 94 include -
(a) a provision that a vote will be informal if the ballot paper does not comply with a direction, given to ensure that no irregularity occurs in the conduct of the ballot, by an electoral official; and
(b) a provision that a vote will be informal if the envelope contains the ballot paper of another voter.
Overview
The Industrial Relations Regulations (Amendment) 1991 No. 366, issued by the authority of the Minister for Industrial Relations, amends the existing Industrial Relations Regulations to address a specific issue concerning the conduct of amalgamation ballots under the Industrial Relations Act 1988. This amendment responds to a decision by the Federal Court that found certain ballot procedures to be informal, which inadvertently compromised the security and integrity of the voting process. The objective of these amendments is to ensure the continued use of secure 'declaration ballots' without rendering the votes informal, while maintaining the anonymity and security of the voting process.
The key changes introduced by these amendments include modifications to regulation 87 to allow for voter directions on the ballot paper, clarification in regulation 89 regarding the identification of envelopes used in multi-envelope ballots, and adjustments to regulation 92 to ensure voters comply with electoral official directions to prevent irregularities. Most notably, regulation 94 has been revised to exclude the envelope from the criteria for determining informal votes, while also specifying conditions under which a vote will be deemed informal, such as non-compliance with electoral official directions or the presence of another voter’s ballot paper in the envelope. These changes aim to align the Regulations with the practicalities of conducting secure and legitimate amalgamation ballots, as mandated by the Industrial Relations Act.
Scope and Application
The Industrial Relations Regulations (Amendment) 1991 No. 366 applies to the procedures governing the amalgamation of organisations registered under the Industrial Relations Act 1988. It specifically addresses the conduct of secret postal ballots for amalgamations, ensuring the process adheres to the requirements of the Act. This amendment is applicable to designated Presidential Members of the Australian Industrial Relations Commission, the Australian Electoral Commission (AEC), and the members of the organisations involved in the amalgamation. The regulations pertain to the Commonwealth jurisdiction, governing the conduct of amalgamation ballots across Australia. Notably, the amendments do not alter the fundamental principles and requirements of the Act but rather refine the procedural aspects of conducting these ballots to accommodate the use of 'declaration ballots', thus ensuring the security and integrity of the voting process without rendering votes informal due to procedural technicalities. The scope of the Act is extended through subordinate instruments, allowing for the detailed regulation of ballot procedures as necessary.
Key Provisions
The Industrial Relations Regulations (Amendment) 1991 No. 366 introduces changes to the Industrial Relations Regulations in relation to amalgamation ballots of organisations registered under the Industrial Relations Act 1988 (the Act). The primary focus of these amendments is to clarify and facilitate the use of a system known as 'declaration ballots' in amalgamation ballots, which involves marking the envelopes containing the ballot papers with voters' names and signatures to ensure the security of the votes. Section 253J of the Act mandates that the Australian Electoral Commission (AEC) conduct a secret postal ballot of the members to determine their approval of the proposed amalgamation if a designated Presidential Member approves the submission of the amalgamation to ballot (subsection 253J(1)). The amendments to the Regulations aim to ensure that such ballots are conducted properly and that the security of the votes is maintained without rendering the votes informal.
The Regulations impose specific obligations on the parties involved in the amalgamation process. Under regulation 87, ballot papers issued in relation to an amalgamation ballot may include directions to voters to ensure that no irregularities occur during the ballot. This allows the electoral official to provide necessary instructions to voters to facilitate a formal vote. Regulation 89 has been amended to clearly identify the envelope that is subject to the regulation where multiple envelopes are used in the ballot, which is common in declaration ballots. Regulation 92 requires voters to return their ballot papers to the electoral official and comply with any directions given by the official to avoid irregularities in the ballot process. Regulation 94 has been amended to clarify that a vote will be informal if the ballot paper does not comply with a direction given by an electoral official, or if the envelope contains the ballot paper of another voter. These amendments aim to streamline the ballot process while ensuring that the integrity of the votes is preserved.
The Industrial Relations Regulations (Amendment) 1991 No. 366 does not introduce new offences or penalties. Instead, it clarifies the requirements for conducting a valid amalgamation ballot under the Industrial Relations Act 1988. The primary consequence of non-compliance with the Regulations is the potential for votes to be deemed informal, which could affect the outcome of the ballot. However, the specific consequences of informal votes are not detailed in the Regulations themselves but rather in the broader provisions of the Act and related electoral laws. Any significant irregularities or breaches of the electoral process could potentially lead to legal challenges or administrative actions, but the Regulations focus primarily on ensuring the proper conduct and integrity of the ballot process rather than imposing direct penalties for non-compliance.
The amendments to the Industrial Relations Regulations aim to provide clarity and facilitate the use of declaration ballots in amalgamation ballots while maintaining the security and integrity of the voting process. By specifying the conditions under which votes may be deemed informal, the Regulations help ensure that the ballot process is conducted in a manner that is both secure and compliant with the legal requirements. This clarity is crucial for the proper functioning of the amalgamation process under the Act, ensuring that the members' votes are counted accurately and that any potential issues are addressed through clear and specific directions provided to the voters.