Procedures & Legislation

Corporate Governance of State Industrial Organisations


PROVISIONS OF THE INDUSTRIAL RELATIONS ACT 1996AND PRESERVED PROVISIONS OF THE INDUSTRIAL RELATIONS ACT 1991 RELATING TO THE ELECTION OF OFFICERS OF STATE INDUSTRIAL ORGANISATIONS


The Industrial Relations Act 1996 provides:

238 Rules to provide for elections for offices

(1) The rules of a State organisation must provide for the election of the holder of each office in the organisation by:

        (a) a particular direct voting system, or

        (b) a particular collegiate electoral system that, in the case of a full-time office, is a one-tier collegiate electoral system.

(2) In this section:

    collegiate electoral system means a method of election comprising a first stage, at which persons are elected to a number of offices by a direct voting system, and a subsequent stage or subsequent stages at which persons are elected by and from a body of persons consisting only of:

      (a) persons elected at the last preceding stage, or

      (b) persons elected at the last preceding stage and other persons (being in number not more than 15% of the number of persons comprising the body) holding offices in the organisation (including the office to which the election relates), not including any person holding such an office merely because of having filled a casual vacancy in the office within the last 12 months, or the last quarter, of the term of the office.

direct voting system means a method of election at which the following are eligible to vote subject to reasonable provisions in relation to enrolment:
      (a) all financial members, or

      (b) all financial members included in the division of the organisation that is appropriate having regard to the nature of the office.

one-tier collegiate electoral system means a collegiate electoral system comprising only one stage after the first stage.

Section 239. Rules may provide for elections for offices in State branch of Federal organisation to be elections for purposes of State organisation

(1) The rules of a State organisation registered under this Chapter may provide that persons elected to offices in a State branch of a Federal organisation are taken to be validly elected to the corresponding offices in the State organisation registered under this Chapter if the Industrial Registrar is satisfied that:

    (a) the membership of the State branch of the Federal organisation and the State organisation registered under this Chapter is identical or substantially similar, and

    (b) the rules of the State branch of the Federal organisation relating to the election of the holders of offices comply substantially with the requirements relating to election of the holders of offices under this Act.
(2) The regulations may specify circumstances in which:
    (a) the membership of organisations is or is not substantially similar for the purposes of subsection (1) (a), or
    (b) the rules of an organisation comply or do not comply substantially with the relevant provisions for the purposes of subsection (1) (b).
(3) In this section, "State branch of a Federal organisation" means a State branch of an organisation registered under the Workplace Relations Act 1996 of the Commonwealth.

Clause 26 of the Industrial Relations (General) Regulation 2001 provides:

(1) For the purposes of section 239 (1) (a) of the Act, the membership of a State branch of a Federal organisation and the membership of a State organisation registered under Chapter 5 of the Act is substantially similar if the Industrial Registrar is satisfied that the membership would be substantially similar but for the fact that persons employed in the Australian Capital Territory are members of the State branch of the Federal organisation.

(2) For the purposes of section 239 (1) (b) of the Act, the rules of a State branch of a Federal organisation comply substantially with the requirements relating to election of the holders of offices under the Act if the Industrial Registrar is satisfied that the rules would comply substantially with those rules but for the fact that the rules cover persons employed in the Australian Capital Territory.

[Registrar's Note: The operation of most rules of this nature require the lodgment with the Industrial Registrar of a statutory declaration by the Secretary of the State organisation in relation to the substantial similarity of membership and verifying the provision of a copy of the rules of the Federal organisation under which the election was conducted.]

s240. Rules to provide for electoral system

(1) The rules of a State organisation must provide that, if a ballot is required for an election by a direct voting system, it must be a secret postal ballot.

(2) A State organisation may lodge with the Industrial Registrar an application for an exemption from subsection (1), accompanied by particulars of proposed alterations of the rules of the organisation, to provide for the conduct of elections by a secret ballot other than a postal ballot.

(3) If the Industrial Registrar is satisfied, on application, that:
    (a) the proposed alterations of the rules:
      (i) comply with and are not contrary to this Act and awards or orders of the Commission made under this Act, and
      (ii) are not otherwise contrary to law, and
      (iii) have been decided in accordance with the rules of the organisation, and
    (b) the conduct of a ballot under the rules of the organisation as proposed to be altered:
      (i) is likely to result in no less participation by members of the organisation in the ballot than would result from a postal ballot, and
      (ii) will give the members entitled to vote an adequate opportunity of voting without intimidation,
      the Industrial Registrar may grant to the organisation an exemption from subsection (1).

(4) Proposed alterations of the rules of a State organisation referred to in subsection (2) take effect if and when the Industrial Registrar grants to the organisation an exemption from subsection (1).

(5) An exemption under this section remains in force until revoked under subsection (6).

(6) The Industrial Registrar may revoke an exemption granted to a State organisation under this section:
    (a) on application by the organisation, if the Industrial Registrar is satisfied that the rules of the organisation comply with subsection (1), or
    (b) if the Industrial Registrar is no longer satisfied:
      (i) that the rules of the organisation provide for the conduct of elections by a secret ballot other than a postal ballot, or
      (ii) of a matter referred to in subsection (3) (b),
      and the Industrial Registrar has given the organisation an opportunity, as prescribed by the regulations, to show cause why the exemption should not be revoked.

(7) If the Industrial Registrar revokes an exemption granted to a State organisation on a ground specified in subsection (6) (b), the Industrial Registrar may, by instrument in writing, after giving the organisation an opportunity, as prescribed by the regulations, to be heard, determine such alterations (if any) of the rules of the organisation as are, in the Industrial Registrar's opinion, necessary to bring them into conformity with subsection (1).

(8) An alteration of the rules of a State organisation determined under subsection (7) takes effect on the date of the instrument.

Clause 27 of the Industrial Relations (General) Regulation 2001 provides:

An opportunity by an industrial organisation to be heard for the purposes of section 240 (6) and (7) of the Act is to be given by notifying the organisation of the Industrial Registrar's intention to take the relevant action and by allowing the organisation at least 14 days after the notice is given in which to show cause why the action should not be taken.

s241. Rules to provide for terms of office

(1) The rules of a State organisation must, subject to this section, provide terms of office for officers in the organisation of no longer than 4 years without re-election.

(2) The rules of a State organisation may provide that a particular term of office is extended for a specified period, if the extension is for the purpose of synchronising elections for offices in the organisation.

(3) Rules made under subsection (2) may apply in relation to a term of office that started before the commencement of this section.

(4) The term of an office must not be extended under subsection (2) so that the term exceeds 5 years.

s242. Rules may provide for filling of casual vacancies

(1) The rules of a State organisation may provide for the filling of a casual vacancy in an office by an ordinary election or, subject to this section, in any other manner provided in the rules.

(2) Any such rules must not permit a casual vacancy, or a further casual vacancy, occurring within the term of an office to be filled, otherwise than by an ordinary election, for so much of the unexpired part of the term as exceeds:
    (a) 12 months, or
    (b) three-quarters of the term of the office,
    whichever is the greater.

(3) If, under the rules, a vacancy in an office in a State organisation is filled otherwise than by an ordinary election, the person filling the vacancy must be taken, for the purposes of the relevant provisions, to have been elected to the office under the relevant provisions.

(4) In this section:

"ordinary election" means an election held under rules that comply with section 238 (Rules to provide for elections for offices).
"relevant provisions", in relation to a State organisation, means:
    (a) the provisions of this Act (other than this section), and
    (b) the rules of the organisation (other than rules made under this section providing for the filling of a casual vacancy in an office otherwise than by an ordinary election).
"term", in relation to an office, means the total period for which the last person elected to the office by an ordinary election (other than an ordinary election to fill a casual vacancy in the office) was entitled by virtue of that election (having regard to any rule made under section 241 (2)) to hold the office without being re-elected

s249. Regulations

(1) The regulations may make provision for or with respect to the election of officers of State organisations.

(2) Any such regulations may deal with any of the matters dealt with in Division 4 of Part 9 of the Workplace Relations Act 1996 of the Commonwealth in connection with the election of officers of organisations registered under that Act. The regulations may adopt the provisions of that Part, with or without modification.


s250. Offences in relation to elections

(1) A person must not, without lawful authority or excuse, in relation to an election for an office in a State organisation:
    (a) personate another person to secure a ballot-paper to which the personator is not entitled, or personate another person for the purpose of voting, or
    (b) destroy, deface, alter, take or otherwise interfere with a nomination paper, ballot-paper or envelope, or
    (c) put or deliver a ballot-paper or other paper:
      (i) into a ballot-box or other ballot receptacle, or
      (ii) into the post, or
    (d) deliver a ballot-paper or other paper to a person receiving ballot-papers for the purposes of the election or ballot, or
    (e) record a vote that the person is not entitled to record, or
    (f) record more than one vote, or
    (g) forge a nomination paper, ballot-paper or envelope, or utter a nomination paper, ballot-paper or envelope that the person knows to be forged, or
    (h) provide a ballot-paper, or
    (i) obtain, or have possession, of a ballot-paper, or
    (j) destroy, take, open or otherwise interfere with a ballot-box or other ballot receptacle.
(2) A person must not, without lawful authority or excuse, in relation to an election for an office in a State organisation threaten, offer or suggest, or use, cause, inflict or procure, any violence, injury, punishment, damage, loss or disadvantage because of, or to induce:
    (a) any candidature or withdrawal of candidature, or
    (b) any vote or omission to vote, or
    (c) any support or opposition to any candidate, or
    (d) any promise of any vote, omission, support or opposition.
(3) A person (in this subsection called "the relevant person") must not, without lawful authority or excuse, in relation to an election for an office in a State organisation:
    (a) request, require or induce another person to show a ballot-paper to the relevant person, or permit the relevant person to see a ballot-paper, in such a manner that the relevant person can see the vote, while the ballot-paper is being marked or after it has been marked, or
    (b) if the relevant person is a person performing duties for the purposes of the ballot, show to another person, or permit another person to have access to, a ballot-paper used in the ballot, otherwise than in the performance of those duties.
Maximum penalty: 100 penalty units.

s251. Cost of elections

(1) The expenses of an election conducted by officers or employees of the State must be borne by the organisation concerned, including:
    (a) the salary or other remuneration of any officer or employee of the State performing any duty in relation to the election, including any person appointed solely for the purposes of the election, and
    (b) the cost of travel of such an officer or employee, including any travelling or similar allowance, incurred in connection with the performance of any such duty, and
    (c) expenses in connection with the provision or use of premises provided by the State for the purposes of the election, including premises obtained solely for such purposes.
(2) If the expenses of an election are not duly paid in accordance with this section and the regulations, the persons to whom they are payable may recover them as a debt in a court of competent jurisdiction.

s252. Application for inquiry concerning irregularity in election

(1) A person who is, or within the preceding period of 12 months has been, a member of a State organisation and who claims that there has been an irregularity in relation to an election for an office in the organisation may make an application for an inquiry by the Commission into the matter.

(2) An irregularity in relation to an election for an office includes a breach of the rules of a State organisation and any act, omission or other thing that prevents or hinders or attempts to prevent or hinder:
    (a) the full and free recording of votes by all persons entitled to record votes and by no other persons, or
    (b) a correct ascertainment or declaration of the results of the voting,
    or otherwise adversely and unfairly affects the result of the election.
(3) An application under this section must:
    (a) be in a form approved by the Industrial Registrar, and
    (b) be lodged with the Industrial Registrar before the completion of the election or within 6 months after the completion of the election, and
    (c) specify the alleged irregularity and the facts relied on to support the allegation (verified by a statutory declaration of the applicant).

s253. Action by Industrial Registrar

(1) On lodgment of an application for an inquiry, the Industrial Registrar must:
    (a) if the Industrial Registrar is satisfied:
      (i) that there are reasonable grounds for an inquiry into the question of whether there has been an irregularity in relation to the election that may have affected or may affect the result of the election, and
      (ii) that the circumstances of the matter justify an inquiry by the Commission,
      grant the application and refer the matter to the Commission, or
    (b) if the Industrial Registrar is not so satisfied, refuse the application and inform the applicant accordingly.
(2) The Industrial Registrar may exercise his or her powers under this section on the basis of the matters stated in the application but the Industrial Registrar may also take into account any relevant information coming to his or her knowledge.

(3) Any act or decision of the Industrial Registrar under this section is not subject to appeal to the Commission.

s254. Inquiry by Commission

On receipt of a reference for an inquiry from the Industrial Registrar, the Commission must as soon as practicable proceed to inquire into the alleged irregularity.

s255. Interim orders

(1) At any time after an inquiry in relation to an election has been instituted, the Commission may make one or more of the following orders:
    (a) an order that no further steps are to be taken in the conduct of the election or in carrying into effect the result of the election,
    (b) an order that a person who has assumed an office, has continued to act in an office, or claims to occupy an office, to which the inquiry relates, must not act in that office,
    (c) an order that a person who holds, or last held before the election, an office to which the inquiry relates may act or continue to act in that office,
    (d) if the Commission considers that an order under paragraph (c) would not be practicable, would be prejudicial to the efficient conduct of the affairs of the organisation or would be inappropriate having regard to the nature of the inquiry, an order that a member of the organisation or another person specified in the order may act in an office to which the inquiry relates,
    (e) an order for the recounting of votes,
    (f) an order incidental or supplementary to an order under this subsection.
(2) If the Commission orders that a person may act, or continue to act, in an office, the person must, while the order remains in force, and despite anything contained in the rules of the organisation, be taken, for all purposes, to hold the office.

(3) An order under this section is to continue in force, unless expressed to operate for a shorter period or unless sooner discharged, until the completion of proceedings before the Commission in relation to the election and of all matters ordered (otherwise than under this section) by the Commission in those proceedings.

s256. Procedure at inquiry

(1) The Commission is to allow to appear or be represented at an inquiry all persons who apply to the Commission for leave to appear or be represented, being persons who appear to the Commission to be justly entitled to be heard. The Commission may order any other person to appear or be represented.

(2) For the purposes of an inquiry the Commission is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it considers just.

s257. Functions and powers of Commission at inquiry

(1) At an inquiry, the Commission is to inquire into and determine the question of whether an irregularity has occurred in relation to the election and such further questions concerning the conduct and results of the election as the Commission thinks necessary.

(2) In the course of conducting an inquiry, the Commission may make such orders (including an order for the recounting of votes) as the Commission considers necessary.

(3) If the Commission finds that an irregularity has occurred, the Commission may make one or more of the following orders:
    (a) an order declaring the election, or any step taken in relation to the election, to be void,
    (b) an order declaring a person purporting to have been elected not to have been elected, and declaring another person to have been elected,
    (c) an order directing the Industrial Registrar to make arrangements:
      (i) in the case of an uncompleted election---for a step in relation to the election (including the calling for nominations) to be taken again and for the uncompleted steps in the election to be taken, or
      (ii) in the case of a completed election---for a step in relation to the election (including the calling for nominations) to be taken again or a new election to be held,
    (d) an order directing, despite anything contained in the rules of the organisation, the taking of such safeguards as the Commission considers necessary against irregularities in relation to:
      (i) any such new election, or
      (ii) any such step so ordered to be taken again, or
      (iii) any uncompleted steps in the election,
      and, for the purposes of any such order, an order appointing and authorising a person to act as a returning officer either alone or in conjunction with the returning officer acting under the rules of the organisation in relation to the election, and to exercise such powers as the Commission directs,
    (e) an order (including an order modifying the operation of the rules of the organisation to the extent necessary to enable a new election to be held, a step in relation to an election to be taken again or an uncompleted step in an election to be taken) incidental or supplementary to, or consequential on, any other order under this section.
(4) The Commission is not to declare an election, or any step taken in relation to an election, to be void, or declare that a person was not elected, unless the Commission is of the opinion that, having regard to the irregularity found, and any circumstances giving rise to a likelihood that similar irregularities may have occurred or may occur, the result of the election may have been affected, or may be affected, by irregularities.

s258. Validity of certain acts where election declared void

(1) If the Commission declares void the election of a person who has, since the election, purported to act in the office to which the person purports to have been elected, or declares such a person not to have been elected:
    (a) subject to a declaration under paragraph (b), all acts done by or in relation to the person that could validly have been done by or in relation to the person if the person had been duly elected are valid, and
    (b) the Commission may declare an act referred to in paragraph (a) to have been void, and, if the Commission does so, the act is taken not to have been valid.
(2) If an election is held, or a step in relation to an election is taken, under an order of the Commission, the election or step is not invalid merely because of a departure from the rules of the organisation concerned that was required by the order of the Commission.

s259. Costs in relation to inquiries

(1) The Commission may make such order as to the costs (including expenses of witnesses) of proceedings before the Commission in relation to an inquiry under this Division as the Commission considers just, and the Commission may assess the amount of such costs.

(2) If, on any such inquiry, the Commission finds that an irregularity has occurred, the Minister may, if the Minister considers the circumstances justify so doing, authorise the grant by the State to the person who applied for the inquiry of financial assistance in relation to the whole or a part of the costs (including expenses of witnesses) that the applicant has paid, has become liable to pay or may become liable to pay in relation to the inquiry.

(3) If, on any such inquiry, the Commission does not find that any irregularity has occurred, but certifies that the person who applied for the inquiry acted reasonably in so applying, the Minister may authorise the grant by the State to that person of financial assistance in relation to the whole or a part of the costs of the applicant as specified in subsection (2).

(4) If the Minister is satisfied that, having regard to the findings of the Commission on any such inquiry, it is not just that a person (not being the person who applied for the inquiry) should be required to bear, or to bear in full, any costs that the person has paid, has become liable to pay or may become liable to pay in relation to the inquiry (including expenses of witnesses), the Minister may authorise the grant by the State to that person of financial assistance in relation to the whole or a part of those costs.

(5) If the Commission orders:
    (a) a new election to be held, or
    (b) any step in relation to an election to be taken again, or
    (c) any other step (including modification of the rules of the organisation) incidental or supplementary to, or consequential on, any other order made in the inquiry, to be taken,
    the Minister may, if the Minister is satisfied that the nature of the irregularity found by the Commission to have occurred is such that it would be unreasonable for the organisation to be required to bear, or to bear in full, the expenses involved in compliance with the order of the Commission, authorise payment by the State of the whole or a part of those expenses.


Clause 31 of the Industrial Relations (General) Regulation 2001 provides:

31. Other provisions relating to elections

(1) This clause applies until the regulations under the Act otherwise provide.

(2) The provisions of sections 442--451 of the 1991 Act (and the regulations under those provisions) apply to a State organisation as regulations made under section 249 of the Act.


The preserved provisions of sections 442--451 of the Industrial Relations Act 1991 [Division 3 of Part 3 of Chapter 5] are set out below.

s442. Elections for offices compulsory

Each office in an organisation must be filled by election.

s443. Cost of elections

The expenses of an election conducted under this Division must be borne by the organisation concerned, including:

(a) the salary or other remuneration of any officer or employee of the State performing any duty in relation to the election, including any person appointed solely for the purposes of the election; and
(b) the cost of travel of such an officer or employee, including any travelling or similar allowance, incurred in connection with the performance of any such duty; and
(c) expenses in connection with the provision or use of premises provided by the State for the purposes of the election, including premises obtained solely for such purposes.

s444. Conduct of elections by Industrial Registrar

(1) When an election is required to be held, an organisation must apply in writing*to the Industrial Registrar requesting that the Industrial Registrar arrange for the conduct of an election for an office in the organisation in accordance with the rules of the organisation.

[Registrar's Note: Applications should identify:

    the office(s) in respect of which the election is required
    the rules of the organisation which create the office(s)
    the rules of the organisation which provide for the term of office and, prescribe the manner in which the election is to be conducted etc.]

(2) For the purposes of subsection (1), an application by an organisation may be made:
    (a) by or on behalf of the committee of management of the organisation or otherwise as may be provided by the rules of the organisation; or
    (b) by a number of the members of the organisation that is not less than 1,000 or 10%, whichever is the lesser, of all the members of the organisation.
(3) If an application is made, or purports to be made, under this section, the Industrial Registrar must, after making such inquiries (if any) and such examination of the rules of the organisation as the Industrial Registrar considers necessary, decide whether or not to authorise the holding of the election.

(4) If the Industrial Registrar decides that the application has been duly made, the Industrial Registrar must inform the organisation of that fact and state whether the election is to be conducted by:
    (a) the Electoral Commissioner; or
    (b) an independent returning officer approved by the Industrial Registrar and named in a panel maintained by the Industrial Registrar in accordance with the regulations.
[Registrar's Note: The Industrial Registrar will have regard to the preference expressed by the applicant in this regard insofar as the rules of the organisation permit. Organisations may wish to compare and consider the costs charged by alternative election providers where the rules of the organisation do not require the returning officer to be the Electoral Commissioner of New South Wales.

The panel of independent returning officers is comprised as follows:

Australian Election Company
GPO Box 394
BRISBANE QLD 4001

Richard Kidd Telephone: 1800 224 420 Fax (07) 3408 8722 Mobile: 0417 707 249

www.austelect.com


Ema Esteves
PO Box 42
KINGSGROVE NSW 1480

Telephone: 0432 218 026 Fax: 9150 7662 e-mail: returning.officer@ozemail.com.au


(5) A person conducting an election under this section for an office in an organisation may, despite anything contained in the rules of the organisation, take such action and give such directions as the person considers necessary in relation to the conduct of the election or in order to ensure that no irregularities occur in relation to the election or to remedy any procedural defects in the rules of the organisation that may appear to the person to exist.

(6) An election conducted under this section is not to be invalidated merely because of:
    (a) a breach of the rules of the organisation involved in:
      (i) an act done under this section; or
      (ii) an act done in compliance with a direction given under this section; or
    (b) an irregularity in the request in pursuance of which the election is conducted.
(7) A person must not:
    (a) fail to comply with a direction given under subsection (5); or
    (b) obstruct or hinder a person conducting an election under this section or carrying out a direction given under subsection (5).
    Maximum penalty: 50 penalty units.

(8) If a person conducting an election under this section:
    (a) dies or becomes unable to complete the conduct of the election; or
    (b) ceases to be a person qualified to conduct the election,
    the Industrial Registrar must make arrangements or give directions for the completion of the conduct of the election by another person who is so qualified.
s445. Failure to hold elections every 4 years

(1) The Industrial Registrar must inform the Industrial Court if an organisation fails to comply with the rules concerning elections and terms of office.

(2) The Industrial Court may suspend the registration of an organisation if the organisation fails to comply with the requirements of this Act in relation to the holding of elections at least once every 4 years after the organisation is registered under this Act.

Clause 40 of Schedule 4, Savings transitional and other provisions of the Industrial Relations Act 1996 provides

Construction of superseded references

A reference in another Act, in an instrument made under an Act or in any document:

...(d) to the former Industrial Court---is to be read as a reference to the new Commission in Court Session, or

s446. Industrial Registrar may issue exemptions concerning returning officer

(1) An organisation may apply to the Industrial Registrar for approval to engage a person or body to conduct an election for an office in the organisation other than the persons referred to in section 444 (4).

(2) On being satisfied by the organisation that it is appropriate that a person or body other than a person referred to in section 444 (4) be appointed to conduct the election for the organisation, the Industrial Registrar may issue to the organisation a certificate to that effect and naming the person or body who or which is to conduct the election.

(3) The Industrial Registrar may have regard, in making a decision under this section, to the size, structure and resources of the organisation and to such other matters as the Industrial Registrar considers relevant*.

[Registrar's Note: In such applications, and in considering the "size, structure and resources of an organisation," as well as, "other relevant matters" under s446(3), the Industrial Registrar has sought information of the following nature:

1. Independence: the person nominated should be capable of fulfilling the role of an independent returning officer - in other words, he or she cannot merely be a "figurehead" for the organisation.

2. Size and Structure: the size and structure of the applicant organisation might have a bearing on the application; in that, very small unions or unions with small and widely-dispersed branches might benefit from a Returning Officer other than the State Electoral Commission.

3. Appropriateness: the applicant organisation should demonstrate that it is fit and proper that a person other than the State Electoral Commissioner conduct the election.


Other matters that may be considered relevant include the nominated returning officer's integrity, experience and resources.]

s447. Procedure for conduct of elections

(1) The procedure for the conduct of elections is to be as prescribed by the regulations.

(2) The voting system for an election is to be in accordance with the rules of the organisation concerned unless the rules provide, in accordance with section 429, that persons elected to offices in a State branch of a Federal organisation are taken to be validly elected to the corresponding offices in the organisation.

s448. Ballot-papers etc. to be preserved

(1) Despite anything in the rules of an organisation, the organisation and every officer and employee of the organisation who is able to do so, and the person or body conducting an election for an office in the organisation under this Subdivision, must take such steps as are reasonably necessary to ensure that all ballot-papers, envelopes, lists and other documents relevant to the election are preserved and kept by the Electoral Commissioner or other returning officer for one year after the completion of the election.

(2) A person must not contravene this section.

Maximum penalty: 50 penalty units.

s449. Proof of election to office etc.

(1) A certificate issued by the Industrial Registrar stating that a specified person is, or was at any specified time, elected to or the holder of a specified office in an organisation is prima facie evidence of that fact without proof of the Industrial Registrar's signature.

(2) A certificate may be issued by the Industrial Registrar under this section on proof to the Industrial Registrar's satisfaction that the person has been elected to the office in the organisation concerned and that the requirements of the rules of the specified organisation relating to the election have been duly complied with.

(3) The person to whom any certificate has been issued under this section stating that the person has been elected to or is the holder of a specified office in an organisation must, within 14 days:
    (a) of ceasing to hold the specified office; or
    (b) of being requested to do so by the Industrial Registrar,
    return the certificate to the Industrial Registrar for cancellation.

Maximum penalty: 20 penalty units.

s450. Right to participate in certain ballots

Every financial member of an organisation has a right to vote at any ballot taken for the purpose of submitting a matter to a vote of the members of the organisation, or of a branch, section or other division of the organisation in which the member is included, except as may be otherwise stated by reasonable provisions in the rules of an organisation in relation to enrolment.

s451. Requests by members for information concerning elections and certain ballots

A financial member of an organisation may request the returning officer:
    (a) in relation to an election for an office in the organisation; or
    (b) in relation to a ballot taken for the purpose of submitting a matter to a vote of the members of an organisation,
    to provide to the member specified information for the purpose of determining whether there has been an irregularity in relation to the election or ballot. The returning officer must comply with the request.
Relevant provisions of Part 4 of the Industrial Relations Regulation 1992 are as follows:

30. Application of Part

(1) This Part applies to elections conducted under Division 3 of Part 3 of Chapter 5 of the Act.

(2) However, if the rules of the organisation provide under section 430 of the Act for an election otherwise than by a postal ballot, this Part is subject to those rules.

(3) Nothing in this Part limits any action or directions of the returning officer under section 444 (5) of the Act in relation to an election.

31. Definitions

(1) In this Part:

"election" means an election to which this Part applies for a particular office in an organisation;
"returning officer" means the Electoral Commissioner or:
    (a) if the Industrial Registrar has approved an independent returning officer for the election from the panel kept under section 444 (4) (b) of the Act---that independent returning officer; or
    (b) if the Industrial Registrar has approved some other person or body to conduct the election under section 446 of the Act---that other person or body.
(2) In this Part, a reference to the secretary of an organisation is (if the secretary is a candidate in the election concerned) a reference to another officer of the organisation nominated by the returning officer.

32. Panel of official returning officers (other than Electoral Commissioner)

(1) This clause applies to the panel of independent returning officers required to be kept by the Industrial Registrar under section 444 (4) (b) of the Act.

(2) The panel is to consist of such persons as the Industrial Registrar appoints from time to time.

(3) The persons appointed to the panel are to be persons who, in the opinion of the Industrial Registrar:
    (a) are independent of any organisation registered under Chapter 5 of the Act; and
    (b) have the requisite knowledge and experience to conduct elections for organisations in a proper and efficient manner.
(4) Appointments to the panel are to be made for a period of 2 years and may be renewed by the Industrial Registrar.

(5) The Industrial Registrar may remove a person from the panel at any time.

33. Notification of election to returning officer by Industrial Registrar

The Industrial Registrar must, as soon as practicable after authorising the conduct of an election, notify the person who is to be the returning officer of the election.

34. Notice of election by returning officer

(1) On receipt of notification of an election, the returning officer is to cause an election notice to be published in a newspaper circulating throughout the State or to be sent by post to all members of the organisation who appear to be entitled to vote in the election.

(2) The election notice is to:
    (a) state that the election is to be held by the returning officer; and
    (b) invite nominations for the election; and
    (c) advise where nomination forms may be obtained; and
    (d) fix the time and date for the close of nominations in the election; and
    (e) specify the place where nominations for the election may be lodged; and
    (f) specify the qualifications (if any) needed by candidates in the election and by a person nominating a candidate; and
    (g) fix the time and date for the close of the roll in the election; and
    (h) fix the time and date for the close of the ballot in the election.
(3) The returning officer may also cause an election notice to be published:
    (a) in a local newspaper if the registered office of the organisation is situated more than 80 kilometres from the G.P.O., Sydney; or
    (b) in the official journal of the organisation.
35. Time limits for election

(1) The dates fixed in an election notice for the close of nominations, the close of the roll and the close of the ballot in the election must, as far as is reasonably practicable, comply with the following requirements:
    (a) there is to be a period of at least 3 weeks between the date the election notice is published or posted and the date for the close of nominations;
    (b) the date for the close of the roll is to be not later than the date for the close of nominations;
    (c) there is to be a period of at least 4 weeks between the date for the close of nominations and the date for the close of the ballot.
(2) The returning officer may, by a further election notice, extend the time and date for the close of nominations, the close of the roll or the close of the ballot, if satisfied that it is necessary to do so to avoid a failure of the election.

(3) More than 1 such extension may be made in respect of an election.

36. Nominations

(1) A completed nomination for an election must contain the following information:
    (a) the full name, residential address, telephone number and date of birth of the candidate;
    (b) the full names, residential addresses and signatures of at least the required number of nominators, each of whom must be entitled to vote in the election;
    (c) the office for which the candidate is standing, along with the candidate's written consent to the nomination.
(2) A person may not nominate for election more candidates than the number of candidates to be elected.

(3) If the returning officer is of the opinion that there is an anomaly in a nomination, the returning officer must, as soon as practicable after receiving the nomination, cause written notice of that fact to be given to the candidate.

(4) For the purpose of enabling the returning officer to form an opinion of the eligibility of a candidate and the nominators, the returning officer may require the secretary of the organisation concerned to furnish the returning officer with such information regarding the candidate and nominators as the returning officer may specify. The secretary of the organisation must comply with such a requirement as soon as practicable after it is made.

(5) A nomination, and any rectification of an anomaly in the nomination, must be received by the returning officer before the time and date fixed for the close of nominations. Otherwise, the returning officer must reject the nomination.

(6) A candidate who has been nominated in an election may, by notice in writing addressed to the returning officer, withdraw the nomination at any time before the close of nominations in the election.

37. Uncontested elections

If, by the close of nominations in an election, the number of persons who have been duly nominated as candidates in the election does not exceed the number of persons to be elected, each of those persons is elected.

38. Contested elections

If, by the close of nominations in an election, the number of persons who have been duly nominated as candidates in the election exceeds the number of persons to be elected, a ballot must be held.

39. Candidate information sheets

(1) This clause applies to any election in which the returning officer determines that this clause is to apply.

(2) A candidate in an election may, at any time before the close of nominations in the election, submit to the returning officer a statutory declaration, containing information (in an approved form) intended for inclusion in a candidate information sheet.

(3) If a ballot is to be held in an election, the returning officer must draw up a candidate information sheet consisting of the information contained in the statutory declarations submitted by candidates under this clause.

(4) If the returning officer considers that the information contained in a statutory declaration submitted by a candidate:

    (a) is not appropriate for inclusion in a candidate information sheet; or
    (b) is false or misleading in a material particular; or
    (c) is of a length greater than that permitted by the approved form,
    the returning officer may, in drawing up the candidate information sheet, omit the information, omit or rectify the particular, or reduce the length of the information, as the case requires. If practicable, the returning officer is to consult the candidate before doing so.
(5) The order of appearance of candidates' details in the candidate information sheet is to be the same order as the appearance of candidates on the ballot-paper.

40. Delivery of roll to returning officer

(1) If a ballot is to be held in an election, the returning officer must, as soon as practicable after the close of nominations, notify the secretary of the organisation that a ballot is to be held and that the secretary is required to deliver, within 7 days, a list of members entitled to vote in the election.

(2) The list is to be compiled as follows:

(a) the members are to be listed in alphabetical order of surnames and consecutively numbered; and
(b) the full surname, given names and residential address of each member is to be listed.

(3) The list is to be compiled from the membership register kept under section 501 of the Act and certified to be correct by the secretary of the organisation.

(4) The certified list constitutes the roll for the election.

(5) The certified list is to be accompanied by a label for each person included on the roll of a size suitable for affixing to an envelope, on which the name and address of each such person is shown.

(6) A candidate for election may be given a copy of the roll for the election, or may inspect the roll, but only if the candidate has been issued with a relevant certificate by the Industrial Registrar under section 501 (6) of the Act.

(7) A reference in this section to a member is, in the case of a corporation, a reference to the person who is entitled to vote on behalf of the member in the election.

41. Printing of ballot-papers etc.

(1) If a ballot is to be held in an election, the returning officer must, as soon as practicable after the close of nominations:
    (a) determine the order in which the candidates' names are to be listed on a ballot-paper by means of a ballot held in accordance with the procedure prescribed for the purposes of section 82A of the Parliamentary Electorates and Elections Act 1912; and
    (b) cause to be printed sufficient ballot-papers so that a ballot-paper may be forwarded to each person included on the roll for the election; and
    (c) if a candidate information sheet has been drawn up for the election, cause sufficient copies of it to be printed so that a copy may be forwarded to each person included on the roll.
(2) The ballot-paper for an election must contain:
    (a) the names of the candidates arranged in the order determined in accordance with subclause (1) (a), with a square opposite each name; and
    (b) if, in the opinion of the returning officer, the names of 2 or more of the candidates are so similar as to cause confusion, such other matter as will, in the opinion of the returning officer, distinguish between those candidates; and
    (c) such directions as to the manner in which the vote is to be recorded and returned to the returning officer as the returning officer considers appropriate having regard to the system of voting required by the rules of the organisation.
(3) A candidate is entitled to use only one given name on ballot-papers. A recognised abbreviation or derivative of a full given name is permitted if the candidate nominates the abbreviation or derivative on the official form of nomination and the returning officer is satisfied that it is a recognised abbreviation or derivative.

42. Distribution of ballot-papers

The returning officer must, as soon as practicable after the printing of the ballot-papers, send by post to each person included on the roll for the election:

(a) a ballot-paper initialled or otherwise marked in such manner as the returning officer considers appropriate to verify its authenticity; and
(b) an unsealed envelope addressed to the returning officer and bearing on the back the words "Name and address of voter" and "signature of voter", together with appropriate spaces for the insertion of the name, address and signature, and such other information as the returning officer determines in order to identify the voter on the certified roll; and
(c) if applicable, a candidate information sheet.

43. Duplicate ballot-papers

(1) If any person to whom a ballot-paper has been sent satisfies the returning officer by statutory declaration that the ballot-paper has been spoilt, lost or destroyed, and that the person has not already voted at the election concerned, the returning officer may, at any time before the close of the ballot, send or give to the person a new ballot-paper and envelope.

(2) The returning officer must keep a record of all such duplicate ballot-papers.

44. Recording of vote

A person on the roll for an election who wishes to vote at the election must, on receipt of a ballot-paper:

(a) record a vote on the ballot-paper in accordance with the directions shown on it; and
(b) place the completed ballot-paper, folded so that the vote cannot be seen, in the envelope addressed to the returning officer and forwarded with the ballot-paper; and
(c) seal the envelope; and
(d) complete his or her full name and address and sign the back of the envelope; and
(e) return the envelope to the returning officer so that it will be received by the returning officer not later than the close of the ballot.

45. Receipt of ballot-papers

(1) In any ballot, the returning officer must reject any envelope purporting to contain a ballot-paper without opening the envelope or inspecting the ballot-paper if the envelope:
    (a) is not received by the returning officer before the close of the ballot; or
    (b) is unsealed.
(2) On receipt, before the close of the ballot, of an envelope purporting to contain a ballot-paper, the returning officer must examine the name on the back of the envelope and:
    (a) if the returning officer is satisfied that a person of that name is included on the roll for the election---accept the ballot-paper in that envelope for scrutiny without opening the envelope and draw a line through that person's name on the roll; or
    (b) if the returning officer is not so satisfied or if a name, address or signature does not appear on the back of the envelope, reject the ballot-paper in the envelope without opening the envelope.
(3) If it appears to the returning officer that the signature appearing on the back of an envelope is not the signature of the person whose name and address appear on the envelope, the returning officer may make such inquiries as the returning officer thinks fit. If, after making those inquiries, the returning officer is satisfied that the signature is not the signature of that person, the returning officer must reject any ballot-paper in the envelope without opening the envelope.

(4) In respect of any envelope containing voting material which is returned to the returning officer by the postal authorities as an undelivered article prior to the close of the ballot, the returning officer must immediately inform the secretary of the organisation concerned of that fact in order to find out whether a current postal address is available for the member concerned. The secretary of the organisation must immediately notify the returning officer of any such current address.

46. Result of ballot

The result of the ballot in an election is to be ascertained by the returning officer as soon as practicable after the close of the ballot.

47. Scrutineers

(1) Each candidate in a ballot is entitled to appoint, by notice in writing, scrutineers to represent the candidate at all stages of the election following the close of nominations.

(2) The maximum number of scrutineers that may be appointed by a candidate is to be determined by the returning officer.

(3) A candidate in an election is not eligible to act as a scrutineer in connection with any ballot being contested by the candidate.

48. Scrutiny of votes

(1) At the scrutiny of votes in a ballot, a ballot-paper is to be rejected as informal if:
    (a) it is not authenticated by the relevant initial or other mark; or
    (b) it has on it any mark or writing which, in the opinion of the returning officer, could enable any person to identify the voter who completed it; or
    (c) it has not been completed in accordance with the directions shown on it.
(2) A ballot-paper is not to be rejected as informal merely because there is any mark or writing on it which is not duly authorised or required (not being a mark or writing referred to in clause (1) (b)) if, in the opinion of the returning officer, the voter's intention is clearly indicated on the ballot-paper.

(3) The scrutiny of votes in a ballot is to be conducted as follows:
    (a) the returning officer is to produce the unopened envelopes containing the ballot-papers accepted for scrutiny under clause 45 (2) (a) in respect of the ballot, other than any envelope purporting to contain a ballot paper rejected under clause 45 (3);
    (b) the returning officer is then to open each such envelope, extract the ballot-paper and (without unfolding it) place it in a locked ballot box;
    (c) when the ballot-papers from all the envelopes so opened have been so placed in the ballot box, the returning officer is then to unlock the ballot box and remove the ballot-papers;
    (d) the returning officer is then to examine each ballot-paper and reject those which are informal;
    (e) the returning officer is then to proceed to count the votes and ascertain the result of the election.
(4) The returning officer is to count the votes in all ballots in the order of seniority of the office concerned. If a candidate is permitted to nominate for more than one office, a candidate who has nominated for more than one office is to be excluded from any uncounted ballots following the candidate's election to an office.

49. Notification of election results

The returning officer must, following completion of the election, give written notification to the Industrial Registrar and the secretary of the organisation concerned of the result of the election.

50. Death of candidate

If a candidate dies after the close of nominations and before the close of the ballot for an election:
    (a) the returning officer is to cause a notification of the death to be published in the same way as the election notice; and
    (b) all proceedings in the election taken after the Industrial Registrar notified the returning officer that the election was required to be held are taken to have no effect and those proceedings are again to be taken.

51. Decision of returning officer final

Any decision that the returning officer is required or permitted to make under this Part relating to the taking of a ballot in an election is final.

52. Costs of election

(1) The Returning Officer is to notify the Industrial Registrar, following the completion of an election, of all expenses incurred by the returning officer in the conduct of the election.

(2) The Industrial Registrar is to furnish to the organisation concerned a certificate setting out the amount of the expenses of the election (including relevant particulars of the items concerned) that is to be borne by the organisation in accordance with section 443 of the Act. The certificate is also to specify the person or persons to whom payment is to be made and the time within which payment is to be made.

(3) Before an election is completed, the returning officer may require the organisation to make progressive payments to the returning officer for expenses incurred by the returning officer in the election. The necessary adjustments are to be made after the completion of the election to take account of those progressive payments.

(4) If the expenses of an election are not duly paid in accordance with this clause, the persons to whom they are payable may recover them as a debt in a court of competent jurisdiction.

53. Application for inquiry into election

For the purposes of section 453 (2) (b) of the Act, an application for an inquiry into an election must be lodged with the Industrial Registrar within 6 months after the completion of the election.