Commonwealth Numbered Regulations - Explanatory Statements

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INDUSTRIAL RELATIONS REGULATIONS (AMENDMENT) 1991 NO. 366

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.