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WORKPLACE RELATIONS LEGISLATION AMENDMENT(REGISTRATION AND ACCOUNTABILITY OF ORGANISATIONS) (CONSEQUENTIAL PROVISIONS) ACT 2002 - SCHEDULE 1

- Transitional provisions Part 1—General

1 Definitions

(1) In this Schedule:

commencement means the commencement of this item.
"repealed provision" means a provision of the WR Act repealed by this Act.
"RAO Schedule" means Schedule 1B to the Workplace Relations Act 1996 .
"WR Act" means the Workplace Relations Act 1996 (other than Schedule 1B).

(2) If a provision of the WR Act, as in force immediately before commencement, and a provision of the RAO Schedule have substantially the same effect, each provision is, in relation to the other, a corresponding provision .
(3) An expression used in this Schedule and in the RAO Schedule has the same meaning in this Schedule as it has in that Schedule.

2 Orders etc. continue in force

An authorisation, certificate, decision, declaration, determination, direction, exemption, injunction, order, notice or permission that:

(a)
was made, given or granted under a repealed provision; and
(b)
was in force immediately before commencement;

continues in force on and after commencement as if it had been made, given or granted under the corresponding provision of the RAO Schedule.

3 Certain obligations continue

If:

(a)
a person or body had an obligation imposed under a repealed provision to do an act or thing for a specified period, or within a specified period; and
(b)
immediately before commencement, that period had not ended;

the provision continues to operate in relation to the obligation of the person or body as if it had not been repealed.

4 Terms of office continue

If:

(a)
a person was elected to an office under a repealed provision; and
(b)
immediately before commencement, the term of office for which the person was elected had not ended;

the person continues to hold office, subject to the RAO Schedule, for the remainder of the term for which the person was elected.

5 Proceedings etc. commenced under WR Act continue under WR
Act

(1) If, immediately before commencement, a proceeding (whether or not initiated by an application) in a matter arising under a repealed provision was pending in a court, the WR Act continues to apply in relation to the proceeding as if the amendments made by this Act had not been made.
(2) If, immediately before commencement, a proceeding (whether or not initiated by an application) before the Commission in a matter arising under a repealed provision has not been completed, the WR Act continues to apply in relation to the proceeding as if the amendments made by this Act had not been made.
(3) If, immediately before commencement, a matter (whether or not initiated by an application) under a repealed provision is before an Industrial Registrar, the WR Act continues to apply in relation to the matter as if the amendments made by this Act had not been made.
(4) If, in relation to the proceeding or matter mentioned in subitem (1), (2) or (3), the court, Commission or Industrial Registrar makes an order on or after commencement, the order is taken to have been made under the corresponding provision of the RAO Schedule and not under the repealed provision, under which (apart from this subitem) the order would have been made.
(5) If a penalty is imposed as a result of the order, the penalty is the penalty applicable under the WR Act as in force immediately before commencement and not the penalty applicable under the RAO Schedule.
(6) In this item:

make includes give or grant.
"order" includes authorisation, certificate, decision, declaration, determination, direction, exemption, injunction, notice or permission.

6 Pre-commencement WR Act continues for transitional
purposes

If a repealed provision is continued in operation after commencement by this Act:

(a)
any other provisions of the WR Act that are necessary for the effective operation and enforcement of the repealed provision; and
(b)
any provisions of regulations made under provisions mentioned in paragraph (a) that are necessary for the effective operation and enforcement of the repealed provision;

continue to operate as if the amendments made by this Act had not been made.

7 RAO Schedule regulations may extend to transitional applications
etc.

In section 359 of the RAO Schedule, references to applications and proceedings under that Schedule include references to applications and proceedings that are to be dealt with or completed under that Schedule because of this Act.

8 Power of President of the Commission to resolve
difficulties

If a difficulty arises in the application of this Act to a particular proceeding or matter before the Commission or the Industrial Registrar, the President of the Commission may, subject to any order made by the Federal Court of Australia under item 9, give directions not inconsistent with the RAO Schedule to resolve the difficulty.

9 Power of Federal Court of Australia to resolve
difficulties

(1) If a difficulty arises in:

(a)
the application of this Act in relation to a particular matter; or
(b)
the application, in relation to a particular matter, of a provision of the RAO Schedule because of the operation of this Act;

the Federal Court of Australia may, on the application of an interested person, make any order it considers proper to resolve the difficulty.

(2) An order made under subitem (1) has effect in spite of anything contained in this Act, in the RAO Schedule or in any Act in force immediately before commencement.
(3) The Federal Court of Australia has jurisdiction with respect to matters arising under this Act in relation to which applications may be made to it under subitem (1).

10 General rules are subject to specific rules

This Part has effect subject to the following Parts of this Schedule.

Part 2—Registered organisations 11 Register of organisations

The register of organisations required to be kept by the Industrial Registry under paragraph 63(1)(a) of the WR Act as in force immediately before commencement is taken to be the register of organisations required to be kept by the Industrial Registry under paragraph 13(1)(a) of the RAO Schedule.

12 Applications for registration

If an application for registration as an organisation was made but not determined under the WR Act before commencement, the application is to be determined under the WR Act as if the amendments made by this Act had not been made.

13 Acts or omissions relevant to prohibited conduct

In sections 21 and 22 of the RAO Schedule:

(a)
references to acts done or omitted under that Schedule include references to acts done or omitted under the WR Act; and
(b)
references in those sections to section 18 of the RAO Schedule include references to the corresponding provision of the WR Act.
14 Correction of errors in rules of association applying for
registration

If an application for registration as an organisation had been made but not determined under the WR Act before commencement, the Commission may grant leave to the applicant association under paragraph 25(1)(c) of the RAO Schedule, despite item 12.

15 Registration as an organisation continues

(1) A body that was an organisation under the WR Act immediately before commencement is taken to have been registered under section 19 or 20 of the RAO Schedule (as the case requires).
(2) Subject to this Schedule, the operation of subitem (1) in relation to an organisation does not otherwise affect the organisation or the operation of the WR Act (as in force after commencement) in relation to it.
(3) If:

(a)
an organisation is taken to be registered under the RAO Schedule because of the operation of subitem (1); and
(b)
immediately before commencement, an undertaking given by the organisation under subsection 189(2) of the WR Act was in force;

the undertaking is, after commencement, taken to have been given under subsection 19(2) of the RAO Schedule.

(4) In subsection 26(6) of the RAO Schedule:

(a)
the reference to a certificate of registration issued under subsection (4) of that section includes a reference to a certificate issued under subsection 191(4) of the WR Act as in force immediately before commencement; and
(b)
the reference to a certificate as amended under section 160 of the RAO Schedule includes a reference to a certificate as amended under section 206 of the WR Act as in force immediately before commencement.
16 Representation orders

Subsection 133(2) of the RAO Schedule applies to the following orders:

(a)
orders made by the Commission under subsection 133(1) of that Schedule on or after commencement;
(b)
orders taken to have been made under that subsection because of item 2 or item 5.
17 Applications for amalgamation

If an application for approval for the submission of an amalgamation to ballot was made under section 242 of the WR Act but not determined before commencement, Division 7 of Part IX of the WR Act continues to apply in relation to the amalgamation as if the amendments made by this Act had not been made.

Note: This general rule is subject to some exceptions in relation to particular aspects of amalgamation proceedings (see, for example, item 20 (ballots)).

18 Applications for recognition as a federation

(1) If an application for recognition as a federation was made under section 236 of the WR Act but not determined before commencement, the application is to be determined under the WR Act as if the amendments made by this Act had not been made.
(2) For the purposes of applying subitem (1), each reference in section 236 of the WR Act to section 242 of that Act includes a reference to section 44 of the RAO Schedule.

19 Applications for community of interest declaration

(1) If an application for a declaration was made under section 241 of the WR Act but not determined before commencement, the application is to be determined under the WR Act as if the amendments made by this Act had not been made.
(2) For the purposes of applying subitem (1), each reference in section 241 of the WR Act to section 242 of that Act includes a reference to section 44 of the RAO Schedule.

20 Amalgamation ballots approved after commencement

If, on or after commencement, the Commission approves the submission of an amalgamation to ballot and the ballot (the approved ballot ) is, because of the operation of item 17, to be conducted under the WR Act:

(a)
in addition to the requirements of the WR Act, subsections 65(6) and (7) of the RAO Schedule apply in relation to the approved ballot; and
(b)
the reference in subsection 65(6) of the RAO Schedule to a ballot conducted under that section includes a reference to the approved ballot.
21 Withdrawal from amalgamation—application made before commencement
etc.

(1) If an application for a ballot was made under section 253ZJ of the WR Act but not determined before commencement, Subdivision B of Division 7A of Part IX of the WR Act continues to apply in relation to:

(a)
the application; and
(b)
any ballot ordered by the Federal Court of Australia in granting the application;

as if the amendments made by this Act had not been made.

(2) However, if the application is granted, section 101, paragraph 102(2)(d) and subsection 102(3) of the RAO Schedule apply in relation to the ballot ordered by the Federal Court of Australia in granting the application.

22 Organisation not to penalise members in relation to withdrawal
from amalgamation

(1) Section 131 of the RAO Schedule applies to amalgamated organisations and officers and members of such organisations in relation to any conduct of the organisation that occurs on or after commencement.
(2) For the purposes of applying subitem (1), the reference in subsection 131(1) of the RAO Schedule to section 130 of that Schedule includes a reference to section 253ZX of the WR Act as in force immediately before commencement.

23 Withdrawal from amalgamation—application made after
commencement

For the purposes of applying Part 3 of Chapter 3 of the RAO Schedule to an organisation that became an amalgamated organisation under the WR Act, references in that Part to a provision or provisions of the RAO Schedule are taken to include references to the corresponding provision or provisions of the WR Act.

24 Grounds for deregistration

(1) An application under the RAO Schedule for cancellation of the registration of an organisation may be made, in relation to conduct occurring before commencement, on the grounds set out in the following provisions of the RAO Schedule:

(a)
paragraph 28(1)(a) (conduct preventing or hindering object of the WR Act);
(b)
paragraph 28(1)(b) (industrial action interfering with trade or commerce etc.);
(c)
paragraph 28(1)(c) (industrial action affecting community safety, health or welfare);
(d)
paragraph 28(1)(d) (failure to comply with injunctions under section 127 or 187AD of the WR Act).

(2) For the purposes of applying paragraph (1)(a) of this item:

(a)
the reference in paragraph 28(1)(a) of the RAO Schedule to an object of the RAO Schedule is taken to be omitted; and
(b)
a reference in paragraph 28(1)(a) of the RAO Schedule to the Workplace Relations Act is taken to be a reference to that Act as in force before commencement.

Part 3—Rules of organisations 25 Existing rules

Rules of a registered organisation that were in force immediately before commencement continue in force on and after commencement but may be altered under the RAO Schedule.

Note: For transitional provisions applying to rule changes that were in the process of being certified at commencement, see item 5.

26 New rule requirements

(1) This item applies only to the extent that it concerns alterations of rules of an organisation required to bring them into conformity with the RAO Schedule where:

(a)
the organisation is taken to be registered under the RAO Schedule because of subitem 15(1); and
(b)
the requirements (the new rule requirements ) are provided for in the RAO Schedule but not in the WR Act (as in force immediately before commencement).

(2) The Industrial Registrar must not exercise the power conferred by subsection 156(1) of the RAO Schedule in relation to the new rule requirements until the end of the interim period.

Note: This means that the Industrial Registrar cannot alter an organisation's rules to bring them into conformity with the RAO Schedule if the requirement for the particular rule is imposed by the RAO Schedule only and did not exist under the WR Act (as in force immediately before commencement).

(3) For the purposes of this item, the interim period is the period of:

(a)
6 months immediately after commencement; or
(b)
in relation to an organisation that has been granted an extension by a Registrar—6 months immediately after commencement, extended by the period determined by the Registrar in granting the extension.

(4) If, within 6 months immediately after commencement, an organisation applies to a Registrar for an extension of the interim period beyond the period mentioned in paragraph (3)(a), the Registrar may extend the period in relation to the organisation. The period must not be extended by more than 6 months.
(5) In determining an application for an extension under subitem (4), the Registrar must take into account:

(a)
the ability of the organisation to make the necessary changes to its rules within 6 months immediately after commencement; and
(b)
any other matter the Registrar considers relevant.
27 Review of rules by Industrial Registrar

As soon as practicable after the end of the interim period applying to an organisation under item 26, the Industrial Registrar must review the rules of the organisation.

Note: If the Industrial Registrar finds that an organisation's rules do not meet the requirements of the RAO Schedule, the Industrial Registrar may alter the rules to bring them into conformity with the Schedule (see section 156 of the RAO Schedule).

28 Rules relating to retirement age of office-holders

If, immediately before commencement, the rules of an organisation made provision as set out in paragraph 199(1)(b) of the WR Act, those rules:

(a)
continue to apply to a person elected to a full-time office in an election for which nominations were called before commencement; and
(b)
do not apply to a person elected in an election for which nominations were called on or after commencement.

Note: Although the rules relating to retirement age may have some continuing application under this item, they must still be removed from the organisation's rules during the interim period applying to it under item 26 in order for the rules to conform with section 145 of the RAO Schedule.

29 Membership agreements between organisation and State
union

(1) An agreement that was made under section 202 of the WR Act and was in force immediately before commencement continues in force after commencement as if it had been made under Subdivision B of Division 4 of Part 2 of Chapter 5 of the RAO Schedule.
(2) If a copy of an agreement made under section 202 of the WR Act was lodged in the Industrial Registry but had not come into force before commencement, the WR Act continues to apply in relation to the agreement as if the amendments made by this Act had not been made.
(3) If a copy of an agreement to terminate made under subsection 202(11) of the WR Act was lodged in the Industrial Registry but had not taken effect before commencement, the WR Act continues to apply in relation to the agreement as if the amendments made by this Act had not been made.

30 Certain alterations of rules to be recorded

If, under the WR Act:

(a)
there was a change in the name of an organisation or an alteration of the eligibility rules of an organisation; and
(b)
the Industrial Registrar had not taken the actions required under section 206 of that Act before commencement in relation to the change or alteration;

section 160 of the RAO Schedule applies in relation to the change or alteration as if the change or alteration had occurred on or after commencement.

31 Evidence of rules

In section 161 of the RAO Schedule, the reference to a copy of the rules of an organisation certified by a Registrar includes a reference to a copy certified by a Registrar under the WR Act.

Part 4—Membership of organisations 32 Resignation from membership

If a member of an organisation gave notice of resignation from membership under section 264 of the WR Act but the notice did not take effect before commencement, section 264 of the WR Act continues to apply in relation to the resignation, and to any outstanding dues of the member, as if the amendments made by this Act had not been made.

33 Recovery of arrears

(1) Section 178 of the RAO Schedule applies only to amounts that become payable on or after the commencement of that section.
(2) Sections 264A and 265 of the WR Act continue to apply to amounts that became payable before commencement as if the amendments made by this Act had not been made.

Part 5—Democratic control 34 Elections

(1) The RAO Schedule applies in relation to an election for an office, or a position other than an office, in an organisation or a branch of an organisation if no steps (including the calling of nominations) relating to the election have started before commencement.
(2) In the case of any other election for an office in an organisation or a branch of an organisation:

(a)
the WR Act as in force immediately before commencement applies to the completion of so much of any step (including the calling of nominations) that was started, but not been completed, before commencement; and
(b)
the RAO Schedule (except section 188) applies to any step (including the calling of nominations) that starts on or after commencement.
35 Elections completed before commencement

The WR Act as in force immediately before commencement continues to apply in relation to:

(a)
elections held under that Act that were completed before commencement; and
(b)
inquiries into those elections.
36 Inquiries into elections

(1) To avoid doubt, the Electoral Commissioner must make an application under subsection 200(2) of the RAO Schedule for an inquiry by the Federal Court of Australia into an irregularity in relation to an election for an office if at least one step in relation to the election started on or after commencement even if the irregularity concerned conduct relating to a step started before commencement.
(2) To avoid doubt, the Electoral Commissioner may make an application under subsection 200(3) of the RAO Schedule for an inquiry by the Federal Court of Australia into an irregularity in relation to an election for an office if at least one step in relation to the election started on or after commencement even if the irregularity concerned conduct relating to a step that started before commencement.

37 Action after inquiries into elections

(1) If, after an inquiry into an election where the inquiry was conducted under Division 5 of Part IX of the WR Act because of item 35, the Federal Court of Australia orders a new election to be held, the RAO Schedule applies to the new election.
(2) If, after an inquiry into an election where the inquiry was conducted under Division 5 of Part IX of the WR Act because of item 35, the Federal Court of Australia makes an order other than an order that a new election be held, the RAO Schedule applies to the action the subject of the order.

38 Post election report by Australian Electoral Commission

Section 197 of the RAO Schedule applies only in relation to an election conducted under Part 2 of Chapter 7 of that Schedule where each step in relation to the election (including the calling of nominations) occurs on or after commencement.

39 Applications for leave to hold office

(1) If an application was made under section 229 or 230 of the WR Act but not determined before commencement, that Act continues to apply in relation to the application as if the amendments made by this Act had not been made.
(2) Subsection 216(4) of the RAO Schedule has effect after commencement as if "or under section 229 or 230 of the Workplace Relations Act as in force immediately before the commencement of this section" were inserted after "section 217".
(3) Subsection 217(4) of the RAO Schedule has effect after commencement as if "or under section 229 or 230 of the Workplace Relations Act as in force immediately before the commencement of this section" were inserted after "section 216".

40 Prescribed offences

Section 212 of the RAO Schedule has effect as if the following paragraph were inserted before paragraph (a):

(aa)
a prescribed offence within the meaning of section 227 of the Workplace Relations Act as in force immediately before the commencement of this section; or
41 Certain persons disqualified from holding office in
organisations

Section 215 of the RAO Schedule applies in relation to a person who was convicted of a prescribed offence before commencement as if the following paragraph were inserted before paragraph (1)(a):

(aa)
on an application made under section 229 or 230 of the Workplace Relations Act (as in force immediately before the commencement of this section) in relation to the conviction of the person for the prescribed offence:
(i)
the person was granted leave to hold office in organisations; or
(ii)
the person was refused leave to hold office in organisations but, under paragraph 229(2)(b) or 230(2)(b) of the Workplace Relations Act (as in force immediately before the commencement of this section), the Court specified a period for the purposes of subsection 228(1) of the Workplace Relations Act (as in force immediately before the commencement of this section), and the period has elapsed since the person was convicted of the prescribed offence or, if the person served a term of imprisonment in relation to the prescribed offence, since the person was released from prison; or

Part 6—Records and accounts 42 Records to be kept and lodged by organisations

(1) The register of members kept by an organisation under paragraph 268(1)(a) of the WR Act as in force immediately before commencement is taken to be the register of members required (as from commencement) to be kept by the organisation under paragraph 230(1)(a) of the RAO Schedule.
(2) The lists mentioned in paragraphs 268(1)(b) and (c) of the WR Act as in force immediately before commencement are taken to be the lists required (as at commencement) to be kept by the organisation under paragraphs 230(1)(b) and (c) of the RAO Schedule.
(3) To the extent that Part 2 of Chapter 10 of the RAO Schedule applies to contraventions of subsection 230(1) or (2) or section 231 of the RAO Schedule, it applies only to contraventions that occur on or after commencement.
(4) Section 232 of the RAO Schedule applies only to conduct occurring on or after commencement.

43 Loans, grants and donations

(1) Section 237 of the RAO Schedule applies in relation to each financial year of an organisation that starts on or after commencement.
(2) Section 269 of the WR Act continues to apply in relation to the financial year of an organisation that had started, but had not ended, before commencement as if the amendments made by this Act had not been made.

44 Accounts and audit—application of Part 3 of Chapter 8
of RAO Schedule

(1) Part 3 of Chapter 8 of the RAO Schedule (except sections 242, 243, 244, 245, 246, 247, 249 and 251 and Subdivision B of Division 3) applies to each financial year of an organisation that starts on or after the commencement of the reporting guidelines.
(2) Subdivision B of Division 3 of Part 3 of Chapter 8 applies from commencement.
(3) Sections 242, 243, 244, 245, 246, 247, 249 and 251 of the RAO Schedule apply in relation to an organisation after commencement.
(4) If, because of subitem (3), a certificate is issued in relation to an organisation under section 245 of the RAO Schedule during the transition period, section 248 of the RAO Schedule has effect in relation to that certificate as if paragraph (a) were omitted and the following paragraph were substituted:

(a)
the first financial year of the organisation concerned that starts after the commencement of the reporting guidelines; and

(5) If, because of subitem (3), an alteration to the rules under section 246 of the RAO Schedule is certified in relation to a reporting unit during the transition period, section 250 of the RAO Schedule has effect in relation to that alteration as if subsection (1) were omitted and the following subsection were substituted:

(1)
An alteration to rules under section 246 takes effect at the beginning of the first financial year of the organisation concerned that starts after commencement of the reporting guidelines.

(6) If, because of subitem (3), an alteration to rules under section 247 of the RAO Schedule is determined in relation to a reporting unit during the transition period, section 250 of the RAO Schedule has effect in relation to that alteration as if subsection (1) were omitted and the following subsection were substituted:

(1)
An alteration to rules of an organisation under section 247 takes effect at the beginning of the first financial year of the organisation concerned that starts after commencement of the reporting guidelines.

(7) If, because of subitem (3), an alteration to rules under section 249 of the RAO Schedule is certified in relation to a reporting unit during the transition period, section 250 of the RAO Schedule has effect in relation to that alteration as if subsection (1) were omitted and the following subsection were substituted:

(1)
An alteration to rules under section 249 takes effect immediately after the certificate concerned takes effect.

(8) This item has effect subject to item 46.
(9) In this item:

transition period , in relation to an organisation, means the period from commencement to the beginning of the first financial year of the organisation that starts on or after the commencement of the reporting guidelines.

45 Accounting records

(1) If an organisation, or a branch of an organisation, corresponds to a reporting unit, the accounting records of the organisation or branch are taken to be the financial records of the reporting unit.
(2) If an organisation, or a branch of an organisation, corresponds to 2 or more reporting units, the accounting records of the organisation or branch are taken to be the financial records of each of the reporting units.
(3) If 2 or more organisations, or branches of an organisation, correspond to one reporting unit, the accounting records of each organisation or branch are taken to be the financial records of the reporting unit.
(4) In this item:

organisation means an organisation registered under the WR Act immediately before commencement.
"reporting unit" has the meaning given by section 242 of the RAO Schedule.

46 Members' access to accounting records

The RAO Schedule has effect in relation to an organisation:

(a)
on and after commencement; and
(b)
before the start of the first financial year of the organisation after the commencement of the reporting guidelines;

as if Division 7 of Part 3 of Chapter 8 of that Schedule were omitted and the following Division were substituted:

Division 7—Members' access to accounting records
271A Definitions

In this Division:

"accounting records", in relation to an organisation, includes books of account and such working papers and other documents as are necessary to explain the methods and calculations by which the accounts of the organisation are made up.

"commencement" means the commencement of Schedule 1 to the Workplace Relations Legislation Amendment (Registration and Accountability of Organisations) (Consequential Provisions) Act 2002.

"organisation" has the same meaning as in the Workplace Relations Act as in force immediately before commencement.

271B Application of Division in relation to organisations divided into branches

(1)
If an organisation is divided into branches:

(a)
this Division (other than this section) applies in relation to the organisation as if the financial affairs (including transactions) of a branch did not form part of those of the organisation; and
(b)
this Division (other than this section) applies in relation to each of the branches as if the branch were itself an organisation.
(2)
For the purposes of the application of this Division, in accordance with paragraph (1)(b), in relation to a branch of an organisation, the members of the organisation constituting the branch are taken to be members of the branch.

272 Information to be provided to members or Registrar

(1)
A member of an organisation, or a Registrar, may apply to the organisation for specified prescribed information in relation to the organisation to be made available to the person making the application.

(2)
The application must be in writing and must specify the period within which, and the manner in which, the information is to be made available. The period must not be less than 14 days after the application is given to the organisation.

(3)
An organisation must comply with an application made under subsection (1).

Note: This subsection is a civil penalty provision (see section 305).

(4)
A Registrar may only make an application under subsection (1) at the request of a member of the organisation concerned, and the Registrar must provide to a member information received because of an application made at the request of the member.

(5)
Accounts prepared under section 273 of the Workplace Relations Act as in force immediately before commencement must include a notice drawing attention to subsections (1), (2) and (3) of this section and setting out those subsections.

Note: This subsection is a civil penalty provision (see section 305).

(6)
Without limiting the information that may be prescribed under subsection (1), the information prescribed must include details (including the amount) of any fees paid by the organisation for payroll deduction services provided by a person who is an employer of:

(a)
the member making the application for information; or
(b)
the member at whose request the application was made.

273 Order for inspection of accounting records

(1)
On application by a member of an organisation, the Commission may make an order:

(a)
authorising the applicant to inspect accounting records of the organisation specified in the order; or
(b)
authorising another person (whether a member or not) to inspect accounting records of the organisation specified in the order on the applicant's behalf.

This subsection is subject to subsections (2) and (3).

(2)
The Commission may only make the order if it is satisfied:

(a)
that the applicant is acting in good faith; and
(b)
there are reasonable grounds for suspecting a breach of:
(i)
a provision of Division 11 of Part IX of the Workplace Relations Act as in force immediately before commencement; or
(ii)
a regulation made for the purposes of Division 11 of Part IX of the Workplace Relations Act as in force immediately before commencement; or
(iii)
a rule of an organisation relating to its finances or financial administration; and
(c)
it is reasonable to expect that an examination of the accounting records will assist in determining if there is such a breach.
(3)
The Commission may only make an order authorising the inspection of accounting records that relate to the suspected breach mentioned in paragraph (2)(b).

(4)
A person authorised to inspect the accounting records may make copies of the accounting records unless the Commission orders otherwise.

274 Frivolous or vexatious applications

(1)
A person must not make an application under section 273 that is vexatious or without reasonable cause.

Note: This subsection is a civil penalty provision (see section 305).

(2)
If the Commission considers an application under section 273 to be vexatious or without reasonable cause, the Commission must dismiss the application as soon as possible.

275 Ancillary orders

If the Commission makes an order under section 273, the Commission may make any other orders it considers appropriate, including any or all of the following:

(a)
an order limiting the use that a person who inspects the accounting records may make of information obtained during the inspection;
(b)
an order limiting the right of a person who inspects the accounting records to make copies in accordance with subsection 273(4);
(c)
an order that the organisation is not required to provide the names and addresses of its members.

276 Disclosure of information acquired in inspection

(1)
An applicant who inspects the accounting records under section 273, or a person who inspects the accounting records on behalf of an applicant, must not disclose information obtained during the inspection unless the disclosure is to:

(a)
a Registry official; or
(b)
the applicant.
(2)
A person who receives information under paragraph (1)(a) or (b) must not disclose the information other than to another person covered by one of those paragraphs.

Note: This section is a civil penalty provision (see section 305).

277 Organisation or committee of management may allow member to inspect books

The committee of management of an organisation, or the organisation by a resolution passed at a general meeting, may authorise a member to inspect accounting records of the organisation.

278 Commission to be advised of breaches of Part or rules etc. found during inspection

(1)
If, as a result of inspecting the accounting records of an organisation, a person reasonably believes that a breach of:

(a)
a provision of Division 11 of Part IX of the Workplace Relations Act as in force immediately before commencement; or
(b)
a regulation made for the purposes of Division 11 of Part IX of the Workplace Relations Act as in force immediately before commencement; or
(c)
a rule of an organisation relating to its finances or financial administration;

may have occurred, the person must give the Industrial Registry written notice to that effect and give to the Industrial Registry any relevant information obtained during the inspection.

(2)
If the Industrial Registry receives notice under subsection (1) and the Commission is satisfied that there are reasonable grounds for believing that there has been a breach of:

(a)
a provision of Division 11 of Part IX of the Workplace Relations Act as in force immediately before commencement; or
(b)
a regulation made for the purposes of Division 11 of Part IX of the Workplace Relations Act as in force immediately before commencement; or
(c)
a rule of an organisation relating to its finances or financial administration;

the Commission must refer the matter to the Industrial Registrar.

Note: Where a matter is referred, it will be investigated under section 334.

279 Constitution of Commission

For the purposes of this Division, the Commission must be constituted by a Presidential Member.

47 Accounts and audit—continued application of Division 11 of
Part IX of WR Act

(1) Division 11 of Part IX of the WR Act continues to apply in relation to:

(a)
each financial year of an organisation that starts after commencement and ends before the commencement of the reporting guidelines; and
(b)
the financial year of an organisation that had started, but had not ended, before the commencement of the reporting guidelines;

as if the amendments made by this Act had not been made.

(2) Subsections 280(2), (3), (4), (5), (6) and (10) and sections 280A and 280B of the WR Act continue to apply in relation to investigations into conduct where the investigations had started under any of those provisions before commencement, as if the amendments made by this Act had not been made.

48 Inquiries and investigations—transitional operation

The RAO Schedule has effect in relation to:

(a)
conduct under Division 11 of Part IX of the WR Act as continued in operation because of subitem 47(1); and
(b)
conduct under that Division before commencement (except conduct to which subitem 47(2) applies);

as if Part 4 of Chapter 11 of that Schedule were omitted and the following Part were substituted:

Part 4—Inquiries and investigations

329A Definitions

In this Part:

"commencement" means the commencement of Schedule 1 to the Workplace Relations Legislation Amendment (Registration and Accountability of Organisations) (Consequential Provisions) Act 2002.

"organisation" has the same meaning as in the Workplace Relations Act as in force immediately before commencement.

330 Registrar or staff may make inquiries

(1)
A Registrar, or another Registry official on behalf of a Registrar, may make inquiries as to whether the following are being complied with:

(a)
Division 11 of Part IX of the Workplace Relations Act as in force immediately before commencement;
(b)
regulations made for the purposes of that Division;
(c)
rules of an organisation relating to its finances or financial administration.
(2)
A Registrar, or another Registry official on behalf of a Registrar, may make inquiries as to whether a civil penalty provision (see section 305) has been contravened.

(3)
The person making the inquiries may take such action as he or she considers necessary for the purposes of making the inquiries. However, he or she cannot compel a person to assist with the inquiries under this section.

331 Registrar may conduct investigations

(1)
If a Registrar is satisfied that there are reasonable grounds for doing so, the Registrar may conduct an investigation as to whether:

(a)
a provision of Division 11 of Part IX of the Workplace Relations Act as in force immediately before commencement has been contravened; or
(b)
a regulation made for the purposes of that Division has been contravened; or
(c)
a rule of an organisation relating to its finances or financial administration has been contravened.
(2)
If a Registrar is satisfied that there are reasonable grounds for doing so, the Registrar may conduct an investigation as to whether a civil penalty provision (see section 305) has been contravened.

(3)
A Registrar may also conduct an investigation in the circumstances set out in the regulations.

(4)
Where, having regard to matters that have been brought to notice in the course of, or because of, an investigation under subsection (1) or (2), a Registrar forms the opinion that there are grounds for investigating the finances or financial administration of the organisation, the Registrar may make the further investigation.

(5)
An investigation may, but does not have to, follow inquiries under section 330.

332 Investigations arising from auditor's report

(1)
Subject to subsection (2), a Registrar must:

(a)
where the documents lodged in the Industrial Registry under section 268 include a report of an auditor setting out any:
(i)
defect or irregularity; or
(ii)
deficiency, failure or shortcoming; and
(b)
where for any other reason the Registrar considers that a matter revealed in the documents should be investigated—investigate the matter.
(2)
The Registrar is not required to investigate the matters raised in the report of the auditor if:

(a)
the defect, irregularity, deficiency, failure or shortcoming consists solely of the fact that the organisation concerned has kept accounting records for its membership subscriptions separately on a cash basis as provided in subsection 272(2) of the WR Act as in force immediately before commencement; or
(b)
after consultation with the organisation and the auditor, the Registrar is satisfied that the matters are trivial or will be remedied in the following financial year.
(3)
Where, having regard to matters that have been brought to notice in the course of, or because of, an investigation under subsection (1), a Registrar forms the opinion that there are grounds for investigating the finances or the financial administration of the organisation, the Registrar may make the further investigation.

333 Investigations arising from request from members

(1)
Where documents have been lodged in the Industrial Registry under subsection 280(1) of the Workplace Relations Act as in force immediately before commencement, at least:

(a)
if the organisation has more than 5,000 members—250 members; or
(b)
in any other case—5% of the members of the organisation;

may request a Registrar to investigate the finances and the financial administration of the organisation.

(2)
On receipt of a request under subsection (1), a Registrar must investigate the finances and the financial administration of the organisation concerned. The Registrar, in conducting the investigation, is not limited to the most recent financial year for which documents have been lodged and may investigate years for which documents are yet to be lodged.

(3)
Where the Registrar receives more than one request in relation to a organisation during a financial year, the Registrar is only required to conduct one investigation but may conduct more than one investigation.

334 Investigations arising from referral under section 278

If a matter is referred to the Industrial Registrar under section 278, the Industrial Registrar must ensure that a Registrar conducts an investigation.

335 Conduct of investigations

(1)
This section applies to:

(a)
a designated officer or employee of the organisation concerned; and
(b)
a former designated officer or employee of the organisation; and
(c)
a person who held the position of auditor of the organisation during the period that is the subject of the investigation;

if a Registrar has reason to believe that the person:

(d)
has information or a document that is relevant to the investigation; or
(e)
is capable of giving evidence which the Registrar has reason to believe is relevant to the investigation.
(2)
For the purpose of making an investigation, the Registrar may, by written notice, require the person:

(a)
to give to the Registrar, within the period (being a period of not less than 14 days after the notice is given) and in the manner specified in the notice, any information within the knowledge or in the possession of the person; and
(b)
to produce or make available to the Registrar, at a reasonable time (being a time not less than 14 days after the notice is given) and place specified in the notice, any documents in the custody or under the control of the person, or to which he or she has access; and
(c)
to attend before the Registrar, at a reasonable time (being a time not less than 14 days after the notice is given) and place specified in the notice, to answer questions relating to matters relevant to the investigation, and to produce to the Registrar all records and other documents in the custody or under the control of the person relating to those matters.
(3)
A notice requiring a person to attend must state that the person may be accompanied by another person. The other person may be, but does not have to be, a lawyer.

336 Action following an investigation

(1)
If, at the conclusion of an investigation, the Registrar who conducted the investigation is satisfied that the organisation concerned has contravened:

(a)
a provision of Division 11 of Part IX of the Workplace Relations Act as in force immediately before commencement; or
(b)
a provision of the regulations; or
(c)
a rule of the organisation relating to the finances or financial administration of the organisation;

the Registrar must notify the organisation accordingly.

(2)
In addition to taking action under subsection (1), the Industrial Registrar may do either or both of the following:

(a)
issue a notice to the organisation requesting that the organisation take specified action, within a specified period, to rectify the matter;
(b)
refer the matter to the Director of Public Prosecutions for action in relation to possible criminal offences.
(3)
The Registrar may, on application by the organisation, extend any periods specified in the notice issued under subsection (2).

(4)
The organisation must comply with the request made in the notice issued under subsection (2).

(5)
The Federal Court may, on application by the Registrar, make such orders as the Court thinks fit to ensure that the organisation complies with subsection (4).

337 Offences in relation to investigation by Registrar

(1)
A person commits an offence if:

(a)
the person does not comply with:
(i)
a requirement under subsection 335(2) to attend before a Registrar; or
(ii)
a requirement under subsection 335(2) to give information or produce a document; or
(b)
the person gives information, or produces a document, in purported compliance with a requirement under subsection 335(2), and the person knows, or is reckless as to whether, the information or document is false or misleading; or
(c)
when attending before a Registrar in accordance with a requirement under subsection 335(2), the person makes a statement, whether orally or in writing, and the person knows, or is reckless as to whether, the statement is false or misleading.

Maximum penalty: 30 penalty units.

(2)
Strict liability applies to paragraph (1)(a).

Note: For strict liability , see section 6.1 of the Criminal Code .

(3)
Paragraph (1)(a) does not apply if the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code ).

(4)
A person is not excused from giving information, or producing a document, that the person is required to give or produce under subsection 335(2) on the ground that the information, or the production of the document, might tend to incriminate the person or expose the person to a penalty.

(5)
However:

(a)
giving the information or producing the document; or
(b)
any information, document or thing obtained as a direct or indirect consequence of giving the information or producing the document;

is not admissible in evidence against the person in criminal proceedings or proceedings that may expose the person to a penalty, other than proceedings under, or arising out of, paragraph (1)(b) or (c).

49 Inquiries and investigations—conduct occurring on or after
commencement of the reporting guidelines

To avoid doubt, Part 4 of Chapter 11 of the RAO Schedule applies only in relation to conduct that occurs in a financial year of an organisation that starts on or after the commencement of the reporting guidelines.

Part 8—Miscellaneous 51 Requests by members under section 288 of the WR Act

If a request was made under section 288 of the WR Act but not complied with before commencement, Part XI of the WR Act continues to apply in relation to the request as if the amendments made by this Act had not been made.

52 List of officers to be evidence

A list of the officers of an organisation or a branch of an organisation lodged before commencement in the Industrial Registry on behalf of the organisation, or a copy of any such list certified by a Registrar before commencement, as mentioned in section 292 of the WR Act is, after commencement, evidence that the persons named in the list were, on the day when the list was lodged, officers of the organisation or branch.

53 Authorisation of financial assistance

Division 1 of Part XII of the WR Act as in force immediately before commencement relating to the granting of financial assistance in connection with proceedings under that Act continues to have effect in relation to all proceedings started under that Act before commencement.

54 Delegations

A delegation made under a repealed provision that was in force immediately before commencement and did not end at that time, continues in force after commencement as if it had been made under the corresponding provision of the RAO Schedule.

55 Regulations may deal with other transitional matters

(1) The regulations may deal with matters of a transitional nature (except transitional matters provided for in this Schedule) relating to the amendments of the WR Act made by this Act and the enactment of the RAO Schedule.
(2) Without limiting subitem (1), the regulations may provide for a matter to be dealt with, wholly or partly, in either of the following ways:

(a)
by applying (with or without modifications) to the matter:
(i)
provisions of the WR Act as in force immediately before commencement; or
(ii)
provisions of the RAO Schedule; or
(iii)
a combination of provisions mentioned in subparagraphs (i) and (ii);
(b)
by otherwise specifying rules for dealing with the matter.

(3) Despite subsection 48(2) of the Acts Interpretation Act 1901 , regulations made for the purposes of this item may be expressed to take effect from a date before the regulations are notified in the Gazette .
(4) To the extent to which a regulation mentioned in subitem (3) takes effect from a date that is earlier than the date of its publication in the Gazette , the provision does not operate so as:

(a)
to affect, in a manner prejudicial to any person (except the Commonwealth or an authority of the Commonwealth), the rights of that person existing before the date of its publication, or
(b)
to impose liabilities on any person (except the Commonwealth or an authority of the Commonwealth), in respect of anything done or omitted to be done before the date of its publication.

(5) The Governor-General may make regulations, not inconsistent with any other provision of this Schedule, for the purposes of subitem (1).
(6) In this item:

matters of a transitional nature also includes matters of an application or saving nature.


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