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This is a Bill, not an Act. For current law, see the Acts databases.
ABORIGINAL AND TORRES STRAIT ISLANDER ELECTED BODY BILL 2008
2008
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Minister for Indigenous Affairs)
Aboriginal
and Torres Strait Islander Elected Body Bill 2008
Contents
Page
Part
1.1 Modifications of s 33, s 34 and
s 80 27
Part
1.2 Modifications of pt 9 (Arrangements for
elections) 29
Part
1.3 Modifications of pt 10
(Voting) 39
Part
1.4 Modification of pt 12 (The
scrutiny) 52
Part
1.5 Modifications of pt 13 (Casual
vacancies) 54
Part
1.6 Modifications of pt 16 (Disputed elections,
eligibility and vacancies) 57
Part
1.7 Modifications of pt 17 (Electoral
offences) 59
Part
1.8 Modifications of pt 18 (Enforcement
proceedings) 62
Part
1.9 Modifications of pt 19
(Miscellaneous) 62
Part
1.10 Modifications of sch 3 (Preliminary
scrutiny of declaration voting papers) 63
Part
1.11 Modifications of
dictionary 64
2008
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Minister for Indigenous Affairs)
Aboriginal and Torres
Strait Islander Elected Body Bill 2008
A Bill for
An Act to establish an Aboriginal and Torres Strait Islander Elected Body,
and for other purposes
The Legislative Assembly for the Australian Capital Territory enacts as
follows:
This Act is the Aboriginal and Torres Strait Islander Elected Body Act
2008.
This Act commences on the day after its notification day.
Note The naming and commencement provisions automatically commence
on the notification day (see Legislation Act, s 75 (1)).
The objects of this Act are, in recognition of the disadvantaged position
of Aboriginal people and Torres Strait Islanders living in the
ACT—
(a) to ensure maximum opportunity for the voice of Aboriginal people and
Torres Strait Islanders living in the ACT to reach decision-makers in the
government and its agencies; and
(b) to ensure maximum participation of Aboriginal people and Torres Strait
Islanders living in the ACT in developing and implementing government policies
affecting them; and
(c) to ensure coordination by government agencies in developing policies
affecting Aboriginal people and Torres Strait Islanders living in the ACT
without detracting from, or diminishing, the responsibilities of those
agencies to provide services for the broader community; and
(d) to further the economic, social and cultural development of Aboriginal
people and Torres Strait Islanders living in the ACT; and
(e) to provide for advice to be given on appropriate representation of
Aboriginal people and Torres Strait Islanders living in the ACT on consultative
bodies established by government agencies.
The dictionary at the end of this Act is part of this Act.
Note 1 The dictionary at the end of this Act defines certain terms
used in this Act, and includes references (signpost definitions)
to other terms defined elsewhere in this Act.
For example, the signpost definition ‘ATSIEB election,
for part 3 (ATSIEB elections)—see section 28.’ means that the
term ‘ATSIEB election’ is defined in that section for part
3.
Note 2 A definition in the dictionary (including a signpost
definition) applies to the entire Act unless the definition, or another
provision of the Act, provides otherwise or the contrary intention otherwise
appears (see Legislation Act, s 155 and s 156 (1)).
A note included in this Act is explanatory and is not part of this
Act.
Note See the Legislation Act, s 127 (1), (4) and (5) for the
legal status of notes.
6 Offences
against Act—application of Criminal Code etc
Other legislation applies in relation to offences against this
Act.
Note 1 Criminal Code
The Criminal Code, ch 2 applies to all offences against this Act (see Code,
pt 2.1).
The chapter sets out the general principles of criminal responsibility
(including burdens of proof and general defences), and defines terms used for
offences to which the Code applies (eg conduct,
intention, recklessness and strict
liability).
Note 2 Penalty units
The Legislation Act, s 133 deals with the meaning of offence penalties that
are expressed in penalty units.
Part
2 Aboriginal and Torres Strait
Islander Elected Body
Division
2.1 Establishment and functions of
ATSIEB
7 Aboriginal
and Torres Strait Islander Elected Body
The Aboriginal and Torres Strait Islander Elected Body
(ATSIEB) is established.
ATSIEB has the following functions:
(a) to receive, and pass on to the Minister, the views of Aboriginal
people and Torres Strait Islanders living in the ACT on issues of concern to
them;
(b) to represent Aboriginal people and Torres Strait Islanders living in
the ACT and to act as an advocate for their interests;
(c) to conduct regular forums for Aboriginal people and Torres Strait
Islanders living in the ACT and report the outcomes of those forums to the
Minister;
(d) to conduct research and community consultation to assist ATSIEB in the
exercise of its functions;
(e) to propose programs and design services for Aboriginal people and
Torres Strait Islanders living in the ACT for consideration by the government
and its agencies;
(f) to monitor and report on the effectiveness of programs conducted by
government agencies for Aboriginal people and Torres Strait Islanders living in
the ACT;
(g) to monitor and report on the accessibility by Aboriginal people and
Torres Strait Islanders living in the ACT to programs and services conducted by
government agencies for the general public;
(h) when asked by the Minister, to give the Minister information or advice
about any matter stated by the Minister;
(i) when asked by a government agency or another person, and in
consultation with UNEC, to recommend any reasonable action it considers
necessary to protect Aboriginal and Torres Strait Islander cultural material or
information considered sacred or significant by Aboriginal people and Torres
Strait Islanders living in the ACT;
(j) any other function given to ATSIEB by the Minister;
(k) any other function given to ATSIEB under this Act or another territory
law.
Note A provision of a law that gives an entity (including a
person) a function also gives the entity powers necessary and convenient to
exercise the function (see Legislation Act, s 196 and dict, pt 1, def
entity).
9 Consultation
etc with UNEC
ATSIEB must, in exercising its functions, consult with and consider the
views of UNEC.
10 Discussions
etc with non-government entities
(1) ATSIEB may, in exercising its functions, communicate with a
non-government entity providing a service or administering a program used by
Aboriginal people and Torres Strait Islanders living in the ACT.
(2) If the non-government entity is funded by a government agency, ATSIEB
may also discuss matters relating to the service, program or funding with the
chief executive of the agency.
Note Under s 26, ATSIEB may invite a chief executive to its meetings
to discuss any issues relating to functions of ATSIEB or the agency.
(3) However, this section does not make the non-government entity
accountable to ATSIEB for its operations.
(4) In this section:
non-government entity means an entity that is not a
government agency.
(1) ATSIEB must conduct a community forum on areas of interest to
Aboriginal people and Torres Strait Islanders living in the ACT at least twice
each financial year.
(2) Every Aboriginal person and Torres Strait Islander living in the ACT
is eligible to participate in a community forum.
12 Telling
people about community forums
(1) ATSIEB must take reasonable steps to tell Aboriginal people and Torres
Strait Islanders living in the ACT about a community forum at least 14 days
before the forum is to be conducted.
(2) ATSIEB may take steps under subsection (1) in any way it considers
appropriate.
Examples
an ATSIEB website, an email network, advertisements in local and Indigenous
newspapers
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
13 Community
forums—attendance and conduct
(1) ATSIEB must invite someone from each body declared to be a
representative Aboriginal organisation under the Heritage Act 2004,
section 14 to participate in each community forum.
(2) A community forum must be conducted in a way that gives effect to the
following principles:
(a) the forum should focus on the particular area of interest to be
discussed;
(b) the forum should be open and transparent;
(c) the forum should lead to sustainable decisions by involving effective
community engagement;
(d) without limiting paragraph (c), the forum should ensure
that—
(i) relevant information is provided in a timely and accessible way to
enable maximum community participation in debate about the area of interest;
and
(ii) opportunities are provided for feedback about the area of
interest.
Division
2.2 ATSIEB
members
(1) ATSIEB consists of 7 elected members.
Note Members of ATSIEB are elected under pt 3.
(2) Each member—
(a) is elected for 3 years; and
(b) holds office on a part-time basis.
Note See sch 1, pt 1.5, modification 1.77, s 196 for the term
of a member elected to fill a casual vacancy.
(1) ATSIEB must, by majority vote, elect a member to be chair of ATSIEB
(the ATSIEB chair).
(2) The ATSIEB chair must be elected—
(a) at the first meeting of ATSIEB; and
(b) whenever the position of ATSIEB chair becomes vacant.
(3) The ATSIEB chair is elected for 3 years, but may be
re-elected.
(4) The ATSIEB chair may resign as chair by written notice given to
ATSIEB.
(5) ATSIEB must tell the Minister, in writing, about a notice it receives
under subsection (4).
(1) ATSIEB must, by majority vote, elect a member (other than the ATSIEB
chair) to be deputy chair of ATSIEB (the ATSIEB deputy
chair).
(2) The ATSIEB deputy chair must be elected—
(a) at the first meeting of ATSIEB; and
(b) whenever the position of deputy chair becomes vacant.
(3) The ATSIEB deputy chair may exercise a function of the ATSIEB chair at
any time when the chair cannot for any reason exercise the function.
(4) The ATSIEB deputy chair is elected for 3 years, but may be
re-elected.
(5) The ATSIEB deputy chair may resign as deputy chair by written notice
given to the ATSIEB chair or, if there is no chair, ATSIEB.
17 Resignation
of ATSIEB member
(1) A member of ATSIEB may resign as a member by written notice given to
the ATSIEB chair or, if there is no chair, ATSIEB.
Note See sch 1, pt 1.5 for the filling of a casual vacancy on
ATSIEB.
(2) A member must resign if the member no longer lives in the
ACT.
18 Member
taken to have resigned in certain circumstances
(1) This section applies if ATSIEB is satisfied that an ATSIEB
member—
(a) no longer lives in the ACT; and
(b) has not lived in the ACT during the immediately preceding period of 6
months.
(2) ATSIEB may, in writing, declare that it is satisfied as stated in
subsection (1).
(3) If ATSIEB makes a declaration under subsection (2), the member is
taken to have resigned on the date of the declaration.
(4) This section does not apply to an ATSIEB member who is absent from the
ACT on leave approved under section 20.
19 Removal
of ATSIEB member
The Minister may remove a member from ATSIEB for any of the following
reasons:
(a) if the member contravenes a territory law in relation to the exercise
of the member’s functions;
(b) for misbehaviour in relation to the exercise of the member’s
functions;
(c) if the member becomes bankrupt or executes a personal insolvency
agreement;
(d) if the member is convicted, or found guilty, in Australia of an
offence punishable by imprisonment for at least 1 year;
(e) if the member is convicted, or found guilty, outside Australia of an
offence that, if it had been committed in the ACT, would be punishable by
imprisonment for at least 1 year;
(f) if the member fails to take all reasonable steps to avoid being placed
in a position where a conflict of interest arises during the exercise of the
member’s functions;
(g) if the member contravenes section 27 (Disclosure of interests by
ATSIEB members);
(h) if the member is absent from 3 consecutive meetings of ATSIEB,
otherwise than on approved leave;
(i) for physical or mental incapacity, if the incapacity substantially
affects the exercise of the member’s functions.
20 Leave
of ATSIEB members
(1) ATSIEB may, conditionally or unconditionally, allow the ATSIEB chair
to take leave.
(2) The ATSIEB chair may, conditionally or unconditionally, allow an
ATSIEB member (other than the ATSIEB chair) to take leave for not longer than
1 year.
Note The ATSIEB deputy chair is a member and so can be given leave
under s (2) (see s 16 (1)).
Division
2.3 ATSIEB
meetings
21 Time
and place of ATSIEB meetings
(1) Meetings of ATSIEB are to be held when and where ATSIEB
decides.
(2) However, ATSIEB must meet at least 6 times in a financial
year.
(3) The ATSIEB chair—
(a) may, at any time, call a meeting of ATSIEB; and
(b) must call a meeting if asked in writing by—
(i) the Minister; or
(ii) at least 4 members.
(4) A meeting called under subsection (3) (b) must be called not later
than 14 days after the day the ATSIEB chair receives the request for the
meeting.
(5) The ATSIEB chair must give the other members reasonable notice of the
time and place of a meeting called by the ATSIEB chair.
22 Presiding
member at ATSIEB meetings
(1) The ATSIEB chair presides at all meetings at which the ATSIEB chair is
present.
(2) If the ATSIEB chair is absent, the ATSIEB deputy chair
presides.
(3) If the ATSIEB chair and deputy chair are absent, the member chosen by
the members present presides.
23 Quorum
at ATSIEB meetings
Business may be carried on at a meeting of ATSIEB only if at least
5 members are present.
24 Voting
at ATSIEB meetings
At a meeting of ATSIEB, a question is decided by a majority of the votes of
the members present and voting but, if the votes are equal, the member presiding
has a deciding vote.
25 Conduct
of ATSIEB meetings
(1) ATSIEB may conduct its proceedings (including its meetings) as it
considers appropriate.
(2) A meeting may be held using a method of communication, or a
combination of methods of communication, that allows a member taking part to
hear or otherwise know what each other member taking part says without the
members being in each other’s presence.
Examples
a phone link, a satellite link, an internet or intranet link
(3) A member who takes part in a meeting conducted under
subsection (2) is taken, for all purposes, to be present at the
meeting.
(4) A resolution is a valid resolution of ATSIEB, even if it is not passed
at a meeting of ATSIEB, if all members agree to the proposed resolution in
writing or by electronic communication.
Example—electronic
communication
telephone or email
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(5) ATSIEB must keep minutes of its meetings.
26 Chief
executive at ATSIEB meeting
(1) ATSIEB may invite a chief executive of a government agency to attend a
meeting of ATSIEB to discuss any issues relating to the functions of ATSIEB or
the government agency.
(2) If ATSIEB invites the chief executive of a government agency to attend
a meeting to answer questions or provide information about the functions of the
government agency, the chief executive must take reasonable steps to attend the
meeting, and answer the questions and provide the information, as
requested.
27 Disclosure
of interests by ATSIEB members
(1) If an ATSIEB member has a material interest in an issue being
considered, or about to be considered, by ATSIEB, the member must disclose the
nature of the interest at a meeting of ATSIEB as soon as practicable after the
relevant facts come to the member’s knowledge.
Note Material interest is defined in s (4). The definition
of indirect interest in s (4) applies to the definition of
material interest.
(2) The disclosure must be recorded in ATSIEB’s minutes and, unless
ATSIEB otherwise decides, the member must not—
(a) be present when ATSIEB considers the issue; or
(b) take part in a decision of ATSIEB on the issue.
(3) Any other member who also has a material interest in the issue must
not be present when ATSIEB is considering its decision under subsection
(2).
(4) In this section:
associate, of a person, means—
(a) the person’s business partner; or
(b) a close friend of the person; or
(c) a family member of the person.
executive officer, of a corporation, means a person (however
described) who is concerned with, or takes part in, the corporation’s
management, whether or not the person is a director of the
corporation.
indirect interest—without limiting the kinds of
indirect interests a person may have, a person has an indirect interest
in an issue if any of the following has an interest in the
issue:
(a) an associate of the person;
(b) a corporation, if the corporation has not more than 100 members
and the person, or an associate of the person, is a member of the corporation;
(c) a subsidiary of a corporation mentioned in paragraph (b);
(d) a corporation, if the person, or an associate of the person, is an
executive officer of the corporation;
(e) the trustee of a trust, if the person, or an associate of the person,
is a beneficiary of the trust;
(f) a member of a firm or partnership, if the person, or an associate of
the person, is a member of the firm or partnership;
(g) someone else carrying on a business, if the person, or an associate of
the person, has a direct or indirect right to participate in the profits of the
business.
material interest—an ATSIEB member has a material
interest in an issue if the member has—
(a) a direct or indirect financial interest in the issue; or
(b) a direct or indirect interest of any other kind if the interest could
conflict with the proper exercise of the member’s functions in relation to
ATSIEB’s consideration of the issue.
In this part:
ATSIEB election—
(a) means an election under this part for members of ATSIEB; and
(b) includes a recount under the Electoral Act, part 13 (Casual
vacancies), as applied by section 31.
Note Sch 1, pt 1.5 modifies the Electoral Act, pt 13 in its
application to this Act.
election start day, for an ATSIEB election, means the first
day when a person may be nominated as a candidate for the election.
elector, for an ATSIEB election, means a person entitled to
vote in the election under the Electoral Act, section 128 (1)
(Entitlement to vote), as applied by section 31.
Note Sch 1, pt 1.3, modification 1.34 modifies the Electoral Act,
s 128 (1) in its application to this Act.
hour of nomination, for an ATSIEB election—see the
Electoral Act, section 108 (3), as applied by section 31.
Note Sch 1, pt 1.2, modification 1.14 modifies the Electoral Act,
s 108 (3) in its application to this Act.
nomination close day, for an ATSIEB election, means the last
Tuesday before the polling start day.
nominee, for an ATSIEB election, means a person nominated as
a candidate for the election.
polling close day, for an ATSIEB election, means the last day
when an elector may vote in the election.
polling period, for an ATSIEB election, means
the period beginning on the polling start day and ending on the polling close
day.
polling start day, for an ATSIEB election, means the first
day when an elector may vote in the election.
pre-election period, for an ATSIEB election, means the
period—
(a) starting at 9 am on the election start day for the election; and
(b) ending at the end of the polling close day for the election.
29 Timetable
for ATSIEB elections
(1) An ATSIEB election must be held in accordance with the timetable set
out in table 29.
(2) If an event mentioned in this section falls on a day (other than a
Saturday) that is a public holiday, the event happens instead on the next
business day after the public holiday.
Table 29 ATSIEB election
timetable
column 1
item
|
column 2
election event
|
column 3
date
|
1
|
election start day
|
the Monday in April, 3 weeks before the polling start day
|
2
|
electoral rolls close
|
5 pm on the Wednesday in April, 12 days before the polling start
day
|
3
|
nominations close
|
12 noon on the last Tuesday before the polling start day
|
4
|
nominations for candidates declared
|
as soon as practicable after 12 noon on the last Wednesday before the
polling start day
|
5
|
order of ballot paper decided
|
as soon as practicable after the nominations for candidates are
declared
|
6
|
polling start day
|
the first Monday in May of the year, 3 years after the last ATSIEB election
was held
|
7
|
polling close day
|
the first Saturday after the polling start day
|
8
|
scrutiny starts
|
not earlier than 7 business days after the polling close day
|
9
|
election declared
|
as soon as practicable after scrutiny ends
|
Example—item 6 and item 7
Polling in the 2nd ATSIEB election must be held during the period starting
on Monday, 2 May 2011 and ending on Saturday, 7 May 2011.
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
30 Telling
people about ATSIEB elections etc
(1) Before the election start day for an ATSIEB election, the electoral
commission must take reasonable steps to tell electors and people entitled to be
electors about the following:
(a) the ATSIEB election;
(b) who is eligible to nominate as a candidate for the election;
(c) who is eligible to vote at the election;
(d) the days worked out under section 29 for the election;
(e) the location of polling places;
(f) anything else about the election that the commission considers
relevant.
(2) The electoral commission may tell electors and people entitled to be
electors about the matters mentioned in subsection (1) in any way it considers
appropriate.
Examples
a newspaper, the electoral commission website, a media release
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
31 Application
of Electoral Act
A provision of the Electoral Act mentioned in column 2 of an item in table
31 applies in relation to an ATSIEB election with the modifications
(if any) in the part in schedule 1 mentioned in column 3 of the item
(and any other necessary changes and any changes prescribed by
regulation).
Table 31 Application of Electoral Act
provisions
column 1
item
|
column 2
provision of Electoral Act to be
applied
|
column 3
part in sch 1 with
modifications
|
1
|
section 4A (Meaning of available for public inspection)
|
|
2
|
section 32 (Temporary staff and consultants)
|
|
3
|
section 33 (Officers)
|
part 1.1
|
4
|
section 34 (Multimember electorates)
|
part 1.1
|
5
|
section 71A (Address of person serving sentence of imprisonment)
|
|
6
|
section 80 (Closed rolls)
|
part 1.1
|
7
|
part 9 (Arrangements for elections)
|
part 1.2
|
8
|
part 10 (Voting)
|
part 1.3
|
9
|
part 12 (The scrutiny)
|
part 1.4
|
10
|
part 13 (Casual vacancies)
|
part 1.5
|
11
|
part 16 (Disputed elections, eligibility and vacancies)
|
part 1.6
|
12
|
part 17 (Electoral offences)
|
part 1.7
|
13
|
part 18 (Enforcement proceedings)
|
part 1.8
|
14
|
part 19 (Miscellaneous)
|
part 1.9
|
15
|
schedule 3 (Preliminary scrutiny of declaration voting papers)
|
part 1.10
|
16
|
schedule 4 (Ascertaining result of poll)
|
|
17
|
dictionary
|
part 1.11
|
32 Interpretation
of applied provisions of Electoral Act
In the application of the Electoral Act in relation to an ATSIEB
election—
(a) a reference to a provision of that Act is taken to be a reference to
the provision in its application in relation to the ATSIEB election;
and
(b) a reference to—
(i) a term used in that Act is taken to be a reference to the term in the
application of that Act in relation to the ATSIEB election; and
(ii) in particular, a term mentioned in column 2 of an item in table 32 is
taken to be a reference to the term mentioned in column 3 of the item.
Table 32 Interpretation of terms in applied
provisions of Electoral Act
column 1
item
|
column 2
term in Electoral Act
|
column 3
term in this Act
|
1
|
(a) an election;
(b) a general election;
(c) an ordinary election
|
an ATSIEB election
|
2
|
an elector
|
an elector in an ATSIEB election
|
3
|
an electorate
|
the ACT
|
4
|
a relevant electorate
|
the ACT
|
5
|
a candidate
|
a candidate in an ATSIEB election
|
6
|
a seat
|
an ATSIEB position
|
7
|
a polling day
|
a polling period
|
8
|
a reference to something happening on polling day
|
a reference to something happening during a polling period
|
9
|
an MLA
|
an ATSIEB member
|
10
|
the Legislative Assembly
|
ATSIEB
|
11
|
the Speaker
|
(a) the ATSIEB chair; or
(b) if there is no ATSIEB chair—the ATSIEB deputy chair; or
(c) if there is no ATSIEB deputy chair—the Minister
|
12
|
the Court of Disputed Elections
|
the Court of Disputed ATSIEB Elections
|
13
|
a form approved under the Electoral Act, section 340A
|
a form approved under this Act, section 34
|
33 Application
of Electoral Regulation 1993
The Electoral Regulation 1993, section 5A (Declaration ballot
papers) applies to a ballot paper to be used for declaration voting in an ATSIEB
election.
(1) The commissioner may approve forms for this part.
(2) If the commissioner approves a form for a particular purpose, the
approved form must be used for that purpose.
Note For other provisions about forms, see the Legislation Act, s
255.
(3) An approved form is a notifiable instrument.
Note A notifiable instrument must be notified under the Legislation
Act.
35 Protection
of ATSIEB members from liability
(1) An ATSIEB member is not civilly liable for conduct engaged in honestly
and without recklessness—
(a) in the exercise of a function under this Act or another territory law;
or
(b) in the reasonable belief that the conduct was in the exercise of a
function under this Act or another territory law.
(2) Any liability that would, apart from this section, attach to an ATSIEB
member attaches instead to the Territory.
(3) In this section:
conduct means an act or an omission to do an act.
36 Regulation-making
power
(1) The Executive may make regulations for this Act.
Note A regulation must be notified, and presented to the Legislative
Assembly, under the Legislation Act.
(2) A regulation may also prescribe offences for contraventions of the
regulations and prescribe maximum penalties of not more than 10 penalty
units for offences against a regulation.
Division
5.1 Transitional—general
37 Transitional—community
forums
(1) Section 11 (1) does not apply to the financial year ending on
30 June 2008.
(2) This section is a law to which the Legislation Act, section 88 (Repeal
does not end effect of transitional laws etc) applies.
38 Transitional—time
and place of ATSIEB meetings
(1) Section 21 (2) does not apply to the financial year ending on
30 June 2008.
(2) This section is a law to which the Legislation Act, section 88 (Repeal
does not end effect of transitional laws etc) applies.
Division
5.2 Transitional—first ATSIEB
election
39 Conduct
of first ATSIEB election
This division applies in relation to the first ATSIEB election under
part 3.
40 Transitional—timetable
for first ATSIEB election
(1) Despite section 29 (1), the first ATSIEB election must be held in
accordance with the timetable set out in table 40.
(2) This section is a law to which the Legislation Act, section 88
(Repeal does not end effect of transitional laws etc) applies.
Table 40 Timetable for first ATSIEB
election
column 1
item
|
column 2
election event
|
column 3
date
|
1
|
election start day
|
Monday, 26 May 2008
|
2
|
electoral rolls close
|
5 pm on Wednesday, 4 June 2008
|
3
|
nominations close
|
12 noon on Tuesday, 10 June 2008
|
4
|
nominations for candidates declared
|
as soon as practicable after 12 noon on Wednesday, 11 June 2008
|
5
|
order of ballot paper decided
|
as soon as practicable after the nominations for candidates are
declared
|
6
|
polling start day
|
Monday, 16 June 2008
|
7
|
polling close day
|
Saturday, 21 June 2008
|
8
|
scrutiny starts
|
not earlier than Tuesday, 1 July 2008
|
9
|
election declared
|
as soon as practicable after scrutiny ends
|
41 Transitional—modification
of Electoral Act, s 33, s 111 and s 125A
(1) For the first ATSIEB election, the modifications in schedule 1 to the
following provisions of the Electoral Act apply as if a reference to ATSIEB were
a reference to UNEC:
• section 33 (2B)
• section 111B (2) (first mention)
• section 125A (4).
(2) This section is a law to which the Legislation Act, section 88
(Repeal does not end effect of transitional laws etc) applies.
42 Transitional—modification
of Electoral Act, s 80
(1) For the first ATSIEB election, schedule 1, modification 1.4 applies as
if new section 80 (1A) read as follows:
‘(1A) For this Act, the roll for an ATSIEB election is closed during
the period—
(a) starting at 5 pm on Wednesday, 4 June 2008; and
(b) ending at the close of polling at the election.’
(2) This section is a law to which the Legislation Act, section 88
(Repeal does not end effect of transitional laws etc) applies.
43 Transitional
regulations
(1) A regulation may prescribe transitional matters necessary or
convenient to be prescribed because of the enactment of this Act.
(2) A regulation may modify this part to make provision in relation to
anything that, in the Executive’s opinion, is not, or is not adequately or
appropriately, dealt with in this part.
(3) A regulation under subsection (2) has effect despite anything
elsewhere in this Act.
(4) This section is a law to which the Legislation Act, section 88
(Repeal does not end effect of transitional laws etc) applies.
This part expires 6 months after the day it commences.
Schedule
1 Modifications of Electoral Act as
applied to ATSIEB elections
(see s 31)
Part
1.1 Modifications of s 33,
s 34 and s 80
[1.1] OfficersNew
section 33 (2A) to (2C)
insert
(2A) Before the polling start day for an ATSIEB election, the commissioner
must appoint at least 1 Aboriginal and Torres Strait Islander liaison officer
for each polling place for the election.
(2B) Before appointing an Aboriginal and Torres Strait Islander liaison
officer, the commissioner must consult ATSIEB.
(2C) A person is eligible to be appointed as an Aboriginal and Torres
Strait Islander liaison officer if the person—
(a) is—
(i) an Aboriginal person or Torres Strait Islander; and
(ii) at least 18 years old; and
(iii) enrolled, or entitled to be enrolled, for an electorate in the ACT;
and
(b) is not a candidate in the election.
after
an officer
insert
under this section
substitute
34 Electorate for ATSIEB
elections
(1) The ACT is 1 electorate for the purposes of an ATSIEB
election.
(2) Seven members of ATSIEB must be elected from the ACT.
[1.4] Closed
rollsSection 80 (1)
substitute
(1) This section applies in relation to an ATSIEB election.
(1A) For this Act, the roll for an ATSIEB election is closed during the
period—
(a) starting at 5 pm on the Wednesday in April 12 days before the
polling start day for the ATSIEB election; and
(b) ending at the close of polling at the election.
Part
1.2 Modifications of pt 9
(Arrangements for elections)
[1.5] Eligibility—MLAsSection
103 (1) to (4)
substitute
(1) A person is eligible to be an ATSIEB member if the
person—
(a) is—
(i) an Aboriginal person or Torres Strait Islander; and
(ii) at least 18 years old; and
(iii) enrolled, or entitled to be enrolled, for an electorate in the ACT;
and
(b) is not under a sentence of imprisonment for 1 year or longer for a
conviction for an indictable offence.
Note For the meaning of indictable
offence, see the Legislation Act, s 190 (Indictable and summary
offences).
[1.6] Qualifications
for nominationSection 104
(b)
omit
[1.7] Candidates
to be nominatedSection 105 (2) and
(3)
substitute
(2) A person (the nominee) may be nominated as a candidate
for an ATSIEB election only by 4 electors (the nominators)
entitled to vote at the ATSIEB election on the day the nominators sign the
nomination form.
(2A) A person is eligible to be a nominee if, at the hour of nomination,
the person—
(a) is—
(i) an Aboriginal person or Torres Strait Islander; and
(ii) at least 18 years old; and
(iii) enrolled, or entitled to be enrolled, for an electorate in the ACT;
and
(b) is not under a sentence of imprisonment for 1 year or longer for a
conviction for an indictable offence.
Note For the meaning of indictable
offence, see the Legislation Act, s 190 (Indictable and summary
offences).
(3) A nomination is made by giving the commissioner a completed nomination
form before the hour of nomination.
Note Nomination forms are available at the office of the
commissioner and in electronic form on the commissioner’s
website.
[1.8] Section
105 (4) (d)
substitute
(d) contain a declaration, signed by the nominee, to the effect that the
nominee, at the hour of nomination—
(i) is—
(A) an Aboriginal person or Torres Strait Islander; and
(B) at least 18 years old; and
(C) enrolled, or entitled to be enrolled, for an electorate in the ACT;
and
(ii) is not under a sentence of imprisonment for 1 year or longer for a
conviction for an indictable offence; and
(da) contain a declaration by each nominator, signed by the nominator, to
the effect that, on the day the nominator signs the nomination form, the
nominator—
(i) is—
(A) an Aboriginal person or Torres Strait Islander; and
(B) at least 18 years old; and
(C) enrolled, or entitled to be enrolled, for an electorate in the ACT;
and
(ii) is not under a sentence of imprisonment for 1 year or longer for a
conviction for an indictable offence; and
[1.9] Section
105 (4) (f) and (g)
omit
[1.10] Section
105 (9) to (11)
omit
[1.11] Multiple
nominations invalidSection
106
omit
[1.12] Withdrawal
etc of consent to nominationSection 107
(1)
omit
not later than 24 hours
[1.13] Section
107 (2) and (3)
substitute
(2) If the commissioner receives a notice under subsection (1), the
commissioner must cancel the nomination.
[1.14] Place
and hour of nominationSection 108
(3)
substitute
(3) The hour of nomination for an ATSIEB election is
12 noon on the nomination close day for the election.
[1.15] Section
108 (4) and (5)
omit
[1.16] Declaration
of candidatesSection 109
(1)
after
As soon as practicable
insert
after 24 hours
[1.17] New
section 109 (1A)
insert
(1A) A declaration is a notifiable instrument.
Note A notifiable instrument must be notified under the Legislation
Act.
[1.18] Section
109 (2) (b)
omit
omit
if it is a suppressed address
substitute
110 Invalid nominations
If the commissioner decides that a nomination is invalid, the commissioner
must—
(a) declare the nomination invalid; and
(b) as soon as practicable after declaring the nomination invalid and
before the hour of nomination—take reasonable steps to tell the nominee
that the nomination is invalid; and
(c) if the nomination can be corrected, tell the nominee—
(i) how the nomination can be corrected; and
(ii) that the corrected nomination may be given to the commissioner before
the hour of nomination.
110A Retention of nomination papers
The commissioner must keep all nominations (including invalid nominations)
in a secure place until the election start date for the next ATSIEB
election.
substitute
111 If more positions than candidates
(1) This section applies if, at the hour of nomination—
(a) at least 1 candidate has been nominated; and
(b) the number of candidates to be elected is more than the number of
candidates nominated.
(2) The commissioner must, in writing—
(a) declare the nominated candidate or candidates elected; and
(b) tell the ATSIEB chair (or, if there is no ATSIEB chair, the Minister)
about the election of each person elected; and
(c) tell the ATSIEB chair (or, if there is no ATSIEB chair, the Minister)
the number of candidates required to be elected who were not elected.
(3) A declaration under subsection (2) (a) is a notifiable
instrument.
Note A notifiable instrument must be notified under the Legislation
Act.
(4) The remaining vacancies are taken to be casual vacancies and must be
filled in accordance with part 13 (Casual vacancies).
111A If same number of positions as candidates
(1) This section applies if, at the hour of nomination, the number of
candidates nominated is the same as the number of candidates to be
elected.
(2) The commissioner must, in writing—
(a) declare the nominated candidates elected; and
(b) tell the ATSIEB chair (or, if there is no ATSIEB chair, the Minister)
about the election of each person elected.
(3) A declaration under subsection (2) (a) is a notifiable
instrument.
Note A notifiable instrument must be notified under the Legislation
Act.
111B If no candidates
(1) If no candidate is nominated for an ATSIEB election, the election is
taken to have failed and the commissioner must, in writing, tell the ATSIEB
chair (if any) and the Minister about the failure of the election.
(2) If the commissioner tells the Minister about the failure of the
election, the Minister may, after taking into consideration any recommendations
from ATSIEB, appoint the ATSIEB members.
111C If more candidates than
positions
If more candidates are nominated for an ATSIEB election than are required
to be elected, the commissioner must conduct a poll under this part to decide
the election.
[1.22] Deposit—return
or forfeitureSection
113
omit
substitute
114 Ballot papers
(1) The commissioner must arrange for the preparation of ballot papers to
be used at an ATSIEB election.
(2) The ballot papers—
(a) may be in electronic form; and
(b) must include the official mark approved under the Electoral Act,
section 340A (Approved forms) for section 114 (3) of that Act; and
(c) must include the year of the election; and
(d) must include the following words:
• ‘Ballot paper’
• ‘Aboriginal and Torres Strait Islander Elected Body
ACT’
• ‘Election of 7 representatives’
• ‘Number seven boxes from 1 to 7 in the order of your
choice’
• if there are more than 8 candidates—‘You may then show
as many further preferences as you wish by writing numbers from 8 onwards in the
other boxes’.
Note If a form is approved under s 34 for this provision, the form
must be used.
(3) An approval under subsection (2) (b) is a notifiable
instrument.
Note A notifiable instrument must be notified under the Legislation
Act.
(4) A regulation may—
(a) state the headings or directions to be contained on ballot papers to
be used for declaration voting; and
(b) provide for—
(i) the form of a ballot paper to be altered as stated in the regulation;
or
(ii) a form set out in the regulation to be used in
place of the form of a ballot paper.
[1.24] Grouping
of candidates’ namesSection
115
omit
substitute
116 Printing of ballot papers
(1) The names of the candidates for an ATSIEB election must be printed on
each ballot paper in a single column.
(2) If the commissioner believes on reasonable grounds that similarity in
the names of 2 or more candidates is likely to cause confusion, the commissioner
may arrange their names on the ballot papers with a description or addition that
distinguishes the names.
[1.26] Names
on ballot papersSection
117
omit
substitute
118 Draw for positions on ballot
papers
The commissioner must determine by lot the order in which the names of
candidates for an ATSIEB election are to appear on the ballot paper, as soon as
practicable after 12 noon on the last Wednesday before the polling start day for
the election.
Note The commissioner determines the positions by lot if the
commissioner determines the positions in accordance with an approval in force
under the Electoral Act, s 125.
[1.28] Polling
places and scrutiny centresSection 119 (1)
(a)
substitute
(a) appoint a stated place to be a polling place on stated days at the
stated times for an ATSIEB election; and
[1.29] New
section 119 (2A)
insert
(2A) The stated times mentioned in subsection (1) (a) must
indicate—
(a) the time when the polling place must open for polling (the
polling open time for the place); and
(b) the time when the polling place must close for polling (the
polling close time for the place).
[1.30] Certified
list of electorsSection 121 (1)
(c)
omit
[1.31] Scrutineers—appointmentSection
122 (1)
substitute
(1) A candidate for an ATSIEB election may appoint a scrutineer to
represent the candidate during—
(a) the taking of votes for the election at polling places; and
(b) the scrutiny for the election.
insert
125A Review panel
(1) Before the polling start day for an ATSIEB election, the commissioner
must establish a review panel to review any decision made by an Aboriginal and
Torres Strait Islander liaison officer in relation to a claim by an elector that
the elector—
(a) is an Aboriginal person or Torres Strait Islander; or
(b) lives in the ACT.
(2) A review panel is made up of 3 members appointed by the commissioner,
under the Electoral Act, section 33 (1), as review panel officers for this
Act.
(3) A person is eligible to be appointed as a review panel officer if the
person—
(a) is—
(i) an Aboriginal person or Torres Strait Islander; and
(ii) at least 18 years old; and
(iii) enrolled, or entitled to be enrolled, for an electorate in the ACT;
and
(b) is not a candidate in the election.
(4) Before appointing review panel officers, the commissioner must consult
ATSIEB.
[1.33] Supplementary
electionsSection 126
omit
Part
1.3 Modifications of pt 10
(Voting)
[1.34] Entitlement
to voteSection 128 (1)
substitute
(1) A person is entitled to vote in an ATSIEB election if the person
is—
(a) an Aboriginal person or Torres Strait Islander; and
(b) at least 18 years old on polling start day; and
(c) enrolled, or entitled to be enrolled, for an electorate in the
ACT.
Note The Electoral Act, s 72 (Entitlement) states when a person is
entitled to be enrolled for an electorate.
omit
substitute
129 Voting not compulsory
Voting at an ATSIEB election is not compulsory.
substitute
130 Multiple votes prohibited
An elector must not vote more than once at the same election.
Maximum penalty: 30 penalty units.
[1.38] Procedures
for votingSection 131 (1)
(b)
omit
substitute
(2) An elector may cast a vote during the polling period for an ATSIEB
election at any polling place for the election.
[1.40] Claims
to voteSection 133 (1)
substitute
(1) This section applies if a person attends before an officer at a
polling place during the polling period for an ATSIEB election and claims to
vote at the election.
(1A) The officer (the issuing officer) must give the person
a ballot paper if satisfied that—
(a) the certified list of electors—
(i) states the person’s name; and
(ii) states an address for the person or indicates that the person’s
address is suppressed; and
(iii) has not been marked in a way that indicates that a ballot paper has
already been issued to the person; and
(b) no challenge has been made under section 133A in relation to the
person.
[1.41] New
sections 133A and 133B
insert
133A Challenge whether claimant to vote is Aboriginal
person or Torres Strait Islander
(1) This section applies if a liaison officer suspects on reasonable
grounds that a person claiming to vote under section 133 (the
claimant) is not an Aboriginal person or Torres Strait
Islander.
(2) The liaison officer may ask the claimant any question the officer
believes on reasonable grounds is necessary to decide whether the claimant is an
Aboriginal person or Torres Strait Islander.
(3) The liaison officer must consider any answer the claimant gives the
officer.
(4) If the liaison officer decides, on the balance of probabilities, that
the claimant is not an Aboriginal person or Torres Strait Islander, the officer
must—
(a) challenge the claimant’s right to vote at the election;
and
(b) tell the claimant about the claimant’s right to cast a
declaration vote under section 133B; and
(c) tell the issuing officer under section 133 about the challenge;
and
(d) record the details of the challenge in a register (the liaison
officer’s objections register) and sign the record.
(5) After being challenged under subsection (4), the claimant
may—
(a) leave the polling place; or
(b) elect to cast a declaration vote under section 133B.
(6) If the claimant elects to cast a declaration vote under section 133B,
the liaison officer must give the claimant a written notice about the challenge,
including a statement to the effect that—
(a) notice of the liaison officer’s decision will be given to the
review panel under section 134A (Review of challenge under s 133A);
and
(b) the claimant’s ballot paper will only be admitted to scrutiny if
the review panel decides that the claimant is an Aboriginal person or Torres
Strait Islander.
Note If a form is approved under s 34 for
this provision, the form must be used.
133B Declaration voting—challenged claims to
vote
(1) This section applies if a claimant elects, under section 133A (5)
(b), to cast a declaration vote.
(2) The issuing officer under section 133 must—
(a) give the claimant declaration voting papers; and
(b) indicate on the envelope on which the declaration appears that the
claimant is casting a declaration vote because the liaison officer has
challenged the claimant’s claim to be an Aboriginal person or Torres
Strait Islander.
(3) Subject to section 156, the claimant and the issuing officer must
follow the procedure stated in section 135 (4) (Declaration voting at polling
places) for the casting of a declaration vote under this section.
[1.42] New
section 134A and 134B
in division 10.2, insert
134A Review of challenge under s
133A
(1) This section applies if—
(a) a liaison officer challenges, under section 133A (4) (a), a
claimant’s right to vote; and
(b) the claimant elects, under section 133A (5) (b), to cast a
declaration vote.
(2) The commissioner must give the review panel written notice of the
liaison officer’s decision not later than 3 business days after the day
the claimant has cast a declaration vote.
(3) The review panel must review the liaison officer’s decision and
decide, on the balance of probabilities, whether the claimant is an Aboriginal
person or Torres Strait Islander.
(4) The review panel must complete its review not later than
6 business days after the polling close day.
(5) If any member of the review panel decides that the claimant is an
Aboriginal person or Torres Strait Islander, the applicant’s ballot paper
must be admitted to scrutiny under part 12.
(6) The review panel must give the commissioner and the claimant written
notice of—
(a) its decision; or
(b) if there is no unanimous decision—the decision of each panel
member.
134B Challenged claimant to leave polling
place
A claimant who is given a ballot paper and ballot paper envelope under
section 133B (Declaration voting—challenged claims to vote) must leave a
polling place immediately after the claimant places the claimant’s sealed
ballot paper envelope and contents in a ballot box at the polling
place.
in division 10.3, insert
135A Evidence of living in ACT
(1) This section applies to a person who casts a declaration vote under
section 135 (Declaration voting at polling places).
(2) The person must give evidence that the person lives in the
ACT—
(a) to the officer at the polling place who issues the person with
declaration voting papers (the issuing officer); or
(b) to the commissioner not later than 3 business days after the
polling close day for the election.
Examples—evidence that person lives in
the ACT
one of the following documents, if it states the person’s name and an
ACT address for the person:
• a driver licence
• vehicle registration
• a contract of purchase or current lease for place of
residence
• a utility account statement (electricity, gas, telephone or water)
paid within 3 months before the relevant ATSIEB election
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(3) If the person gives the issuing officer evidence that the person lives
in the ACT, the issuing officer must—
(a) record the details of the evidence; and
(b) include a written statement of the record with the person’s
declaration voting papers.
(4) If the person gives the commissioner evidence that the person lives in
the ACT within the time required under subsection (2) (b), the person is, for
schedule 3, taken to be enrolled to vote.
(5) If the person does not provide evidence that the person lives in the
ACT within the time required under subsection (2), the person’s
ballot paper must not be admitted to scrutiny under part 12.
[1.44] Applications
for postal voting papersSection 136A (2)
(c)
substitute
(c) received by an authorised officer before 5 pm on the Thursday before
polling close day.
substitute
(6) Despite subsections (3) and (5), the authorised officer may post or
give postal voting papers to the applicant as soon as practicable after the draw
for positions on the ballot paper is completed.
[1.46] Ordinary
or declaration voting in ACT before polling
daySection 136B
omit
[1.47] Declaration
voting outside ACT on or before polling
daySection 136C
omit
[1.48] Record
of issue of declaration voting
papersSection 137 (1)
omit
, 136B (17) or 136C
[1.49] Inspection
of recordsSection 138
(1)
omit
polling day
substitute
polling close day
[1.50] Receipt
of declaration voting papersSection 139 (2)
substitute
(2) If the commissioner receives completed postal voting papers under
subsection (1), the commissioner must give the voting papers to the review panel
for their decision, under section 144B, about whether the person who cast the
postal vote is an Aboriginal person or Torres Strait Islander.
[1.51] Registered
declaration voters Section
140
omit
[1.52] Issue
of voting papers to registered declaration voters
Section 141
omit
[1.53] Requirements
for casting postal votesSection 144A
(1)
omit
or section 141 (Issue of voting papers to registered declaration
voters)
[1.54] New
sections 144B and 144C
insert
144B Review panel—eligibility of person who
postal votes
(1) This section applies if the commissioner gives the review panel
completed postal voting papers under section 139 (2).
(2) The review panel must decide, after making any investigation the panel
considers appropriate, whether the person who cast the postal vote (the
claimant) is an Aboriginal person or Torres Strait Islander.
(3) The review panel must complete its review not later than
6 business days after the day it receives the claimant’s postal
voting papers.
(4) If any member of the review panel decides that the claimant is an
Aboriginal person or Torres Strait Islander, the claimant’s ballot paper
must be admitted to scrutiny under part 12.
(5) The review panel must give the commissioner written notice
of—
(a) its decision; or
(b) if there is no unanimous decision—the decision of each panel
member.
(6) The commissioner must tell the claimant whether, having regard to the
review panel’s decision, the claimant’s vote will be admitted to
scrutiny.
144C Review panel—residence of person who
postal votes
(1) This section applies if the commissioner gives the review panel
completed postal voting papers under schedule 3, clause 12.
(2) The review panel must decide, after making any investigation the panel
considers appropriate, whether the person who cast the postal vote (the
claimant) lives in the ACT.
(3) The review panel must complete its review not later than
6 business days after the day it receives the claimant’s postal
voting papers.
(4) If any member of the review panel decides that the claimant lives in
the ACT, the claimant’s ballot paper must be admitted to scrutiny under
part 12.
(5) The review panel must give the commissioner written notice
of—
(a) its decision; or
(b) if there is no unanimous decision—the decision of each panel
member.
(6) The commissioner must tell the claimant whether, having regard to the
review panel’s decision, the claimant’s vote will be admitted to
scrutiny.
[1.55] Mobile
pollingDivision 10.5
omit
substitute
154 Arrangements at polling places—opening and
closing
(1) Each polling place for an ATSIEB election must—
(a) open at the polling open time for the polling place; and
(b) close at the polling close time for the polling place.
(2) No-one must be admitted to the polling place after the polling close
time for the purpose of voting.
(3) The poll at the polling place must—
(a) open at the polling open time; and
(b) not close until all electors present in the polling place at the
polling close time and wanting to vote have voted.
(4) In this section:
polling close time, for a polling place, means the polling
close time stated in the appointment under section 119 (1) (a) for the
polling place.
polling open time, for a polling place, means the polling
open time stated in the appointment under section 119 (1) (a) for
the polling place.
154A Arrangements at polling places—ballot
boxes
(1) The polling at each polling place for an ATSIEB election must be
conducted in accordance with this section.
(2) Before any vote is taken in the election, the OIC must, in the
presence of any scrutineers—
(a) exhibit the ballot box for the election empty; and
(b) after exhibiting the ballot box, securely fasten its cover.
(3) At the end of each day’s polling, the OIC must, in the presence
of any scrutineers, close the ballot box and seal it.
(4) At the start of the 2nd and each subsequent day’s polling, the
OIC must, in the presence of any scrutineers, examine the seal on the ballot box
and open it.
(5) The same ballot box must be used at each polling place for the
election unless it is full.
(6) When a ballot box is full, the OIC must, in the presence of any
scrutineers—
(a) close and seal the ballot box; and
(b) exhibit another ballot box for the election empty and then securely
fasten its cover.
(7) At the end of the polling close day for the election, the OIC must, in
the presence of any scrutineers—
(a) close and seal the ballot box containing sealed ballot paper envelopes
and their contents for ordinary voting or declaration voting; and
(b) parcel and enclose in sealed wrapping all unused ballot papers;
and
(c) parcel and enclose in sealed wrapping all other electoral papers used
at the polling place; and
(d) give all the ballot boxes used in the election, and the articles
mentioned in paragraph (b) and (c), to the commissioner.
(8) The commissioner must keep the articles mentioned in
subsection (7) in safe custody for the purposes of scrutiny under
part 12.
(9) Ballot paper envelopes containing ballot papers cast as ordinary votes
in an ATSIEB election may only be removed from ballot boxes and counted after
the close of polling on polling close day.
[1.57] Extension
of time for conducting electionsSection 159
(1)
omit
the day
substitute
the period
[1.58] Suspension
and adjournment of pollingSection 160
(1)
omit
on polling day
substitute
during the polling period
omit
on the day
substitute
during the period
[1.60] Failure
to voteDivision 10.7
omit
Part
1.4 Modification of pt 12 (The
scrutiny)
[1.61] ScrutinySection
178 (3) (f)
omit
[1.62] Preliminary
scrutiny of declaration voting papers
etcSection 179 (1) (c)
omit
omit
[1.64] First
count—ordinary ballot papersSection
182 (2)
substitute
(2) The OIC for a scrutiny centre must arrange for the procedures set out
in this section to be carried out not earlier than—
(a) 7 business days after the polling close day for the election;
or
(b) if a review panel is considering a postal vote under section 144B
or section 144C—the day after the review panel gives the commissioner
written notice of its decision under section 144B (5) or section 144C
(5).
[1.65] Section
182 (5) (b), (c) and (d)
omit
[1.66] Section
182 (6) and (7)
omit
substitute
183A First count—electronic ballot
papers
The OIC for a scrutiny centre must arrange for preferences from electronic
voting to be entered into the approved computer program, and for the electronic
counting of the votes using the program, not earlier than—
(a) 7 business days after the polling close day for the election;
or
(b) if a review panel is considering a postal vote under section 144B
or section 144C—the day after the review panel gives the commissioner
written notice of its decision under section 144B (5) or section 144C
(5).
[1.68] Second
count—first preferencesSection 184
omit
[1.69] Ascertaining
result of pollSection 185 (1)
(a)
omit
substitute
189 Declaration of result of ATSIEB
election
(1) As soon as practicable after the result of an ATSIEB election has been
decided, the commissioner must, in writing, declare each successful candidate
elected.
(2) A declaration under subsection (1) is a notifiable
instrument.
Note A notifiable instrument must be notified under the Legislation
Act.
189A Report of result of ATSIEB
election
(1) As soon as practicable after the result of an ATSIEB election has been
decided, the commissioner must give the ATSIEB chair (or, if there is no chair,
the Minister) a written report setting out:
(a) the election results; and
(b) the number of votes received by each candidate.
(2) The commissioner must make the report available to the public during
ordinary office hours.
Examples
• at the office of the commissioner
• on the commissioner’s website
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
Part
1.5 Modifications of pt 13 (Casual
vacancies)
[1.71] Section
190, new definitions
insert
casual vacancy means a vacancy in a position on ATSIEB if the
vacancy has happened otherwise than because—
(a) the term for which the ATSIEB member was elected has ended;
or
(b) there has been a partial failure of an election.
Note See s 111B for what happens if
there are no candidates for an ATSIEB election.
partial failure, of an ATSIEB election, means that fewer
candidates were nominated for the election than were required to be
elected.
[1.72] Section
190, definition of Speaker
omit
[1.73] Notice
of casual vacancySection 191
(1)
substitute
(1) This section applies if—
(a) the ATSIEB chair tells the commissioner in writing that there is a
casual vacancy for a position for an ATSIEB member; and
(b) the vacancy occurs after the latest ATSIEB election has been declared
and before 1 January in the year in which the next ATSIEB election is to be
held.
(1A) If the commissioner is satisfied that it is practicable to fill the
vacancy under section 194, the commissioner must publish a notice in a
newspaper.
omit
subsection (1)
substitute
subsection (1A)
[1.75] Publication
of candidates’ detailsSection 193 (1)
(b)
omit
any suppressed address
substitute
the candidate’s address
[1.76] Determination
of candidate to fill vacancySection 194
(3)
substitute
(3) The commissioner must—
(a) declare the successful candidate elected; and
(b) tell the ATSIEB chair (or, if there is no chair, the Minister) in
writing about the election of the successful candidate.
[1.77] Sections
195 and 196
substitute
195 ATSIEB nominees
(1) This section applies if—
(a) there is a casual vacancy for a position on ATSIEB; and
(b) the commissioner tells the ATSIEB chair (or, if there is no chair, the
Minister)—
(i) under section 191 (4), that it is not practicable to fill
the vacancy; or
(ii) under section 193 (2), that there are no candidates for the
vacancy.
(2) The Minister must, after taking into consideration any recommendations
from ATSIEB, appoint a person who is eligible to be elected to the
vacant position to fill the vacancy.
Note 1 For the making of appointments (including acting
appointments), see the Legislation Act, pt 19.3.
Note 2 In particular, an appointment may be made by naming a person
or nominating the occupant of a position (see Legislation Act,
s 207).
Note 3 Certain Ministerial appointments require consultation with an
Assembly committee and are disallowable (see Legislation Act,
div 19.3.3).
196 Term of ATSIEB member declared elected under pt
13
(1) This section applies to a person—
(a) declared elected under section 194 (3) (a); or
(b) appointed under section 195 (2).
(2) The term of the person’s appointment begins at the end of the
day the election of the person is declared or the person is appointed and,
unless sooner ended, ends on the day the former ATSIEB member’s
appointment would have ended.
Part
1.6 Modifications of pt 16 (Disputed
elections, eligibility and vacancies)
[1.78] Definitions
for pt 16Section 250, definition of
Speaker
omit
substitute
251 Meaning of ATSIEB chair—pt
16
(1) In this part:
ATSIEB chair includes—
(a) if the ATSIEB chair is unavailable—the ATSIEB deputy chair;
or
(b) if both the ATSIEB chair and the ATSIEB deputy chair are
unavailable—another ATSIEB member who is not the subject of a proceeding
and is appointed by ATSIEB to act as the ATSIEB chair for this part;
or
(c) if both the ATSIEB chair and the ATSIEB deputy chair are unavailable
and no ATSIEB member is appointed for paragraph (b)—the
Minister.
(2) For this section, the ATSIEB chair or the ATSIEB deputy chair is
unavailable if—
(a) the office-holder is absent from duty; or
(b) there is a vacancy in the office; or
(c) the office-holder is the subject of a proceeding.
[1.80] Validity
may be disputed after electionNew section
256 (2) (aa) and (ab)
before section 256 (2) (a), insert
(aa) a decision by a liaison officer or review panel in relation to an
elector’s claim to be an Aboriginal person or Torres Strait Islander;
(ab) a decision by a review panel in relation to an elector’s claim
to live in the ACT;
[1.81] Inquiries
by courtSection 269 (3)
omit
Part
1.7 Modifications of pt 17 (Electoral
offences)
[1.82] Sections
286 and 287
substitute
286 Interference with voting
(1) A person must not—
(a) interfere with the casting of a vote by an elector; or
(b) do anything to find out how an elector voted; or
(c) allow anyone else to find out how an elector voted.
Maximum penalty: 30 penalty units.
(2) Subsection (1) does not apply to a person assisting an elector under
section 156.
substitute
288 Violence and intimidation
A person must not, by violence or intimidation, hinder or interfere with
the free exercise of a right or function under this Act.
Maximum penalty: 30 penalty units.
Note 1 Function is defined in the Legislation Act, dict, pt 1
to include authority, duty and power.
Note 2 Exercise a function includes perform the function (see
Legislation Act, dict, pt 1).
[1.84] Dissemination
of electoral matter—authorisers and
authorsSection 292 (1)
(b)
substitute
(b) if the matter was published for a candidate for election—the
name of the candidate.
[1.85] Publication
of statements about candidatesSection 301
(3)
omit
[1.86] Canvassing
within 100m of polling placesSection 303
(7), definition of polling hours
substitute
polling hours, for a polling place, means the period stated
in the appointment under section 119 during which the place is open for
polling.
substitute
307 Voting fraud
(1) A person must not supply a ballot paper unless authorised by this
Act.
Maximum penalty: 20 penalty units.
(2) A person commits an offence if the person dishonestly obtains a ballot
paper.
Maximum penalty: 20 penalty units.
(3) A person must not mark a ballot paper unless—
(a) the person is an elector or an assistant assisting the elector under
section 156; and
(b) the ballot paper marked is the elector’s ballot paper.
Maximum penalty: 30 penalty units.
(4) A person commits an offence if—
(a) the person casts a ballot; and
(b) the person is not entitled to vote.
Maximum penalty: 30 penalty units.
insert
317A Influencing of votes by
officers
(1) An officer must not do anything to influence someone else’s
vote.
Maximum penalty: 30 penalty units.
(2) In this section:
officer includes a liaison officer.
[1.89] New
sections 318A and 318B
insert
318A Giving completed ballot papers to
commissioner
A person who accepts completed ballot papers to be given to the
commissioner must give them to the commissioner as soon as
practicable.
Maximum penalty: 10 penalty units.
318B Opening envelopes containing ballot
papers
Unless authorised under this Act, a person must not open a ballot box, or
an envelope, that appears to contain completed ballot papers.
Maximum penalty: 5 penalty units.
Part
1.8 Modifications of pt 18
(Enforcement proceedings)
[1.90] Commissioner
may prosecute enrolment and voting
offencesSection 326
omit
[1.91] Service
of certain process by mailSection
327
omit
Part
1.9 Modifications of pt 19
(Miscellaneous)
[1.92] Administrative
arrangements with Commonwealth and
StatesSection 336
omit
[1.93] Evidentiary
certificatesSection 337 (1) (b)
(ii)
omit
[1.94] Section
337 (1) (h) and (i)
omit
registered party,
[1.95] Approved
formsSection 340A
omit
[1.96] Regulation-making
powerSection 341
omit
Part
1.10 Modifications of sch 3
(Preliminary scrutiny of declaration voting papers)
[1.97] Clause
6 (1), definition of relevant provision, new paragraph
(aa)
before clause 6 (1) (a), insert
(aa) for a vote under section 133B (Declaration voting—challenged
claims to vote)—section 133B (3); or
[1.98] Clause
6 (1), definition of relevant provision, paragraphs (b) and
(c)
omit
substitute
(d) for a declaration vote under section 133B (3) or a postal vote under
section 136A (Applications for postal voting papers)—the review panel or a
member of the review panel has decided that the elector is an Aboriginal person
or Torres Strait Islander.
omit everything before paragraph (a), substitute
11 The OIC must, in accordance with clauses 4 to 10, conduct a further
scrutiny of the group of remaining declaration voting papers to which clause 5
(b) applies and, if there are any papers to which clause 5 (b) applies after the
further scrutiny, the OIC must—
insert
12 The OIC must, in accordance with clauses 4 to 10, conduct a further
scrutiny of the group of remaining declaration voting papers to which clause 8
(b) applies and, if there are any papers to which clause 8 (b) applies after the
further scrutiny, the OIC must give the papers to the review panel for
consideration under section 144C.
Part
1.11 Modifications of
dictionary
[1.102] Definition
of ballot paper, paragraph (b)
substitute
(b) if a regulation is in force under section 114 (4) (Ballot
papers)—means a ballot paper in the form prescribed by
regulation.
[1.103] New
definition of casual vacancy
insert
casual vacancy, for part 13 (Casual vacancies)—see
section 190.
[1.104] Definition
of declaration vote, new paragraph (aa)
before paragraph (a), insert
(aa) section 133B (Declaration voting—challenged claims to
vote);
[1.105] New
definition of liaison officer and partial
failure
insert
liaison officer means an Aboriginal and Torres Strait
Islander liaison officer appointed under section 33 (2A).
partial failure, for part 13 (Casual vacancies)—see
section 190.
[1.106] Definition
of polling place
substitute
polling place means a place appointed to be a polling place
under section 119.
[1.107] New
definition of review panel
insert
review panel means the panel established under section
125A.
(see s 4)
Note 1 The Legislation Act contains definitions and other provisions
relevant to this Act.
Note 2 For example, the Legislation Act, dict, pt 1, defines the
following terms:
• ACT
• administrative unit
• appoint
• body
• business day
• chief executive (see s 163)
• electoral commission
• electoral commissioner
• Executive
• financial year
• indictable offence (see s 190)
• Minister (see s 162)
• modification
• must (see s 146)
• notifiable instrument (see s 10)
• penalty unit (see s 133)
• sign.
Aboriginal person or Torres Strait Islander means a person
who—
(a) is a descendant of an Aboriginal person or Torres Strait Islander;
and
(b) identifies as an Aboriginal person or Torres Strait Islander;
and
(c) is accepted as an Aboriginal person or Torres Strait Islander by an
Aboriginal or Torres Strait Islander community.
ATSIEB—see section 7.
ATSIEB chair—see section 15.
ATSIEB deputy chair—see
section 16.
ATSIEB election, for part 3 (ATSIEB elections)—see
section 28.
ATSIEB member means a person elected under part
3 (ATSIEB elections) to be a member of ATSIEB.
commissioner means the electoral commissioner.
community forum means a community forum under section
11.
election start day, for part 3 (ATSIEB elections)—see
section 28.
elector, for part 3 (ATSIEB elections)—see section
28.
Electoral Act means the Electoral Act 1992.
government agency means—
(a) an administrative unit; or
(b) a territory instrumentality; or
(c) a statutory office-holder and the staff required to assist the
statutory office-holder.
hour of nomination, for part 3 (ATSIEB elections)—see
section 28.
nomination close day, for part 3 (ATSIEB
elections)—see section 28.
nominee, for part 3 (ATSIEB elections)—see section
28.
polling close day, for part 3 (ATSIEB elections)—see
section 28.
polling period, for part 3 (ATSIEB elections)—see
section 28.
polling start day, for part 3 (ATSIEB elections)—see
section 28.
pre-election period, for part 3 (ATSIEB elections)—see
section 28.
UNEC means the United Ngunnawal Elders Council.
Endnotes
1 Presentation speech
Presentation speech made in the Legislative Assembly on 2008.
2 Notification
Notified under the Legislation Act on 2008.
3 Republications of amended laws
For the latest republication of amended laws, see
www.legislation.act.gov.au.
© Australian Capital Territory
2008
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