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This is a Bill, not an Act. For current law, see the Acts databases.
1996-97
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Constitutional
Convention (Election) Bill 1997
No. ,
1997
(Administrative
Services)
A Bill for an Act to provide for the
election of delegates to the Constitutional Convention, and for related
purposes
9703920--1,115/21.3.1997--(39/97) Cat. No. 96 7456 X ISBN
0644 500581
Contents
A Bill for an Act to provide for the election of
delegates to the Constitutional Convention, and for related
purposes
The Parliament of Australia enacts:
This Act may be cited as the Constitutional Convention (Election) Act
1997.
This Act commences on the day on which it receives the Royal
Assent.
This Act extends to Norfolk Island.
This Act binds the Crown in each of its capacities, but nothing in this
Act renders the Crown liable to be prosecuted for an offence.
(1) Many of the terms in this Act are defined in the Dictionary in
Schedule 1.
(2) Most defined terms are identified by an asterisk appearing at the
start of the term: as in *delegate. The footnote that goes with the asterisk
contains a signpost to the Dictionary.
(3) An asterisk usually identifies the first occurrence of a term in a
section, subsection, note or definition. Later occurrences of the term in the
same subsection, note or definition are not asterisked.
(4) Terms are not asterisked in headings or tables.
(5) The following basic terms used throughout the Act are not identified
with an asterisk:
|
Terms that are not identified |
|
|---|---|
|
Item |
This term: |
|
1 |
AEO |
|
2 |
Assistant DRO |
|
3 |
Australia |
|
4 |
CEA |
|
5 |
DRO |
|
6 |
election |
|
7 |
Electoral Commission |
|
8 |
Electoral Commissioner |
|
9 |
officer |
|
10 |
Territory |
These terms are all defined in the Dictionary in Schedule
1.
The purpose of the Act is to provide for elections of *delegates from
each State and Territory to the Constitutional Convention. As well as delegates
who are elected, there will also be delegates to the Convention who are
appointed delegates. The Act does not deal with the appointment of
delegates.
The number of *delegates to be elected from each State and Territory is
as follows:
|
Item |
State/Territory |
Number of delegates |
|---|---|---|
|
1 |
New South Wales |
20 |
|
2 |
Victoria |
16 |
|
3 |
Queensland |
13 |
|
4 |
Western Australia |
9 |
|
5 |
South Australia |
8 |
|
6 |
Tasmania |
6 |
|
7 |
Australian Capital Territory |
2 |
|
8 |
Northern Territory |
2 |
(1) A person is entitled to vote at an election for a State or Territory
if the person’s name is on the *list of electors compiled under
section 9 for that State or Territory.
(2) The list of electors for a State or Territory is conclusive evidence
of the right of each person named on the list to vote in the election for that
State or Territory.
(1) As soon as practicable after the day fixed under section 13 for the
close of the *Rolls, the Electoral Commissioner must cause a *list of electors
for each State and Territory to be compiled.
(2) The list for a State or Territory is a
list of the names and addresses of all persons whose names:
(a) appear on the *Roll for the State or Territory; and
(b) would be required, if the election were an election of Senators to be
held on the *closing day of the poll, to be included on a certified list used
for the purposes of the Senate election under section 208 of the CEA.
(3) The list is not to be compiled until claims to which subsection (4)
applies have been dealt with under the CEA.
(4) This subsection applies to a claim if:
(a) it is a claim under section 100 (age 17 enrolment) or subsection
101(1) (enrolment or transfer of enrolment) of the CEA; and
(b) the claim is received before 8 pm on the day fixed under section
13 for the close of the *Rolls.
(5) Nothing in this Act is to be taken to require the address of a person
to be included on the *list of electors if the person’s address is not
shown on the *Roll because of section 104 of the CEA.
(1) A person must not vote more than once at an election.
(2) A person must not vote at an election in more than one State or
Territory.
A person is not required to vote at an election.
The elections are to be conducted by the Electoral Commission in
accordance with:
(a) the Act; and
(b) the regulations.
(1) The Minister must, by written notice, fix the dates for the following
in relation to the elections:
(a) the close of the *Rolls;
(b) the nominations;
(c) the *closing day of the poll;
(d) the notification of the election results.
(2) The Minister must cause a copy of the notice to be published in
the Gazette before the first of the days fixed under
subsection (1).
(3) A failure by the Minister to comply with this section does not
invalidate the fixing of the dates.
The date fixed for the close of the *Rolls must be:
(a) where there has been a public announcement of the proposed *closing
day of the poll before the giving of the notice referred to in subsection
13(1)—not less than 7 days after the date of the announcement;
and
(b) where there has been no such public announcement—7 days after
the day the Minister gives notice under section 13.
(1) Subject to subsection (2), the date fixed for the nomination of the
candidates must be 10 days after the day the Minister gives notice under section
13.
(2) Where a candidate for an election dies, after being nominated and
before 12 o’clock noon on the day fixed by the Minister’s
notice as the date of nomination for the election, the day fixed as the date of
nomination for the election is to be taken to be the day after the day so
fixed.
The date fixed for the notification of the election results by the
Electoral Commissioner under subsection 114(2) must not be more than 28
days after the *closing day of the poll.
As soon as practicable after the day the Minister gives notice under
section 13, the Electoral Commissioner must:
(a) advertise the contents of the notice in at least one newspaper
circulating generally in the State or Territory; and
(b) take such steps as the Electoral Commissioner considers necessary to
advise the AEO and each DRO in the State or Territory of the dates fixed by the
notice; and
(c) give such directions as the Electoral Commissioner considers
appropriate to the AEO and each DRO in relation to the holding of the
election.
(1) The Electoral Commissioner must, for the purposes of the election for
the *Australian Capital Territory, appoint an AEO for the Australian Capital
Territory. The appointment is to terminate upon the completion of the
election.
(2) The Electoral Commissioner may appoint a person to act as AEO for the
*Australian Capital Territory during any period, or during all periods, when the
AEO for the Territory is absent from duty or from Australia or is, for any other
reason, unable to perform the functions of the Office.
(3) The appointment of a person to act as AEO for the *Australian Capital
Territory ceases to have effect if the person delivers to the Electoral
Commissioner a signed notice of resignation.
(4) A person acting as AEO for the *Australian Capital Territory has, and
may exercise, all the powers and must perform all the functions of the AEO for
the Territory.
(5) The validity of anything done by or in relation to a person purporting
to act under subsection (2) cannot be called into question on the ground that
the occasion for the appointment had not arisen, that there is a defect or
irregularity in or in connection with the appointment, that the appointment had
ceased to have effect or that the occasion for the person to act had not arisen
or had passed.
The Electoral Commissioner may give written directions to officers with
respect to the performance of their functions and the exercise of their powers
under this Act.
(1) The DRO for a *Division is charged with the duty of giving effect to
this Act within or for the Division, subject to the directions of the Electoral
Commissioner and the AEO.
(2) The DRO for a *Division may, subject to any directions given by the
Electoral Commissioner and the AEO for the State or Territory, give written
directions to officers with respect to the performance of their functions and
the exercise of their powers under this Act and in, or in relation to, the
Division.
For the purposes of an election under this Act, the reference in
subparagraph 35(1)(a)(i) of the CEA to an election is to be read as a reference
to an election under this Act.
A person cannot be elected as a *delegate unless the person has nominated
himself or herself under this Part for election as a delegate from a State or
Territory.
(1) A person is qualified to be elected as a *delegate if:
(a) the person has turned 18; and
(b) the person is an Australian citizen; and
(c) the person is entitled to vote in the election for the
delegate.
(2) A person cannot nominate for election as a *delegate unless the person
is qualified under subsection (1).
A person cannot nominate as a *delegate if, at the *hour of nomination,
the person is:
(a) a member of the Parliament of the Commonwealth of Australia or of a
State; or
(b) a member of the Legislative Assembly of the *Northern Territory or of
the *Australian Capital Territory; or
(c) if any appointments of delegates have been made—a person who has
been appointed as a delegate.
(1) A person may nominate for election as a *delegate from one State or
Territory. If at the *hour of nomination there are nominations of the same
person for 2 or more elections, each of those nominations is invalid.
(2) For the purposes of subsection (1), where a person has nominated in
relation to an election and the person withdraws the nomination under section 45
before the *hour of nomination, the nomination of the person for the election is
taken to have ceased to have effect at the time when the person withdrew the
nomination.
(1) A nomination may be in the *approved form and must set out the name
and place of residence of the candidate, or each candidate,
nominating.
(2) A nomination may name a candidate only by specifying the surname and
the given name, or one or more of the given names, under which the candidate
appears on the *list of electors.
(3) For the purposes of subsection (2), a given name may be specified by
specifying:
(a) an initial standing for that name; or
(b) a commonly accepted variation of that name (including an abbreviation
or truncation of that name or an alternative form of that name).
(4) A nomination must include a statement of the form in which the
candidate’s name or candidates’ names, as the case may be, is or are
to be printed on the ballot-paper and the *list of candidates in the
election.
(5) Nothing in this Act is to be taken as requiring a person whose address
is not shown on the *Roll because of section 104 of the CEA to set out his or
her address on a nomination paper.
(6) A candidate who does not set out his or her address on a nomination
form must provide the AEO with an address for correspondence.
Nominations of candidates in an election must be made to the AEO for the
State or Territory to which the election relates.
(1) Two or more candidates in an election may make a joint request that
their names be grouped in the *list of candidates.
(2) In the request, the candidates may specify the order in which the
names of candidates in the *group are to be set out in the *list of
candidates.
(3) If the candidates do not specify an order under subsection (2), the
names of the candidates in the *group are to be set out in the *list of
candidates in alphabetical order.
(4) A request under subsection (1) must be in writing, signed by the
candidates, and must be given to the AEO with the nomination or nominations of
the candidates.
(5) A candidate’s name may not be included in more than one
*group.
(1) A candidate who joins in a request under section 28 may request that a
*group name be printed opposite the name of the group’s *first candidate
on the ballot-paper and the *list of candidates in the election.
(2) A request must be:
(a) in writing; and
(b) signed by:
(i) if an order is specified in the request under subsection
28(2)—the candidate listed first in the order; and
(ii) otherwise—all the candidates who joined in the request;
and
(c) given to the AEO before the *hour of nomination.
(1) An *ungrouped candidate in the election may request that a name be
printed opposite the candidate’s name on the ballot-paper and the *list of
candidates in the election.
(2) A request under subsection (1) must be in writing, signed by the
candidate, and must be given to the AEO with the nomination of the
candidate.
(1) The AEO must refuse a request under section 29 or 30 concerning a name
if:
(a) the name comprises more than 6 words; or
(b) in the opinion of the AEO, the name is obscene.
(2) The AEO must refuse a request under section 29 or 30 concerning the
name of a *registered political party unless the *registered officer of the
party has, in writing, certified the request.
(3) The AEO must refuse a request under section 29 or 30 concerning the
following names:
(a) Australian Republican Movement;
(b) Australians for Constitutional Monarchy;
unless:
(c) in the case of the name referred to in paragraph (a)—the
secretary of the Australian Republican Movement Limited, Australian Company
Number 054 557 505, has certified the request in writing; and
(d) in the case of the name referred to in paragraph (b)—the
secretary of Australians for Constitutional Monarchy, Australian Company Number
059 527 776, has certified the request in writing.
(4) Subject to subsections (2) and (3), the AEO may accept a request from
a candidate under section 29 or 30 despite the fact that a request has already
been accepted for the same name to be printed on the ballot-paper and *list of
candidates opposite another candidate’s name.
A request required by a provision of this Part or Part 4 to be given to
the AEO may be written on the same paper as the nomination of the candidate to
whom the request relates.
Two or more requests that are required by a provision of this Part or
Part 4 to be given to the AEO may be combined if they are to be made by the same
person.
(1) A group, or an *ungrouped candidate, may submit a statement under this
*Division for inclusion in the *voting material to be distributed under Part
5.
(2) The maximum number of words in an *ungrouped candidate’s
statement is 50.
(3) The maximum number of words in a *group’s statement is the
number worked out as follows:
(4) If a dispute arises about the counting of numbers of words for the
purposes of this section, the number is to be worked out by a method determined
by the Electoral Commissioner.
(1) Statements must be in English.
(2) Statements must not contain anything other than words and
numbers.
(3) Statements must be submitted to the AEO no later than 24 hours after
the *hour of nomination.
(4) An *ungrouped candidate’s statement must be signed by the
candidate.
(5) A *group’s statement must be signed by:
(a) if an order was specified in the request relating to the group under
subsection 28(2)—the candidate listed first in that order; and
(b) otherwise—the candidate authorised in writing for the purposes
of this Division by all the candidates who joined in the request under
subsection 28(1).
(6) The AEO must refuse to accept a statement if it does not comply with a
requirement of this section.
(7) The AEO must refuse to accept a statement if:
(a) it contains material that, in the opinion of the officer, is obscene;
or
(b) it contains a reference to another candidate in the election and that
other candidate has not consented in writing to the reference being
made.
(8) A written consent referred to in subsection (7) must be submitted
together with the statement to which it relates.
(9) Paragraph (7)(b) does not apply to a reference in a group’s
statement to a candidate who is a candidate for the group.
(1) Alterations may be made to a statement submitted under this *Division
up until the end of the period of 72 hours after the *hour of
nomination.
(2) Alterations must be submitted in writing and must be signed by the
person who signed the statement.
(3) If the AEO considers that a statement submitted does not comply with
the requirements of this *Division, the officer must make such efforts as are
reasonable and practicable to contact the person who signed the statement in
order that the person may make alterations to the statement under subsection
(1).
(1) The AEO must cause to be printed a pamphlet consisting of all the
statements accepted under section 35 in relation to the election in the State or
Territory.
(2) If a statement exceeds the number of words worked out under section 34
in relation to the statement, the AEO may print so much of the statement as does
not exceed that number.
(3) The statements must be printed in type that is uniform (as between
statements) in size and style.
(4) The statements must be printed so that the order of the statements of
*groups and of *ungrouped candidates corresponds to the order of grouped and
ungrouped candidates in the *list of candidates.
(5) If a *group, or an *ungrouped candidate, does not have a statement
accepted under section 35 the pamphlet must, at the point where the statement
would otherwise have appeared, contain a statement that there is no statement
for the group or candidate.
The following persons are not liable to any action, suit or proceeding
for or in relation to any act done, or omitted to be done, in good faith in the
performance or exercise, or the purported performance or exercise, of a function
or duty under this Division:
(a) a member of the Electoral Commission;
(b) an officer;
(c) an employee or agent of the Electoral Commission.
(1) A person’s nomination is not valid unless, in the nomination
paper, the person:
(a) consents to act if elected; and
(b) declares that:
(i) the person is qualified under section 23 to be elected as a *delegate;
and
(ii) the person is not, and does not intend to be, a candidate in any
other election; and
(c) states whether the person is an Australian citizen by reason of birth
in *Australia, having been granted a certificate of Australian citizenship or
other means and provides:
(i) in the case of citizenship by birth in Australia—the date and
place of birth; or
(ii) in the case of citizenship by reason of having been granted a
certificate of Australian citizenship—the date on which the person became
an Australian citizen; or
(iii) in the case of citizenship by any other means—particulars of
those means.
(2) A nomination is not valid unless:
(a) the nomination paper or a *facsimile of it is received by the AEO on
or after the day the Minister gives notice under section 13 and before the *hour
of nomination; and
(b) if, for the purpose of the nomination, a nomination paper is delivered
to the AEO—each person nominated, or some person on his or her behalf,
pays to that officer, at the time of delivery of the nomination paper, a
nomination fee of $500; and
(c) if, for the purpose of the nomination, a facsimile of a nomination
paper is received by the AEO—each person nominated, or some person on his
or her behalf, pays to that officer, before the latest time at which such a
facsimile could have been received so that the nomination is valid, a nomination
fee of $500.
(3) The nomination fee may be paid by:
(a) legal tender; or
(b) bank cheque; or
(c) money order; or
(d) a payment order drawn by a non-bank financial institution on itself or
on another branch of the non-bank financial institution.
The consent of a person nominated to act if elected and the declaration
referred to in paragraph 39(1)(b) is sufficient if the person signs the form of
consent and declaration at the foot of the nomination paper, but the AEO
receiving the nomination may accept any other form of consent and declaration
whether accompanying the nomination paper or not that the officer considers
satisfactory, and such acceptance is final.
(1) Subject to subsection (2), a nomination is to be rejected by the
officer to whom it is made if, and only if, the provisions of section 26, 27, 39
or 40 have not been complied with in relation to the nomination.
(2) No nomination is to be rejected by reason of any formal defect or
error in the nomination if the officer to whom the nomination is made is
satisfied that the provisions of sections 26, 27, 39 and 40 have been
substantially complied with.
(3) A request under this Part is not ineffective because of any formal
defect or error in the request if the requirements of this Act have been
substantially complied with.
The place of nomination for election of *delegates for a State or
Territory is the office of the AEO for that State or Territory.
The hour of nomination is 12 o’clock noon on the day fixed by
the Minister under section 13 as the date for nominations.
(1) Subject to subsection (2), the AEO must, at the *hour of nomination,
attend at the *place of nomination, publicly produce all nomination papers
received by him or her, and, in respect of each candidate, declare:
(a) the name of the candidate; and
(b) the place of residence of the candidate.
(2) The AEO must not declare the place of residence of a candidate, if the
candidate’s address has been excluded from the *Roll under section 104 of
the CEA.
A candidate may withdraw his or her nomination at any time before the
*hour of nomination by lodging with the AEO a notice of withdrawal, and
thereupon the nomination is cancelled, and the nomination fee paid must be
returned to:
(a) if the candidate paid the nomination fee—the candidate, or a
person authorised in writing by the candidate; and
(b) if another person paid the nomination fee—that other
person.
In the case of the death of any candidate before the date of election the
nomination fee paid in respect of the candidate must be returned to:
(a) if the candidate paid the nomination fee—the personal
representative of the estate of the candidate; and
(b) if another person paid the nomination fee—that other
person.
(1) If the number of candidates nominated in an election is not greater
than the number of candidates required to be elected, the AEO must declare the
candidate or candidates nominated duly elected.
(2) If in an election the number of candidates nominated is greater than
the number required to be elected, the result of the election is to be
determined by polling.
If, after the nominations for an election have been declared and before
the *closing day of the poll, any candidate dies and the candidates remaining
are not greater in number than the candidates required to be elected, they must
immediately be declared to be elected.
(1) If an election wholly fails, the Minister may fix dates in respect of
a new election under section 13.
(2) An election is taken to have wholly failed if no candidate is
nominated or returned as elected.
If the result of an election is to be determined by polling, the
Electoral Commissioner must immediately cause all necessary arrangements
to be made for taking the poll.
A candidate must not in any way take part in the conduct of an
election.
(1) A ballot-paper to be used in an election must be in the *approved
form.
(2) The ballot-paper must have the words “Ballot-paper” as a
heading and must contain such directions for the return of the ballot-paper as
are *approved by the Electoral Commissioner.
(3) Before issuing a ballot-paper for an election, an officer must, if the
particulars are not already printed on the ballot-paper, write on the
ballot-paper:
(a) the name of the State or Territory in which the election is to be
held; and
(b) the number of candidates to be elected; and
(c) on Part A, the full names of candidates arranged in the same way as
would be required if the names were being printed on the ballot-paper;
and
(d) on Part B, the number of squares and an indication of the preference
that the squares represent that would be required if the squares were being
printed on the ballot-paper; and
(e) the material that would be required by subsection 55(1) and paragraphs
55(2)(b) and (g) to be printed on the ballot-paper if the ballot-paper were
being printed.
The official mark for the authentication of ballot-papers is that
*approved by the Electoral Commissioner for the purpose.
In printing the *list of candidates to be used in an election:
(a) the names of each of the candidates are to be printed in the form
stated in the candidate’s nomination under subsection 26(4); and
(b) the names of *grouped candidates are to be printed in their respective
*groups; and
(c) the names of each of the *first candidates are to be printed opposite
the name of the candidate’s group requested under section 29 if that
request has not been refused under section 31; and
(d) the order of the names of the candidates in a particular group is to
be as provided in section 28; and
(e) the names of grouped candidates are to be printed before the names of
*ungrouped candidates; and
(f) the order of the several groups and of the ungrouped candidates is to
be as determined by the AEO under section 58; and
(g) the names of each of the ungrouped candidates are to be printed
opposite the name the candidate requested under section 30 if that request has
not been refused under section 31; and
(h) where similarity in the names of 2 candidates is likely to cause
confusion those names may be arranged with such description or addition as will
distinguish them from one another; and
(i) opposite the name of each candidate must be printed that
candidate’s number.
(1) In printing ballot-papers to be used in an election there must be a
Part A and a Part B and a dividing line between the 2 parts.
(2) In printing Part A of the ballot-paper:
(a) the names of only the *first candidates in *groups are to be printed;
and
(b) the names of each of the first candidates are to be printed in the
form stated in the candidate’s nomination under subsection 26(4);
and
(c) the names of each of the first candidates are to be printed opposite
the name of the candidate’s group requested under section 29 if that
request has not been refused under section 31; and
(d) the order in which the names of first candidates are to be printed is
to follow the order of the groups as determined under section 58 for the
purposes of section 54; and
(e) the names of *grouped candidates are to be printed before the
names of *ungrouped candidates; and
(f) the order in which the names of ungrouped candidates are to be printed
is the same as the order determined for ungrouped candidates under section 58
for the purposes of section 54; and
(g) the names of each of the ungrouped candidates are to be printed
opposite the name the candidate requested under section 30 if that request has
not been refused under section 31; and
(h) where similarity in the names of 2 or more candidates is likely to
cause confusion those names are to be arranged in the same way, and with the
same description or addition, as they are arranged, described or added to under
paragraph 54(h); and
(i) except as otherwise provided by the Electoral Commissioner, a square
must be printed opposite the name of each candidate.
(3) In printing Part B of the ballot-paper:
(a) a number of squares equal to the number of *delegates to be elected
must be printed; and
(b) on or near the square to be used for a first preference vote must be
printed something which identifies the square as the first *preference square;
and
(c) on or near the other squares must be printed something which
identifies the squares as the second preference square, the third preference
square and so on.
(1) The names of candidates stated in the candidate nominations under
subsection 26(4) must be printed in type that is uniform in size and style for
all of the names.
(2) The names that *groups and *ungrouped
candidates have requested be printed opposite their names on ballot-papers and
the *list of candidates under sections 29 and 30 must be printed in type that is
uniform in size and style for all of the names.
(1) Each candidate in an election must be given a unique number (the
candidate number). The number is used in *voting method
B.
(2) The method to be used to work out the number is to be as determined by
the Electoral Commissioner.
(1) Where for the purposes of section 54 a person is required to
determine under this section the order of the names of candidates or of *groups
in the *list of candidates to be used in an election:
(a) the person must, immediately after the *hour of nomination, at the
*place of nomination and before all persons present at that place:
(i) prepare a list of the names or groups, as the case may be, in such
order as the person considers appropriate; and
(ii) read out that list; and
(iii) place a number of balls equal to the number of candidates or groups,
as the case may be, being balls of equal size and weight and each of which is
marked with a different number, in a spherical container large enough to allow
all the balls in it to move about freely when it is rotated; and
(iv) rotate the container and permit any other person present who wishes
to do so to rotate the container; and
(v) cause a person who is blindfolded and has been blindfolded since
before the rotation of the container in accordance with subparagraph (iv) to
take the balls, or cause the balls to come, out of the container one by one and,
as each ball is taken or comes out, to pass it to another person who must call
out the number on the ball; and
(vi) as each number is called out in accordance with subparagraph (v),
write the number opposite to a name or group, as the case may be, in the list
prepared in accordance with subparagraph (i) so that the number called out first
is opposite the first name or group in the list and the subsequent order of the
numbers in the list is the order in which they are called out; and
(vii) place all the balls back in the container; and
(viii) rotate the container and permit any other person present who wishes
to do so to rotate the container; and
(ix) cause a person who is blindfolded and has been blindfolded since
before the rotation of the container in accordance with subparagraph (viii) to
take the balls, or cause the balls to come, out of the container one by one and,
as each ball is taken or comes out, to pass it to another person who must call
out the number on the ball; and
(x) prepare a list of the numbers called out in accordance with
subparagraph (ix) set out in the order in which they were called out in
accordance with subparagraph (ix); and
(xi) write on the list prepared in accordance with subparagraph (x)
opposite each number the name or group, as the case may be, set out opposite to
that number in the list prepared in accordance with subparagraph (i);
and
(b) the order in which the names or groups, as the case may be, are set
out in the list prepared in accordance with subparagraph (a)(x) is the order of
the names or groups determined by the person under this section.
(2) A reference in subparagraph (1)(a)(v) or (ix) to a person is a
reference to a person employed by the Commonwealth, a State or a Territory or by
an authority of the Commonwealth, a State or a Territory.
(1) *Grouped candidates may, before the end of 24 hours after the *hour of
nomination, lodge with the AEO a written statement that they wish voters in the
election to indicate their preferences in relation to candidates in the election
in an order specified in the statement. The order specified must:
(a) give preferences to the candidates lodging the statement before any
other candidate; and
(b) show a number of preferences that is not less than the number of
candidates to be elected.
(2) Where an order of preferences is not lodged in respect of a *group as
provided for in subsection (1), the candidates are taken to have lodged a
statement with the AEO that the candidates in the group wish the voters in the
election to indicate preferences for all of the candidates in the group in the
order in which the candidates’ names appear in the *list of
candidates.
(3) Without limiting subsection (1), a statement for the purposes of that
subsection may specify an order of preferences by setting out the names of the
candidates in the election to whom a preference is to be given with a
number written or printed opposite the name of each of those candidates showing
that order of preferences.
(4) A statement under subsection (1) may be signed:
(a) by the *first candidate in the *group; or
(b) by a person authorised by all the members of the group, by written
instrument given to the AEO with the nomination or nominations of members of the
group, to sign such a statement on behalf of the group.
(5) The statement lodged, or taken to have been lodged, under this section
is taken to be a group voting ticket registered for the purposes of an election,
being the order of preferences specified in the statement.
(1) An *ungrouped candidate may lodge with the AEO a written statement
that the candidate wishes voters in the election to indicate their preferences
in relation to the candidates in the election in an order specified in the
statement. The order specified must:
(a) give preference to the candidate lodging the statement before any
other candidate; and
(b) show a number of preferences that is at least equal to the number of
candidates to be elected.
(2) A statement under subsection (1) must be lodged before the end of 24
hours after the *hour of nomination.
(3) Without limiting subsection (1), a statement for the purposes of that
subsection may specify an order of preferences by setting out the names of the
candidates in the election to whom a preference is to be given with a
number written or printed opposite the name of each candidate showing the order
of preferences.
(4) Where a candidate has lodged a statement under subsection (1),
section 61 applies as if the candidate were a *group that had a group
voting ticket registered for the purposes of the election, and as if the
statement had been lodged under section 59.
(5) The statement is taken to be an individual voting ticket, being the
order of preferences given in that statement.
Where a *group voting ticket is registered for the purposes of an
election in a State or Territory, the AEO must cause the details of the ticket
to be made available for inspection at the office of the AEO and at each office
of a DRO or Assistant DRO in that State or Territory.
Note 1: *Group voting tickets are registered under section
59.
Note 2: This section also applies to individual voting
tickets (see subsection 60(4)).
Voting material, in relation to an election, means all of
the following material:
(a) a ballot-paper;
(b) a *vote certificate in the *approved form;
(c) a *certificate envelope;
(d) a reply-paid envelope addressed to the *appropriate DRO;
(e) a *list of candidates.
Appropriate DRO, in relation to an *elector, means the DRO
for the *Division for which the elector is *enrolled.
(1) As soon as the *voting material for the election in a State or
Territory becomes available, the Electoral Commissioner must cause the
voting material to be sent, by post or other means, to each *elector, other than
an Antarctica elector, on the *list of electors for the State or
Territory.
(2) The issue of *voting material for an election must be completed, as
nearly as practicable, 21 days before the *closing day of the poll.
(3) The address to which an *elector’s *voting material must be sent
is the postal address of the elector as notified by the elector for the purposes
of the election. However, if no such address has been notified the material must
be sent to the elector’s postal address as notified on the elector’s
claim for enrolment under the CEA or, if there is no such postal address, the
elector’s address as shown on the *list of electors.
(4) To enable the Electoral Commissioner to comply with subsection (1),
the Electoral Commissioner may make arrangements with appropriate authorities to
send, by post or other means, *voting material to an *elector who is overseas.
The Electoral Commissioner may also make arrangements for the return to the
appropriate DRO of the elector’s ballot-paper and *vote
certificate.
(5) The Antarctic Returning Officer must ensure that each Antarctic
elector, before voting under Part 6, has reasonable access to:
(a) a *list of candidates; and
(b) the text of the pamphlet of *candidate statements printed under
section 37;
in relation to the election in which the elector is voting.
(1) The Electoral Commissioner must cause a copy of the pamphlet of
candidate statements to be sent, by post or other means, to each address to
which *voting material has been sent under section 62.
(2) The pamphlet is to be sent at the same time, as nearly as practicable,
as the *voting material is sent under section 62.
(1) An officer who receives a request from a person for *voting material
may send, by post or other means, voting material and *candidate statements to
the person.
(2) The officer who receives a request under subsection (1) may ask the
person making the request for the person’s date of birth and for any other
information that may be requested on a claim for enrolment under the
CEA.
(3) Despite subsection (1), if the person makes the request after
6 pm on the day that is 5 days before the *close of the poll, the officer
must not post to the person the *voting material and *candidate
statements.
An officer issuing *voting material to a person under section 66 must
record the issue of voting material to the person.
(1) The following requirements for voting must be substantially
observed:
(a) the *elector must sign the *vote certificate unless the elector is
registered on the grounds specified under paragraph 184A(2)(e) or (f) of the
CEA. If the elector is registered on those grounds, a person must sign on behalf
of the voter and indicate why the person is signing on the voter’s
behalf;
(b) the elector must mark:
(i) his or her date of birth on the vote certificate; and
(ii) his or her vote on the ballot-paper in a manner provided for in
section 69, fold the ballot-paper, place it in the *certificate envelope and
fasten the envelope;
(c) the elector must post or deliver the envelope to the *appropriate
DRO;
(d) if the elector cannot read or is so disabled as to be unable to vote
without assistance, a person chosen by the elector may, according to the
directions of the elector, complete the vote certificate and do for the elector
any act required by paragraph (b) or (c);
(e) directions under paragraph (d) may be given by reference to a
how-to-vote card.
(2) Despite paragraph (1)(c), where a ballot-paper would be unlikely to
reach the *appropriate DRO before the close of the poll, the envelope containing
the ballot-paper may, before the close of the poll, be addressed to, and posted
or delivered to, any AEO or any DRO or Assistant DRO.
(3) An officer to whom an envelope containing a ballot-paper is posted or
delivered under subsection (2) must deal with the envelope and ballot-paper as
required by sections 72 and 73.
(1) In an election a person may vote on Part A or Part B of the
ballot-paper.
(2) If the person chooses to vote on Part A of the ballot-paper, he or she
must mark his or her vote on the ballot-paper by writing the number 1 in the
square opposite the name of one and only one candidate.
(3) If the person chooses to vote on Part B of the ballot-paper, he or
she:
(a) must mark his or her vote on the ballot-paper by writing a *candidate
number in the first *preference square; and
(b) may write other candidate numbers in as many of the remaining
preference squares as he or she wants to so as to indicate the order of the
person’s preferences for the candidates.
(4) If a person chooses to vote on Part A of the ballot-paper and he or
she marks a tick or a cross in a square, the person is to be regarded as having
written the number 1 in the square.
To be counted, a vote must be received at an office of the AEO, a DRO or
an Assistant DRO before the *close of the poll.
(1) An officer to whom this subsection applies must not begin the
performance of his or her duties in relation to an election unless the officer
has signed an undertaking in the approved form relating to that
election.
(2) Subsection (1) applies to the following officers:
(a) a DRO;
(b) an *Assistant Returning Officer;
(c) an Assistant DRO;
(d) an *Antarctic Returning Officer;
(e) an *Assistant Antarctic Returning Officer.
(3) A scrutineer must not begin the performance of his or her duties
unless the scrutineer has signed an undertaking in the *approved form.
(4) A person employed by the Electoral Commission to perform duties in
connection with the conduct of an election must not begin the performance of his
or her duties unless the person has signed an undertaking in the *approved
form.
(5) The failure of a person to sign an undertaking is not a ground for
setting aside the result of an election.
Where:
(a) a DRO receives a *certificate envelope purporting to contain a
ballot-paper from a voter whose address is not in that DRO’s *Division;
or
(b) an AEO or Assistant DRO receives a certificate envelope purporting to
contain a ballot-paper;
the DRO, AEO or Assistant DRO must:
(c) record on the envelope the date and time of receipt and the place at
which it is received; and
(d) make a record of the name of the voter and the name of the Division as
shown in the *vote certificate; and
(e) deal with the certificate envelope in accordance with section 73;
and
(f) until the certificate envelope is so dealt with, keep the envelope in
safe custody.
(1) A person who is required by paragraph 72(e) to deal with a
*certificate envelope in accordance with this section must:
(a) place in a parcel the certificate envelopes relating to a particular
*Division together with records a DRO, AEO, or Assistant DRO has made under
paragraph 72(d) relating to that Division, endorse on the parcel the number of
the envelopes, seal up the parcel and forthwith deliver it, or cause it to be
delivered, to the DRO for that Division or, with the approval of the AEO for the
State or Territory that includes that Division, to another person to be
dealt with in accordance with subsection (2); and
(b) forward to the last-mentioned DRO advice in writing of the total
number of certificate envelopes enclosed in the parcel delivered or to be
delivered to the DRO.
(2) Each DRO must:
(a) maintain a record of the particulars of the advice, and of the number
of *certificate envelopes received from other DROs, from AEOs, Assistant DROs
or from persons referred to in subsection (3); and
(b) keep in safe custody until the *scrutiny, all certificate envelopes
purporting to contain a ballot-paper:
(i) delivered to the DRO before the *close of the poll; or
(ii) received from another DRO, from an AEO, Assistant DRO or from
a person referred to in subsection (3), where the certificate envelope bears
evidence that it was received by that DRO or AEO before the close of the
poll.
(3) Where *certificate envelopes or records relating to a particular
*Division are, with the approval of the AEO for the State or Territory that
includes that Division, delivered to a person other than the DRO for that
Division, that person must, as soon as practicable, deliver them, or cause them
to be delivered, to that DRO.
(4) Nothing in this section requires all of the *certificate envelopes to
be delivered in the same parcel.
(1) Station, in relation to *Antarctica, means:
(a) a research station in Antarctica that is operated by the Commonwealth
and has been declared by the Electoral Commissioner under section 246 of the
CEA, by written instrument, to be a permanent research station; or
(b) in relation to the elections, a ship that has been declared by the
Electoral Commissioner, by written instrument, to be a station for the purposes
of this section in relation to the elections.
(2) The Electoral Commissioner must not make a declaration under paragraph
(1)(b) in relation to a ship unless the Electoral Commissioner is satisfied
that, during the period between the *hour of nomination and the *close of the
poll, the ship is likely to be at sea transporting *research personnel to or
from *Antarctica.
(1) There is to be an *Antarctic Returning Officer, and an *Assistant
Antarctic Returning Officer, for each *station.
(2) *Antarctic Returning Officers and *Assistant Antarctic Returning
Officers are to be appointed by the Electoral Commissioner by instrument in
writing.
(3) The person in charge of a *station must not be appointed to be the
*Antarctic Returning Officer, or *Assistant Antarctic Returning Officer, for
that station.
(4) The person in charge of a *station may, by instrument in writing,
appoint a person (including the *Assistant Antarctic Returning Officer) to act
as the *Antarctic Returning Officer for the station during any period, or during
all periods, when the Antarctic Returning Officer for the station is absent from
duty at the station, is absent from *Antarctica, or is for any other reason
unable to perform the functions of the office.
(5) The person in charge of a *station may, by instrument in writing,
appoint a person to act as the *Assistant Antarctic Returning Officer for the
station during any period, or during all periods, when the Assistant Antarctic
Returning Officer for the station is acting as *Antarctic Returning Officer for
the station, is absent from duty at the station, is absent from *Antarctica, or
is for any other reason unable to perform the functions of the office.
(6) A person acting as *Antarctic Returning Officer or *Assistant
Antarctic Returning Officer for a *station has and may exercise all the powers,
and is to perform all the functions, of the Antarctic Returning Officer, or the
Assistant Antarctic Returning Officer, for the station, as the case
requires.
For the purposes of treating a person as an *Antarctic elector in respect
of an election, a reference in subsection 249(1) of the CEA to any election the
polling day of which occurs while the elector is in *Antarctica is to be read as
a reference to an election under this Act.
(1) If the name of an *Antarctic elector is on the *list of electors for a
State or Territory in relation to an election, the AEO for the State or
Territory must immediately cause to be *transmitted to the *Antarctic Returning
Officer at whose *station the elector is based:
(a) directions for the preparation by the Antarctic Returning Officer of
ballot-papers for use in relation to the election; and
(b) the name of the elector and the particulars relating to the elector
that are entered on the list of electors.
(2) Where information is *transmitted by an AEO to an *Antarctic Returning
Officer under this section, both the AEO and the Antarctic Returning Officer
must, immediately after the transmission, cause a statement in writing of the
information transmitted to be prepared.
(3) Sections 52 and 55 apply in relation to ballot-papers prepared under
this section as if a reference in section 55 to the printing of ballot-papers
were a reference to such preparation.
No ballot-paper must be delivered to any voter in *Antarctica without
being first initialled on the back by the *Antarctic Returning Officer, and an
exact account must be kept of all initialled ballot-papers.
(1) The polling at a *station in *Antarctica must be conducted as
follows:
(a) before any vote is taken, the *Antarctic Returning Officer for the
station must exhibit the ballot-box empty, and must then securely fasten its
cover;
(b) the poll must be open during such hours on such days as the Antarctic
Returning Officer, subject to subsection (2), directs;
(c) the Antarctic Returning Officer or the *Assistant Antarctic Returning
Officer must, at all times at which the poll is open, be present in that part of
the station at which the polling is taking place.
(2) The polling at a *station in relation to an election must not continue
beyond 6 o’clock in the afternoon by standard time in the *Australian
Capital Territory on the *closing day of the poll.
An *Antarctic elector whose name has been *transmitted to the *Antarctic
Returning Officer for a *station under paragraph 77(1)(b) is entitled to
vote at the station during the period when the poll is open at that
station.
(1) The *Antarctic Returning Officer for a *station must put to each
person claiming to vote at the station such questions as the officer thinks
necessary to enable the person’s identity and place of living to be
established.
(2) If a person claiming to vote refuses to answer fully a question put to
him or her under this section, the person’s claim to vote at the *station
must be rejected.
The *Antarctic Returning Officer or the *Assistant Antarctic Returning
Officer for a *station must, at the polling, give to each person claiming to
vote at the station a ballot-paper for the State or Territory in respect of
which the person is on the *list of electors, duly initialled by the Antarctic
Returning Officer, if the name under which the person claims to vote has been
*transmitted to the Antarctic Returning Officer under paragraph 77(1)(b) and the
person’s claim to vote is not rejected.
Immediately upon giving a ballot-paper to the person claiming to vote,
the *Antarctic Returning Officer or the *Assistant Antarctic Returning Officer
must record on the statement prepared by the officer under subsection 77(2) the
fact that the ballot-paper has been given to that person.
Except as otherwise prescribed, the voter upon receipt of the
ballot-paper must without delay retire alone to some unoccupied part of the
*station and there, in private, mark his or her vote on the ballot-paper, fold
the ballot-paper so as to conceal his or her vote and deposit it in the
ballot-box.
(1) If any voter satisfies the *Antarctic Returning Officer for the
*station where the person is voting that his or her sight is so impaired
or that the voter is so physically incapacitated that he or she is unable to
vote without assistance, the Antarctic Returning Officer must permit a person
appointed by the voter to enter an unoccupied part of the station with the
voter, mark, fold, and deposit the voter’s ballot-paper.
(2) If any such voter fails to appoint a person under subsection (1) the
*Antarctic Returning Officer must mark, fold and deposit his or her
ballot-paper. The Antarctic Returning Officer must do so in the presence of such
scrutineers as are present, or, if there be no scrutineers present, then if the
voter so desires, in the presence of a person appointed by such voter.
(1) If any voter before depositing a ballot-paper in the ballot-box
satisfies the *Antarctic Returning Officer that he or she has spoilt the
ballot-paper by mistake or accident, the voter may, on giving it up, receive a
new ballot-paper from the Antarctic Returning Officer, who must there and then
cancel the spoilt ballot-paper.
(2) An *Antarctic Returning Officer who has cancelled a spoilt
ballot-paper must:
(a) write “spoilt” on the back of the ballot-paper;
and
(b) place the ballot-paper in an envelope, seal the envelope and write on
the envelope that it contains a spoilt ballot-paper; and
(c) sign the envelope.
At the *close of the poll, the *Antarctic Returning Officer must, in the
presence of the *Assistant Antarctic Returning Officer:
(a) open the ballot-box; and
(b) *transmit to the AEO designated by the Electoral Commissioner for the
purpose of this paragraph:
(i) particulars of each *elector on the *list of electors for a State or
Territory who has voted in elections held in the State or Territory in the poll
taken at the *station; and
(ii) unless subparagraph (iii) applies—particulars of the marking of
each ballot-paper; and
(iii) if the Antarctic Returning Officer is unable clearly to read or
understand the particulars referred to in subparagraph (ii)—a statement to
that effect together with such information relating to those particulars as the
Antarctic Returning Officer thinks sufficient to explain that inability;
and
(c) cause a statement in writing of the information transmitted to be
prepared.
(1) Upon receipt of the particulars referred to in subparagraph 87(b)(ii),
an AEO must forthwith:
(a) initial the back of a ballot-paper appropriate for the election for
which the vote was cast; and
(b) cause those particulars to be transcribed onto the ballot-paper;
and
(c) seal the ballot-paper in an envelope; and
(d) sign the envelope; and
(e) cause to be sent to the *appropriate DRO, the envelope containing the
ballot-paper.
(2) An officer must not mark a ballot-paper under this section in a manner
that is likely to enable the ballot-paper to be identified as representing the
vote of an *Antarctic elector.
(3) Upon receipt of information under subsection (1), an AEO must
forthwith:
(a) cause a statement in writing of that information to be prepared;
and
(b) cause to be sent to each *appropriate DRO, particulars of the
*Antarctic electors who have voted in the election in relation to the
*Division.
(4) A reference in Part 7 to *scrutiny:
(a) includes a reference to scrutiny of any act or thing done under
paragraphs (1)(a) to (d) (inclusive); and
(b) does not include a reference to scrutiny of:
(i) any act or thing done in *Antarctica; or
(ii) the transmission of any information to or from Antarctica.
(5) For the purposes of sections 99 and 100, a ballot-paper marked in
accordance with paragraph (1)(b) is taken to have been used for voting under
Part 5.
(1) As soon as practicable after the *close of the poll, the *Antarctic
Returning Officer for each *station must forward to the Electoral Commissioner a
copy of the statements prepared by the officer under subsection 77(2) and
paragraph 87(c), the envelopes containing spoilt ballot-papers dealt with under
section 86 and the ballot-papers used for voting at the station.
(2) The documents to which this subsection applies that are used at or in
connection with an election must be preserved in accordance with directions of
the Electoral Commissioner for the purposes of this subsection until:
(a) the election can no longer be questioned; or
(b) the end of the period of 6 months commencing on the date fixed under
section 13 for the notification of the election results;
whichever last occurs.
(3) Subsection (2) applies to the following documents:
(a) the statements referred to in subsection 77(2), paragraph 87(c) and
paragraph 88(3)(a);
(b) the ballot-papers referred to in paragraph 88(1)(b);
(c) the ballot-papers prepared by an *Antarctic Returning Officer and used
for voting in *Antarctica;
(d) the envelopes containing spoilt ballot-papers dealt with under section
86.
(1) The result of the polling is to be ascertained by *scrutiny.
(2) The *scrutiny consists of:
(a) the preliminary scrutiny (see Division 2); and
(b) the further scrutiny (see Division 3).
(1) A candidate may appoint scrutineers to represent the candidate at the
*scrutiny.
(2) A candidate is not entitled to be represented at the *scrutiny at a
particular counting centre by a number of scrutineers that is greater than the
number of officers who are engaged in a scrutiny or counting of ballot-papers at
that centre.
(3) The appointment of a scrutineer under this section to represent a
candidate at a counting centre:
(a) must be made by notice in writing signed by the candidate, given or
sent to the officer who is to conduct, or is conducting, the *scrutiny at the
counting centre; and
(b) must specify the name and address of the scrutineer.
(4) In this section:
counting centre means any premises at which a *scrutiny or
counting of ballot-papers is to be, or is being, conducted.
(1) Scrutineers who have been appointed under section 91, and any persons
approved by the officer conducting the *scrutiny, may be present at the
scrutiny.
(2) All the proceedings at the *scrutiny are to be open to the inspection
of the scrutineers.
(3) A person who is present at the *scrutiny in the capacity of a
scrutineer must wear a badge, supplied by the Electoral Commission, that
identifies the person as a scrutineer.
The *scrutiny may be adjourned from time to time, as necessary, until the
counting of the votes is complete.
(1) As soon as convenient after a DRO begins to receive envelopes that
purport to contain ballot-papers, other than envelopes required to be dealt with
under section 73, the DRO must conduct such preliminary scrutinies as he or she
considers necessary.
(2) The preliminary scrutinies must continue until all such envelopes that
are received by the AEO, a DRO or an Assistant DRO under section 70 before the
*close of the poll have been dealt with under this Division.
(1) Before beginning a preliminary scrutiny, the DRO must produce,
unopened, all *certificate envelopes that have been received by the DRO and that
have not already been dealt with in a preliminary scrutiny.
(2) The DRO must divide the envelopes into groups as follows:
(a) a group consisting of the envelopes that meet the requirements of
subsection (3);
(b) a group consisting of the envelopes that do not meet those
requirements.
(3) An envelope meets the requirements of this subsection if the DRO is
satisfied that:
(a) in the case of an envelope, other than an envelope sent under section
62 to an *elector who was registered on the grounds specified under paragraph
184A(2)(e) or (f) of the CEA—the certificate has been signed by the voter
in accordance with paragraph 68(1)(a); and
(b) in the case of an envelope sent under section 62 to an elector who was
registered on the grounds specified under paragraph 184A(2)(e) or (f) of the
CEA—the certificate has been signed on behalf of the voter in accordance
with paragraph 68(1)(a); and
(c) in the case of an envelope purporting to contain a ballot-paper
recording a vote cast at a *station in *Antarctica—the envelope is signed
in accordance with subsection 88(1).
(4) The DRO must, without opening the envelopes, exclude from further
scrutiny the ballot-papers contained in envelopes that do not meet the
requirements of subsection (3).
Note: The operation of this subsection may be affected by
subsection (12).
(5) The DRO must:
(a) seal up in parcels the envelopes that have been excluded from further
scrutiny under subsection (4); and
(b) must write on each parcel a description of its contents, the name of
the *Division and the date.
(6) The DRO must divide the envelopes that meet the requirements of
subsection (3) into groups as follows:
(a) in one group, the *certificate envelopes of persons who are on the
*list of electors for the State or Territory or whose claims for enrolment are
claims to which subsection 102(4A) of the CEA applies;
(b) in another group, the certificate envelopes to which subsection (7)
applies;
(c) in another group, the certificate envelopes of persons who are not on
the list of electors for the State or Territory and to which subsection (7) does
not apply.
(7) This subsection applies to a *certificate envelope if the DRO is
satisfied:
(a) that the person who signed the certificate envelope is not on the
*list of electors for the State or Territory; and
(b) after making enquiry:
(i) that the person was, at the close of the Rolls for the election,
entitled to be on the list of electors for the State or Territory; and
(ii) that the omission of the person’s name from the list was due to
an error made by an officer or to a mistake of fact.
(8) Subparagraph (7)(b)(ii) does not apply if:
(a) the error or mistake of fact occurred before the last general election
of the members of the House of Representatives; or
(b) the address shown as the person’s address on the *certificate
envelope is different from the address at which the person was last
*enrolled.
(9) The DRO must exclude from further scrutiny the envelopes referred to
in paragraph (6)(c).
Note: The operation of this subsection may be affected by
subsection (12).
(10) If 2 or more *certificate envelopes have been received in the name of
one *elector, the DRO must decide which one (if any) of the envelopes should be
accepted for further scrutiny. The DRO must exclude all those not accepted from
further scrutiny.
Note: The operation of this subsection may be affected by
subsection (12).
(11) The DRO must, without opening the envelopes, seal up in separate
parcels:
(a) the envelopes excluded under subsection (9); and
(b) the envelopes excluded under subsection (10).
The DRO must write on each parcel a description of its contents, the name
of the *Division and the date.
(12) If:
(a) an envelope has been subjected to a preliminary scrutiny;
and
(b) has been excluded under subsection (4) or (9) or has been accepted or
excluded under subsection (10);
the envelope must be subjected to a fresh preliminary scrutiny under this
section. It is only if an envelope is excluded under a fresh preliminary
scrutiny that it is to be excluded from further scrutiny.
(13) The DRO must:
(a) seal up in a parcel or parcels the envelopes that have not been
excluded from further scrutiny; and
(b) write on each parcel a description of its contents, the name of the
*Division and the date; and
(c) keep the parcel or parcels in safe custody until the further
scrutiny.
The DRO may, from time to time, adjourn a preliminary scrutiny to a
specified date, time and place.
If an officer who receives a *vote certificate is satisfied that the
certificate contains a formal error, the officer may amend the certificate to
correct the error.
The further scrutiny must not begin until after the *close of the
poll.
(1) The further scrutiny must be conducted, and the vacancies
filled:
(a) under section 100, if that section applies; or
(b) otherwise, under this section.
(2) As soon as practicable after the *close of the poll, the DRO
must:
(a) produce all the envelopes referred to in subsection 95(13);
and
(b) remove the ballot-papers from the envelopes; and
(c) make a *scrutiny of those ballot-papers; and
(d) reject all informal ballot-papers and place them in a separate parcel;
and
(e) arrange the unrejected ballot-papers so scrutinised under the names of
the respective candidates by placing in one parcel under the name of each
candidate all the ballot-papers on which a first preference is indicated for
that candidate; and
(f) count the first preference votes given for each candidate on such
ballot-papers, and *transmit the following information, in an expeditious
manner, to the AEO:
(i) the number of first preference votes given for each candidate;
and
(ii) the total number of ballot-papers rejected as informal; and
(g) seal up the parcels and endorse on each parcel a description of its
contents, and permit any scrutineers present, if they so desire, to countersign
the endorsement; and
(h) transmit with the least possible delay the parcels of unrejected
ballot-papers marked using *voting method B to the AEO and inform the AEO, in
writing and in some expeditious manner, of the transmission.
(3) Where, for the purposes of the succeeding provisions of this
section:
(a) the number of ballot-papers or votes in any category is required to be
ascertained; or
(b) a quota, a transfer value or the order of standing of continuing
candidates in a poll is required to be determined; or
(c) a candidate is required to be identified;
the AEO must ascertain the number, determine the quota, transfer value or
order, or identify the candidate, as the case may be.
(4) The number of first preference votes given for each candidate and the
total number of all such votes must be ascertained and a quota determined by
dividing the total number of first preference votes by 1 more than the number of
candidates required to be elected and by increasing the quotient so obtained
(disregarding any remainder) by 1, and any candidate who has received a number
of first preference votes equal to or greater than the quota must be
elected.
(5) Unless all the vacancies have been filled, the number (if any) of
votes in excess of the quota (in this section referred to as surplus
votes) of each elected candidate must be transferred to the continuing
candidates as follows:
(a) the number of surplus votes of the elected candidate must be divided
by the number of first preference votes received by the candidate and the
resulting fraction is the transfer value;
(b) the total number of ballot-papers of the elected candidate that
express the first preference vote for that candidate and the next available
preference for a particular continuing candidate must be multiplied by the
transfer value, the number so obtained (disregarding any fraction) must be added
to the number of first preference votes of the continuing candidate and all
those ballot-papers must be transferred to the continuing candidate;
and any continuing candidate who has received a number of votes equal to or
greater than the quota on the completion of any such transfer must be
elected.
(6) Unless all the vacancies have been filled, the surplus votes (if any)
of any candidate elected under subsection (5), or elected subsequently under
this subsection, must be transferred to the continuing candidates in accordance
with paragraphs (5)(a) and (b), and any continuing candidate who has received a
number of votes equal to or greater than the quota on the completion of any such
transfer must be elected.
(7) Where a continuing candidate has received a number of votes equal to
or greater than the quota on the completion of a transfer under subsection (5)
or (6) of the surplus votes of a particular elected candidate, no votes of any
other candidate are to be transferred to the continuing candidate.
(8) For the purposes of the application of paragraphs (5)(a) and (b) in
relation to a transfer under subsection (6) or (14) of the surplus votes of an
elected candidate, each ballot-paper of the elected candidate that was obtained
by the candidate on a transfer under this section must be dealt with as if any
vote it expressed for the elected candidate were a first preference vote, as if
any other candidate previously elected or excluded had not been a candidate and
as if the subsequent preferences of the voter had been altered
accordingly.
(9) Where, after the counting of first preference votes or the transfer of
surplus votes (if any) of elected candidates, no candidate has, or fewer than
the number of candidates required to be elected have, received a number of votes
equal to the quota:
(a) the candidate who stands lowest in the poll must be excluded;
or
(b) if a bulk exclusion of candidates may be effected under subsection
(11), those candidates must be excluded;
and the ballot-papers of the excluded candidate or candidates must be
distributed in accordance with subsection (10).
(10) Where a candidate is, or candidates are, excluded in accordance with
this section, the ballot-papers of the excluded candidate or candidates must be
transferred as follows:
(a) the total number of ballot-papers:
(i) expressing a first preference for an excluded candidate; or
(ii) received by an excluded candidate on distribution from another
excluded candidate at a transfer value of 1 vote;
being ballot-papers expressing the next available preference for a
particular continuing candidate must be transferred at a transfer value of 1
vote to the continuing candidate and added to the number of votes of the
continuing candidate;
(b) the total number (if any) of other ballot-papers obtained by an
excluded candidate or the excluded candidates, as the case may be, must be
transferred beginning with the ballot-papers received by that candidate or those
candidates at the highest transfer value and ending with the ballot-papers
received at the lowest transfer value, as follows:
(i) the total number of ballot-papers received by the excluded candidate
or candidates, as the case may be, at a particular transfer value and expressing
the next available preference for a particular continuing candidate must be
multiplied by that transfer value;
(ii) the number so obtained (disregarding any fraction) must be added to
the number of votes of the continuing candidate;
(iii) all those ballot-papers must be transferred to the continuing
candidate.
(11) The procedure for a bulk exclusion, and the circumstances in which
such an exclusion may be made, are as follows:
(a) a continuing candidate (in this subsection called
Candidate A) must be identified, if possible, who, of the
continuing candidates who each have a number of notional votes equal to or
greater than the vacancy shortfall, stands lower or lowest in the
poll;
(b) a continuing candidate (in this subsection called
Candidate B) must be identified, if possible, who:
(i) stands lower in the poll than Candidate A, or if Candidate A cannot be
identified, has a number of notional votes that is fewer than the vacancy
shortfall; and
(ii) has a number of notional votes that is fewer than the number of votes
of the candidate standing immediately higher than him or her in the poll;
and
(iii) if 2 or more candidates satisfy subparagraphs (i) and (ii)—is
the candidate who of those candidates stands higher or highest in the
poll;
(c) in a case where Candidate B has been identified and has a number of
notional votes fewer than the leading shortfall—Candidate B and any other
continuing candidates who stand lower in the poll than that candidate may be
excluded in a bulk exclusion;
(d) in a case where Candidate B has been identified and has a number of
notional votes equal to or greater than the leading shortfall:
(i) a continuing candidate (in this subsection called Candidate
C) must be identified who:
(A) has a number of notional votes that is fewer than the leading
shortfall; and
(B) if 2 or more candidates satisfy sub-subparagraph (A)—is the
candidate who of those candidates stands higher or highest in the poll;
and
(ii) Candidate C and all other continuing candidates who stand lower in
the poll than that candidate may be excluded in a bulk exclusion.
(12) Where, apart from this subsection, the number of continuing
candidates after a bulk exclusion under subsection (11) would be fewer than the
number of remaining unfilled vacancies, subsection (11) is to operate to exclude
only the number of candidates, beginning with the candidate who stands lowest in
the poll, that would leave sufficient continuing candidates to fill the
remaining unfilled vacancies.
(13) Notwithstanding any other provision of this section (other than
subsection (18)), where a candidate or candidates has or have been elected and
there are surplus votes as a result of that election, paragraphs (11)(a), (b),
(c) and (d) may be applied as if references in those paragraphs to notional
votes were references to adjusted notional votes.
(14) Any continuing candidate who has received a number of votes equal to
or greater than the quota on the completion of a transfer under subsection (9)
or (15) of ballot-papers of an excluded candidate or candidates, as the case may
be, must be elected, and, unless all the vacancies have been filled, the surplus
votes (if any) of the candidate so elected must be transferred in accordance
with paragraphs (5)(a) and (b), except that, where the candidate so elected is
elected before all the ballot-papers of the excluded candidate or candidates, as
the case may be, have been transferred, the surplus votes (if any) of the
candidate so elected must not be transferred until the remaining ballot-papers
of the excluded candidate or candidates, as the case may be, have been
transferred in accordance with paragraphs (10)(a) and (b) to continuing
candidates.
(15) Subject to subsection (17) where, after the transfer of all of the
ballot-papers of an excluded candidate or the excluded candidates, as the case
may be, no continuing candidate has received a number of votes greater than the
quota:
(a) the continuing candidate who stands lowest in the poll must be
excluded; or
(b) if a bulk exclusion of candidates may be effected under subsection
(11), those candidates must be excluded;
and the ballot-papers of the excluded candidate or candidates must be
transferred in accordance with subsection (10).
(16) Where a candidate is elected during a transfer of ballot-papers under
subsection (9) or (15), no other ballot-papers of an excluded candidate or
candidates, as the case may be, are to be transferred to the candidate so
elected.
(17) In respect of the last vacancy for which two continuing candidates
remain, the continuing candidate who has the larger number of votes must be
elected notwithstanding that that number is below the quota, and if those
candidates have an equal number of votes the AEO is to determine which of the 2
candidates is elected.
(18) Notwithstanding any other provision of this section, where the number
of continuing candidates is equal to the number of remaining unfilled vacancies,
those candidates must be elected.
(19) For the purposes of this Act:
(a) the order of election of candidates must be taken to be in accordance
with the order of the count as a result of which they were elected, the
candidates (if any) elected on the count of first preference votes being taken
to be the earliest elected; and
(b) where 2 or more candidates are elected as a result of the same count,
the order in which they must be taken to have been elected must be in accordance
with the relative numbers of their votes, the candidate with the largest number
of votes being taken to be the earliest elected. However if any 2 or more of
those candidates each have the same number of votes, the order in which they
must be taken to have been elected must be taken to be in accordance with the
relative numbers of their votes at the last count before their election at which
each of them had a different number of votes, the candidate with the largest
number of votes at that count being taken to be the earliest elected, and if
there has been no such count the AEO must determine the order in which they must
be taken to have been elected.
(20) Subject to subsections (21) and (22), where, after any count under
this section, 2 or more candidates have surplus votes, the order of any
transfers of the surplus votes of those candidates must be in accordance with
the relative sizes of the surpluses, the largest surplus being transferred
first.
(21) Subject to subsection (22), where, after any count under this
section, 2 or more candidates have equal surpluses, the order of any transfers
of the surplus votes of those candidates must be in accordance with the relative
numbers of votes of those candidates at the last count at which each of those
candidates had a different number of votes, the surplus of the candidate with
the largest number of votes at that count being transferred first. However if
there has been no such count the AEO must determine the order in which the
surpluses must be dealt with.
(22) Where, after any count under this section, a candidate obtains
surplus votes, those surplus votes must not be transferred before the transfer
of any surplus votes obtained by any other candidate on an earlier
count.
(23) Where a candidate is elected by reason that the number of first
preference votes received by the candidate, or the aggregate of first preference
votes received by the candidate and all other votes obtained by the candidate on
transfers under this section, is equal to the quota, all the ballot-papers
expressing those votes must be set aside as finally dealt with.
(24) A ballot-paper must be set aside as exhausted where on a transfer it
is found that the paper expresses no preference for any continuing
candidate.
(25) In any case to which section 108 applies, a vote indicated on a
ballot-paper opposite the name of a deceased candidate must be counted to the
candidate next in the order of the voter’s preference, and the subsequent
preferences of the voter are taken to be altered accordingly.
(26) For the purposes of this section:
(a) a transfer under subsection (5), (6) or (14) of all the surplus votes
of an elected candidate; or
(b) a transfer under paragraph (10)(a) of all ballot-papers of an excluded
candidate or excluded candidates, received by that candidate, or one of those
candidates:
(i) as the first preference vote; or
(ii) on distribution from another excluded candidate at a transfer value
of 1 vote; or
(c) a transfer under paragraph (10)(b) of all ballot-papers received by
the excluded candidate or candidates, as the case may be, at a particular
transfer value;
each constitutes a separate transfer.
(27) In this section:
adjusted notional vote in relation to a continuing candidate,
means, in a case where a candidate or candidates has or have been elected, the
sum of:
(a) the number of notional votes of the continuing candidate;
and
(b) the number, before the transfer of any of the surplus votes, of those
surplus votes.
continuing candidate means a candidate not already elected or
excluded from the count.
leading shortfall in relation to a particular stage during
the *scrutiny in an election, means the shortfall of the continuing candidate
standing highest in the poll at that stage.
notional vote in relation to a continuing candidate, means
the aggregate of the votes obtained by that candidate and the votes obtained by
each other candidate who stands lower in the poll than him or her.
shortfall in relation to a continuing candidate at a
particular stage during the scrutiny in an election, means the number of votes
that the candidate requires at that stage in order to reach the quota referred
to in subsection (4).
vacancy shortfall in relation to a particular stage during
the scrutiny in an election, means the aggregate of the shortfalls of that
number of leading candidates equal to the number of remaining unfilled
vacancies, the leading candidates being ascertained by taking the continuing
candidate who stands highest in the poll, the continuing candidate who stands
next highest in the poll, and so on in the order in which the continuing
candidates stand in the poll.
(28) In this section, a reference to votes, or ballot-papers, as the case
may be, of or obtained or received by a candidate includes votes, or
ballot-papers, as the case may be, obtained or received by the candidate on any
transfer under this section.
(29) For the purposes of this section, at any time after the counting of
first preference votes the order of standing of the continuing candidates in the
poll must be determined as follows:
(a) subject to paragraph (b), the continuing candidates stand in the poll
in the order of the relative number of votes of each continuing candidate, with
the continuing candidate with the greatest number of votes standing highest in
the poll and the continuing candidate with the fewest number of votes standing
lowest in the poll;
(b) if 2 or more continuing candidates have the same number of votes,
those candidates stand in the poll in the order of the relative number of votes
of each of those candidates at the last count at which each of them had a
different number of votes, with the continuing candidate with the greater or
greatest number of votes at that count standing higher in the poll and the
continuing candidate with the fewer or fewest number of votes at that count
standing lower in the poll, but if there has been no such count the AEO must
determine the order of standing of those candidates in the poll.
(30) When the last vacancy is filled, the *scrutiny must immediately cease
and any exclusion in progress must not be completed.
Determination that computerised scrutiny applies
(1) This section applies to the *scrutiny in an election for a particular
State or Territory if the Electoral Commissioner, before the *close of the poll,
makes a written determination that this section applies to the scrutiny of votes
for that State or Territory.
Determining election result
(2) Each DRO must deal as follows with all ballot-papers received by him
or her:
(a) reject any ballot-papers that are informal because of paragraphs
103(1)(a), (b) or (c), and place the rejected ballot-papers in one or more
parcels;
(b) arrange the ballot-papers that are not Part A invalid within the
meaning of subsection 103(6) into parcels by placing under the name of each
candidate all the ballot-papers on which a first preference is indicated for
that candidate;
(c) reject any of the ballot-papers which are informal because of
paragraph 103(1)(d), and place the rejected ballot-papers in one or more
parcels;
(d) place in a parcel or parcels all the ballot-papers received by the
DRO, other than:
(i) the ballot-papers referred to in paragraph (b); and
(ii) the ballot-papers rejected as informal;
(e) seal up all the parcels and endorse on each parcel a description of
the contents, and permit any scrutineers present, if they so desire, to
countersign the endorsement;
(f) as soon as possible, *transmit the parcel or parcels referred to in
paragraph (d) to the AEO;
(g) transmit the following information to the AEO:
(i) the number of first preference votes given for each candidate on
ballot-papers referred to in paragraph (b);
(ii) the total number of ballot-papers rejected as informal.
Processing of ballot-papers received by Australian Electoral
Officer
(3) The AEO must scrutinise all the ballot-papers received by him or her,
and must reject the informal ones.
Determining election result
(4) The AEO must then ascertain the successful candidates, and their order
of election, by using a computer to apply the principles set out in subsections
99(8) to (30) (inclusive). A tie at any step in the process is to be resolved in
the same way as a tie in the corresponding step is resolved under section
99.
Rights of scrutineers
(5) For proceedings under subsections (3) and (4) of this section, the
requirements of subsection 92(2) are met if the scrutineers have access
to:
(a) a record of the preferences on the ballot-papers that have been
received by the AEO and whose details have been stored in the computer
(including informal ballot-papers, and formal ballot-papers that are not
sequentially numbered); and
(b) a record of the ballot-papers that are notionally transferred, or
exhausted, at each count; and
(c) a record of the progress of the count of the votes, at each
count.
Modified rules for recount
(6) If ballot-papers that are to be recounted under section 110 are in the
possession of the AEO immediately before the recount begins, the AEO must deal
with those ballot-papers as follows:
(a) open the parcels (or those ballot-papers that are in parcels) in the
presence of an officer of the Australian Public Service and of any scrutineer
who attends;
(b) scrutinise all the ballot-papers, and make a decision on each one
either to admit it or reject it;
(c) after scrutinising all the ballot-papers, restore the ones that were
in parcels to their original covers, and place the remaining ballot-papers in a
parcel or parcels;
(d) seal up all the parcels and write on each cover:
(i) the number of ballot-papers contained in the cover; and
(ii) a statement that all the ballot-papers have been the subject of
decisions by the AEO;
(e) sign the cover of each parcel and permit other persons who were
present when the ballot-papers were scrutinised to add their
signatures.
Resolution of tie on re-calculation
(7) If:
(a) a re-calculation by computer occurs following a recount; and
(b) during the re-calculation, the same tie that occurred on the previous
calculation by computer occurs again;
for the purposes of the re-calculation that tie is to be resolved in favour
of the candidate in whose favour it was resolved during the previous
calculation.
Where the AEO is satisfied that the votes on ballot-papers not dealt with
under section 94 cannot, having regard to the number of those
ballot-papers, possibly affect the result of the election, the AEO may, subject
to the concurrence of the Electoral Commissioner, proceed with the *scrutiny
before those ballot-papers have been dealt with under section 94.
(1) If a scrutineer objects to a ballot-paper as being informal, the
officer conducting the *scrutiny must mark the ballot-paper
“admitted” or “rejected” according to the
officer’s decision to admit or reject the ballot-paper.
(2) Nothing in this section prevents the officer conducting the *scrutiny
from rejecting any ballot-paper as being informal although it is not objected
to.
(1) A ballot-paper is informal if:
(a) subject to subsection (2), it is not authenticated by the presence of
the official mark; or
(b) subject to subsection (3), it has upon it any mark or writing (not
authorised by this Act or the regulations to be put upon it) by which, in the
opinion of the officer conducting the *scrutiny, the voter can be identified;
or
(c) no mark has been placed on the ballot-paper by or on behalf of the
voter; or
(d) in the case of a ballot-paper on which a mark has only been placed, by
or on behalf of the voter, on Part A, it is Part A invalid (see subsection (6));
or
(e) in the case of a ballot-paper on which a mark has only been placed, by
or on behalf of the voter, on Part B, it is Part B invalid (see subsection (6));
or
(f) in the case of a ballot-paper on which marks have been placed, by or
on behalf of the voter, on both Part A and Part B, it is both Part A invalid and
Part B invalid.
(2) A ballot-paper to which paragraph (1)(a) applies is not informal
because of that paragraph if the officer conducting the *scrutiny is satisfied
that it is an authentic ballot-paper on which a voter has marked a
vote.
(3) Paragraph (1)(b) does not apply to any mark or writing placed upon the
ballot-paper by an officer, even though the placing of the mark or writing upon
the ballot-paper is a contravention of this Act.
(4) A ballot-paper is not informal for any reason other than the reasons
specified in this section, but is to be given effect to according to the
voter’s intention so far as that intention is clear.
(5) For the purposes of this Part the *preference squares are taken to be
in an order (called the Part B order), as follows:
(a) the square printed on the ballot-paper for the purpose of the
indication of a first preference is taken to stand highest in the
order;
(b) the square printed on the ballot-paper for the purpose of the
indication of a second preference is taken to stand second highest in the
order;
and so on.
(6) In this section:
(a) a ballot-paper is to be taken to be Part A invalid if
and only if it does not have a *preference mark in one and only one square on
Part A; and
(b) a ballot-paper is to be taken to be Part B invalid
unless at least one of the *preference squares satisfies the following
conditions:
(i) the square has a *candidate number marked in it; and
(ii) no other candidate number has been marked in that square;
and
(iii) the candidate number referred to in subparagraph (i) has not been
marked in another square; and
(iv) none of the squares (if any) which stand higher in the Part B order
than the square referred to in subparagraph (i) (if any) has had marked in it 2
or more candidate numbers; and
(v) none of the squares which stand higher in the Part B order than the
square referred to in subparagraph (i) (if any) has had marked in it a candidate
number which has been marked in 2 or more squares; and
(c) for the purposes of paragraph (b), any marking on a ballot-paper of
the candidate number of a deceased candidate referred to in section 108 is to be
ignored.
Where:
(a) a ballot-paper is formal; and
(b) marks have been placed, by or on behalf of the voter, on both Part A
and Part B of the ballot-paper;
then:
(c) if the ballot-paper is Part A invalid within the meaning of subsection
103(6), it is taken for the purposes of sections 99, 100, 105 and 106, not to
have been marked on Part A; and
(d) if the ballot-paper is Part B invalid within the meaning of subsection
103(6), it is taken for the purposes of sections 99, 100, 105 and 106, not to
have been marked on Part B; and
(e) if the ballot-paper is neither Part A invalid nor Part B invalid, it
is taken for the purposes of sections 99, 100, 105 and 106, not to have been
marked on Part B.
(1) For the purposes of sections 99 and 100, if a formal ballot-paper has
a *preference mark in the square opposite the name of a *grouped candidate, the
voter is taken to have expressed preferences in accordance with the registered
*group voting ticket of the candidate’s group, and no other
preferences.
(2) For the purposes of sections 99 and 100, if a formal
ballot-paper:
(a) has a *preference mark in the square opposite the name of an
*ungrouped candidate; and
(b) that candidate has an individual voting ticket registered for the
purposes of the election;
the voter is taken to have expressed preferences in accordance with that
individual voting ticket, and no other preferences.
(3) For the purposes of sections 99 and 100, if a formal
ballot-paper:
(a) has a *preference mark in the square opposite the name of an
*ungrouped candidate; and
(b) that candidate does not have an individual voting ticket registered
for the purposes of the election;
then:
(c) the preference mark is taken to express a first preference for the
candidate; and
(d) the voter is taken not to have expressed any other
preferences.
(1) Subject to subsections (2) and (3), if a ballot-paper has been marked
on Part B, the voter is, for the purposes of sections 99 and 100, taken to have
expressed preferences for the candidates whose *candidate numbers have been
marked in the *preference squares as follows:
(a) a first preference is taken to have been indicated for the candidate
whose candidate number has been marked in the square, of those in which a
candidate number has been marked, which stands highest in the Part B
order;
(b) a second preference is taken to have been indicated for the candidate
whose candidate number has been marked in the square, of those in which a
candidate number has been marked, which stands next highest in the Part B
order;
and so on.
(2) If the *candidate numbers of 2 or more candidates have been marked in
a square, no preferences are taken to have been indicated for either or any of
those candidates, nor for any candidates whose candidate numbers have been
placed in squares which stand lower in the Part B order than the square in which
the 2 or more candidate numbers were marked.
(3) Where the *candidate number of a candidate has been marked in 2 or
more squares (duplicated squares), no preferences are taken to
have been indicated for that candidate, nor for any candidates whose candidate
numbers have been placed in:
(a) whichever of the duplicated squares stands highest in the Part B
order; or
(b) any squares which stand lower in the Part B order than the square
referred to in paragraph (a).
(4) For the purposes of this section, any marking on a ballot-paper of the
*candidate number of a deceased candidate referred to in section 108 is to be
ignored.
No omission in the *list of electors of any given name, or entry of a
wrong given name or address, and no mistake in the spelling of any surname,
warrants the rejection of any vote if the voter is sufficiently identified in
the opinion of the DRO. No *elector is to be disqualified from voting under the
name appearing on the list of electors because his or her surname has been
changed by marriage.
Where a candidate dies between the *hour of nomination and the *close of
the poll, and the number of candidates remaining is greater than the number of
candidates to be elected, a ballot-paper is not to be informal by reason
only:
(a) of the inclusion on the ballot-paper or the *list of candidates of the
name of the deceased candidate; or
(b) of the marking of any number opposite that name; or
(c) of the marking of the *candidate number of the deceased candidate on
the ballot-paper.
(1) A vote must not be rejected because only the surname of a candidate
has been written on the ballot-paper if no other candidate has the same
surname.
(2) A vote must not be rejected because of a mistake in the spelling of a
candidate’s name if the *elector’s intention is clear.
(1) At any time before the declaration (under paragraph 114(1)(a)) of the
result of an election the AEO may, on the written request of any candidate
setting forth the reasons for the request, or of the officer’s own motion,
direct or conduct a recount of the ballot-papers contained in any parcel or in
any other category determined by the AEO.
(2) If the AEO refuses a request of a candidate under subsection (1), the
candidate may, in writing, appeal to the Electoral Commissioner to direct a
recount of the ballot-papers to which the request relates, and the Electoral
Commissioner has a discretion either to direct a recount of the ballot-papers or
refuse to direct a recount.
(1) At the time and place fixed for the recount and in the presence of any
scrutineers who attend and of an officer of the Australian Public Service, the
officer conducting the recount must open every sealed parcel of ballot-papers to
be recounted and count the votes in the parcel.
(2) A parcel containing ballot-papers to be recounted must be opened
without destroying or rendering illegible any writing on the parcel and the
contents of the parcel must not be allowed to become mixed with ballot-papers
from any other parcel.
(3) After the votes in a parcel have been counted, the officer conducting
the recount must replace the ballot-papers in their original cover, reseal and
refasten the cover, place the resealed parcel in a new cover, and seal and
fasten the new cover.
(4) The officer conducting the recount must write on the new cover a
statement of the fact and date of the recount of the votes in the cover and,
along with such of the persons present who choose to add their signatures, must
sign the statement.
(5) The officer must place any ballot-papers reserved for the decision of
the AEO in a sealed and fastened parcel bearing the signatures of the officer
and the scrutineers who choose to add their signatures and a note of the number
of ballot-papers in the parcel, the name of the *Division and the
date.
(6) The officer must place the parcel in a sealed and fastened outer cover
addressed to the AEO and, without delay, send the parcel to the AEO by hand,
registered post or *courier service.
(7) The AEO must open the parcel in the presence of an officer of the
Australian Public Service and of any scrutineer who attends and must:
(a) scrutinise the ballot-papers; and
(b) mark each ballot-paper “admitted” or
“rejected” according to his or her decision.
(8) After scrutinising all the ballot-papers, the AEO must restore them to
their original cover, refasten and reseal the cover, and write on the
cover:
(a) the number of ballot-papers contained in the cover; and
(b) a statement that all ballot-papers have been the subject of decisions
by him or her.
(9) The AEO must sign the cover, along with such other persons present
when the ballot-papers were scrutinised as choose to add their
signatures.
(10) The AEO must then enclose the parcel in a new cover, fasten and seal
the cover and send the parcel to the officer conducting the recount by hand,
registered post or *courier service.
(11) The AEO must inform the officer conducting the recount in writing of
the numbers of ballot-papers admitted or rejected by him or her, and the officer
must complete the recount on the basis of the AEO’s decision.
(12) The receipt of a parcel of ballot-papers by the officer conducting
the recount or the AEO must be acknowledged in writing.
The officer conducting a recount has the same powers as if the recount
were the *scrutiny, and may reverse any decision in relation to the scrutiny as
to the allowance and admission or disallowance and rejection of any
ballot-paper.
(1) The officer conducting a recount may, and at the request of any
scrutineer must, reserve any ballot-paper for the decision of the AEO.
(2) The AEO must decide whether any ballot-paper so reserved is to be
allowed and admitted or disallowed and rejected.
(3) In the event of the validity of the election being disputed, the
*Court may consider any ballot-papers which were reserved for the decision of
the AEO, but must not order any further recount of the whole or any part of the
ballot-papers in connection with the election unless it is satisfied that the
recount is justified.
(1) The AEO must, as soon as practicable after the result of the election
has been ascertained:
(a) at the *place of nomination, declare the result of the election and
the names of the candidates elected; and
(b) by a signed notice, certify the names of the candidates elected, and
send the notice to the Electoral Commissioner.
(2) The Electoral Commissioner must, as soon as practicable after
receiving a notice under subsection (1):
(a) give to the Minister a copy of the notice, certified by the Electoral
Commissioner; and
(b) cause to be published in the Gazette a copy of the
notice.
(1) The AEO must, as soon as practicable after the result of a recount
under paragraph 164(d) has been ascertained:
(a) at the *place of nomination, declare the name of the candidate elected
as a result of the recount; and
(b) by a signed notice certify the name of the candidate elected, and send
the notice to the Electoral Commissioner.
(2) The Electoral Commissioner must, as soon as practicable after
receiving a notice under subsection (1):
(a) give to the Minister a copy of the notice, certified by the Electoral
Commissioner; and
(b) cause to be published in the Gazette a copy of the
notice.
(1) If a person elected as a *delegate:
(a) dies; or
(b) resigns as delegate by written notice to the Chairman of the
Convention;
the Chairman may request the Electoral Commissioner to notify him or her of
the name of a person to take the place of the delegate who has died or resigned
(the former delegate).
(2) If:
(a) the Electoral Commissioner receives a request under subsection (1);
and
(b) the former *delegate was, at the time of his or her election, a
*grouped candidate; and
(c) in the *list of candidates for the election, there was another
candidate or other candidates for the *group who were not elected;
the Electoral Commissioner must:
(d) ascertain whether the candidate, or the first-listed of those
candidates, as the case requires, is available and willing to fill the vacancy
left by the former delegate; and
(e) if the candidate is available and willing, declare the candidate
elected.
(3) If more than one candidate for the *group was not elected, and the
first-listed of those candidates is either unavailable or unwilling to fill the
vacancy, the Electoral Commissioner must ascertain whether the next-listed
candidate is available and willing, and so on, until either:
(a) the Electoral Commissioner declares an available and willing candidate
elected; or
(b) the Electoral Commissioner ascertains that there is no candidate for
the group who is able to fill the vacancy under this section.
(1) The Electoral Commissioner must give written notice to the Chairman of
the Convention of the name of a person declared elected under section
116.
(2) The Electoral Commissioner must give written notice to the Chairman of
the Convention if:
(a) the former *delegate was a *grouped candidate and the Electoral
Commissioner has ascertained that there is no candidate for the *group who is
able to fill the vacancy; or
(b) the former delegate was an *ungrouped candidate.
(3) If the Electoral Commissioner gives notice under subsection (2), the
vacancy left by the former *delegate may be filled in a manner to be determined
by the Chairman.
In this Part, relevant period, in relation to an election,
means the period commencing on the day the Minister gives notice under section
13 and ending at the *close of the poll.
A person who is, or has been, an officer or a scrutineer must not, except
for the purposes of Part 6, either directly or indirectly, divulge or
communicate any information with respect to the vote of an *elector acquired by
him or her in the performance of functions, or in the exercise of powers, under
this Act or the regulations in a manner that is likely to enable the
identification of the elector.
Penalty: Imprisonment for 6 months.
Except as authorised by this Act or the regulations, an officer must not
place upon any ballot-paper any mark or writing which would enable any person to
identify the voter by whom it is used.
Penalty: 10 penalty units.
(1) A person who, being an officer other than an Antarctic officer, does
any act or thing during the relevant period for the purpose of influencing the
vote of another person, is guilty of an offence.
Penalty: Imprisonment for 6 months.
(2) A person who, being an Antarctic officer during the relevant period in
relation to an election, does any act or thing for the purpose of influencing
the vote of another person, is guilty of an offence.
Penalty: Imprisonment for 6 months.
(3) In this section, Antarctic officer means:
(a) an *Antarctic Returning Officer; or
(b) an *Assistant Antarctic Returning Officer; or
(c) a person appointed to act as an Antarctic Returning Officer or as an
Assistant Antarctic Returning Officer.
(1) A person must not print, publish or distribute or cause, permit or
authorise to be printed, published or distributed, an electoral advertisement,
handbill, pamphlet or notice during the relevant period unless:
(a) either:
(i) the name and address (not being a post-office box) of the person who
authorised the advertisement, handbill, pamphlet or notice appears at the end of
it; or
(ii) the name of the person who authorised the advertisement, handbill,
pamphlet or notice is apparent on the face of the advertisement, handbill,
pamphlet or notice, as the case may be; and
(b) in the case of an electoral advertisement, handbill, pamphlet or
notice that is printed otherwise than in a newspaper—the name and place of
business of the printer appears at the end of it.
(2) A person must not produce, publish or distribute or cause, permit or
authorise to be produced, published or distributed an electoral *video recording
unless the name and address (not being a post office box) of the person who
authorised the video recording appears at the end of it.
(3) Subject to subsection (4), a person must not print, publish or
distribute or cause, permit or authorise to be printed, published or distributed
an electoral advertisement that takes up the whole or part of each of 2 opposing
pages of a newspaper unless, in addition to fulfilling the requirement under
subparagraph (1)(a)(i) that the name and address of the person who authorised
the electoral advertisement appear at the end of it, such name and address also
appears on the other page, or the part of the other page, taken up by the
electoral advertisement.
(4) Subsection (3) does not apply to an advertisement of the kind referred
to in that subsection:
(a) that is contained within:
(i) a broken or unbroken border; or
(ii) broken or unbroken lines extending across, or partly across, the top
and bottom of the advertisement; or
(iii) a broken or unbroken line extending along, or partly along, each
side of the advertisement; or
(b) that is printed so that to read one or more lines of the text of the
advertisement it is necessary to read across both pages.
(5) A person who contravenes subsection (1), (2) or (3) is guilty of an
offence.
Penalty: 10 penalty units.
(6) Subsection (1) does not apply in relation to:
(a) a car sticker, T-shirt, lapel button, lapel badge, pen, pencil or
balloon; or
(b) a business or visiting card that promotes the candidacy of any person
in an election; or
(c) a letter and card:
(i) that bear the name and address (not being a post office box) of the
sender; and
(ii) that do not contain a representation or purported representation of a
ballot-paper for use in an election; or
(d) an article included in a prescribed class of articles.
(7) Nothing in paragraph (6)(a), (b) or (c) is to be taken, by
implication, to limit the generality of regulations that may be made by virtue
of paragraph (6)(d).
(8) In this section, electoral advertisement, handbill, pamphlet or
notice, means an advertisement, handbill, pamphlet or notice that
contains *electoral matter, but does not include an advertisement in a newspaper
announcing the holding of a meeting.
(9) In this section, electoral video recording means a
*video recording that contains *electoral matter.
(1) A person must not, during the relevant period in relation to an
election, print, publish or distribute, or cause, permit or authorise to be
printed, published or distributed, any matter or thing that the person knows, or
ought reasonably to have known, is likely to mislead or deceive an *elector in
relation to the casting of a vote.
(2) A person must not, during the relevant period in relation to an
election, print, publish or distribute, or cause, permit or authorise to be
printed, published or distributed, an advertisement, handbill, pamphlet or
notice that contains a representation or purported representation of a
ballot-paper for use in that election that is likely to induce an *elector to
mark his or her vote otherwise than in accordance with the directions on the
ballot-paper.
(3) A person who contravenes subsection (1) or (2) is guilty of an
offence.
Penalty: Imprisonment for 6 months.
(4) If, in a prosecution for an offence against subsection (1), it is
material to prove that a person ought reasonably to have known that a matter or
thing that the person dealt with in a way specified in subsection (1) was likely
to mislead or deceive an *elector in relation to the casting of a vote, the
issue is to be decided having regard to:
(a) the person’s abilities, experience, qualifications, training and
other attributes; and
(b) the circumstances of the alleged offence.
(5) In this section, publish includes publish by radio or
television.
(1) Subject to subsection (2), where an article or a paragraph:
(a) appears in a newspaper during the relevant period; and
(b) contains *electoral matter; and
(c) is inserted for reward or compensation of any kind or promise of such
reward or compensation;
the proprietor of the newspaper must cause the word
“advertisement” to be printed as a headline in letters not smaller
than 10 point to the article or paragraph:
(d) if the article or paragraph takes up one page or part of one
page—on that page; or
(e) if the article or paragraph takes up the whole or part of each of 2
opposing pages—on each page.
(2) Where an article or paragraph of the kind referred to in paragraphs
(1)(b) and (c) that takes up the whole or part of each of 2 opposing pages of a
newspaper:
(a) is contained within:
(i) a broken or unbroken border; or
(ii) broken or unbroken lines extending across, or partly across, the top
and bottom of the article or paragraph; or
(iii) a broken or unbroken line extending along, or partly along, each
side of the article or paragraph; or
(b) is printed so that to read one or more lines of the text of the
article or paragraph it is necessary to read across both pages;
the proprietor of the newspaper must cause the word
“advertisement” to be printed as a headline in letters not smaller
than 10 point to the article or paragraph on one of the pages.
Penalty: 5 penalty units.
(1) Every electoral paper which by this Act or the regulations has to be
signed by any person must be signed by that person with his or her personal
signature unless the person is registered on the grounds specified under
paragraph 184A(2)(e) or (f) of the CEA.
(2) Where a person who is unable to sign his or her name in writing makes
a mark as his or her signature to an electoral paper, the mark is taken to be
his or her personal signature, if it is identifiable as such, and is made in the
presence of a witness who signs the electoral paper as such witness.
(3) Nothing in this section authorises any person to sign any electoral
paper by a mark or otherwise than in his or her own handwriting in cases where
the Act or the regulations require that the electoral paper be signed in the
person’s own handwriting.
(4) A person must not make the signature of any other person on an
electoral paper.
Penalty: 10 penalty units.
(5) Subsection (4) does not affect the liability of any person to be
proceeded against for forgery, but a person is not be liable to be punished
twice in respect of the same offence.
(6) In this section, electoral paper includes a document in
a prescribed or an *approved form.
(1) A person must not:
(a) sign as witness any blank electoral paper; or
(b) sign as witness any electoral paper which has been wholly or partly
filled up unless it has been signed by the person intended to sign it;
or
(c) sign as witness any electoral paper unless he or she has seen the
person, whose signature he or she purports to witness, sign it; or
(d) write on any electoral paper as his or her own name:
(i) the name of another person; or
(ii) any name not being his or her own name.
Penalty: 10 penalty units.
(2) In this section, electoral paper includes a document in
a prescribed or *approved form.
(1) A person must not:
(a) forge any electoral paper, or
(b) utter any forged electoral paper, knowing it to be forged.
Penalty: Imprisonment for 6 months.
(2) In this section, electoral paper includes a document in
a prescribed or *approved form.
Except where expressly authorised by this Act, a person (other than the
*elector to whom the ballot-paper has been lawfully issued) must not mark a vote
or make any mark or writing on the ballot-paper of any elector.
Penalty: Imprisonment for 6 months.
Except at the request of the *elector, a person must not:
(a) interfere with an elector in relation to the marking of a
ballot-paper; or
(b) do anything that would enable the person or any other person to find
out how an elector marked a ballot-paper.
Penalty: 10 penalty units.
A person to whom an *elector entrusts an envelope apparently containing a
ballot-paper for posting or delivery to an *officer must post or deliver the
envelope as soon as practicable.
Penalty: 10 penalty units.
A person to whom another person entrusts a request for *voting material
for posting or delivery to an officer must post or deliver the request as soon
as possible.
Penalty: 10 penalty units.
Note: A person requests *voting material under section
66.
A person must not induce an *elector to hand over to the person a
ballot-paper on which a vote has been recorded.
Penalty: 10 penalty units.
A person other than:
(a) the *appropriate DRO; or
(b) an officer acting at the direction of the DRO;
must not open an envelope that purports to contain a ballot-paper on which
a vote has been recorded.
Penalty: 5 penalty units.
(1) A person must not:
(a) impersonate any person for the purpose of securing a ballot-paper to
which the impersonator is not entitled; or
(b) fraudulently destroy or deface any nomination paper or ballot-paper;
or
(c) forge any nomination paper or ballot-paper or utter any nomination
paper or ballot-paper knowing it to be forged; or
(d) supply ballot-papers without authority; or
(e) unlawfully destroy, take or otherwise interfere with ballot-boxes or
ballot-papers; or
(f) wilfully vote more than once at the same election; or
(g) wilfully vote at more than one election; or
(h) make a statement:
(i) in any claim, application, return or declaration (not being a
statement made by the person in the person’s nomination paper);
or
(ii) in an answer to a question;
under this Act or the regulations that, to his or her knowledge, is false
or misleading in a material particular.
Penalty: Imprisonment for 6 months.
(2) A person must not wilfully deface, mutilate, destroy or remove any
notice, list or other document affixed by, or by the authority of, any
officer.
Penalty: 5 penalty units.
(3) A person must not:
(a) make a statement in his or her nomination paper that the person knows,
or ought reasonably to have known, is false or misleading in a material
particular; or
(b) omit from a statement in his or her nomination paper any matter or
thing without which the person knows, or ought to have known, the statement is
misleading in a material particular.
Penalty: Imprisonment for 6 months.
(4) In a prosecution for an offence against subsection (3), if it is
material to prove that a person ought reasonably to have known that:
(a) a statement in his or her nomination paper was false or misleading in
a material particular; or
(b) by omitting from a statement in his or her nomination paper any matter
or thing the statement would be misleading in a material particular;
the issue is to be decided having regard to:
(c) the person’s abilities, experience, qualifications, training and
other attributes; and
(d) the circumstances of the alleged offence.
(5) In this section, a reference to a nomination paper
includes a reference to a *facsimile of a nomination paper.
(1) A person who is the proprietor of, or an employee of the proprietor
of, a *hospital or *nursing home must not do anything for the purpose of
influencing the vote of a patient in, or resident at, the hospital or nursing
home.
Penalty: Imprisonment for 6 months.
(2) The reference in subsection (1) to the proprietor of a
*hospital or *nursing home includes a reference to a person who is a member or
officer of a body corporate that is the proprietor of a hospital or nursing
home.
(1) A person must not ask for, receive or obtain, or offer or agree to ask
for, or receive or obtain, any property or benefit of any kind, whether for the
same or any other person, on an understanding that:
(a) any vote of the first-mentioned person; or
(b) any candidature of the first-mentioned person; or
(c) any support of, or opposition to, a candidate or a *group of
candidates by the first-mentioned person; or
(d) the doing of any act or thing by the first-mentioned person the
purpose of which is, or the effect of which is likely to be, to influence the
preference set out in the vote of an *elector; or
(e) the order in which the names of candidates whose names are included in
a group in accordance with a request under section 28 appear on a *list of
candidates;
will, in any manner, be influenced or affected.
Penalty: Imprisonment for 2 years.
(2) A person must not, in order to influence or affect:
(a) any vote of another person; or
(b) any candidature of another person; or
(c) any support of, or opposition to, a candidate, or a *group of
candidates by another person; or
(d) the order in which the names of candidates whose names are included in
a group in accordance with a request under section 28 appear on a *list of
candidates;
give or confer, or promise or offer to give or confer, any property or
benefit of any kind to that other person or to a third person.
Penalty: Imprisonment for 2 years.
(3) This section does not apply in relation to a declaration of public
policy or a promise of public action.
(1) A person must not hinder or interfere with the free exercise or
performance, by any other person, of any political right or duty that is
relevant to an election.
Penalty: Imprisonment for 6 months.
(2) A person must not discriminate against another person on the ground of
the making by the other person of a donation to a candidate, to a *group of
candidates, or to an organisation that a candidate or group of candidates
represent:
(a) by denying him or her access to membership of any trade union, club or
other body; or
(b) by not allowing him or her to work or to continue to work;
or
(c) by subjecting him or her to any form of intimidation or coercion;
or
(d) by subjecting him or her to any other detriment.
Penalty: Imprisonment for 2 years.
A person who during the relevant period makes a statement to another
person, either orally or in writing, with respect to:
(a) the enrolment of the person; or
(b) whether the person is or is not on the *list of electors;
that, to the knowledge of the first-mentioned person, is false or
misleading in a material respect, is guilty of an offence.
Penalty: Imprisonment for 6 months.
(1) A person must not, without lawful authority, proof whereof is to lie
upon the person:
(a) make any official mark on or in any paper; or
(b) be in possession of any paper bearing any official mark; or
(c) make use of or be in possession of any instrument capable of making on
or in any paper an official mark.
Penalty: 10 penalty units.
(2) A person who, without lawful authority, proof whereof is to lie upon
the person, makes on or in any ballot-paper, or on or in any paper purporting to
be a ballot-paper, an official mark, is to be taken to have a forged
ballot-paper.
(3) All paper bearing an official mark, and all instruments capable of
making on or in paper an official mark, made, used, or in the possession of any
person without lawful authority (proof whereof is to lie upon the person) are
forfeited to the Commonwealth, and may without warrant, be seized by a member of
the Australian Federal Police or a member of the police force of a State or
Territory and destroyed or dealt with as prescribed.
(4) In this section, the words official mark mean any
prescribed or *approved mark to be placed or made on or in any electoral paper,
and include any mark so nearly resembling an official mark as to be likely to
deceive.
(5) In this section the words electoral paper includes a
document in a prescribed or *approved form.
(1) A person must not:
(a) commit misconduct in a counting centre; or
(b) while in a counting centre, disobey a lawful direction given by the
person in charge of the counting centre; or
(c) enter or remain in a counting centre without the permission of the
person in charge of the premises.
Penalty: 5 penalty units.
(2) The person in charge of a counting centre is the AEO or DRO conducting
the *scrutiny at the centre, or in the event of the absence of the AEO or DRO as
the case may be, the person authorised by the AEO or DRO.
(3) A person who contravenes subsection (1) may be removed from the
counting centre by a *police officer or by an authorised person.
(4) In this section:
authorised person means a person acting at the request of the
person in charge of premises.
counting centre means premises being used for the purpose of
the *scrutiny.
(1) Subject to subsection (2), an offence against section 136 is an
indictable offence.
(2) A court of summary jurisdiction may hear and determine proceedings in
respect of an offence referred to in subsection (1) if the court is satisfied
that it is proper to do so and the defendant and the prosecutor
consent.
(3) Where, in accordance with subsection (2), a court of summary
jurisdiction convicts a person of an offence against section 136, the penalty
that the court may impose is imprisonment for a period of 12 months.
On any prosecution under this Act the certificate of the Electoral
Commissioner, AEO, or DRO that the election mentioned in the certificate was
duly held and that the person named in the certificate was a candidate at the
election is to be evidence of the matter stated.
(1) In proceedings for an offence against this Act:
(a) an electoral advertisement, handbill, pamphlet, notice or *video
recording that includes a statement that it was authorised by a specified person
is admissible as evidence of that fact; and
(b) a printed electoral advertisement, handbill, pamphlet or notice that
includes a statement that a specified person or firm was the printer is
admissible as evidence of that fact.
(2) In this section:
electoral advertisement, handbill, pamphlet or notice and
electoral video recording have the same meaning as in
section 122.
In this Part:
bribery or corruption means a contravention of
section 136.
illegal practice means a contravention of this Act or the
regulations.
undue influence means a contravention of section 137 of this
Act or section 28 of the Crimes Act 1914.
(1) The validity of an election or return may be disputed by petition
addressed to the *Court and not otherwise.
(2) A person may dispute an election or return only in relation to the
election in which the person was entitled to vote.
(3) The jurisdiction of the *Court to try petitions may be exercised by a
single Judge.
In spite of section 24 of the Federal Court Act 1976, an appeal
does not lie to a Full Court from a judgment by a single Judge on a petition
except in accordance with leave given by the *Court.
Subject to section 149, every petition disputing an election or return
(in this Part called the petition) must:
(a) set out the facts relied on to invalidate the election or return;
and
(b) set out those facts with sufficient particularity to identify the
specific matter or matters on which the petitioner relies as justifying the
grant of relief; and
(c) contain a request asking for the relief the petitioner claims to be
entitled to; and
(d) be signed by a candidate at the election in dispute or by a person who
was entitled to vote in the election; and
(e) be attested by 2 witnesses whose addresses are stated; and
(f) be filed in the *Court within 14 days after the date fixed under
section 13 for the notification of the election results.
When filing the petition, the petitioner must deposit with the Registrar
of the *Court $500 as security for costs.
(1) The Electoral Commission is entitled to file a petition disputing an
election or return.
(2) Paragraphs 147(d) and (e) do not apply in relation to a petition filed
by the Electoral Commission disputing an election or return but such a petition
must be signed by the Electoral Commissioner for and on behalf of the
Commission.
No proceedings are to be had on the petition unless the requirements of
sections 147, 148 and 149 are complied with.
The Electoral Commission is entitled, by leave of the *Court, to enter an
appearance in any proceedings in which the validity of an election or return is
disputed, and to be represented and heard thereon, and in such case is taken to
be a party respondent to the petition.
A party to the petition may appear in person or be represented by counsel
or a solicitor.
(1) The *Court must inquire whether or not the petition is duly signed,
and so far as *Rolls, *lists of electors, lists of voters and voting are
concerned may inquire into the identity of persons, and whether their votes were
improperly admitted or rejected, assuming the Roll, list of electors and any
list of voters who voted to be correct, but the Court must not inquire
into the correctness of any Roll, list of electors or list of voters.
(2) Where the *Court makes inquiries in relation to ballot-papers marked
in *Antarctica pursuant to the provisions of Part 6, a statement of the
particulars of the marking of the ballot-papers prepared by an AEO under
subsection 88(3) is, unless the Court otherwise orders, conclusive evidence of
the particulars stated.
(1) The *Court must sit as an open Court and its powers include the
following:
(a) to adjourn;
(b) to compel the attendance of witnesses and the production of
documents;
(c) to grant to any party to a petition leave to inspect, in the presence
of a prescribed officer, the *Rolls and *list of electors and other documents
(except ballot-papers) used at or in connection with any election and to take,
in the presence of the prescribed officer, extracts from the Rolls, list and
documents;
(d) to examine witnesses on oath;
(e) to declare that any person who was returned as elected was not duly
elected;
(f) to declare any candidate duly elected who was not returned as
elected;
(g) to declare the position of a candidate vacant;
(h) to declare an election absolutely void;
(i) to make any order, or give any direction, that the Court thinks is
necessary or convenient for the purpose of giving effect to any declaration or
other decision of the Court in the proceedings;
(j) to dismiss or uphold the petition in whole or in part;
(k) to award costs;
(l) to punish any contempt of its authority by fine or
imprisonment.
(2) The *Court may exercise all or any of its powers under this section on
such grounds as the Court in its discretion thinks just and
sufficient.
(3) Without limiting the powers conferred by this section, the power of
the *Court to declare that any person who was returned as elected was not duly
elected, or to declare an election absolutely void, may be exercised on the
ground that illegal practices were committed in connection with the
election.
(4) The power of the *Court under paragraph (1)(k) to award costs
includes the power to order costs to be paid by the Commonwealth where the Court
considers it appropriate to do so.
The *Court must pursue the objective of trying petitions
promptly.
At any stage of proceedings trying a petition, a party to the petition
may apply to the *Court for an expedited hearing in accordance with the Rules of
Court.
The *Court must be guided by the substantial merits and good conscience
of each case without regard to legal forms or technicalities, or whether the
evidence before it is in accordance with the law of evidence or not.
In making its decision on a petition, the *Court may have regard to any
ballot-papers rejected at the preliminary scrutiny if the Court is of the
opinion that the ballot-papers should not have been rejected.
(1) No election is to be avoided on account of any delay in the
declaration of nominations, the dispatch of *voting material to *electors, or
the giving to the Minister of a notice under subsection 114(2), or on account of
the absence or error of or omission by any officer which did not affect the
result of the election.
(2) Where any *elector was, on account of the absence or error of, or
omission by, any officer, prevented from voting in any election, the *Court must
not, for the purpose of determining whether the absence or error of, or omission
by, the officer did or did not affect the result of the election, admit any
evidence of the way in which the elector intended to vote in the
election.
The *Court must not declare that a person returned as elected was not
duly elected, or declare an election void, by reason only that:
(a) in the case of a *first candidate—there was printed, on a
ballot-paper used in the election the name of a *group opposite the name
of the candidate; or
(b) in the case of an *ungrouped candidate—there was printed, on a
ballot-paper used in the election a name opposite the name of the candidate;
or
(c) the name of the group referred to in paragraph (a) or the name
referred to in paragraph (b) so printed was misspelt or the name so
printed was otherwise inaccurate or incorrect; or
(d) there was not printed on a ballot-paper used in the election, the name
of a group opposite the name of a first candidate; or
(e) there was not printed on a ballot-paper used in the election, a name
opposite the name of an ungrouped candidate; or
(f) an officer failed to comply with the provisions of section 54, 55 or
56 in relation to the election.
On the trial of any petition the *Court must not admit the evidence of
any witness that the witness was not permitted to vote in the election unless
the witness satisfies the Court:
(a) that the witness claimed to vote in the election; and
(b) that the witness complied with the requirements of this Act and the
regulations made thereunder relative to voting by electors in so far as he or
she was permitted so to do.
(1) If the *Court finds that a successful candidate has committed or has
attempted to commit bribery or undue influence, the election of the candidate
must be declared void.
(2) The *Court must not declare that any person returned as elected was
not duly elected, or declare any election void:
(a) on the ground of any illegal practice committed by any person other
than the candidate and without the knowledge or authority of the candidate;
or
(b) on the ground of any illegal practice other than bribery or corruption
or attempted bribery or corruption;
unless the Court is satisfied that the result of the election was likely to
be affected, and that it is just that the candidate should be declared not to be
duly elected or that the election should be declared void.
(3) The *Court must not declare that a person returned as elected was not
duly elected, or declare any election void, on the ground that someone has
contravened the Broadcasting Services Act 1992 or the
Radiocommunications Act 1992.
(1) The *Court may award costs against an unsuccessful party to the
petition.
(2) If costs are awarded to any party against the petitioner, the deposit
paid under section 148 is applicable in payment of the sum ordered, but
otherwise the deposit must be repaid to the petitioner.
Effect must be given to any decision of the *Court as follows:
(a) if any person returned is declared not to have been duly elected, the
person must cease to be a *delegate to the Convention;
(b) if any person not returned is declared to have been duly elected, the
person may join the Convention as a delegate accordingly;
(c) if an election is declared absolutely void a new election may be
held;
(d) if the position of a candidate is declared vacant and the Court has
not made a declaration under paragraph 154(1)(f) in respect of the position, the
Electoral Commissioner must cause a recount of the ballot-papers in the election
of the candidate to be held.
Note 1: The *Court has power to make these declarations
under section 154.
Note 2: Section 167 provides for the procedure on a recount
of votes. Section 115 provides for the declaration of the result of the
recount.
When the *Court finds that any person has committed an illegal practice,
the Registrar of the Federal Court must forthwith report the finding to the
Minister.
Unless the *Court orders otherwise, the filing of a petition does not
deprive the Electoral Commission of any right to have access to a document for
the purposes of the performance of its functions.
In a recount under paragraph 164(d), a vote for the candidate whose
position has been declared vacant is to be counted to the candidate next in
order of the voter’s preferences. Subsequent preferences of the voter are
taken to be altered accordingly.
(1) The Judges of the Federal Court, or a majority of them, may make Rules
of Court for carrying this Part of this Act into effect and in particular for
regulating the practice and procedure of the *Court, the forms to be used and
the fees to be paid by parties.
(2) If the Legislative Instruments Act 1997 is in force on the day
this Act commences, a Rule of Court made under this section is to be taken to
have been made under the Federal Court Act 1976.
(3) If the Legislative Instruments Act 1997 is not in force on the
day this Act commences, sections 48, 48A, 48B, 49 and 50 of the Acts
Interpretation Act 1901 apply in relation to the Rules of Court as if
references in those sections of that Act to regulations were references to Rules
of Court.
Any delay, error, or omission in the printing, preparation, issue,
transmission, or giving of any *Roll, *list of electors, *voting material,
*candidate statement or notice, may be remedied, removed, rectified, and
supplied by proclamation specifying the matter dealt with, and providing for the
course to be followed, and such course is valid and sufficient.
(1) Despite any other provision of this Act, before or after the day fixed
for the *close of the poll, the Minister may, by notice published in the
Gazette, provide for extending the time for holding the elections, or for
holding the election in a specified State or Territory, or for giving notice
under this Part, or meeting any difficulty which might otherwise interfere with
the due course of the election.
(2) Any provisions made under subsection (1) are valid and sufficient and
any date provided for in place of a date fixed by the Minister’s notice
under section 13 is taken to be the date so fixed. However, public notice must
immediately be given in the State or Territory for which the election is to be
held of any extension of the time for holding the election.
Where:
(a) an officer is required by a provision of this Act or the regulations
to do an act; and
(b) the officer refuses or fails to do the act at the time, or within the
period, required by that provision;
the Commission may determine that the act may be done within such further
time, not exceeding 48 hours, as the Commission fixes.
(1) The Electoral Commission may, by resolution, delegate to the Electoral
Commissioner, the *Deputy Electoral Commissioner, an AEO, an officer or a member
of the staff of the Electoral Commission all or any of its powers under this
Act.
(2) A delegation of power under this section:
(a) may be revoked by resolution of the Electoral Commission (whether or
not constituted by the persons constituting the Electoral Commission at the time
when the power was delegated); and
(b) continues in force notwithstanding a change in the membership of the
Electoral Commission.
(3) Section 34A of the Acts Interpretation Act 1901 applies in
relation to a delegation under this section as if the Electoral Commission were
a person.
(4) A certificate signed by the Chairperson of the Electoral Commission
stating any matter with respect to a delegation of a power under this section is
prima facie evidence of that matter.
(5) A document purporting to be a certificate mentioned in subsection (4)
is, unless the contrary is established, to be taken to be such a certificate and
to have been duly given.
The Electoral Commissioner may, by writing, delegate to the *Deputy
Electoral Commissioner, an AEO or an officer or member of the staff of the
Electoral Commission all or any of the powers of the Electoral Commissioner
under this Act.
(1) Where a person has engaged, is engaging or is proposing to engage in
any conduct that constituted, constitutes or would constitute a contravention
of, or an offence against, this Act or any other law of the Commonwealth in its
application to elections, the *Court may, on the application of:
(a) in a case where the conduct relates to an election—a candidate
in the election; or
(b) in any case—the Electoral Commission;
grant an injunction restraining the first-mentioned person from engaging in
the conduct and, if in the opinion of the Court it is desirable to do so,
requiring that person to do any act or thing.
(2) Where:
(a) a person has refused or failed, is refusing or failing, or is
proposing to refuse or fail, to do an act or thing; and
(b) the refusal or failure was, is, or would be, a failure to comply with,
or an offence against, this Act or any other law of the Commonwealth in its
application to elections;
the *Court may, on the application of:
(c) in a case where the refusal or failure relates to an election—a
candidate in the election; or
(d) in any case—the Electoral Commission;
grant an injunction requiring the first-mentioned person to do that act or
thing.
(3) Where an application is made to the *Court for an injunction under
subsection (1), the Court may, if in the opinion of the Court it is desirable to
do so, before considering the application, grant an interim injunction
restraining a person from engaging in conduct of the kind referred to in that
subsection pending the determination of the application.
(4) The *Court may discharge or vary an injunction granted under
subsection (1), (2) or (3).
(5) Where an application is made to the *Court for the grant of an
injunction restraining a person from engaging in conduct of a particular kind,
the power of the Court to grant the injunction may be exercised:
(a) if the Court is satisfied that the person has engaged in conduct of
that kind—whether or not it appears to the Court that the person intends
to engage again, or to continue to engage, in conduct of that kind; or
(b) if it appears to the Court that, in the event that an injunction is
not granted, it is likely that the person will engage in conduct of that
kind—whether or not the person has previously engaged in conduct of that
kind and whether or not there is an imminent danger of substantial damage to any
person if the first-mentioned person engages in conduct of that kind.
(6) Where an application is made to the *Court for the grant of an
injunction requiring a person to do a particular act or thing, the power of the
Court to grant the injunction may be exercised:
(a) if the Court is satisfied that the person has refused or failed to do
that act or thing—whether or not it appears to the Court that the person
intends to refuse or fail again, or to continue to refuse or fail, to do that
act or thing; or
(b) if it appears to the Court that, in the event that an injunction is
not granted, it is likely that the person will refuse or fail to do that act or
thing—whether or not the person has previously refused or failed to do
that act or thing and whether or not there is an imminent danger of substantial
damage to any person if the first-mentioned person refuses or fails to do that
act or thing.
(7) Where the Electoral Commission makes an application to the *Court for
the grant of an injunction under this section, the Court must not require the
Electoral Commission or any other person, as a condition of the granting of an
interim injunction, to give any undertakings as to damages.
(8) The powers conferred on the *Court under this section are in addition
to, and not in derogation of, any other powers of the Court, whether conferred
by this Act or otherwise.
All electoral papers provided for by this Act may be *transmitted through
the post free of charge to any *elector or person claiming to be an elector and
all papers so transmitted to an elector or person, if duly addressed, are, on
proof of posting, unless the contrary be shown, to be taken to have been duly
served on and received by the elector or person to whom they were addressed on
the day when in the ordinary course of post they should have been received at
the elector’s or person’s address.
(1) Where:
(a) the time for the filing of petitions disputing an election has ended
without any petitions having been filed; or
(b) the *Court has disposed of any petitions disputing an
election;
the electoral documents used for the purposes of the election may be dealt
with as necessary for the purpose of collecting statistical information relating
to the election.
(2) In this section, electoral documents includes:
(a) ballot-papers; and
(b) *vote certificates.
(1) In this section, electoral documents has the same
meaning as in section 176.
(2) The DRO for a *Division is responsible for the safe custody, in
accordance with the directions of the Electoral Commissioner, of electoral
documents used in the Division in connection with an election until the
documents are destroyed.
(3) An officer who conducts a *scrutiny must, after the completion of the
scrutiny, parcel up and seal all electoral documents dealt with or used in the
scrutiny.
(4) Material removed from a parcel must:
(a) be retained by the DRO; or
(b) be dealt with according to the directions of the Electoral
Commissioner.
(5) When the purpose for which material was removed from a parcel has been
satisfied, the DRO must:
(a) as soon as practicable, replace the material in the parcel and
refasten and reseal the parcel; and
(b) write on the covering of the parcel a notation indicating that the
parcel has been opened by the DRO and specifying the purpose for which it was
opened.
(6) A DRO who opens a parcel must not mark or alter, or permit any other
person to mark or alter, a document removed from the parcel.
(7) Subject to Part 11, the Electoral Commissioner may direct that
electoral documents be destroyed if:
(a) not less than 6 months have elapsed since the date fixed under section
13 for the notification of the election results of the election in which
the documents were used; and
(b) the documents are no longer required by the Electoral Commission for
the performance of its functions.
(1) Subsection (2) applies if the Legislative Instruments Act 1997
is in force:
(a) on the date of the Minister’s notice under section 13;
or
(b) on the date the notice is published in the Gazette.
(2) A notice of the Minister under section 13 is not a legislative
instrument for the purposes of the Legislative Instruments Act
1997.
The Governor-General may make regulations prescribing all matters which
by this Act are required or permitted to be prescribed, or which are necessary
or convenient to be prescribed for giving effect to this Act, and in particular,
prescribing penalties not exceeding 5 penalty units for any contravention of any
regulation made under this Act.
(1) In this Act, unless the contrary intention appears:
AEO means:
(a) in relation to a State or the *Northern Territory—an Australian
Electoral Officer referred to in section 20 of the CEA; and
(b) in relation to the *Australian Capital Territory—the Australian
Electoral Officer appointed under section 18 of this Act.
Antarctica means the Australian Antarctic Territory and
includes:
(a) the Territory of Heard Island and McDonald Islands; and
(b) Macquarie Island.
Antarctic elector means an *elector who:
(a) is, in the course of his or her employment, in *Antarctica during the
period between the *hour of nomination and the *close of the poll; and
(b) has made a request under section 249 of the CEA that the elector be
treated, while he or she is in Antarctica, as an Antarctic elector.
Antarctic Returning Officer, in relation to a *station, means
the person appointed under section 247 of the CEA to be the Antarctic Returning
Officer for that station, or a person acting as the Antarctic Returning Officer
for that station.
appropriate DRO has the meaning given in section
63.
approved means approved by the Electoral Commissioner for the
purposes of this Act by notice published in the Gazette.
Assistant Antarctic Returning Officer, in relation to a
*station, means the person appointed under section 247 of the CEA to be the
Assistant Antarctic Returning Officer for that station, or a person acting as
the Assistant Antarctic Returning Officer for that station.
Assistant DRO means a person appointed as an Assistant
Divisional Returning Officer under section 34 of the CEA.
Assistant Returning Officer means a person appointed as an
Assistant Returning Officer under section 33 of the CEA.
Australia includes:
(a) Norfolk Island; and
(b) the Territory of Cocos (Keeling) Islands; and
(c) the Territory of Christmas Island.
Australian Capital Territory includes the Jervis Bay
Territory.
candidate number, in relation to a candidate, means the
unique number given to the candidate under section 57.
candidate statement means a statement of a *group or a
candidate included in a pamphlet printed under section 37.
CEA means the Commonwealth Electoral Act
1918.
certificate envelope means an envelope that is distributed by
the Electoral Commission under Part 5 and that bears a *vote
certificate.
close of the poll means 6 pm on the closing day of the
poll.
closing day, in relation to the poll, means the day fixed by
the Minister by notice under section 13 as the *closing day of the
poll.
courier service means a service that provides for the
collection, at the request of a person using the service, of an article from a
place specified by or on behalf of that person and the delivery of the article
to another place so specified, being a service approved by an AEO.
Court means the Federal Court of Australia.
delegate means a delegate to the Constitutional
Convention.
Deputy Electoral Commissioner means the Deputy Electoral
Commissioner referred to in section 19 of the CEA.
Division has the meaning given in subsections 4(1) and (5) of
the CEA.
DRO means a Divisional Returning Officer referred to in
section 32 of the CEA.
election means an election for a State or Territory under
this Act.
elector means a person whose name appears on the *list of
electors.
Electoral Commission means the Australian Electoral
Commission established by section 6 of the CEA.
Electoral Commissioner means the Electoral Commissioner
referred to in section 18 of the CEA.
electoral matter means matter which is intended or likely to
affect voting in an election.
enrolled means enrolled on a *Roll.
facsimile in relation to a nomination paper, means:
(a) a copy of a nomination paper that has been reproduced by facsimile
telegraphy or any other means; or
(b) a copy of a copy referred to in paragraph (a).
first candidate, in relation to a *group of candidates,
means:
(a) if an order was specified in a request under section 28 in respect of
the group—the candidate whose name appears first in that order;
and
(b) if an order was not specified in a request under section 28—the
candidate whose name occurs first in an alphabetical listing of the names of the
candidates in the group.
group means a group of candidates who have made a request
under section 28 for their names to be grouped in the *list of
candidates.
grouped candidate means a candidate included in a
*group.
hospital includes a convalescent home or an institution
similar to a hospital or to a convalescent home.
hour of nomination has the meaning given by section
43.
list of candidates means a list printed under section
54.
list of electors means the list compiled for a State or
Territory under section 9.
Northern Territory includes the Territory of Cocos (Keeling)
Islands and the Territory of Christmas Island.
nursing home means an institution (other than a *hospital) in
which infirm, ill or disabled persons needing continuing nursing care are
provided with accommodation and nursing care.
officer includes the Electoral Commissioner, the *Deputy
Electoral Commissioner, an AEO, a DRO, an *Assistant Returning Officer, an
Assistant DRO, an *Antarctic Returning Officer and an *Assistant Antarctic
Returning Officer.
place of nomination has the meaning given by section
42.
police officer means a member of the Australian Federal
Police or of the police force of a State or Territory.
preference mark means a tick, a cross or the number
1.
preference square means a square printed on Part B of the
ballot-paper.
registered officer, in relation to a *registered political
party, has the meaning given in section 4C of the CEA.
registered political party has the meaning given in
subsection 4(1) of the CEA.
research personnel means personnel who are to be, or have
been, engaged in the work of a research *station in *Antarctica operated,
whether continuously or otherwise, by the Commonwealth.
Roll means an Electoral Roll under the CEA.
scrutiny has the meaning given in subsection 90(2).
station has the meaning given in section 74.
Territory means the *Australian Capital Territory or the
*Northern Territory.
transmit includes transmit by radio-telephone or
telex.
ungrouped candidate means a candidate who is not a *grouped
candidate.
video recording includes a video recording that is recorded
by means other than a videotape.
vote certificate means a vote certificate referred to in
paragraph 62(b).
voting material has the meaning given in section
62.
voting method A, in relation to a vote cast by
a person, means the method set out in subsection 69(2).
voting method B, in relation to a vote cast by
a person, means the method set out in subsection 69(3).
(2) A reference in this Act to the AEO, in relation to an election, or any
matter arising from an election in a State or Territory, is a reference to the
AEO for that State or Territory.
(3) A reference in this Act to a DRO, in relation to an *elector or any
other matter, is a reference to the DRO for the *Division for which the elector
is *enrolled or in which the matter arises.