Commonwealth Numbered Regulations - Explanatory Statements

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AUSTRALIAN BROADCASTING CORPORATION (ELECTION OF STAFF-ELECTED DIRECTOR) REGULATIONS 1991 NO. 32

EXPLANATORY STATEMENT

Statutory Rules 1991 No. 32

Australian Broadcasting Corporation (Election of staff-elected Director) Regulations

Issued by the authority of the Minister for Transport and Communications

Background

Subsection 83(1) of the Australian Broadcasting Corporation Act 1983 (the Act) provides that the Governor-General may make regulations for the purposes of the Act.

Sections 13A and 13B of the Act provide for the election, in accordance with the regulations, of a staff-elected Director and a deputy to the staff-elected Director (the deputy) to the Board of Directors of the Australian Broadcasting Corporation (the ABC).

Sections 13A and 13B were inserted into the Act by the Broadcasting and Television Legislation Amendment Act 1986 (the Amendment Act). Subsection 5(2) of the Amendment Act permits elections for the two positions to be held in accordance with procedures approved by the ABC Board if no regulations have been made for the purposes of sections 13A and 13B.

The Regulations, which provide for electoral procedures for both positions, were prepared in consultation with the ABC, the Australian Electoral Commission and the ABC industrial organisations.

Details of the Regulations are set out in the Attachment.

ATTACHMENT

NOTES ON AUSTRALIAN BROADCASTING CORPORATION (ELECTION OF STAFF-ELECTED DIRECTOR) REGULATIONS

PART I - PRELIMINARY

Regulation 1 - Citation

The Regulations are known as the Australian Broadcasting Corporation (Election of staff-elected Director) Regulations.

Regulation 2 - Interpretation

Subregulation 2(1) defines terms used in the Regulations.

Subregulation 2(2) defines "nomination day" (i) where there is a staff-elected Director in office, and (ii) where there is no staffelected Director in office or the staff-elected Director has ceased to hold office before his or her term of office has expired. For (i) the nomination day is the last Thursday before the period of 70 days ending at the expiry of the incumbent Director's term of office. For (ii) the nomination day is a Thursday specified by the ABC Board by notice in the ABC's official bulletin. The Thursday notified must not be earlier than 28 days nor later than 90 days after the staff-elected Director position becomes vacant.

Subregulation 2(3) provides that those regulations applying in relation to the election of the staff-elected Director also apply in relation to the deputy, unless the contrary intention appears.

Regulation 3 - Notification to Electoral Commissioner

Provides that where either, or both, of the positions of the staffelected Director or the deputy become vacant or are expected to become vacant, the Managing Director of the ABC must notify the Electoral Commissioner that an election will be necessary to fill the vacancy(s) or expected vacancy(s).

Regulation 4 - Returning officer

Provides that on being notified under regulation 3, the Electoral Commissioner must appoint a person to be the returning officer for the election to which the notification under regulation 3 relates.

PART II - CONDUCT OF ELECTIONS

Regulation 5 - List of voters

Regulation 5 provides for the preparation of a list of eligible voters, for that list to be forwarded to the returning officer, and for officers and employees to request the correction of any errors in the list.

Subregulation 5(1) provides that the Managing Director is responsible for arranging the preparation of, and forwarding to the returning officer, a list of eligible voters setting out the names and last known addresses of each officer and employee who, at the date the list is sent to the returning officer, is eligible to vote at the election. The list of eligible voters must be prepared and forwarded to the returning officer as soon as practicable after the appointment of the returning officer.

Subregulation 5(2) provides that the Managing Director is responsible for ensuring that the list of eligible voters is received by the returning officer at least 7 days before nomination day.

Subregulation 5(3) provides that, subject to subregulation 5(4), the list of voters is not to be made available to any person other than the Managing Director, the returning officer, or any person authorised in writing by either the Managing Director or the returning officer for the purposes of subregulation 5(3).

Subregulation 5(4) provides that officers or employees are entitled to inquire of the Managing Director whether their names and addresses are included in the list of eligible voters. Such inquiries must be in writing.

Subregulation 5(5) provides officers or employees must inform the Managing Director when they consider their names or addresses (a) have been wrongly omitted from, or (b) are incorrectly recorded in, the list of eligible voters.

Regulation 6 - Alteration to list of voters

Regulation 6 provides for the alteration of the list of eligible voters to maintain its accuracy.

Subregulation 6(1) requires the Managing Director to make the necessary alterations to the list of voters to maintain its accuracy.

Subregulation 6(2) provides that if an alteration is made to the list of eligible voters not later than 7 days before the close of the poll and after the list has been forwarded to the returning officer, then the Managing Director must immediately notify the returning officer of the alteration.

Subregulation 6(3) provides that the returning officer must alter the list of eligible voters in accordance with any notification from the Managing Director.

Subregulation 6(4) provides where the returning officer adds a person's name and address to the list of eligible voters in accordance with subregulation 6(3), then not later than 5 days before the close of the poll, the returning officer must issue election material to that person.

Regulation 7 - Advertisement for nominations

Provides that not later than 21 days before nomination day, the returning officer must invite persons who are eligible to be candidates to nominate for election. The invitation for nominations must be made by advertisement in the official bulletin of the ABC.

Regulation 8 - Lodgement of nominations

Provides that nominations for election must be lodged with the returning officer not later than 12.00 noon on nomination day.

Regulation 9 - Nominations

Provides that for a nomination for election to be valid, it must (a) be made in a form approved by the returning officer, (b) be signed by at least 6 persons eligible to be candidates for election (other than the person nominating for election), and (c) be lodged in accordance with regulation 8. The nominee must also have endorsed the nomination to the effect that the nominee consents to the nomination (paragraph (d)), and that the nominee is eligible to be a candidate for election (paragraph (e)). Such endorsement must be made in the presence of a witness.

Regulation 10 - Withdrawal of nominations

Regulation 10 provides for the withdrawal of nominations for election.

Subregulation 10(1) provides that a nominee may withdraw as a candidate for election. Such withdrawal must be in writing and be witnessed by a person entitled to vote at the election. The withdrawal must also be made no later than 12.00 noon on nomination day.

Subclause 10(2) provides that a withdrawal of nomination for election must be lodged with the returning officer.

Subregulation 10(3) provides that where a nominee withdraws as a candidate for election, that nominee must notify each person who signed that nominee's nomination of the withdrawal.

Regulation 11 - Procedure on nomination day

Regulation 11 provides for what the returning officer must do on nomination day once the period for nominations has closed.

Subregulation 11(1) provides that where only one candidate is nominated in respect of an election, the returning officer must declare that candidate elected, and must notify the Managing Director in writing of the name of the person elected. The returning officer must also arrange for a copy of the written notification to the Managing Director to be published in the official bulletin of the ABC.

Subregulation 11(2) provides that the returning officer must conduct a poll to decide an election where there is more than one candidate nominated in respect of that election.

Subregulation 11(3) provides that the returning officer must notify the Managing Director where there is no candidate nominated in respect of an election. In such circumstances, no election is to be held.

Regulation 12 - Closure of poll

Provides that the poll in respect of an election closes at 10.00 a.m. on the Thursday 42 days after nomination day for that election.

Regulation 13 - Statement of candidate

Regulation 13 provides for the submission and distribution to voters of statements by candidates to an election.

Subregulation 13(1) provides that every candidate in an election may submit to the returning officer a statement in writing of not more than 250 words.

Subregulation 13(2) provides that candidate statements must be received by the returning officer no later than 4 days after nomination day.

Subregulation 13(3) provides that the returning officer is responsible for arranging for each candidate's statement to be printed and issued with election material to voters.

Subregulation 13(4) provides for protection from civil or criminal defamation actions in respect of candidates, statements. The Commonwealth and the returning officer are protected where the defamation action is in respect of the issuing of a candidate's statement by the returning officer under regulation 16. The person who prints a candidate's statement at the request of the returning officer is protected where the action relates to the printing of that statement.

Regulation 14 - Determination of order of candidates on ballot-paper

Provides that the order in which candidates, names appear on the ballot-paper for an election is to be determined by lot at a public draw conducted by the returning officer. All candidates are to be invited to the public draw.

Regulation 15 - Ballot-paper

Regulation 15 provides for the form and validation of ballot-papers.

Subregulation 15(1) provides that the ballot-paper must be in a form approved by the returning officer. The ballotpaper also must specify the names of all candidates in the order determined by lot under regulation 14, and must detail the voting instructions provided for under subregulation 16(1).

Subregulation 15(2) provides that each ballot-paper must be initialled by the returning officer before despatch under regulation 16.

Regulation 16 - Despatch of ballot-papers

Regulation 16 provides for the despatch of ballot-papers and other election material, and for the form of the despatch envelope and the return envelope.

Subregulation 16(1) provides that where a poll is to be conducted to decide an election, the returning officer must send an envelope containing election material to each person whose name appears on the list of voters, at the address of that person as shown on the list. The election material which must be contained in the despatch envelope is (a) a ballotpaper; (b) a ballot-paper envelope; (c) a return envelope; and (d) voting instructions to assist the voter to comply with regulation 19 (which provides for the manner of voting). The candidate statements submitted to the returning officer under regulation 13 must also be despatched with the election material.

Subregulation 16(2) provides that there must be printed on the return envelope a declaration in a form approved by the returning officer. The return envelope also must be addressed to the returning officer at a specified private box provided for in regulation 17. The return envelope must be an envelope which may be return-posted without expense to the voter.

Subregulation 16(3) provides that the returning officer has to ensure that the despatch envelope containing election material (and candidate statements) sent to a person under subregulation 16(1) is sealed and addressed to the person.

Subregulation 16(4) provides that each despatch envelope referred to in subregulation 16(3) must have instructions printed on it regarding the address to which the envelope should be returned in the event that it is not delivered to the addressee. The instructions must provide that the unclaimed despatch envelope should be returned to the returning officer at a specified private box referred to in regulation 17. Such private box must not be the same private box to which return envelopes are addressed under paragraph 16(2)(b).

Regulation 17 - Post boxes for ballot-papers

Regulation 17 provides for use of, and access to, private post boxes used for the purposes of an election.

Subregulation 17(1) provides that the returning officer must, in respect of an election, use private boxes at a post office for the purposes of receiving unclaimed despatch envelopes referred to in subregulation 16(4), and ballot-papers forwarded in accordance with paragraph 16(2)(b).

Subregulation 17(2) provides for restrictions on access to the private post boxes used in respect of an election. Access to those private boxes must not be given to any person other than (a) persons authorised by the Australian Postal Corporation to have such access; (b) the returning officer; and (c) any person authorised by the returning officer in writing for the purposes of subregulation 17(2).

Regulation 18 - Replacement of ballot-papers etc.

Regulation 18 provides for the issuing of further election material to a person who has not yet received election material, or who has lost election material, or where the election material has been destroyed.

Subregulation 18(1) provides that where, before the close of a poll in respect of an election, an eligible voter makes and delivers to the returning officer a statement in writing which declares that the voter has not already voted at the election, and that the voter has not received specified election material, or specified election material which has been received by the voter has been lost or destroyed, the returning officer must provide a further issue of that specified election material to that voter.

Subregulation 18(2) provides that where the returning officer provides further election material to a voter under subregulation 18(1), the returning officer is to keep a written record of the fact and of the voter's name and address.

Regulation 19 - Manner of voting

Regulation 19 provides for the manner in which a voter is to cast his or her vote, and for the return of that vote to the returning officer.

Subregulation 19(1) provides that to cast a vote, a voter may indicate his or her first preference or order of preference, on a ballot-paper. A first preference is indicated by placing the number "1" opposite the name of the first-preferred candidate. Where the voter so desires, he or she may indicate an order of preference by placing a series of consecutive numbers, beginning with the number "1", opposite the names of all or some of the candidates. Not more than one number should be placed opposite the name of a candidate.

Subregulation 19(2) provides that after a voter has cast his or her vote on a ballot-paper, the voter is to fold the ballot-paper, concealing the vote, place the ballot-paper in the ballot-paper envelope, and seal that envelope. The voter is then to place the ballot-paper envelope into the return envelope, seal that return envelope, and complete and sign the declaration printed on the return envelope. The voter is then to post the sealed return envelope to the returning officer.

Subregulation 19(3) provides that the sealed return envelope must reach the returning officer by 10.00 a.m. on the day fixed for the close of the poll.

PART III - SCRUTINY AND DECLARATION OF RESULT

Regulation 20 - Custody of ballot-paper envelopes

Regulation 20 provides for what the returning officer must do with sealed return envelopes and undelivered despatch envelopes received by the returning officer in respect of an election.

Subregulation 20(1) provides that, in respect of an election, the returning officer must keep in his or her custody a locked and sealed container. The container must be endorsed to clearly indicate the election to which the container relates. The returning officer must place and keep in the container all return envelopes received before the close of the poll by the returning officer at the private post box to which all return envelopes in respect of an election are addressed. Those return envelopes are not to be opened until the scrutiny.

Subregulation 20(2) provides that the returning officer must not admit to the scrutiny any undelivered despatch envelopes received by the returning officer, or any return envelopes received by the returning officer after the close of the poll. The returning officer must place any such despatch envelopes and return envelopes unopened in a parcel, seal that parcel, and endorse the parcel to clearly indicate the contents of the parcel and the election to which the parcel relates. The returning officer must sign and date that endorsement.

Regulation 21 - Scrutineers

Regulation 21 provides for the appointment of scrutineers, and for scrutineers' access to all scrutiny proceedings.

Subregulation 21(1) provides that each candidate in respect of an election may appoint one scrutineer to represent the candidate at the scrutiny.

Subregulation 21(2) provides that where a candidate appoints a scrutineer, the candidate must notify the scrutineer so appointed. The notification must be made in writing signed by the candidate or by telegram. The candidate must send a copy of that notification to the returning officer.

Subregulation 21(3) provides that the copy of the notification sent to the returning officer must reach the returning officer no later than 10.00 a.m. on the day fixed for the close of the poll.

Subregulation 21(4) provides that all proceedings at the scrutiny must be open to the inspection of the scrutineers.

Regulation 22 - Scrutiny of votes and declarations

Regulation 22 provides for the proceedings at the scrutiny of votes and of declarations on the return envelopes.

The following procedures must be followed by the returning officer as soon as possible after the close of the poll and in the presence of attending scrutineers -

(a)       the returning officer must open the container containing the return envelopes received by the returning officer before the close of the poll, and must take out those return envelopes;

(b)       without opening the return envelopes, the returning officer must examine each envelope and:

(i)       accept the ballot-paper contained in the envelope for further scrutiny if the returning officer is satisfied that the declaration on the envelope has been effectively completed and signed by a person eligible to vote at the election, and that that person has not already voted in the poll; and

(ii)       if the returning officer is not so satisfied, reject the ballot-paper without opening the return envelope;

(c)       the returning officer must place the return envelopes rejected under subparagraph (b)(ii) in a parcel, seal the parcel, and endorse the parcel to indicate the contents of the parcel and the election to which the parcel relates. The endorsement must be signed and dated by the returning officer;

(d)       the returning officer must place before the returning officer each return envelope, accepted for further scrutiny, with the declaration facing downwards. The returning officer must then, without further examining or permitting any other person to examine the declaration on each envelope, take the ballot-paper envelope out of each return envelope. Without opening the ballotpaper envelope or permitting any other person to open the ballotpaper envelope, the returning officer must place the ballot-paper envelope in a locked and sealed container;

(e)       the returning officer must place the now-empty return envelopes in a parcel, seal the parcel, and endorse the parcel to indicate the contents of the parcel and the election to which the parcel relates. The endorsement must be signed and dated by the returning officer;

(f)       the returning officer must open the container containing the ballot-paper envelopes and take out those envelopes;

(g)       the returning officer must then open each of those ballotpaper envelopes and take out the ballot-paper; and

(h)       the returning officer must place the now-empty ballot-paper envelopes in a parcel, seal the parcel, and endorse the parcel indicating the contents of the parcel and the election to which the parcel relates. The endorsement must be signed and dated by the returning officer.

Regulation 23 - Determination of result of election

Regulation 23 provides that the result of an election must be determined in accordance with the procedure set out in the Schedule to the Regulations.

The Schedule sets out the procedure for counting votes and distributing preferences to determine which candidate is elected.

Item 1 of the Schedule provides that any reference in the Schedule to a first preference vote includes a reference to any vote that is deemed to be a first preference vote in accordance with the Schedule.

Item 2 provides that, in the presence of the attending scrutineers, the returning officer must count all the first preference votes given to each candidate on the ballotpapers which have not been rejected as informal under paragraph 22(g).

Item 3 provides that if a candidate has a majority of the first preference votes counted under item 2, that candidate is elected.

Item 4 provides that if no candidate has an absolute majority of the first preference votes counted under item 2, the candidate with the fewest of those first preference votes must be excluded. All the ballot-papers with the excluded candidate's first preference votes recorded on them must then be scrutinised. Where any of those ballotpapers record a second preference vote for another candidate, that second preference vote is deemed to be a first preference vote for that candidate and must be counted as such to the candidate. If, at this stage, a candidate has an absolute majority of first preference votes, that candidate is elected.

Item 5 provides that if no candidate has an absolute majority after the initial distribution of the excluded candidate's second preferences, then the procedure provided for in item 4 is to be repeated until one candidate has an absolute majority of first preferences and is thereby elected.

Item 6 provides that if, on any count, 2 or more candidates have an equal number of votes, the returning officer is to decide by lot which candidate is to be excluded. Such drawing of lots would be necessary in either of 2 situations - first, where two candidates both have the fewest number of first preference votes; and second, where there are only two remaining candidates who have not been excluded, and who have an equal number of votes.

Regulation 24 - Informal ballot-papers

Regulation 24 sets out the factors which render a ballotpaper informal. A ballot-paper is informal if (a) it is not initialled by the returning officer; (b) it has no vote marked on it; (c) it does indicate the voter's first preference in accordance with the directions on the ballotpaper; or (d) it has any mark or writing on it by which the voter can be identified.

Regulation 25 - Completion of scrutiny

Regulation 25 provides for what must be done by the returning officer, and what may be done by a scrutineer, after the completion of the scrutiny in respect of an election.

Subregulation 25(1) provides that after the scrutiny has been completed, the returning officer must prepare and sign a statement which sets out, as at each count, the number of votes counted to each candidate, and the number of ballot-papers on which a voter has not indicated a further preference. The statement must also set out the number of informal ballot-papers. The returning officer must then place the informal ballot-papers and the valid ballot-papers in separate parcels, endorse those parcels to indicate clearly both their contents and the election to which they relate, and sign and date those endorsements.

Subregulation 25(2) provides that a scrutineer may countersign the returning officer's statement made under paragraph 25(1)(a), or endorsements made under paragraph 25(1)(c).

Regulation 26 - Declaration and notification of result of an election

Regulation 26 provides for the timing and the manner in which the returning officer must declare and notify the result of an election.

The returning officer must, as soon as practicable after the completion of the scrutiny, but not later than 28 days after the close of the poll, declare by written notice given to the Managing Director the name of the candidate elected. The returning officer must also cause to be published in the official bulletin of the ABC, a copy of the notice given to the Managing Director, and a copy of the statement prepared under paragraph 25(1)(a).

Regulation 27 - Request for recount of votes

Regulation 27 provides for requests for a recount of votes, a recount of votes of the returning officer's volition, refusal to conduct a requested recount, and appeals against any such refusal.

Subregulation 27(1) provides that at any time after a count of the votes and before a notice is given to the Managing Director under paragraph 26(a) declaring a candidate elected, the returning officer may conduct a recount of the ballot-papers either on his or her own volition, or upon a written request by a candidate. Any such request must state the reasons for the request.

Subregulation 27(2) provides that where the returning officer refuses a request to conduct a recount of the ballot-papers, the candidate who made the request may appeal against that refusal to the Australian Electoral Commissioner by written notice. The Electoral Commissioner may, as he or she thinks fit, direct the returning officer to conduct a recount of the ballot-papers, or may refuse to direct a recount.

Regulation 28 - Conduct of recount

Provides that in conducting a recount, the returning officer has all the powers in respect of deciding on allowance and admission, or disallowance and rejection, of ballot-papers as he or she has in the scrutiny in respect of an election.

Regulation 29 - Destruction of electoral papers

Provides that the returning officer is to destroy certain election material after 12 months following (a) the publication in the official bulletin of a notice under regulation 26 declaring the name of the candidate elected; or (b) where the validity of an election is disputed, the publication in the official bulletin of a notice declaring the disputes committee's decision.

The election material to be destroyed is (c) undelivered despatch envelopes received by the returning officer, return envelopes received by the returning officer after the close of the poll, and return envelopes rejected by the returning officer because of defects in the completion of the declaration printed thereon. (All ballot-papers contained in the aforementioned despatch and return envelopes are also to be destroyed); (d) validly completed return envelopes and the empty ballot-paper envelopes removed from those return envelopes; and (e) all formal and informal ballot-papers identified in the scrutiny conducted in respect of an election.

PART IV - DISPUTES AND IRREGULARITIES

Regulation 30 - Disputes committee

Regulation 30 provides for the establishment of a disputes committee and the election of a chairperson of a committee.

Subregulation 30(1) provides that at least 14 days before an election is held, the Minister is to establish a disputes committee by written instrument. The disputes committee is to consist of one person nominated by the Electoral Commissioner, and 2 other persons nominated by the Minister.

Subregulation 30(2) provides that the returning officer for an election must not be a member of the disputes committee established for the same election.

Subregulation 30(3) provides that where a disputes committee is required to meet to determine a dispute, at the first meeting, the members are to elect one of their number to be chairperson of the committee.

Regulation 31 - Application to dispute election

Regulation 31 provides for the manner in which an application may be made to dispute the validity of an election, and for referral of the application to the disputes committee.

Subregulation 31(1) provides that a candidate may dispute the validity of an election by written application addressed to the returning officer.

Subregulation 31(2) provides that an application to dispute the validity of an election is not valid unless it (a) sets out the grounds relied on to make the dispute; (b) is signed by the candidate making the dispute; and (c) is lodged with the returning officer no later than 14 days after the returning officer gives the notice to the Managing Director under paragraph 26(a) declaring the name of the candidate elected.

Subregulation 31(3) provides that the candidate applying to dispute the validity of an election must serve a copy of that application on the candidate declared to be elected at the election to which the dispute relates. The copy of the application must be so served as soon as practicable.

Subregulation 31(4) provides that the returning officer must forward any application to dispute the validity of an election to the Minister. Thereupon, the Minister is to refer the application to the disputes committee, unless he or she considers the application to be frivolous or vexatious.

Regulation 32 - Inquiry

Regulation 32 provides for what the disputes committee must and may do in conducting an inquiry into an application to dispute the validity of an election.

Subregulation 32(1) provides that the disputes committee must inquire into the validity of an election to which an application, duly referred to it by the Minister, relates.

Subregulation 32(2) provides that in conducting an inquiry into the validity of an election, the disputes committee: (a) may inform itself in any manner the committee thinks fit, and is not bound by the rules of evidence; (b) may inquire into the identity of voters at an election, and into whether the vote of any voter was improperly accepted or rejected; (c) give certain specified persons the opportunity to make submissions and give evidence to the committee. Those specified persons are (i) the candidate disputing the validity of the election; (ii) the candidate declared by the returning officer under paragraph 26(a) to be elected; (iii) the returning officer; and (iv) any other person the committee thinks should be given the opportunity to make submissions or give evidence; and (d) may grant to any person specified in paragraph 32(2)(c) leave to inspect the list of voters, the record made under subregulation 18(2) of replacement ballot-papers provided to a person by the returning officer, and any other document used at or in connection with the election - the disputes committee may also grant leave to those specified persons to take extracts from any of the aforementioned documents.

Subregulation 32(3) provides that the disputes committee cannot inquire into the accuracy of the list of voters.

Subregulation 32(4) provides that decisions of the disputes committee are to be determined by the majority opinion.

Regulation 33 - Decision of committee

Regulation 33 provides for the notification of the decision of the disputes committee after the completion of its inquiry into the validity of an election. The committee must, by notice to the Managing Director, confirm the election of the candidate declared by the returning officer under paragraph 26(a) to be elected, or declare that that candidate was not elected, but that another candidate at the election is elected instead. The committee must send to the Minister a report setting out the findings of the committee and the reasons for those findings, and must cause a copy of the notice given to the Managing Director to be published in the official bulletin of the ABC.

Regulation 34 - Effect of committee's decision

Regulation 34 provides for the effect of the various decisions which may be made by the disputes committee.

Subregulation 34(1) provides that any decision of the disputes committee under regulation 33 has effect as provided by regulation 34.

Subregulation 34(2) provides that if the committee confirms the election of the candidate declared by the returning officer under paragraph 26(a) to be elected, then that candidate is to be taken to have been elected.

Subregulation 34(3) provides that if the candidate declared by the returning officer under paragraph 26(a) to be elected, is declared by the committee not to have been elected, then that candidate is to be taken not to have been elected.

Subregulation provides that if the committee declares another candidate to be elected, other than the candidate declared by the returning officer under paragraph 26(a) to be elected, then the first-mentioned candidate is to be taken to have been elected.

Regulation 35 - Irregularities at election

Regulation 35 provides for an election to be declared void by the returning officer or the disputes committee on the grounds of irregularity.

Subregulation 35(1) provides that, subject to subregulation 35(3), the returning officer may declare an election to be void where the returning officer has reasonable grounds to believe that there has been an irregularity in the conduct of that election. Such a declaration by the returning officer that an election is void must be made before the returning officer declares a candidate to be elected.

Subregulation 35(2) provides that, subject to subregulation 35(3), the disputes committee may declare an election to be void where the committee has reasonable grounds to believe that there was an irregularity in the conduct of that election. Such declaration by the committee that an election is void may be made whether or not an inquiry under regulation 31 is proposed or in progress, or has taken place.

Subregulation 35(3) provides that an election must not be declared to be void under subregulation 35(1) or (2): (a) only because of a defect of irregularity in the conduct of the election, where that defect or irregularity did not affect the result of the election; (b) only because of an error or defect in an instrument, notice, statement or other document made, or purported to have been made, under these Regulations; or (c) only because of any illegal practice, other than bribery or corruption or attempted corruption, having been engaged in by a person, unless it is likely that the result of the election was affected by the practice, or unless it is just that the election be declared void.

Subregulation 35(4) provides that where an election is declared void under subregulation 35(1) or (2), the Regulations apply as if that election had not been held.


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