Part 12C–By-elections held during COVID-19 emergency period

392ZB Purpose of part

(1) The purpose of this part is to facilitate the holding of a by-election to which this part applies in a way that helps minimise serious risks to the health and safety of persons caused by the COVID-19 emergency.

(2) In this section—

"COVID-19 emergency" means—

(a) the declared public health emergency under the Public Health Act 2005, section 319(2) for COVID-19 declared on 29 January 2020 as extended and further extended under that Act; or

(b) another declared public health emergency under the Public Health Act 2005, section 319(2) for COVID-19.

392ZC Application of part This part applies—

(a) in relation to each by-election for which the writ is issued on or before the COVID-19 legislation expiry day; and

(b) despite any other provision of this Act about the holding of a by-election.

392ZD Definitions for part

(1) In this part—

"postal vote" means a declaration vote made by an elector, using a ballot paper and declaration envelope sent to the elector, and posted or sent to the commission or the returning officer.

(2) In this part, a reference to the returning officer in relation to a by-election is a reference to the returning officer for the electoral district for which the by-election is being held.

392ZE Time limits in writ

(1) This section applies in relation to the writ issued for a by-election.

(2) The cut-off day for electoral rolls stated in the writ may be a day earlier than the day provided for under section 84(1)(b).

(3) The cut-off day for the nomination of candidates stated in the writ may be a day earlier than the day provided for under section 84(1)(c).

(4) Despite anything in this Act, the Governor or Speaker, whoever issued the writ, may by gazette notice—

(a) postpone the polling day stated in the writ to—

(i) a later day stated in the notice; or

(ii) another day to be fixed by a further gazette notice under this paragraph; or

(b) substitute a later day stated in the notice for a day stated in the writ under section 84(1)(b), (c), (d) or (e).

(5) A gazette notice under subsection (4) may be made before, on or after the day stated in the writ.

392ZF Adjournment of poll

(1) This section applies if the poll for a by-election is adjourned under section 99B(3) or 100(1).

(2) Section 100 applies in relation to the poll as if the reference in section 100(3) to a day not later than 34 days after the polling day were a reference to the earliest Saturday on which the commission is satisfied the poll may practicably and safely be taken or resumed.

(3) To remove any doubt, it is declared that the commission may act under section 100, as applied under this section, as occasion requires.

392ZG Procedure for voting

(1) A regulation may declare for a by-election that, despite section 107, the electors in the by-election, or of a stated class, must vote in the by-election by postal vote.

(2) The regulation may—

(a) provide for the commission to post, deliver or otherwise send a ballot paper and declaration envelope to each elector to whom the declaration applies; and

(b) permit electors to whom the declaration applies to vote in the by-election other than by postal vote, including, for example—

(i) by making an electronically assisted vote; or

(ii) voting in another stated way approved by the commission.

(3) A regulation made under this section applies in relation to voting in a by-election despite any other provision of this part.

392ZH Pre-poll ordinary voting An elector may make a pre-poll ordinary vote for a by-election, by following the procedures set out in section 112, during the period—

(a) beginning 12 days before the polling day for the by-election; and

(b) ending at 6p.m. on the day before the polling day for the by-election.

392ZI Making a declaration vote using posted voting papers

(1) The commission may, for a by-election, by notice published on the commission’s website, fix a time and day by which an elector may make a postal vote request under section 119 that is—

(a) earlier or later than the time and day mentioned in section 119(2)(b); but

(b) before the polling day for the by-election.

(2) Section 119 applies for the by-election as if the reference in section 119(2)(b) to 7p.m. on the day that is 12 days before the polling day for the election were a reference to the time and day fixed under subsection (1).

392ZJ Electoral visitor voting

(1) This section applies if the commission is satisfied, for a by-election, that it would pose a risk to the health and safety of an issuing officer to visit, under section 120—

(a) a particular elector who has given a request to vote as an electoral visitor voter under section 120; or

(b) electors in the by-election; or

(c) electors in the by-election of a particular class.

(2) The commission or the returning officer may direct issuing officers not to visit the elector or electors.

(3) The commission or returning officer must, to the extent practicable, have an issuing officer make alternative arrangements to enable an elector affected by the direction to vote in the by-election.

(4) Subject to the direction, section 120 applies to issuing officers giving effect to the arrangements.

392ZK Electronically assisted voting

(1) This section applies if the commission is satisfied that, having regard to the purpose of this part, it would be in the public interest to allow electors of a class not mentioned in section 121A to make an electronically assisted vote in a by-election.

(2) The commission may, by notice published on the commission’s website, declare that electors of the class may make an electronically assisted vote in the by-election.

(3) An elector of a class declared under subsection (2) may make an electronically assisted vote in the by-election.

(4) For the by-election, the commission’s procedures under section 121B apply in relation to electors of a class declared under subsection (2).

(5) The commission may make procedures about how electors may make electronically assisted votes in a by-election.

(6) The procedures—

(a) must be published on the commission’s website; and

(b) take effect when they are published on the commission’s website or any later day stated in the procedures.

(7) If the commission makes procedures under subsection (5)—

(a) the procedures apply in relation to electors who may make an electronically assisted vote for a by-election under section 121A or subsection (3); and

(b) if there is any inconsistency between the procedures under subsection (5) and the procedures under section 121B, the procedures under subsection (5) prevail to the extent of the inconsistency; and

(c) for a by-election, a reference in this Act or another document to procedures approved under section 121B(3) is taken to include a reference to the procedures in effect under subsection (6).

392ZL Distribution or display of how-to-vote cards or other election material

(1) This section applies if the commission is satisfied that, having regard to the purpose of this part, it would be in the public interest to regulate, limit or prohibit the distribution or display of how-to-vote cards or other election material at a polling booth for a by-election.

(2) The commission may give a direction—

(a) about how, where or when how-to-vote cards may be distributed or displayed at a polling booth for the by-election; or

(b) prohibiting the distribution or display of how-to-vote cards or other election material at a polling booth for the by-election; or

(c) prohibiting a person from canvassing for votes in or near polling booths; or

(d) permitting the display of political statements at a place mentioned in section 190(1).

(3) The direction must be published on the commission’s website.

(4) A person must not contravene the direction, unless the person has a reasonable excuse.
[Note: Maximum penalty—10 penalty units.]

(5) Section 190 does not apply in relation to the display of a political statement permitted under the direction.

392ZM Directions about candidates or scrutineers at particular places

(1) The commission may give a direction for a by-election—

(a) regulating the number of scrutineers each candidate may have at a polling booth or another place where a scrutineer is entitled to be present under this Act; or

(b) prohibiting a candidate or scrutineer from being present at a polling booth or another place where the candidate or scrutineer would otherwise be entitled to be present under this Act.

[Note: a place where votes for the by-election are to be counted]
[Note: a direction prohibiting a scrutineer from accompanying an issuing officer under section 109]

(2) However, the commission may give a direction under subsection (1) only if the commission is satisfied that, having regard to the purpose of this part, it would be in the public interest to give the direction.

(3) The direction must be published on the commission’s website.

(4) A person must not contravene the direction, unless the person has a reasonable excuse.
[Note: Maximum penalty—20 penalty units.]

(5) The direction applies despite section 104 or any other provision of this Act that allows a candidate or scrutineer to be present at a polling booth or another place.

(6) Section 189(d) does not apply to the extent a scrutineer is prevented from entering a polling place under the direction.

392ZN Direction about movement of candidates or scrutineers

(1) This section applies if the returning officer or a member of the commission’s staff in charge of a polling booth is satisfied for a by-election that, having regard to the purpose of this part, it would be in the public interest to give a direction under this section.

(2) The returning officer or member may give a direction to a candidate or scrutineer at a place (a "relevant place") that is a polling booth or another place where the candidate or scrutineer is entitled to be present under this Act.

(3) The direction may be about—

(a) the movement of the candidate or scrutineer at a relevant place; or

(b) an area in a relevant place in which the candidate or scrutineer may or may not be; or

(c) the maximum number of scrutineers who may be in a particular area in a relevant place.

(4) A candidate or scrutineer must comply with the direction, unless the candidate or scrutineer has a reasonable excuse.
[Note: Maximum penalty—20 penalty units.]

(5) A candidate or scrutineer does not commit an offence against subsection (4) unless the person giving the direction has warned the candidate or scrutineer that it is an offence not to comply with the direction unless the candidate or scrutineer has a reasonable excuse.

392ZO Counting of votes

(1) The returning officer may direct a member of the commission’s staff to carry out the counting of votes for a by-election at a stated place.

(2) Votes may be counted at the place stated in the direction, despite any procedures approved under section 130A or any other provision of this Act relating to the counting of votes at a polling booth or another place.

(3) The returning officer may arrange for the counting of votes for a by-election to be filmed by a member of the commission’s staff.

392ZP Restriction on directions

(1) This section applies in relation to a provision of this part authorising the commission, the returning officer or a member of the commission’s staff to give a direction.

(2) The commission, returning officer or member must not give a direction under the provision—

(a) of a kind prescribed by regulation under section 392ZQ as a kind of direction that may not be given under the provision; or

(b) in circumstances prescribed by regulation under section 392ZQ as circumstances in which a direction may not be given under the provision.

392ZQ Regulation about by-election A regulation may make provision about a matter to facilitate the holding of a by-election in the way stated in section 392ZB, including, for example, by providing for any of the following—

(a) a matter about voting in the by-election by postal vote other than as provided under section 392ZG, including—

(i) permitting electors of a class not mentioned in section 119(1) to make a postal vote; and

(ii) the availability and distribution of how-to-vote cards for electors making postal votes;

(b) the commission, the returning officer or a member of the commission’s staff who has a stated function in relation to the by-election to give a direction about any matter necessary to facilitate the holding of the by-election in the way stated in section 392ZB;

(c) a matter about directions that may be given under a provision of this part or the regulation, including—

(i) a kind of direction that may not be given under the provision; and

(ii) circumstances in which a direction may not be given under the provision;

(d) the commission to make procedures for the application of a provision of this part or the regulation for the by-election.

392ZR Matters about regulation under this part

(1) This section applies in relation to a regulation made under this part.

(2) The regulation may—

(a) create an offence and prescribe a maximum penalty of not more than 20 penalty units for the offence; and

(b) other than for creating an offence, have retrospective operation to a day not earlier than the commencement; and

(c) be inconsistent with this Act, including, for example, by modifying the application of part 7 in relation to a by-election, to the extent necessary to achieve the purpose of this part.

(3) The Minister may recommend to the Governor in Council the making of a regulation under this part only if the Minister is satisfied the regulation is necessary to achieve the purpose of this part.

(4) Also, the Minister must consult with the commission before recommending to the Governor in Council the making of a regulation under section 392ZG.

(5) The regulation must declare that it is made under this part.

392ZS Expiry This part and any regulation made under this part expire on the later of the following—

(a) the COVID-19 legislation expiry day;

(b) 1 year after the name of the candidate elected in the last by-election to which this part applies is published in the gazette under section 132(2).

Part 16–Transitional provisions for COVID-19 Emergency Response and Other Legislation Amendment Act 2020

337 Definitions for part In this part—

"former", for a provision of this Act, means the provision as in force from time to time before the commencement.

"new", for a provision of this Act, means the provision as in force from the commencement.

"relevant period" means the period—

(a) starting on 12 October 2020; and

(b) ending immediately before the commencement.

338 Effect of particular things done under former s 166A

(1) This section applies if, during the relevant period—

(a) the office of mayor or of another councillor became vacant under former section 162; and

(b) anything was done under former section 166A for filling the vacant office.

(2) From the commencement—

(a) former section 166A does not apply, and is taken never to have applied, for filling the vacant office; and

(b) anything done under former section 166A for filling the vacant office is taken never to have been done.

(3) To remove any doubt, it is declared that if, during the relevant period, the local government filled the vacant office by appointing a runner-up under former section 166A(4)(b), on the commencement—

(a) the office is taken to be vacant, and to have always been vacant since it became vacant during the relevant period; and

(b) the runner-up is taken never to have been appointed.

(4) However, this section does not affect any entitlement to remuneration or other benefits accrued or accruing under an Act, in respect of the appointment period, because of the runner-up’s appointment under former section 166A.

(5) For subsection (4), the "appointment period" is the period—

(a) starting on the appointment of the runner-up under former section 166A(4)(b); and

(b) ending immediately before the commencement.

(6) Subsections (2) and (3) apply despite the Acts Interpretation Act 1954, section 20.

339 Filling particular vacancies in office of mayor

(1) This section applies if—

(a) during the relevant period, the office of mayor became vacant under former section 162; and

(b) either of the following applies—

(i) immediately before the commencement, the office had not been filled;

(ii) on the commencement, the office is taken, under section 338, to be vacant.

(2) New chapter 6, part 2, division 3 applies for filling the vacant office.

(3) However, despite new section 163(3), the local government must fill the vacant office within 2 months after the commencement.

(4) Subsections (2) and (3) apply despite the Acts Interpretation Act 1954, section 20.

340 Filling particular vacancies in office of another councillor generally

(1) This section applies if—

(a) during the relevant period, the office of a councillor, other than the mayor, became vacant under former section 162; and

(b) either of the following applies—

(i) immediately before the commencement, the office had not been filled;

(ii) on the commencement, the office is taken, under section 338, to be vacant.

(2) New chapter 6, part 2, division 3 applies for filling the vacant office.

(3) However, despite new section 163(3), the local government must fill the vacant office within 2 months after the commencement.

(4) Subsections (2) and (3) apply despite the Acts Interpretation Act 1954, section 20.

(5) This section is subject to section 341.

341 Filling particular vacancies in office of another councillor under new s 166A

(1) This section applies if a local government decides under new section 166(2), as applied under section 340, that a vacancy in the office of a councillor, other than the mayor, is to be filled by following the procedure under new section 166A.

(2) Despite section 338(2) and (3)(b) and new section 159(b)—

(a) anything done during the relevant period under former section 166A for filling the vacant office is taken to have been done under new section 166A; and

(b) if, during the relevant period, the local government filled the vacant office by appointing a runner-up under former section 166A(4)(b), the runner-up is taken—

(i) to have been appointed under new section 166A(4)(b) on the commencement; and

(ii) to have held office as a councillor continuously from that day.

(3) Subsection (4) applies if—

(a) during the relevant period, the electoral commission gave a vacancy notice, under former section 166A(3), to a runner-up; and

(b) the deadline for the runner-up was a day after the end of the relevant period; and

(c) the runner-up did not, before the end of the relevant period, consent to being appointed to the vacant office.

(4) The electoral commission must, under new section 166A(6), as applied under section 340, extend the day and time stated in the vacancy notice to a day and time after the day the decision mentioned in subsection (1) was made.