South Australian Current Acts

ELECTORAL ACT 1985 - SECT 95

95—Scrutiny of votes in Legislative Council election

        (1)         In a Legislative Council election, the scrutiny must, subject to this Act, be conducted, and the vacancies must be filled, in the manner set out in this section.

        (2)         Each assistant returning officer must, in the presence of an assistant presiding officer or a poll clerk, and of such authorised scrutineers as may attend—

            (a)         open all ballot boxes sent to him or her, or received from polling places within or for that portion of the district in which he or she exercises his or her powers; and

            (b)         reject all informal ballot papers, and arrange the unrejected ballot papers under the names of the respective candidates by placing in a separate parcel all those on which a first preference is indicated for the same candidate; and

            (c)         count the first preference votes given for each candidate on all unrejected ballot papers; and

            (d)         make out and sign a statement setting out the number of first preference votes given for each candidate, and the number of informal ballot papers; and

            (e)         place in a separate parcel all the ballot papers which have been rejected as informal; and

            (f)         transmit the following information, in an expeditious manner, to the deputy returning officer for the division:

                  (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

            (h)         transmit the parcels to the deputy returning officer with the least possible delay, together with the statement specified in paragraph (d).

        (3)         The deputy returning officer must—

            (a)         open all ballot boxes and other facilities used for keeping voting papers not opened by an assistant returning officer and must conduct the scrutiny of the ballot papers contained in those boxes or facilities, as far as practicable, in the manner described above; and

            (b)         if authorised by the Electoral Commissioner—

                  (i)         open the sealed parcels of ballot papers received from the assistant returning officers that comprise ballot papers where voting has occurred by the use of a group voting square; and

                  (ii)         make a fresh scrutiny of the ballot papers contained in those parcels, and for that purpose he or she has the same powers as if the fresh scrutiny were the original scrutiny, and may reverse any decision given in the original scrutiny; and

                  (iii)         arrange the unrejected ballot papers so scrutinised by him or her under the names of the respective candidates by placing in a separate parcel all those on which a first preference is indicated for the same candidate by virtue of the group voting square; and

                  (iv)         count the first preference votes given for each candidate on all unrejected ballot papers arranged under subparagraph (iii); and

                  (v)         make out and sign a statement setting out the number of first preference votes given for each candidate under subparagraph (iv), and the number of informal ballot papers under this paragraph; and

                  (vi)         place in a separate parcel all the ballot papers which have been rejected as informal under this paragraph; and

            (c)         seal up all parcels created under this subsection and endorse on each parcel a description of its contents; and

            (d)         complete a return, in a form determined by the Electoral Commissioner, addressed to the returning officer for the Legislative Council; and

            (e)         transmit all voting papers, together with the return, to the returning officer for the Legislative Council.

        (4)         Subject to subsection (4a), the returning officer for the Legislative Council must—

            (a)         open the sealed parcels of ballot papers received from the deputy returning officers and make a fresh scrutiny of the ballot papers contained in the parcels, and for that purpose he or she has the same powers as if the fresh scrutiny were the original scrutiny, and may reverse any decision given by an assistant or deputy returning officer in relation to the original scrutiny; and

            (b)         arrange the unrejected ballot papers so scrutinised by him or her under the names of the respective candidates by placing in a separate parcel all those on which a first preference is indicated for the same candidate; and

            (c)         count the first preference votes given for each candidate on those ballot papers.

        (4a)         The returning officer may, to such extent as he or she determines to be appropriate, rely on any information contained in a return under subsection (3) in substitution for conducting a fresh scrutiny under subsection (4) (and that information will then, to the extent determined by the returning officer, have full effect for the purposes of the succeeding provisions of this section).

        (5)         Where, for the purposes of the succeeding provisions of this section, the number of ballot papers or votes in any category is required to be ascertained or a quota or transfer value is required to be determined, the returning officer must determine the quota or transfer value.

        (6)         The number of first preference votes given for each candidate and the total number of all such votes is to 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 will be elected.

        (7)         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 will be transferred to the continuing candidates as follows:

            (a)         the number of surplus votes of the elected candidate will be divided by the number of first preference votes received by him or her and the resulting fraction will be the transfer value;

            (b)         the total number of ballot papers of the elected candidate that express the first preference vote for him or her and the next available preference (if any) for a particular continuing candidate will be multiplied by the transfer value, the number so obtained (disregarding any fraction) will be added to the number of first preference votes of the continuing candidate and all those ballot papers will 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 will be elected.

        (7a)         A ballot paper that is, under subsection (7), required to be transferred to a continuing candidate must be set aside as finally dealt with if it does not indicate a next available preference for a continuing candidate.

        (8)         Unless all the vacancies have been filled, the surplus votes (if any) of any candidate elected under subsection (7), or elected subsequently under this subsection, will be transferred to the continuing candidates in accordance with subsection (7)(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 will be elected.

        (9)         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 (7) or (8) of the surplus votes of a particular elected candidate, no votes of any other candidate will be transferred to the continuing candidate.

        (10)         For the purposes of the application of subsection (7)(a) and (b) in relation to a transfer under subsection (8) or (12) of the surplus votes of an elected candidate, each ballot paper of the elected candidate that was obtained by him or her on a transfer under this section will be dealt with as if any vote it expressed for the elected candidate were a first preference vote, as if the name of any other candidate previously elected or excluded had not been on the ballot paper and as if the numbers indicating subsequent preferences (if any) had been altered accordingly.

        (11)         Where, after the counting of first preference votes or the transfer of surplus votes (if any) of elected candidates, no candidate has, or less than the number of candidates required to be elected have, received a number of votes equal to the quota, the candidate who has the fewest votes will be excluded and all his or her votes will be transferred to the continuing candidates as follows:

            (a)         the total number of ballot papers of the excluded candidate that express the first preference vote for him or her and the next available preference (if any) for a particular continuing candidate will be transferred, each ballot paper at a transfer value of 1, to the continuing candidate and added to the number of votes of the continuing candidate and all those ballot papers will be transferred to the continuing candidate;

            (b)         the total number (if any) of other votes obtained by the excluded candidate on transfers under this section will be transferred from the excluded candidate in the order of the transfers on which he or she obtained them, the votes obtained on the earliest transfer being transferred first, as follows:

                  (i)         the total number of ballot papers transferred to the excluded candidate from a particular candidate and expressing the next available preference (if any) for a particular continuing candidate will be multiplied by the transfer value at which the votes were so transferred to the excluded candidate;

                  (ii)         the number so obtained (disregarding any fraction) will be added to the number of votes of the continuing candidate;

                  (iii)         all those ballot papers will be transferred to the continuing candidate.

            (c)         a ballot paper that under this subsection is, pursuant to the exclusion of a candidate, required to be transferred to a continuing candidate must be set aside as finally dealt with if it does not indicate a next available preference for a continuing candidate.

        (12)         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 (11) or (13) of votes of an excluded candidate is elected, and, unless all the vacancies have been filled, the surplus votes (if any) of the candidate so elected will be transferred in accordance with subsection (7)(a) and (b), except that, where the candidate so elected is elected before all the votes of the excluded candidate have been transferred, the surplus votes (if any) of the candidate so elected will not be transferred until the remaining votes of the excluded candidate have been transferred in accordance with subsection (11)(a) and (b) to continuing candidates.

        (13)         Subject to subsection (16), where, after the transfer of all the votes of an excluded candidate, no continuing candidate has received a number of votes greater than the quota, the continuing candidate who has the fewest votes is excluded and his or her votes transferred in accordance with subsection (11)(a) and (b).

        (14)         Where a candidate is elected as a result of a transfer of the first preference votes of an excluded candidate or a transfer of all the votes of an excluded candidate that were transferred to the excluded candidate from a particular candidate, no other votes of the excluded candidate will be transferred to the candidate so elected.

        (15)         In respect of the last vacancy for which 2 continuing candidates remain, the continuing candidate who has the most votes will be elected despite the fact that the number may be below the quota.

        (16)         However, if, in respect of a vacancy referred to in subsection (15), the continuing candidates have an equal number of votes, the matter must be referred, on the application of the Electoral Commissioner, to the Court of Disputed Returns for the Court to determine the validity of any disputed ballot papers and—

            (a)         if the deadlock is resolved—the Court must declare the appropriate candidate elected; but

            (b)         if the deadlock is not resolved—the Court must order a fresh election to be held in accordance with any directions of the Court with the continuing candidates as the sole candidates in that election.

        (16a)         Subsection (16) does not limit the jurisdiction of the Court of Disputed Returns under Division 2 of Part 12 in relation to an election.

        (17)         Despite any other provision of this section, where, on the completion of a transfer of votes under this section, the number of continuing candidates is equal to the number of remaining unfilled vacancies, those candidates are elected (regardless of whether those candidates have received a number of votes equal to or greater than the quota).

        (18)         The returning officer must, on the completion of the last count—

            (a)         make out and sign a statement setting out the number of ballot papers and votes counted to each candidate at each count and the number of informal ballot papers, and forward the statement to the Electoral Commissioner; and

            (b)         place in a separate parcel all the ballot papers which have been rejected as informal; and

            (c)         place in a separate parcel all the unrejected ballot papers; and

            (d)         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.

        (19)         For the purposes of this Act—

            (a)         the order of election of candidates in a Legislative Council election will be taken to be in accordance with the order of the count or transfer 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 or transfer, the order in which they will be taken to have been elected will 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, but if any 2 or more of those candidates each have the same number of votes, the order in which they will be taken to have been elected will be taken to be in accordance with the relative numbers of their votes at the last count or transfer 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 or transfer being taken to be the earliest elected, and if there has been no such count or transfer the returning officer will determine the order in which they will be taken to have been elected.

        (20)         Subject to subsections (21) and (22), where, after any count or transfer under this section, 2 or more candidates have surplus votes, the order of any transfers of the surplus votes of those candidates will 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 or transfer under this section, 2 or more candidates have equal surpluses, the order of any transfers of the surplus votes of those candidates will be in accordance with the relative numbers of votes of those candidates at the last count or transfer 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 or transfer being transferred first, but if there has been no such count or transfer the returning officer must determine the order in which the surpluses are to be dealt with.

        (22)         Where, after any count or transfer 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 or transfer.

        (23)         Where the candidate who has the fewest votes is required to be excluded and 2 or more candidates each have the fewest votes, whichever of those candidates had the fewest votes at the last count or transfer at which each of those candidates had a different number of votes will be excluded, but if there has been no such count or transfer, the returning officer must determine which candidate is to be excluded.

        (24)         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.

        (25)         In a case where a candidate has died between the date of nomination and polling day, a vote indicated on a ballot paper opposite the name of the deceased candidate must be counted to the candidate next in the order of the voter's preference (if any), and the numbers indicating subsequent preferences (if any) will be taken to be altered accordingly.

        (26)         For the purposes of this section, a transfer under subsection (7), (8) or (12) of the surplus votes of an elected candidate, a transfer in accordance with subsection (11)(a) of all first preference votes of an excluded candidate or a transfer in accordance with subsection (11)(b) of all the votes of an excluded candidate that were transferred to him or her from a particular candidate each constitutes a separate transfer.

        (27)         In this section—

"continuing candidate" means a candidate not already elected or excluded from the count.

        (28)         In this section, a reference to votes of or obtained or received by a candidate includes votes obtained or received by the candidate on any transfer under this section.