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Explanatory Statement
CONSTITUTIONAL CONVENTION (ELECTION) BILL 2011
SERIAL No. 178
The purpose of the Constitutional Convention (Election) Bill 2011 is to provide for the election of delegates for a Constitutional Convention to be held by the Government.
The Bill provides for:
· The election of three delegates, including two ordinary delegates and one reserve delegate, from each Legislative Assembly division.
· The holding of the election by the Northern Territory Electoral Commission using the Electoral Roll.
· The counting of votes using a system of proportional representation with a single transferable vote modelled on that used for South Australian local government elections.
· Electoral offence and review provisions similar to that provided under the Electoral Act.
It is anticipated that the election to be held under the Act may be on the same day as elections to be held under the Local Government Act so additional provision is made to accommodate that eventuality.
NOTES ON CLAUSES
1 Short title
This is a formal clause which provides for the citation of the Bill. The Bill when passed may be cited as the Constitutional Convention (Election) Act 2011.
2 Object of Act
The clause sets out the object of the Bill, which is to make necessary and other related provisions for the election of delegates to the Constitutional Convention.
Division 2 Interpretation
3 Definitions
This clause provides an explanation of the meaning of terms used in this Bill. Definitions are provided for approved form, authorised officer, authorised witness, ballot paper, campaign material, candidate, candidate square, certified list of voters, close of polling, close of roll, Commission, Commissioner, Commission’s office, Commonwealth Act, Constitutional Convention, Court of Disputed Returns, declaration ballot paper, declaration envelope, declaration vote, declaration voting papers, delegate, distribute, division, early voting centre, election, election period, elector, electoral advertisement, electoral article, electoral matter, electoral paper, enrolled, enrolled division, entitled to be enrolled, extract, formal, informal, infringement notice, infringement notice offence, Master, misleading information, mobile polling period, mobile polling place, newspaper, nomination day, nomination period, officer, officer in charge, ordinary delegate, ordinary vote, polling day, polling hours, polling place, postal ballot box, postal ballot paper, postal vote, postal vote certificate, postal voting papers, prescribed amount, public notice, publish, region, registered postal voter, reserve delegate, roll, scrutineer, scrutiny centre, suppressed, vacancy, voter’s question.
Division 3 Application of Act
4 Application of Criminal Code
This clause provides that offences in this Bill are subject to the criminal responsibility provisions of Part IIAA of the Criminal Code. The offences require proof of the default fault elements in Part llAA (section 43AM of the Criminal Code) unless otherwise expressly stated.
5 Commission runs the election
This clause requires the Commission to run the election.
Division 2 Key provisions
Subdivision 1 Delegates to Constitutional Convention
6 Delegates
This clause provides that two ordinary delegates and one reserve delegate are to be elected from each division.
7 Ordinary delegates
This clause provides that an ordinary delegate may vote on a motion in the Constitutional Convention as provided by the rules adopted by the Convention.
8 Reserve delegates
Sub-clause (1) provides that reserve delegates may participate in the Constitutional Convention as provided by the rules adopted by the Convention.
Sub-clause (2) provides that reserve delegates may take the place of an ordinary delegate elected from the same division as provided by the rules of the Convention.
Subdivision 2 Timetable for election
9 Polling day
Sub-clause (1) provides that the polling day is the day gazetted by the Minister. Other dates in the Bill are defined with reference to the polling day.
Sub-clause (2) ensures that the Minister cannot declare a polling day that does not allow sufficient time for the nomination period.
10 Close of roll
This clause provides the close of roll is 5.00 pm on the day that is 32 days before the polling day. This time is the same as that provided under the Local Government (Electoral) Regulations.
11 Nomination day and nomination period
Sub-clause (1) provides that nomination day is the day that is 23 days before the polling day. This period is the same as that provided under the Local Government (Electoral) Regulations.
Sub-clause (2) provides that the nomination period is the period starting on the day that is 57 days before the nomination period and ending at 12 noon on nomination day. In contrast, the Local Government (Electoral) Regulation 6 provides that nominations must be invited at least 43 days before polling day. The longer period is mandated in the Bill to allow more time to encourage the making of nominations due to the unique nature of the election and the desire for broad community participation.
12 Mobile polling period
This clause defines the mobile polling period to start at the time declared by the Commission and end at 6 pm on the polling day.
13 Close of polling
This clause defines ‘close of polling’.
Subdivision 3 Electors
14 Who can vote
Subclause (1) provides that a person on the roll is entitled to vote in his or her enrolled division.
Subclause (3) provides that the certified list of voters is conclusive evidence of a person’s right to vote at the election in the division in which the person is enrolled.
Subclause (4) provides that an elector is not disqualified from voting because the elector’s name is omitted in whole or in part from a certified list of voters, because of an error in a name of the elector on a certified list of voters, or because a former name of the elector is entered in the certified list of voters.
15 Roll
This clause provides that the Commissioner must compile a roll for the election that includes all those persons who, at the close of the roll:
· would be required to be included in the certified list of voters if an Assembly election were to be held on polling day under the Electoral Act (Subclause(2));
· are pre-enrolled (as 16 or 17 year olds) and who would, but for being under 18 years of age, be required to be included in the certified list of voters if an Assembly election were to be held on polling day under the Electoral Act (Subclause(3));
· have made application for enrolment and, if they were the age they would be on polling day, would be entitled to be pre-enrolled (as a 16 year old) and the Commission has approved the application (Subclause(4)). Subclause(4) is required as a person who is 15 at the close of the roll but will be 16 on polling day is not able to be pre-enrolled under the Electoral Act at the close of the roll.
16 Extract of roll
This clause provides that the Commission must make an extract of the roll available for public inspection.
The clause also provides that regulations may limit information that may be included in the extract regarding enrolled persons under 18 years of age, and that addresses suppressed on the roll should not be included in the extract.
Division 3 Nominations
17 Who can be elected
This clause provides the conditions for eligibility for election. Conditions (a) Australian citizen and (e) resident in the Commonwealth for at least 6 months and in the Territory for at least 3 months are similarly conditions for election to the Assembly under the Northern Territory (Self Government) Act. Eligibility differs from that for Assembly elections in that the person must:
· be at least 16 years of age;
· be enrolled in the division; and
· not be a member of the Legislative Assembly or the Australian Parliament; and
· on polling day, not have published a statement about his or intention to consent to nomination at the next Legislative Assembly general election, or have been announced as an endorsed candidate of a registered political party at the next general election in a statement published by the party with the person’s consent.
18 Making nomination
This clause provides the conditions for nomination and technical particulars for the nomination form.
Because the nomination period commences before the close of the roll, (see clause 11 above), subclause (1)(a) provides for nominations made before the close of the roll.
Nomination forms must have at least six nominators and a photograph. No deposit is required.
19 When must nomination form be lodged
This clause provides that nomination forms must be lodged with the Commission during the nomination period.
20 Nomination in one division only
This clause provides that if a person has been nominated for one division, the person cannot be nominated for another division unless he or she has first withdrawn his or her consent to the previous nomination.
21 Withdrawal of consent to nomination
This clause provides for the withdrawal of consent to nominations by 12 noon on the nomination day.
22 Rejection of nomination
This clause provides the conditions by which the Commission may reject a nomination and the procedures for doing so.
23 Declaration of candidates
This clause provides the time and procedures by which the Commission must declare the candidates for each division.
24 No need for poll in some circumstances
This clause provides that a poll is not required if only one or two candidates are nominated for a division. A poll is required if there are three candidates in a division, despite there only being three vacancies, to determine which candidates will be ordinary or reserve delegates
Division 4 Ballot papers
25 Determination of order of candidates’ names
This clause provides for the determination of the order of names on the ballot papers by the Commission by lot in public at places determined by the Commissioner.
26 Requirements for ballot papers
This clause provides the requirements for ballot papers.
Division 5 Other pre-voting arrangements
27 Commissioner must give public notice about election
This clause requires the Commissioner to give public notice about information regarding the election.
28 Certified lists of voters
This clause provides for the preparation of certified lists of voters for the conduct of the election. It also provides for the preparation of the list if a periodic general election under the Local Government Act is to be held on the same day as polling day.
29 Early voting centres, polling places and scrutiny centres
This clause enables the Commission to appoint places for early voting centres, polling places and scrutiny centres, of which the Commission must give public notice.
30 Limit on appointment of licensed premises as polling place
This clause provides that the Commission may only appoint part of licensed premises as a polling place if satisfied that that part of the premises will not be available for sale of liquor, is segregated from places for the sale and consumption of liquor, and is not accessed through a part of the premises available for sale or consumption of liquor.
31 Scrutineers – appointment
This clause enables candidates to appoint scrutineers to represent them during the polling or scrutiny (or both). Subclause (2) provides for the procedure of appointment.
32 Scrutineers – presence at polling place and scrutiny centre
This clause allows each candidate to have one scrutineer attending each polling place and each counting table at a scrutiny centre. The clause also provides for the conditions of the presence of a scrutineer at the scrutiny centre.
33 Procedure for voting
This clause allows electors to vote at any polling place in the Territory on polling day, and that only declaration votes or ordinary votes (other than postal votes cast before polling day) may be cast at a mobile polling place.
34 Method of voting
This clause requires voters to number all the squares on the ballot paper in the order of their preference.
35 Voter's question
This clause sets out the question to be put to a person when they claim to vote at the election. It is the same question as that provided under the Local Government (Electoral) Regulations.
Division 2 Ordinary voting at polling place
This division provides for ordinary voting at a polling place and is intended to be similar to that under the Electoral Act and Local Government (Electoral) Regulations.
36 Issue of ballot paper
This clause sets out the procedure for issuing a ballot paper at a polling place during polling hours.
37 Voting in private
This clause provides the procedure for casting a vote, including requiring voting to be conducting in private. In contrast to the Electoral Act, this and other clauses in the Bill refer to undue delay to allow delay for the purposes of voting at local government elections if such elections are to be held on the same day.
Division 3 Declaration voting on polling day at polling places
This division provides for declaration voting in a similar manner to that under the Electoral Act and Local Government (Electoral) Regulations for persons:
· absent from the division;
· whose name is not on the certified list of voters; and
· whose name has been marked on the list as already having voted.
Subdivision 1 Declaration voting by persons absent from division
38 Issue of declaration ballot paper
This clause provides the procedure for issuing a declaration ballot paper for absent voting..
39 Casting declaration vote
This clause prescribes the requirements for casting a declaration vote under the subdivision.
Subdivision 2 Declaration voting by other persons
40 Issue of declaration ballot paper
This clause provides for the procedure for issuing a declaration ballot paper under the subdivision where the person is not on the certified list of voters for the division or the person is marked as having already had a ballot paper issued to them but the person declares they have not already voted.
41 Casting declaration vote
This clause prescribes the requirements for casting a declaration vote under this subdivision.
Division 4 Postal voting
This division provides for postal voting in a substantially similar manner to that under the Electoral Act and Local Government (Electoral) Regulations.
Subdivision 1 Registered postal voters
42 Register of postal voters
This clause requires the Commission to keep a register of postal voters which comprises the name of each elector who is registered as a general postal voter under the Commonwealth Electoral Act.
43 Registered postal voters taken to have applied for postal voting papers
This clause provides that registered postal voters are taken to have applied for postal voting papers, and the Commission is taken to have received from the person a properly completed application for postal voting papers for the election.
Subdivision 2 Applications for, and issue of, postal voting papers
44 Who may apply for postal voting papers
This clause specifies who is eligible to apply for postal ballot papers. First the person needs to be entitled to be enrolled for the division and second they need to be an ‘eligible person’.
A person is an ‘eligible person’ for postal voting for this election if they come within the requirements of subclause (2), namely if the person:
(a) throughout polling hours will not be in the Territory or within 20 km of a polling place (other than a mobile polling place at which the person may vote); or
(b) throughout polling hours will be travelling under conditions that preclude voting at a polling place; or
(c) throughout polling hours will be unable to attend a polling place because of physical or other disability, illness, advanced pregnancy or another condition of the person; or
(d) throughout polling hours will be unable to attend a polling place because of a reasonable fear for, or a reasonable apprehension about, his or her personal wellbeing or safety; or
(e) throughout polling hours will be unable to attend a polling place because of a physical or other disability of the person; or
(f) throughout polling hours will be unable to attend a polling place because of a reasonable fear for, or a reasonable apprehension about, his or her personal wellbeing or safety; or
(g) throughout polling hours will be unable to attend a polling place because the person will be at a place (other than a mobile polling place at which the person may vote) caring for another person who is seriously ill or infirm or who is expected shortly to give birth; or
(h) because of membership of a religious order or religious beliefs is:
(ii) precluded from attending a polling place throughout polling hours or throughout the greater part of those hours; or
(j) is a person whose address has been suppressed; or
(k) throughout polling hours will be engaged in employment or occupation and either of the following apply:
(ii) the person's attending a polling place to vote would be likely to cause the person financial loss.
This clause requires applications for postal voting papers to be made within three months of the polling day.
46 Issue of postal voting papers
This clause provides the procedure for the issue postal ballot papers.
Subclause (5) of the Bill adds to the equivalent provision in the Electoral Act by giving an officer a discretion to send postal voting papers received after the deadline in (4)(a) or (b) in certain circumstances.
47 Authorised officer to record applications
This clause provides for the numbering and recording of applications and postal vote certificates.
48 Applications to be available for public inspection
This clause requires applications to be public for 14 days from (and including) the third day after polling day.
Subdivision 3 Casting postal vote
49 Procedure for postal voting
This clause provides that an elector may only cast a postal vote in accordance with the requirements of Subdivision 3.
50 When postal vote may be cast
This clause allows postal voting up until 6 pm on polling day.
51 Casting postal vote
This clause provides for the procedures for casting a postal vote.
Division 5 Declaration voting before polling day
This division provides for voting before polling day in a substantially similar manner to that under the Electoral Act, except that:
· clause 53 provides a more flexible power to declare regions to help accommodate the possible holding of local government elections on the same day; and
· no provision is made for pre-election voting centres outside the Territory.
Subdivision 1 Preliminary
52 Application of Division
This clause provides that Division 5 provides for to the casting of votes before polling day.
53 Arrangements for voting
This clause provides arrangements for voting before the polling day. The Commission must declare regions for early voting and decide the period and the times in which voting before the polling day may take place at early voting centres.
54 Public notice of arrangements
This clause requires the Commission to give public notice regarding early voting arrangements.
Subdivision 2 Declaration voting by electors
55 Issue of declaration ballot paper
This clause provides the procedure for issuing a declaration ballot paper when a person attends an early voting centre to vote before polling day.
56 Casting declaration vote
This clause prescribes the requirements for casting a declaration vote under clause 55 but is subject to section 68.
Subdivision 3 Declaration voting by persons whose names are not on certified list of voters
57 Issue of declaration ballot paper
This clause provides for the procedures for issuing a declaration ballot paper where a person attends at an early voting centre for voting before polling day, but their name is not on the certified list of voters.
58 Casting declaration vote
This clause prescribes the requirements for casting a declaration vote where a person attends at an early voting centre for voting before polling day, but their name is not on the certified list of voters. It is subject to clause 68.
Subdivision 4 Dealing with ballot boxes
59 Ballot boxes at early voting centres
This clause provides for the sealing and sending of ballot boxes at early voting centres to the Commission or to a scrutiny centre.
Division 6 Mobile polling
These provisions are intended to be substantially similar to those for mobile polling under the Electoral Act and Local Government (Electoral) Regulations.
60 Application of Division
This division provides for the casting of ordinary votes and declaration votes under Division 2 or 3 during the mobile polling period at a mobile polling place for the election.
61 Mobile polling places
This clause provides for the power of the Commissioner to declare mobile polling places. Subclause (3) clarifies the matters to which the Commissioner is to have regard when making a declaration regarding mobile polling places and subclause 60(4) makes it clear that if a declaration specifies a class of electors, only a person in that class may vote at the mobile polling place.
62 Change of mobile polling place, dates or hours for voting
This clause allows the Commissioner to change mobile polling places, dates or hours for voting at a mobile polling place.
63 Obligations of authorised officer
This clause requires the authorised officer to take a ballot box, ballot papers, certified lists of voters and anything else necessary to enable a person to vote when visiting a mobile polling place, and must be accompanied by at least one officer.
64 Application of Act for voting at mobile polling place
This clause applies the Act to an authorised officer as if the officer were in charge of the mobile polling place when an authorised officer is with a person in a room or place or taking the person’s vote.
65 Failure to visit mobile polling place
This clause provides that the result of an election is not invalidated by the failure of an authorised officer to visit a mobile polling place, or a failure to comply with the date and time requirements in clauses 61 or 62.
66 Dealing with ballot boxes
This clause provides that where an authorised officer has finished all visits to mobile polling places for which he or she is authorised, the authorised officer must seal and send to the Commission or a scrutiny centre. This must be done in the presence of any scrutineers.
The Authorised officer must also send the ballot boxes to the Commission of officer in charge of a scrutiny centre if directed to.
Division 7 Other matters relating to voting
This division provides for other matters relating to voting and is intended to be substantially similar manner to those provisions under the Electoral Act.
67 Arrangements at polling places
This clause sets out the procedures for the conduct of polling places (other than mobile polling places).
68 Assistance to some voters
This clause provides for the procedures for assisting voters by other persons in circumstances where the voter would otherwise be unable to vote.
69 Assistance to voters unable to enter polling place
This clause provides for procedures and assistance for voters unable to enter the polling place.
70 Spoilt or discarded ballot paper
This clause sets out the procedures to be undertaken where a ballot paper is spoilt or discarded by accident.
71 Dealing with ballot boxes and electoral papers
This clause provides for the procedures for dealing with ballot boxes and electoral papers after the close of polling.
72 Adjournment of polling
This clause allows the officer in charge to adjourn polling at a polling place to another time because of riot, violence, fire, storm, flood or another similar event..
73 Employee wishing to vote
This clause requires an employer to give an employee up to 2 hours leave to vote if the employee gives the employer notice, unless the absence of the employee would cause danger or substantial loss. Subclause (3)makes it an offence for the employee to give notice to the employer of his or her intention to take leave for the purposes of voting if the employee does not actually have the intention of voting during the leave. The penalty is 5 penalty units (which at the time of introduction of the Bill is 5 x $137)..
74 How scrutiny carried out
This clause provides that the result of the election for a division must be determined by scrutiny carried out in accordance with Part 4 of the Bill if polling for the election is held for the division. This clause also provides for other general procedures for the scrutiny.
Division 2 Formality of ballot papers and related matters
This division sets out the conditions that make a ballot paper informal. It is intended that the provisions be similar to those in the Electoral Act, except for clauses 75 and 76.
Clause 75 Informal ballot paper
This clause provides for the conditions of informal votes. The effect of subclauses (3) and (4) are that if the voter puts a “” or a “” to indicate a first preference instead of a “1” the vote is not for that reason informal.
Clause 76 Ballot papers not informal because of mistakes about name of division or candidate
This clause provides that a ballot paper is not informal merely because the name of the division appearing on the ballot paper is wrong or is omitted provided all the names of the candidates are present. It is also not informal merely because certain personal details are omitted or misspelled.
This clause is different to the equivalent in the Electoral Act because it makes no reference to political parties.
77 Some declaration ballot papers not counted
This clause provides that certain declaration votes must not be counted if it is not received by the Commission in the appropriate envelope.
78 Some postal ballot papers not counted
This clause provides that a postal ballot must not be counted unless the ballot paper is marked before 6 pm on the polling day and it is delivered to an authorised officer before the close of the polling day or received by the Commission by 6 pm on the Friday after polling day. Subclause (2) provides that the time and date appearing in the postal vote certificate is taken to be the time and date unless there is evidence to show the contrary.
79 Dealing with some declaration votes for absent voters
This clause provides for dealing with unenclosed absent ballot papers.
Division 3 Ordinary votes
This division provides for the initial handling of ordinary votes in manner intended to be similar to that in the Electoral Act.
80 Initial dealing with ballot papers
This clause sets out the procedure for the initial dealing with ballot papers.
81 Check count of ordinary votes
This clause sets out the procedure for the check count of the parcel of ballot papers sent to the Commission or an authorised officer under clause 80(1)(h).
Division 4 Declaration votes cast on polling day or by persons whose names are not on certified list of voters at early voting centres
This division provides for the initial handling of declaration votes cast on polling day or by persons whose names are not on certified list of voters at early voting centres in a similar manner to that in the Electoral Act. In contrast, the Electoral Act refers to persons whose names are not on the certified list of voters as “unrolled voters”.
Subdivision 1 Preliminary
82 Application of Division
This clause specifies the voting papers to which Division applies.
83 Initial dealing with some declaration voting papers
This clause sets out the procedure for the initial dealing with declaration voting papers issued under Part 3 Division 3.
Subdivision 2 Declaration votes cast by persons absent from division
84 Application of Subdivision
This clause specifies the voting papers to which the subdivision applies. It applies to declaration voting papers issued under Part 3 Division 3 Subdivision 1, and which are sent to the Commission or an authorised officer under clause 79(3)(b) or 83(2)(c).
85 Examination of declaration ballot papers
This clause sets out the procedure for the examination of the ballot papers.
Subdivision 3 Declaration voting by persons whose names are not on certified list of voters
86 Application of Subdivision
This clause specifies the voting papers to which the subdivision applies. It applies to declaration voting papers issued under Part 3, Division 3, Subdivision 2 to persons to whom subclause 40(1)(b)(i) applies , or issued under Part 3, Division 5, Subdivision 3 and which are sent to the Commission or an authorised officer under clause 83(2)(c) or 98(1)(e).
87 Examination of declaration ballot papers
This clause sets out the procedure for the examination of declaration ballot papers to which the subdivision applies.
Subdivision 4 Declaration votes cast by voters marked on roll as already voted
88 Application of Subdivision
This clause specifies the declaration voting papers to which the subdivision applies. It applies to declaration voting papers issued under Part 3, Division 3, Subdivision 2 to persons to whom section 40(1)(b)(ii) or (2) applies and which are sent to the commission or an authorised officer under clause 83(2)(c)
89 Examination of declaration ballot papers
This clause provides for the procedures for the examination of the ballot papers to which this subdivision applies.
Subdivision 5 Counting declaration votes
90 Initial count of declaration votes
This clause sets out the procedure for the initial count of declaration ballot papers mentioned in clauses 85(1)(b), 87(3)(b) and 89(3)(a).
91 Check count of declaration votes
This clause sets out the procedure for the check count of parcels of declaration ballot papers mentioned in clause 90(2)(e).
Division 5 Postal votes
Subdivision 1 Dealing with postal voting papers before the end of polling day
92 Receipt of postal voting papers
This clause sets out the procedure for receipt of postal voting papers.
93 Checking postal voting papers
This clause sets out the procedure for checking postal voting papers.
Subdivision 2 Scrutiny of postal voting papers
94 Initial dealing with postal voting papers after close of polling
This clause sets out the procedure for the initial dealing with postal voting papers after the close of polling.
95 Initial count of postal votes
This clause sets out the procedure for the initial count of declaration ballot papers mentioned in clause 94(1)(c).
96 Check count of postal votes
This clause sets out the procedure for the check count of the parcels of declaration votes mentioned in clause 95(2)(f).
Division 6 Declaration votes cast at early voting centres before polling day
Subdivision 1 Preliminary
97 Application of Division
This clause sets out the declaration voting papers to which Division applies. It applies to declaration voting papers issued under Part 3, Division 5.
98 Initial dealing with ballot boxes
This clause sets out the procedure for the initial dealing with ballot boxes for declaration voting papers issued under Part 3, Division 5 after the close of polling.
Subdivision 2 Declaration votes cast for enrolled divisions at early voting centres
99 Application of Subdivision
This clause sets out the declaration voting papers to which Division applies. It applies to declaration ballot papers mentioned in clause 98(1)(b)(i).
100 Initial count of declaration votes
This clause sets out the procedure for the initial count of ballot papers to which the subdivision applies.
Subdivision 3 Declaration votes cast for divisions in other regions at early voting centres
101 Application of Subdivision
This clause sets out the declaration voting papers to which Division applies. It applies to the parcels of envelopes mentioned in clause 98(1)(b)(ii).
102 Examination of declaration ballot papers
This clause sets out the procedure for the examination of the ballot papers to which the subdivision applies.
103 Initial count of declaration votes
This clause sets out the procedure for the initial count of ballot papers mentioned in clause 102(1)(b) for each division..
Subdivision 4 Check count of all declaration votes cast at early voting centres
104 Check count of declaration votes
This clause sets out the procedure for the check count of the parcels of declaration votes for which an initial count has been conducted under clause 100 or 103.
Division 7 Determining and declaring result of election
This division provides for determining and declaring the result of the election in a similar manner to that in the Electoral Act, with the following modifications to provide for preferential voting with a single transferable vote in multi-member electorates:
· The Bill does not provide for the interim distribution of preference votes or for a declaration of election on the distribution of first preference votes;
· The Bill requires that the counting of votes occurs in accordance with the Schedule;
· The Bill requires the Commission to notify the Minister of the result of the election rather than return a writ to the Administrator.
Subdivision 1 General rules
105 Part counting of votes
This clause allows counting to proceed before all declaration ballot papers are received provided the conditions in subclause (2) are met.
106 Objections by candidate's scrutineer
This clause allows a scrutineer to contest the formality of a ballot paper and provides for procedures for deciding whether to admit or reject the objection.
107 Determination of first preference votes
This clause requires an authorised officer to determine the number of first preference votes for each candidate in a division from certain statements.
Subdivision 2 Further scrutiny
108 Procedures immediately after close of polling
This clause requires an authorised officer for the division to open all parcels containing formal ballot papers for the division, and continue the scrutiny of votes in accordance with the Schedule.
109 Death of candidate
This clause provides for procedures to be followed if a candidate dies:
· if the candidate dies before the end of polling day, the counting of votes is to proceed as provided in clause 18 of the Schedule (ie, the count is conducted as if the deceased candidate is excluded);
· if the candidate dies after the polling day and before the result of the election for the division is declared:
(b) if the deceased candidate would have been elected under that count, those elected on the original determination are elected as ordinary delegates and:
(ii) otherwise, the votes are recounted with the deceased candidate excluded, and the first candidate elected who was not elected in the original determination is elected as the reserve delegate.
This clause allows the Commission to conduct a recount of the votes for a division before the declaration of the result, either on its own initiative or at the written request of a candidate.
Subdivision 3 Declaring and notifying result of election
111 Declaration of result of election
This clause requires the Commission to declare the result of the election for each division. The section sets out the procedural requirements for making that declaration.
112 Notification of result of election
This clause requires the Commission to notify the Minister of the result of the election as soon as practicable after declaring the result for all the divisions.
Division 8 Other matters
113 Extension of time
This clause allows the Minister by notice in the Gazette to extend the time for the election in the division.
114 Jurisdiction
This clause gives the Court of Disputed Returns jurisdiction to decide applications made under Division 2 regarding a disputed election.
115 Record of proceedings
This clause requires the Court of Disputed Returns to keep a record of any proceedings under the Act.
Division 2 Disputed elections
This division provides for the application to the Court and consideration by the Court of disputed elections in a similar manner to that provided under the Electoral Act.
116 Validity of election may be disputed after election
This clause allows persons to apply to dispute an election in relation to a division in accordance with Division 2 after the result of the election is notified under clause 112. Subclause (2) sets out examples of the grounds upon which an election for a division may be disputed, but those examples do not limit the ability of a person to dispute the validity of the election under subclause (1).
117 Who may dispute election
This clause provides for the persons who may dispute an election.
118 Making application
This clause provides for the procedural requirements of making an application to the Court of Disputed Returns.
119 Lodgement of security for costs
This clause requires an applicant to lodge $500 as security for costs when making an application.
120 Notice of application
This clause requires the giving of notice of an application within 2 days of making the application to certain persons.
121 Parties to proceeding
This clause provides that the applicant and those persons given notice in clause 120 are parties to a proceeding under this Division.
122 Reply to application
This clause permits a person given notice of an application to contest the application. It provides for the procedures for contesting the application by filing a reply with the Master.
123 Inquiries by Court
This clause sets out what matters the court may or may not inquire into.
The Court may inquire into the identity of voters, whether votes were improperly admitted or rejected and whether the result of polling was correctly ascertained. The court must not inquire into the correctness of the roll and must take the toll as conclusive evidence that the persons enrolled were entitled to be enrolled. The qualification of a person enrolled must also not be questioned.
124 Certain evidence not admissible
This clause provides that the Court of Disputed Returns, in deciding whether the actions of an officer affected the result of the election, must not admit evidence of the way in which a person who claims to have been wrongly prevented from voting would have voted,
125 Court may have regard to rejected ballot papers
This clause allows the Court of Disputed Returns, in deciding about an application, to have regard to rejected ballot papers if it considers that they should not have been rejected.
126 Decision on application
This clause sets out that the Court of Disputed Returns may dismiss the application or uphold it in whole or in part, when deciding about an application.
In making its decision, the Court may make declarations that a candidate who was returned as elected was not properly elected, a candidate who was not returned as elected to be properly elected, or a candidate who was elected as an ordinary delegate to be a reserve delegate or vice versa. The declarations in subclause (2) must comply with the conditions set out in subclauses (3) to (8).
127 Costs
This clause give the Court of Disputed Returns the power to award costs which is deemed to be a judgment of the Supreme Court.
128 Application of security for costs
This clause sets out how the security lodged for the application may be applied.
129 Reporting of offences
This clause that if the Court of Disputed Returns finds that person has committed an offence against the Act or against Part IV , Division 3 of the Criminal Code, the Master must report that finding to the Attorney-General, the Director of Public Prosecutions and the Minister.
Division 3 Hearings of applications
130 Application of Division
This clause specifies that this Division applies to a hearing of a proceeding of an application to the Court of Disputed Returns made under Division 2.
131 Hearing procedures
This clause provides that the Court of Disputed Returns may adjourn the hearing for the period it considers appropriate, is not bound by the rules of evidence, may inform itself of a matter in any way it considers appropriate and may decide the procedures to be followed for the hearing. The Court must still comply with Division 3 and any rules regulating its practice and procedure.
132 General powers of Court
This clause provides for the powers of the Court for the conduct of hearings such as compelling the attendance of witnesses to give evidence or the production of documents.
133 Hearing open to public
This clause requires hearings of the Court of Disputed Returns to be public.
134 Representation at hearing
This clause sets out the conditions under which a party may be represented by an agent or legal practitioner at a hearing.
135 Contempt
This clause empowers the Court of Disputed Returns to punish a contempt of its authority as if it were the Supreme Court.
136 Decision final
This clause provides that the courts decision is final and conclusive and cannot be challenged or appealed by any tribunal on any ground, and is not subject to any proceedings for injunction, declaration or order for prohibition or mandamus.
Division 4 Other matters
137 Rules of Court
This clause provides for the making of rules of the Court of Disputed Returns by the Supreme Court Judges or a majority of the Judges.
Clause 4 of the Bill applies the criminal responsibility provisions of Part llAA of the Criminal Code to the offences in the Bill. The offences require proof of the default fault elements in Part llAA (section 43AM of the Criminal Code) unless otherwise expressly stated.
Subdivision 1 Protection of election rights and duties
138 Interfering with election right or duty
This clause makes it an offence to interfere with the free exercise of performance by another person of a right or duty under the Act relating to the election. The maximum penalty is 50 penalty units (which at the time of introduction was 50 x$137) or 6 months imprisonment.
139 Making false statements about entitlement to vote
This clause makes it an offence to mislead a person about whether the person is an elector, and makes it an offence to mislead another person about the division in which the person is enrolled. The maximum penalty for these offences is 50 penalty units (which at the time of introduction was 50 x$137) or 6 months imprisonment.
140 Improperly influencing voters
Subclause (1) makes it an offence for a person to use violence or intimidation to interfere with, influence or attempt to influence the vote of a person.
Subclause (2) makes it an offence for an officer exercises a power or performing a function under the Act and while doing so engages in conduct with the intention of interfering with, influencing or attempting to influence the vote of another person.
The maximum penalty for both these offences is 200 penalty units (which at the time of introduction was 200 x$137) or 12 months imprisonment.
141 Secrecy of vote
This clause makes it an offence to be present when another person votes and to
· ascertain or disclose the voters vote,
· require the person to show how they will vote,
· communicate with or assist the voter,
· look at the voters ballot paper or
· interfere with the voter’s casting of a vote.
The maximum penalty is 200 penalty units (which at the time of introduction was 200 x$137) or 12 months imprisonment.
There are exceptions to this offence if the person is acting in accordance with clauses 51 or 68 or at the voter’s request.
Subdivision 2 Campaigning offences
142 Definitions
This clause provides for definitions of campaign material and electoral matter.
143 Meaning of electoral matter
This clause defines electoral matter.
144 Meaning of campaign material
This clause defines campaign material.
145 Application of Subdivision
This clause provides that Subdivision 2 applies to the publication or distribution of advertisements and other things specified in that clause during the election period .
146 Offences relating to campaign material
Subclause (1) makes it an offence to distribute or publish campaign material without following the requirements of subclause (1)(b) . The exception to this is that the requirements do not apply to the announcement by advertisement in a newspaper of the holding of a meeting.
The maximum penalty is 200 penalty units (which at the time of introduction was 200 x$137) or 12 months imprisonment.
Subclause (3) makes it an offence to publish or distribute campaign material which is likely to mislead or deceive an elector or contains an incorrect or untrue statement.
The maximum penalty is 200 penalty units (which at the time of introduction was 200 x $137) or 12 months imprisonment.
147 Offence relating to push-polling
This clause makes it an offence to conduct push-polling without clearly stating the name and address of the person authorising the push-polling.
The maximum penalty is 200 penalty units (which at the time of introduction was 200 x$137) or 12 months imprisonment.
148 Heading of advertisements
This clause makes it an offence for a proprietor of a newspaper to publish an advertisement (which is defined as an article or paragraph containing electoral matter, or a report of a speech of a candidate) in a newspaper for payment, reward, compensation or promise without “advertisement” being printed in the headline in letters not smaller than 10 point.
The maximum penalty for this offence is 100 penalty units (which at the time of introduction is 100 x $137).
149 Electoral articles to be signed or state particulars of author
Subclause (1) makes it an offence to distribute a circular, pamphlet or handbill containing an electoral article without identifying its author in accordance with subclause (1)(b).
The maximum penalty for this offence is 100 penalty units (which at the time of introduction is 100 x $137).
The offence does not apply to a publication of an Agency, or a business or visiting card promoting a person’s candidacy unless the publication or card includes a representation of a ballot paper.
Subclause (4) makes it an offence to publish an article in a newspaper which does not contain the true name and address of its author.
The maximum penalty for this offence is 100 penalty units (which at the time of introduction is 100 x $137).
The offences in subclauses (1) and (4) do not apply to a publication in a newspaper of a leading article, or and article that consists solely of a report of a meeting and does not contain any comment.
This clause also defines address of the author of an electoral article and electoral article.
150 Canvassing for votes and other acts near polling place
Subclause (1) makes it an offence to canvass or solicit for votes, induce a person not to vote for a person, induce a person not to vote at all, or to exhibit a sign in relation to the election, within 10 metres of a polling place.
The maximum penalty for this offence is 20 penalty units (which at the time of introduction is 20 x $137).
Subclause (2) makes it an offence to use a loud speaker, public address system, amplifier or other thing to broadcast matter than is audible within 10 m of the entrance of the polling place and is intended or is likely to canvass or solicit for votes, induce a person not to vote for a person, or induce a person not to vote at all.
The maximum penalty for this offence is 20 penalty units (which at the time of introduction is 20 x $137).
151 Badges, emblems etc. in polling places
This clause makes it an offence to wear or display badges, emblems, posters or other things associated with a candidate at a polling place.
The maximum penalty for this offence is 5 penalty units (which at the time of introduction is 5 x $137).
This offence is one of strict liability.
152 Exhibition of electoral matter in polling places
This clause makes it an offence to exhibit a card or paper containing electoral matter at a polling place.
The maximum penalty for this offence is 5 penalty units (which at the time of introduction is 5 x $137).
This offence is one of strict liability.
153 Publication of statements regarding candidates
This clause makes it an offence to publish a statement on behalf of an entity which claims a candidate is associated with or supports the policy or activities of the entity, or which advocates a candidate should be given the first preference vote at the election. It is not an offence to do those things if the candidate has given written consent.
The maximum penalty for this offence is 100 penalty units (which at the time of introduction is 100 x $137) or 12 months imprisonment.
Subdivision 3 Offences relating to compulsory voting and entitlement to vote
154 Compulsory voting
This clause makes it an offence for an elector who is at least 18 years of age to fail to vote at the election. The offence is one of strict liability.
The maximum penalty is 1 penalty unit (which at the time of introduction is $137).
However under subclause (3) it is a defence to prosecution if the defendant establishes a valid and sufficient reason for not voting. Subclause (4) provides what might be a valid and sufficient reason without limiting subclause (3)
155 Person may vote only once
This clause makes it an offence to vote more than once at the election. It is an offence of strict liability and the maximum penalty is 50 penalty units (which at the time of introduction is 50x $137).
Subdivision 4 Voting fraud offences
156 Offences relating to supplying and obtaining ballot papers
Subclause (1) makes it an offence to obtain a ballot paper if the person is not authorised to do so under the Act.
The maximum penalty is 100 penalty units (which at the time of introduction is 100 x$137).
It is also an offence under subclause (2) if a person is not entitled to obtain the ballot paper and pretends to be someone else with the intention of obtaining a ballot paper.
The maximum penalty is 200 penalty units (which at the time of introduction is 200 x$137) or 12 months imprisonment.
157 Offences relating to marking ballot papers
Subclause (1) makes it an offence if a person marks a ballot paper that was not issued to them. The maximum penalty is 50 penalty units (which at the time of introduction is 50 x $137) or 6 months imprisonment. This does not apply to a person acting for a voter under clauses 51 or 68.
Subclause (4) makes it an offence if the person is acting for a voter under clauses 51 or 68 and marks the ballot paper otherwise than in accordance with the voter’s instructions. The maximum penalty is 200 penalty units (which at the time of introduction is 200 x$137) or 12 months imprisonment.
158 Other offences relating to ballot papers and ballot boxes
This clause makes it an offence to,
· put papers in ballot boxes,
· take a ballot paper out of a polling place or scrutiny centre , or
· destroy, take or interfere with a ballot paper or ballot box
with the intention of deceiving another person,
It also creates an offence of opening a ballot box except by an officer acting under the Act.
The maximum penalty for all offences under this clause is 200 penalty units (which at the time of introduction is 200 x$137) or 12 months imprisonment.
Subdivision 5 Other offences relating to electoral papers
159 Offences relating to postal ballot papers
Subclause (1) makes it an offence to engage in unlawful conduct with the intention of inducing or persuading another person to apply for a postal ballot paper. The maximum penalty is 50 penalty units (which at the time of introduction is 50 x $137) or 6 months imprisonment.
Subclause (2) makes it an offence for a person, who is not an authorised officer for a division for which a postal ballot paper has been issued, to open a declaration envelope in which a postal ballot paper has been placed. The maximum penalty is 200 penalty units (which at the time of introduction is 200 x $137) or 12 months imprisonment.
Subclause (3) makes it an offence for a person to receive or take possession of a postal ballot paper otherwise than in accordance with the provisions of the Act. The maximum penalty is 200 penalty units (which at the time of introduction is 200 x $137) or 12 months imprisonment.
160 Opening envelopes containing declaration votes
This clause makes it an offence to open an envelope appearing to contain a completed declaration ballot paper unless authorised to do so under the Act. The maximum penalty is 200 penalty units (which at the time of introduction is 200 x $137) or 12 months imprisonment.
161 Misleading statements
This clause makes it an offence for a person to give an electoral paper to another person and the electoral paper contains a statement made by the person which the person knows to contain misleading information. The maximum penalty is 200 penalty units (which at the time of introduction is 200 x $137) or 12 months imprisonment.
However subclause (2) provides that it is not an offence if the person draws the misleading aspect of the statement to the attention of the other person and, to the extent to which the person can reasonably do so, corrects the misleading aspect of the statement..
162 Defacement etc. of electoral papers
This clause makes it an offence to deface, remove, mutilate or destroy an electoral paper. The offence is one of strict liability, but it is a defence to a prosecution under this section if the defendant establishes a reasonable excuse.
The maximum penalty is 50 penalty units (which at the time of introduction is 50 x $137).
163 Signatures
This clause makes it an offence if a person required by the Act to sign an electoral paper and he or she does not do so with his or her personal signature. The offences is one of strict liability however, subclause (3) states that if the person is unable to sign his or her name, they can and are taken to have done so by making a mark on the paper by way of signature.
The maximum penalty is 10 penalty units (which at the time of introduction is 10 x $137).
164 Duty of witnesses
This clause applies to a person who signs an electoral paper as a witness for another person.
Subclause (2) makes it an offence if the witness signs the electoral paper and has failed to take reasonable steps to satisfy himself or herself of the identity of the other person, or fails to see the other person sign the electoral paper. This is an offence of strict liability. The maximum penalty is 50 penalty units (which at the time of introduction is 50 x $137).
It is also an offence in subclause (4) for a witness to sign an electoral paper as a witness for another person knowing that the other person has made a misleading statement in the electoral paper. The maximum penalty is 200 penalty units (which at the time of introduction is 200 x $137) or 12 months imprisonment.
165 Sending completed electoral papers
This clause creates an offence of accepting an electoral paper for sending to the Commission and not immediately posting or delivering it to the Commission. The maximum penalty is 10 penalty units (which at the time of introduction is 10 x $137).
Subdivision 6 Official functions
166 Influencing Commission, Commissioner or officers
This clause makes it an offence to engage in conduct that is not authorised by the Act or another law in force in the Territory with the intention of influencing the Commission, the Commissioner, or an officer exercising a power or performing a function under this Act.
The maximum penalty is 400 penalty units (which at the time of introduction is 400 x $137) or 2 years imprisonment.
167 Identification of voters and votes
Subclause (1) makes it an offence if an officer makes a mark on a ballot paper which would enable the identification, either directly or indirectly, of the person who votes on the ballot paper.
Subclause (2) makes it an offence if an officer or scrutineer, directly or indirectly, discloses information acquired in the exercise of a power or performance of a function under the Act which would enable the identification of how a particular voter voted.
The maximum penalty for both these offences is 200 penalty units (which at the time of introduction is 200 x $137) or 12 months imprisonment.
Subclause (3) extends the ambit of these offences beyond the completion of their duties under the Act by defining ‘officer’ and ‘scrutineer’ as officers or scrutineers who are no longer officers or scrutineers.
168 Responses to official questions
This clause makes it an offence for a person to answer a question by an officer at a polling place with a statement he or she knows to contain misleading information.
The maximum penalty is 50 penalty units (which at the time of introduction is 50 x $137) or 6 months imprisonment.
169 Control of behaviour at polling places and scrutiny centres
Subclause (1) makes it an offence if a person enters or remains at a polling place or scrutiny centre without express or implied permission of the officer in charge of the place or centre. The offence is one of strict liability. The maximum penalty is 50 penalty units (which at the time of introduction is 50 x $137). Subclause (3) provides that the offence does not apply to an officer, a scrutineer (unless clause 32(6) applies) or a person about to vote at a polling place.
Subclause (4) makes it an offence to disrupt an activity being carried out at a polling place or scrutiny centre. The offence is one of strict liability, but subclause (6) provides a defence if the defendant establishes a reasonable excuse. The maximum penalty is 100 penalty units (which at the time of introduction is 100 x $137).
Subclause (7) permits an authorised officer at a polling place or scrutiny centre to direct a person to leave and stay away from the place or centre if the authorised officer believes that person’s conduct is likely to disrupt the activities being carried out under the Act at the place or centre. Subclause (8) makes it an offence to fail to comply with the authorised officer’s direction. This is an offence of strict liability, though subclause (10) provides that it is a defence if the defendant establishes a reasonable excuse. The maximum penalty is100 penalty units (which at the time of introduction is 100 x $137).
In addition to the offence in subclause (8), subclause (11) provides that a person who does not comply with the authorised officer’s direction to leave and stay away can be removed by a police officer.
Subclause (12) makes it an offence for a scrutineer to communicate with any person at a polling place except for performing the scrutineer’s functions. The maximum penalty is 20 penalty units (which at the time of introduction is 20 x $137).
Subclause (13) makes it an offence for a scrutineer to use violence or intimidation to interfere with, influence or attempt to influence a voter at a polling place. The maximum penalty is 200 penalty units (which at the time of introduction is 200 x $137) or 12 months imprisonment.
Division 2 Legal proceedings
This division provides for evidentiary provisions and a time limit for prosecutions in a manner similar to that under the Electoral Act, except that references to ‘reporting agents’ are omitted.
170 Evidentiary provisions
This clause provides that in legal proceedings under the Act
· a signature purporting to be that of the Commissioner is evidence of the signature ; and
· a certificate purported to be signed by the Commissioner stating any of the things listed in subclause (3) (a) to (k) is evidence of the matter.
171 Time limit for starting prosecutions
This clause provides that a prosecution for an offence under the Act may be started at any time within 12 months after the commission of the offence, despite what is provided for in section 52 of the Justices Act.
Division 3 Criminal liability for offences
172 Definition
This clause defines, for the purposes of Division 3, a representative of a person to be an employee or agent of the person.
173 Liability of representative
This clause provides that a person cannot rely on the fact that they are a representative of another person (an executive officer of a body corporate, or an agent of another person) as a defence to a prosecution for an offence under the Act. However, it is a defence if the defendant proves that they were acting as another person’s representative under the direct or indirect supervision of that other person.
174 Conduct of representative
This clause deals with actions taken by representatives of individuals. Criminal responsibility is dealt with in Division 5 of Part IIAA of the Criminal Code.
Conduct engaged in by a representative of a person (for example, an agent of a principal) within that representative’s actual or apparent authority is taken to have been engaged in by the person. This means the person can be found personally liable for offences committed by their representative.
A defence is available if the person can prove that they took all reasonable steps to prevent the conduct of the representative and subclause (4) sets out the matters that can be taken into account in considering whether a person has taken all reasonable steps.
Where it is necessary to show that the person had a particular fault element it is sufficient to show that the representative who engaged in the physical element had the necessary fault element in relation to a physical element of the offence.
Section 43AX of the Criminal Code excuses a person from criminal responsibility for a strict liability offence where the person engaging in the relevant conduct does so under a mistake of fact. This clause makes that defence available for strict liability offences under the Act where a person’s representative has a mistaken but reasonable belief about facts that, if correct, would have meant that their conduct would not have been an offence, and if the person shows that they exercised due care to prevent the conduct.
Section 43BA of the Criminal Code provides a defence for strict and absolute offences where a physical element of an offence is brought about by an intervening act that is outside the control of the defendant. Subclause(8) removes this defence for strict liability offences under the Act where the intervening act is brought about a representative of the defendant.
Subclause (9) provides that a person, who, under this section, is vicariously liable for the actions of their representative, cannot be punished by imprisonment for the offence.
175 Criminal liability of executive officer of body corporate
This clause provides that an executive officer of a body corporate (a director or someone involved in the management of the body corporate) may be held personally liable for an offence committed by the body corporate in contravention of an offence against section 146(1) or (3), 147(2), 149(1) or (4) or section 153(1) if the officer:
· was in a position to influence the conduct of the body corporate; and
· failed to take reasonable steps to prevent the contravention from occurring; and
· was reckless about the contravention.
· regular professional assessments of the body corporate’s compliance with the relevant provision of the Act;
· the implementation of any appropriate recommendations arising from an assessment of the body corporate’s compliance with the relevant provision;
· that all representatives and contractors of the body corporate had a reasonable knowledge and understanding of the requirement to comply with the contravened provision; and
· any action taken by the officer once he or she became aware that the particular contravention was, or might be, about to happen.
This section applies whether or not the body corporate is prosecuted, or convicted of the relevant offence, but does not apply if the body corporate has a defence.
176 Criminal liability of managers of unincorporated associations
This clause provides that a person involved in the management of an unincorporated association may be held personally liable for an offence committed by other people in the management of the association..
This does not apply if the person was not in a position to influence the conduct of the offender or, if they were in a position to influence, took reasonable steps and exercised due diligence to prevent the offending conduct.
This section applies whether or not the offender is prosecuted for or convicted of the offence, but does not apply where the offender has a defence.
Division 4 Infringement notice offences
This division provides for the issuing of infringement notices by the Commission in a manner similar to that under the Electoral Act.
177 Infringement notice offence and prescribed amount payable
This clause prescribes an elector failing to vote as an infringement notice offence and the prescribed amount for an infringement notice is $50.
178 When infringement notice may be given
This clause enables the Commission to issue an infringement notice within 3 months after the result of the election is notified if it reasonably believes a person has committed the infringement notice offence.
179 Contents of infringement notice
This clause sets out the details that must be included in an infringement notice including a statement to the effect that
· the person receiving the infringement notice may expiate the infringement notice office and avoid further action by paying the prescribed amount within 28 days of its issue;
· the person may elect to have the matter dealt with in court under section 21 of the Fines and Penalties (Recovery) Act and the notice must include the appropriate form for doing so; and
· if the person does not respond to the infringement notice they may be liable to enforcement action under the Fines and Penalties (Recovery) Act including the actions listed in subclause (2)(c).
180 Payment by cheque
This clause provides that if a person tenders a cheque in payment the prescribed amount is not taken to be paid until the cheque is cleared.
181 Withdrawal of infringement notice
This clause allows the Commission to withdraw an infringement notice in his or her discretion and by written notice within 28 days of the issue of the notice and before payment of the prescribed amount.
182 Application of Division
This clause provides that issuing an infringement notice does not affect proceedings for an infringement notice offence unless the office is expiated.
Subclause (2) makes it clear that Division 4 does not require an infringement notice to be given, affect the liability of a person to be prosecuted for an offence for which an infringement notice has not been given, and does not prevent more than one infringement notice for the same offence being given to a person.
This clause applies in any of the following circumstances:
· no delegate is or less than 3 delegates are elected for the division;
· a delegate is elected for a division but dies after the result of the election is declared, or is otherwise unable to take up or continue to hold the position of delegate for the division.
The clause makes clear that the Bill does not prevent the Minister from appointing, or make arrangements for appointing, persons to fill vacancies for delegates at the Convention. As the Bill only provides for the election for the Convention and not for the Convention itself, the Bill does not prescribe the processes by which a vacancy can arise or the processes for filling vacancies.
Subclause (4) also makes clear that an arrangement for filling a vacant position may include the Minister consulting with the Commission or with reference to the votes obtained by a candidate during the election. This is to allow the Minister to make an arrangement that uses the votes at the election as the basis for appointing a person to fill a vacancy.
184 Minister may request information from Commission
This clause requires the Commission to provide contact information for delegates to specified officers in a specified Agency at the request of the Minister for administrative purposes relating to the holding of the Convention.
185 Officers
This clause enables the Commission to appoint officers for the conduct of the election in a similar manner to that provided under the Electoral Act. Persons under 18 years of age or spouses or de facto partners are excluded from being officers.
186 Commissioner's power to approve electronic or other automated system
This clause provides for approved electronic and other automated systems for voting as follows:
· Subclause (1) gives the Commissioner the power to approve the use of a specified electronic or automated system for specified purposes relating to: issuing and returning of ballot papers; counting and processing of votes; voting by a specified group of electors; assisting electors who have a physical or other disability.
· Subclause (2) provides that the Commissioner is restricted in approving the use of electronic and automated systems, and can only do so where satisfied that: the secrecy of the ballot will be maintained by the approved system; the approval is warranted having regard to the practicality of the system and resources required to establish and maintain it; the approval is consistent with the Commissioner's functions under this Act; and the approved system would be supported by secure facilities where there are exceptional circumstances relating to the specified group of electors. For example: an automated or electronic system could be used to process postal votes to allow casting of a vote via e-mail or the Internet.
· Subclause (3) specifies that the Commissioner must give public notice of approval to use an electronic or automated system.
· Subclause (4) specifies that use of an approved system (either electronic or automated) for the purpose of issuing and returning of ballot papers; counting and processing of votes; voting by a specified group of electors; assisting electors who have a physical or other disability has effect despite any other provisions in this Act.
· Subclause (5) requires that any approval must be consistent with the provisions of the Schedule, which sets out how votes are to be counted.
187 Approved form
This clause enables the Commissioner to approve forms to be used under the Act.
188 Delegation – Commission
This clause enables the Commission to delegate its functions and powers under the Act to a person with appropriate qualifications or experience to exercise the power or perform the function..
189 Delegation – Commissioner
This clause enables the Commissioner to delegate his or her functions and powers under the Act to a person with appropriate qualifications or experience to exercise the power or perform the function.
190 Register of electors precluded from voting because of religious beliefs
This clause requires the Commission to keep a register of electors who give the Commission a statutory declaration stating that the elector is precluded from voting because of the elector’s religious beliefs. It is in the same terms as the register provided for under the Electoral Act , and so would have the same content as that register.
191 Storage and destruction of electoral papers
This clause requires the Commission to keep securely stored electoral papers until they are no longer required for exercising a power or performing a function under the Act, following which they may be destroyed.
192 Public notice
The clause sets out what the Commission or the Commissioner must do to satisfy a requirement to give public notice under the Act.
Subclause (1) requires that the notice must be published in a newspaper circulating generally throughout the Territory or, if the matter relates only to a particular division, in the division.
Subclause (2) makes it clear that the Commission or the Commissioner is not prevented from giving notice about the matter by additional means.
Subclause (3) provides that if the Act provides for a specified period after the publication of a notice, the period starts on the date the notice is first published.
193 Disclosure of particular information
This clause makes it an offence if the Commissioner, an officer, a member of the Commission’s staff or a consultant of the Commission :
· records or disclosing information acquired by the person because of the person’s involvement in the administration of the Act,
· Gives or permits another person to have access to roll information (as described in subclause (2)(b))
except as provided in the Act.
Subclause (2) also makes it clear that it is not offence if the disclosure or recording was necessary for the person to do for another Act or if it was authorised or required by law.
The maximum penalty is 400 penalty units (which at the time of introduction is 400 x $137) or 2 years imprisonment.
194 Protection from liability
This clause protects the Commissioner, an officer, a member of the Commission’s staff or a consultant of the Commission from civil or criminal liability for an act or omission done by the person in good faith in the exercise of a power or performance of a function under the Act.
195 Regulation
This clause enables the Administrator to make regulations under the Act.
Subclause (2) allows regulations to provide for the exclusion from the extract of specified information about an elector who is less than 18 years of age on polling day.
Subclause (3) extends the regulation making power to adding provisions or modifying provisions in Part 3 or 4 (relating to voting and scrutiny) to facilitate the holding of an election under the Local Government Act on the same day as the Convention election. This will enable the prescribing of procedures that will better enable the conduct of the two on the same day. The regulations may not change the Schedule, however, which sets out the method of counting the votes.
196 Act amended
This clause provides that Division amends the Electoral Act.
197 Section 234 amended
This clause makes a consequential amendment to section 234 of the Electoral Act to make it clear that the Court of Disputed Returns established under that Act can have jurisdiction conferred on it by other Acts, and therefore have jurisdiction under this Act.
Division 2 Amendment of Local Government Act
198 Act amended
This clause provides that Division amends the Local Government Act.
199 Section 89 amended
This clause amends section 89 of the Local Government Act to allow regulations to be made under that Act to add or modify provisions to facilitate the holding of local government elections and the Convention election on the same day.
Division 3 Amendment of Fines and Penalties (Recovery) Regulations
200 Regulations amended
This clause provides that Division amends the Fines and Penalties (Recovery) Act.
201 Schedule 1
This clause adds the Act to those laws to which the Fines and Penalties (Recovery) Act applies so that infringement notices issued under this Act may be enforced under the Fines and Penalties (Recovery) Act..
This clause provides for the expiration of the Act at the end of 31 December 2013.
Schedule Counting of votes and filling of vacancies
This schedule provides for the method of counting votes and filling vacancies upon the death of a candidate as required by clauses 108 and 109. It is closely modelled on the method provided in section 48 of the South Australian Local Government (Elections) Act 1999.
1 Definitions
This clause defines the terms used in the schedule, namely continuing candidate, elected, excluded candidate, quota, surplus and transfer value.
2 Interpretation – references to votes for a candidate
This clause makes it clear that a reference to votes of a candidate includes votes that candidate received on a transfer.
3 Interpretation – what constitutes a separate transfer
This clause defines what constitutes a separate transfer under certain clauses of the Schedule.
4 Roles of authorised officer, other officers and scrutineers
This clause requires the counting of votes in each division to be conducted by an authorised officer, with the assistance of any other officers, and in the presence of any available scrutineers.
5 Determination of quota and election of candidate on first preference votes
This clause provides for the determination of the quota for each division and the election of any candidate who received a quota of first preference votes. It also provides that the quota is worked out by taking the amount that is equal to 25% of the total number of first preferences and adding 1 to that amount.
6 Election of candidate on transfer of surplus from another elected candidate
This clause provides for the transfer of surplus votes of elected candidates.
7 How to deal with ballot papers on transfer of surplus
This clause deems all votes of a candidate to be first preference votes in certain circumstances when calculating a transfer value.
8 Transfer of ballot papers on exclusion of candidates
This clause provides for the exclusion of candidates and the transfer of the excluded candidate’s votes.
9 Election of candidate on transfer of excluded candidates' votes and transfer of surplus of elected candidate
This clause provides for the election of candidates on the transfer of an excluded candidate’s votes and the further transfer of any surplus.
10 Further exclusion of candidates
This clause provides for the further exclusion of candidates.
11 No further transfer of votes
This clause specifies the point in the count at which an excluded candidate’s votes may no longer be transferred to an elected candidate.
12 Election of candidate out of 2 continuing candidates
This clause provides for the filling of a single vacancy when there are only 2 continuing candidates.
13 Election of candidates if number of vacancies equal to number of continuing candidates
This clause provides for the filling of a single vacancy when the number of vacancies equals the number of continuing candidates.
14 Order of election
This clause determines the order in which candidates are elected.
15 Order of transfer
This clause provides for the order in which surpluses are to be transferred if, after any count or transfer, there are two or more surpluses.
16 Order of exclusion
This clause provides for which candidate shall be excluded if the candidate with the fewest votes must be excluded and there are two or more candidates who have the fewest votes.
17 Setting aside of ballot papers
This clause provides for the setting aside of the ballot papers of a candidate who is elected without a surplus.
18 Death of candidate
This clause provides for the counting of votes if a candidate dies before the end of polling day.