Northern Territory Explanatory Statements

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ELECTORAL AND OTHER LEGISLATION AMENDMENT BILL 2011

(1) This sub-clause amends subsection 7(2) which offers guidance on matters taken to be intended or likely to affect voting. Clause 5 inserts sub-section 7(2) (ab) to include ‘candidate for the election’ as a matter taken to be intended or likely to affect voting.
(2) This sub-clause amends sub-clause 7(2) (a), (b) and (c) by the insertion of ‘or’ after the sub-clauses in order to improve the readability of the legislation.

Clause 7. Section 12 amended

This clause amends section 12, which relates to the availability of roll extracts for public inspection. This clause inserts subsection 12(5) to specify that the right to inspect the roll does not include the right to copy or record the roll, or an extract or part of an extract of the roll by electronic or by any other method.

The Electoral Commissioner recommended that the Electoral Act stipulate that the right to inspect the roll does not include a right to copy or record the roll in order to prevent inappropriate and commercial use of enrolment records.

Clause 8. Section 16A inserted

This clause inserts section 16A, which clarifies that the Electoral Commission must not sell the roll; or part of a roll; or extract or information is in the roll or extract of a roll. The Electoral Commissioner made a recommendation that the Electoral Act stipulate that roll extracts or information cannot be purchased to prevent inappropriate and commercial use of enrolment records.

Clause 9. Section 31 replaced

This clause repeals section 31 and inserts a new section 31, which provides requirements for the nomination of candidates. The subsections of section 31 provide as follows:

· Subsection 31(1) provides that a person may be nominated as a candidate for election by the registered office of a party or otherwise by 6 electors entitled to vote in that division. This provision is the same as the current subsections 31(a) and (b).
· Subsection 31(2) specifies that only one person may be nominated as the party candidate for a registered party for the division for the election. The Electoral Commissioner recommended that the Electoral Act be amended to permit only one candidate from a registered party to contest a Legislative Assembly division to reduce candidate numbers and potential voter confusion.
· Subsection 31(3) provides that the restriction on nomination of one registered party candidate in sub-clause 31(2) does not prevent a change of nomination in certain circumstances. The nomination may be changed where the registered party gives notice of the change to the Commission and the change results from: the withdrawal of consent by the nominated party candidate as per section 35(1); or withdrawal of the nomination of a person as party candidate as per section 35(2); or the rejection of the nomination of a person as the party candidate as per section 36(1); or the death of the nominated party candidate.

Clause 10. Section 39 amended

This clause amends section 39 by insertion of subsection (a) and (b) into sections 39(1) and 39(3) to clarify the persons to whom the nomination deposit may be returned. Sub-sections 39(1)(a) and 39(3)(a) allows a nomination deposit to be returned to the person who lodged the deposit. This provision is the same as the current sub-sections 39(1) and 39(3). Sub-sections 39(1)(b) and 39(3)(b) are new sub-sections which allow a person who lodged a nomination deposit to give authorisation by written notice permitting another person to receive the deposit. The Electoral Commissioner recommended the Electoral Act be amended to provide flexibility to permit another person to receive the return of a deposit.

Clause 11. Section 49 amended

This clause amends section 49, which outlines the procedure for voting in Legislative Assembly elections.

(1) This sub-clause amends subsection 49 (1) to omit the words ‘Divisions 2 to 5 (inclusive)’ and replace with the words ‘Divisions 2 to 6A’ to reflect the extra Divisions in the Electoral Act as amended by the Bill. This sub-clause amends subsection 49(1) to omit the words ‘cast an ordinary or declaration vote at a mobile polling place’.
(2) The sub-clause amends subsection 49(2) to insert ‘Except as otherwise provided in this Act’ to improve the readability of the legislation.
(3) This sub-clause amends section 49 by inserting subsection 49 (3) which clarifies that only an ordinary or a declaration vote (other than a postal vote or vote cast before polling day) may be cast at a mobile polling place. The Electoral Commissioner recommended the amendment of the Electoral Act to ensure a standard procedure for treatment of unenrolled votes is consistently followed at elections and to provide for more specific criteria to regulate mobile polling booths.

Clause 12. Section 50 amended

This clause amends section 50, which outlines the method for voting in Legislative Assembly elections. This clause amends section 50 by inserting a note after section 50(2). The note inserted by the clause clarifies that despite the provisions in section 50 and 94(2), the elector is taken to have indicated his or her preferences for all candidates in the circumstances specified in sections 94(2) to (3B). The Electoral Commissioner recommended that the Electoral Act be amended to provide for the relaxation of formality provisions of the current voting system for Legislative Assembly elections. To provide for relaxation of formality provisions, whilst retaining the current full preferential system outlined in sections 50 and 94(2), the Electoral Act is amended to allow a “” or “” to be recognised as a “1”. Section 50 outlines the voting system to be used for Legislative Assembly elections and the note inserted clarifies the interaction between the voting system and the amended formality provisions. This clause also makes a minor statute law revision type amendment to subsection 50(2)(b) to assist readability of the legislation.

Clause 13. Section 51A inserted

This clause inserts section 51A in relation to how-to-vote cards after section 51. The subsections of sections of 51A provide as follows:

· Section 51A (1) introduces a definition of a how-to-vote card into the Electoral Act and defines a how-to-vote card as a printed document that recommends the way in which an elector should mark the ballot paper.
· Section 51A (2) provides a non-exhaustive list of content that may be included on the how-to-vote card including: the candidate’s name, the party name where applicable, the candidate’s order of preference for other candidates in the division; and the name and address of the person authorising the publication of a how-to-vote-card. The Electoral Commissioner recommended that the Electoral Act provide that parties clearly identify themselves by party name on how-to-Vote cards and authorise such material in order to minimise the potential for parties to provide material that is not readily recognised by electors as the party’s promotional material and to provide greater clarity for electors in utilising how-to-vote cards at elections.
· Section 51A (3) allows for the making of a regulation to make further provisions relating to how-to-vote cards.

Clause 14. Section 60 amended

This clause amends section 60, which makes provision for who may apply for postal voting papers.

(1) This subclause omits (1)(a) from section 60(2) and inserts (1)(b) to clarify a person’s eligibility to apply for postal voting papers.
(2) This sub-clause amends section 60(2)(a) by inserting ‘(other than a mobile polling place at which the person may vote)’ after polling place to clarify that a person is still eligible to apply for postal voting papers if they live within 20km of a mobile polling place.
(3) This sub-clause omits subsection 60(2)(c) and inserts subsections 60(2) (c), (d) and (da). Subsection 60(2)(c) allows a person to apply for postal voting papers if they would be unable to attend a polling place because of a physical or other disability, illness, advanced pregnancy or another condition of the person. Subsection 60(2) (d) allows a person to apply for postal voting papers if they would be unable to attend because of a reasonable fear or apprehension about his or her personal wellbeing or safety. Subsection 60(2)(da) allows a person to apply for postal voting papers if they would be unable to attend a polling place because the person will be caring for a person with a physical or other disability, illness, advanced pregnancy or other condition. These amendments are in accordance with recommendations made by the Electoral Commissioner.
(4) This sub-clause makes minor statute law revision type amendments to subsections 60(2)(a),(b),(e) (ii) and (f) to assist readability of the legislation.

Clause 15. Section 62 amended

This clause amends section 62, which makes provision for issuing of postal voting papers.

(1) This sub-clause replaces subsection 62(2A)(b) and make minor amendments to assist readability of the legislation and to clarify that this subsection operations subject to subsections 62(3) and (4).
(2) This sub-clause inserts subsection 62(4) which allows an authorised officer discretion to send postal voting papers to an applicant whose application was received outside the specified timeframe. Subsection 62(4) (a),(b) and (c) outline the factors which the officer may have regard to when deciding to issue a postal voting paper to an application outside the specified timeframe. These factors include: special circumstances of the applicant; the need to allow sufficient time for the papers to be completed by the applicant by 6pm on polling day; and any other matters the officer considers relevant. The Electoral Commissioner recommended the Electoral Act include the right to apply for a postal vote to persons with a disability and subsection 60(4) allows the authorised officer flexibility to take into account special circumstances or other matters of postal vote applicants, including those persons with a physical or other disability.

Clause 16. Section 64 amended

This clause amends section 64, which pertains to applications for postal votes being available for public inspection. This clause amends subsection 64(1) by making minor amendments to assist readability of the legislation and to replace a cross-reference to specify the day for sending applications for postal votes to the Commission is as soon as practicable after the day 2 days before polling day. This does not change the policy intention of this provision.

Clause 17. Sections 78 to 80 replaced

This clause replaces section 78 to 80 of the Electoral Act, relating to authorisation for mobile polling, notice of authorisation and classes of persons able to vote at mobile polling places. The subsections of section 78 provide as follows:

· Subsection 78(1) gives the Electoral Commissioner the authority to declare a specified polling place to be a mobile polling place where votes may be taken by an authorised officer during the mobile polling period.
· Subsection 78(2) outlines the content of the declaration made by the Electoral Commissioner under sub-section 78(1). The declaration may specify the classes of electors who may vote at the mobile polling place; and dates and hours during which votes may be cast at the place during the mobile polling period.
· Subsection 78(3) outlines the factors the Electoral Commissioner must have regard to in making the declaration, including whether or not there is a distinct community of electors who may be served by a mobile polling place or there are special circumstances applying to electors who may be served by the mobile polling place (for example because of their special needs or other requirements); the practicality for those electors to attend another polling place for the election; and the practicality of establishing the mobile polling place for those electors having regard to their number and resources required for doing so.
· Subsection 78(4) clarifies that if the declaration specifies a class of electors, only a person in that class may vote at the mobile polling place.
· Subsection 78(5) provides that the Electoral Commissioner must give public notice of the declaration; and as far as practicable, notify the community or electors to be served by the mobile polling place in a way that is reasonable in the circumstances.
Section 78 gives effect to the recommendation by the Electoral Commissioner that the Electoral Act set more specific criteria for the selection of locations for mobile polling that includes locations, for example where residents experience transport difficulty in attending other polling place, or where a high level of special needs exists. Subsections 78(2),(3),(4) and (5) provide clear guidance and authority for the Electoral Commissioner to exercise his or her discretion and will put the appointment of mobile polling in certain places (for example: town camps) beyond doubt.


Clause 18. Section 81 amended

This clause amends section 81, relating to changes of mobile polling places, day or hours for voting.

(1) This sub-clause amends section 81 heading by omitting ‘day’ and inserting ‘dates’, in order to clarify and improve the readability of the legislation.
(2) This sub-clause replaces section 81(1) by omitting ‘day’ and inserts a new section to provide that the Electoral Commissioner may substitute another place as a mobile polling place or alter the dates or hours of operation of the mobile polling place.
(3) This sub-clause makes a minor change to replace the words ‘the public notice’ with ‘notice to the public’ this is to improve the readability of the provision and replaces the word ‘Commission’ with ‘Commissioner’. This sub-clause clarifies that the Commissioner does not need to give public notice as defined in section 5 of the Electoral Act when substituting a mobile polling place or change the day or hours of the polling place.

Clause 19. Section 84 amended

This clause amends section 84 to omits all words after ‘because’ to clarify that an election result is not invalidated because an authorised officer does not visit a mobile polling place or does not visit a mobile polling place on the dates or during the hours stated in a notice of authorisation under section 78 or as substituted under section 81.

Clause 20. Part 6, Division 6A inserted

This clause inserts Division 6A, in relation to approved electronic and other automated systems for voting after section 39, which includes a new section 85A. The subsections of section 85A provide as follows:

· Subsection 85A(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.
· Subsection 85A(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.
· Subsection 85A(3) specifies that the Commissioner must give public notice of approval to use an electronic or automated system.
· Subsection 85A(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.
Section 85A gives effect to the Electoral Commissioner’s recommendation that the Electoral Act permits limited voting by electronic means at the discretion of the Electoral Commissioner and will allow a limited number of voters currently disenfranchised by a short election, for example overseas or interstate electors, the option to vote by electronic means that are conducted under tight and secure controls.

Clause 21. Section 88 amended

This clause amends section 88, which pertains to assistance to voters unable to enter a polling place. This clause inserts the words ‘or other’ after ‘physical’ in section 88(1). The insertion of the words ‘or other’ expands the reasons for which a voter may not be able to enter a polling place to recognise that disability may not be limited to physical disability, for example, a mental disability.

Clause 22. Section 94 amended

This clause amends section 94, which pertains to informal ballot papers.

(1) This sub-clause omits subsections 94(2) and (3) and inserts subsections 94(2),(3) and (3A) which give effect to the Electoral Commissioner’s recommendation that formality provisions for the current voting system for Legislative Assembly elections be relaxed. Subsections 94(2),(3) and (3A) provide as follows:
· Subsection 94(2) outlines that despite the full preferential system outlined in section 50(2)(a) and (b), a voter is taken to have indicated his or her preference for all the candidates on a ballot paper in the circumstances mentioned in 94(3) or (3A). This subsection explains that the current voting system (full preferential) operates subject to the use of a formality provision to allow a “” or “” to be recognised as a “1”.
· Subsection 94 (3) adopts a formality provision to allow a “” or “” to be recognised as a “1”, which would enable a ballot paper marked in this way to be treated as formal if there is a clear expression of a voter’s intent. Subsection 94(3) allows a ballot paper to be treated as formal where there are two candidates only and where an elector has placed a “” or “” in one candidate square and has either placed a “2” in the other candidate square or left the other candidate square blank.
· Subsection 94(3A) adopts a formality provision to allow a “” or “” to be recognised as a “1”, which would enable a ballot paper marked in this way to be treated as formal if there is a clear expression of a voter’s intent. Subsection 94(3A) allows a ballot paper to be treated as formal where there are 3 or more candidates and an elector places a “” or “” in one candidate square and consecutively increasing whole numbers in the remaining squares.
· Subsection 94 (3B) adopts a formality provision to allow a “” or “” to be recognised as a “1”, which would enable a ballot paper marked in this way to be treated as formal if there is a clear expression of a voter’s intent. Subsection 94(3B) allows a ballot paper to be treated as formal where there are 3 or more candidates and an elector places a “” or “” in one candidate square and consecutively increasing whole numbers in the remaining squares, except the last square which will indicate an elector’s last preference.

(1) This sub-clause inserts numbering into subsection 156(1) to update references and improve the readability of the legislation.
(2) This sub-clause inserts subsection 156(2) which provides that the applications for registration of political parties must be received 6 months before the date a general election is due to be held (other than an extraordinary general election). This sub-clause gives effect to the Electoral Commissioner’s recommendation to require applications for registration of a political party to be received 6 months prior to any general election to eliminate the lodgement of “fly by night” or last minute applications by which political parties might easily avoid financial reporting obligations.

Clause 27. Section 171A inserted

This clause inserts section 171A after section 171, to specify that as part of the making of an annual return, registered political parties must either include information about the party’s continued registration, if registered under the Commonwealth Act, or information on the party’s membership numbers if registered under the Northern Territory Act. This clause gives effect to the Electoral Commissioner’s recommendation that registered political parties be required to furnish a return to the Electoral Commissioner as to the party’s continued eligibility for registration to ensure greater vigilance is maintained over minimum numbers of members once registration is granted. The subsections of section 171A provide as follows:

· Subsection 171A (1) requires a registered party to prepare a return in the approved form for each financial year. Subsection 171A(1)(a) specifies that if the party is registered under the Commonwealth Act, that the party continues to be registered under that Act. Subsection 171A(1)(b) specifies that if the party is registered under the NT Electoral Act that the party has at least 200 members who meet the requirements specified in section 152(4)(a) as at the end of that financial year.
· Subsection 171A(2) provides that the registered officer of the party must provide the return and a copy of the party’s current constitution to the Electoral Commissioner within 16 weeks after the end of the financial year. This subsection specifies a maximum penalty of 20 penalty units if the registered officer does not comply with these requirements.

Clause 28. Section 176 amended

This clause amends section 176, which creates definitions used in Part 10 of the Electoral Act pertaining to financial disclosure by political parties. This clause amends section 176 by omitting the definition of ‘broadcast’. This definition is omitted as the use of new definitions of ‘distribute’ and ‘publish’ will render the use of ‘broadcast’ redundant.

Clause 29. Section 199 amended

This clause amends section 199, which provides definitions used in Division 4 pertaining to disclosure of electoral expenditure. This clause omits the definition of “electoral advertisement” in section 199. The term “electoral advertisement” has been amended by clause 4 and the new definition of “electoral advertisement” is contained in section 3.

Clause 30. Section 268 amended

This clause omits the definition of ‘publish’ from section 268, as a definition has been inserted in section 3.


Clause 31. Section 268A inserted

This clause inserts section 268A, which provides an explanation of the meaning of campaign material. The subsections of section 268A provide as follows:

· Subsection 268A(1) defines campaign material as an advertisement, document or any other thing that is intended to promote the electoral prospect of a particular candidate or group of candidates for an election.
· Subsection 268A(2) provides a non-exhaustive list of examples of campaign materials which includes: an electoral advertisement; a printed document containing an electoral matter for example a pamphlet; a message containing an electoral matter that is sent by telephone or otherwise broadcast by electronic means; or material containing an electoral matter that is published or broadcast on the Internet, radio or television or by other means.
· Subsection 268A(3) allows the Commissioner to exempt a thing intended to promote the electoral prospect of a particular candidate or group of candidates for an election from being defined as campaign material.
· Subsection 268A(4) provides that the Commissioner must be satisfied that the declaration under subsection 268A(3) is warranted and outlines matters that the Commissioner must have regard to in deciding if declaration is warranted under 268A(3) including: any information contained in the thing and the way the information is presented; the person for whom the thing is created; the way in which the thing is intended to be used or distributed; and any other matters as the Commissioner considers appropriate.
This clause gives effect to the Electoral Commissioner’s recommendation to provide that parties must clearly identify themselves on campaign material and authorise such material where it is distributed by them.

Clause 32. Sections 270 and 271 replaced

This clause replaces sections 270 and 271 of the Electoral Act with a new section 270 and 271 which creates offences in relation to campaign material and push-polling activities. Sections 270 and 271 will act in conjunction with the new definition of campaign material in section 268A.

Section 270 gives effect to the Electoral Commissioner’s recommendations in relation to campaign materials, including requirements that: the name and address of the authorising person and printer be displayed on advertisements, the name and address of the authorising person be displayed on electronic billboards, digital road signs and similar; that publication on the internet be regulated by the Electoral Act; and double sided promotional stickers be authorised on both sides. The subsections of sections 270 provide as follows:

· Subsection 270(1) creates an offence to publish, or distribute any campaign material unless the material: clearly states the name and address of the person authorising the publication or distribution of the material; and if a printed document includes the name and address of the printer; and if the material is intended to be viewed from 2 sides, for example a sticker, that the requisite information is displayed on both sides. The maximum penalty for an offence is 100 penalty units.
· Subsection 270(2) creates an exception and specifies that the offence in relation to publishing electoral advertisements created in subsection 270(1) does not apply to the announcement by advertisement in a newspaper of the holding of a meeting. This re-creates the current exception in subsection 270(2) of the Electoral Act.
· Subsection 270(3) creates an offence to publish or distribute any campaign material that is likely to mislead or deceive an elector, improperly interfere with an elector casting a vote, or contains an untrue or incorrect statement. The maximum penalty for an offence is 100 penalty units.

Section 271 creates an offence relating to push-polling activities and is intended to provide greater clarity for electors when asked to participate in push-polling by telephone calls or face to face meetings. The subsections of section 270A provide as follows:

· Subsection 345(2) provides that the Commissioner must securely store electoral papers until satisfied that they are no longer required.
· Subsection 345(3) provides that the Commissioner may destroy electoral papers when they are no longer required as mentioned in subsection 345 (2).
This subsection gives effect to the Electoral Commissioner’s recommendation that the Electoral Act allow the destruction of electoral papers relating to a general election to occur at the discretion of the NT Electoral Commission once returns can no longer be disputed.

Clause 34. Act further amended

Schedule 1 contains further amendments to the Electoral Act.

Part 1 of the schedule contains amendments related to the use of conjunctions.

Part 2 of the schedule contains minor amendments of a statute law revision nature.



Part 3 Amendment of Local Government Act commencing on Administrator’s assent

Clause 35. Act amended

This is a formal clause which specifies that this Part will amend the Local Government Act.

Clause 36. Section 3 amended

This clause omits the definition of ‘electoral campaign material’ to standardise and harmonise definitions across the Local Government Act and Electoral Act.

Its inserts the definition of ‘publish’ into the Local Government Act to harmonise with the Electoral Act.

Clause 37. Section 37 amended

This clause amends section 37, which outlines the grounds for disqualification of a member of the council. Section 37 prescribes the circumstances in which a person is disqualified from office as a member of a council. The clause amends section 37(1)(d) and omits the words ‘whose seniority disqualifies the employee from membership of the council in accordance with criteria laid down in Ministerial guidelines.’ The effect of removing these words is that a council employee will no longer be able to simultaneously hold office as an elected member of council in which they are employed. The amendment to section 37(1)(d) is intended to strengthen governance, transparency and accountability in local government and reduce the potential for conflicts of interest.

Clause 38. Section 88 amended

This clause amends section 88, which deals with the electoral roll by inserting subsection 88(1A). Section 88(1A) provides that the roll prepared under the Local Government Act must contain the same information about each elector required of a roll prepared under the Electoral Act. The clause also inserts a note following subsection 88(1A) which refers the reader to section 11 of the Electoral Act for information about preparation of a roll under that Act. This clause harmonises provisions in the Local Government Act with the Electoral Act.



Clause 39. Section 99 replaced

This clause replaces section 99, which deals with electoral campaign material. This provision replicates amendments made to sections 270 and 270A of the Electoral Act and harmonises provisions in the Local Government Act with the Electoral Act as recommended by the Electoral Commissioner. The replacement of section 99 also gives effect to the recommendation by the Electoral Commissioner that the Local Government Act extend obligations on misleading and deceptive publications to the internet, television and telephone. The subsections of section 99 provide as follows:

· Subsection 99(1) creates an offence to publish or distribute any campaign material unless the material: clearly states the name and address of the person authorising the publishing or distribution of the material; and if a printed document includes the name and address of the printer; and if the material is intended to be viewed from 2 sides, for example a sticker, that the requisite information is displayed on both sides. The maximum penalty for an offence is 100 penalty units.
· Subsection 99(2) creates an offence to publish or distribute any campaign material that is likely to mislead or deceive an elector, improperly interfere with an elector casting a vote, or contains an untrue or incorrect statement. The maximum penalty for an offence is 100 penalty units.
· Subsection 99(3) defines campaign material for the purposes of this section as an advertisement, document or any other thing that is intended to promote the electoral prospect of a particular candidate or group of candidates for an election; and not exempt by the Electoral Commissioner.
· Subsection 99(4) provides a non-exhaustive list of examples of campaign materials which includes: an electoral advertisement; a printed document containing an electoral matter for example; a pamphlet; a message containing an electoral matter that is sent by telephone or otherwise broadcast by electronic means; or material containing an electoral matter that is published or broadcast on the Internet, radio or television or by other means.
· Subsection 99(5) allows the Electoral Commissioner to declare a thing intended to promote the electoral prospect of a particular candidate or group of candidates for an election, including materials outlined in subsection 994(4) is not campaign material.
· Subsection 99(6) provides that the Electoral Commissioner must be satisfied that the declaration under subsection 99(5) is warranted and outlines matters that the Electoral Commissioner must have regard to in deciding if declaration is warranted under 99(5) including: information contained in the thing and the way the information is presented; the person for whom the thing is created; the way in which the thing is intended to be used or distributed; and any other matters as the Commissioner considers appropriate.
· Subsection 99(7) defines ‘electoral matter’ for the purposes of subsection 99(4) as a matter in printed or electronic form that is intended or likely to affect voting at an election. This provision harmonises the use of the term ‘electoral matter’ in the Local Government Act and the Electoral Act.
· Subsection 99(8) outlines matters under subsection 99(7) which may be taken to be intended or likely to affect voting at an election. A matter is taken to be intended or likely to affect voting at an election if it contains an express or implicit reference to or comment on: the election; a candidate for the election; the performance of a member, or former member, of a council; or an issue submitted to, or otherwise before, the electors in relation to the election. This provision provides guidance on the definition of ‘electoral matter’ in subsection 99(7) also harmonises the use of this term in the Local Government Act and the Electoral Act.

Clause 40. Section 20.2 heading amended

This clause amends Part 20.2, which dealt with the Transitional Provisions when the Local Government Act was passed in 2008. The insertion of the words ‘for Local Government Act 2008’ clarifies that those transitional provisions applied to transitional provision for the Local Government Act 2008 and not to the transitional provision effected in the Electoral and Other Legislation Amendment Bill 2011.

Clause 41. Section 20.3 inserted

This clause inserts Part 20.3 after 20.2, and inserts sections 273 and 274 creating transitional and savings provisions for the Electoral and Other Legislation Amendment Bill 2011. The subsections of sections 273 and 274 provide as follows:

· Subsection 273(1) specifies that section 273 applies to a person who, immediately before the commencement of section 273, was simultaneously a member and employee of the council.
· Subsection 273(2) contains a transitional provision, which provides that section 37 (which prevents all council employees from being able to simultaneously hold office as an elected member of a council in which they are employed) does not: disqualify the person from office as a member of the council for the remainder of the person’s current term of office as a member of that council; or prevent the person continuing to be an employee of the council for the remainder of that term.
· The effect of this provision is that council employees, who are currently elected members of a council, continue in their role as an elected member until the next local government general election on 24 March 2012.
· Subsection 274(1) creates a saving provision and states that the section applies if an election for an area before the commencement of this section fails; and as a result, another election (the fresh election) is to be held for the area.
· Subsection 274(2) provides that if the fresh election is held after the commencement of Part 3, it must be conducted as if Parts 3 and 5 of the Electoral and Other Legislation Amendment Act 2011 had not commenced. The effect of section 274(2) is that it allows the former provisions of the Local Government Act to continue to apply in the event of a failed election where an election held before the commencement of Parts 3 and 5.

Clause 42. Act further amended

Schedule 2 contains amendments of a statute law revision nature which update the formatting of offence provisions in the Local Government Act.

Part 4 Amendment of Local Government Act commencing on 1 May 2012

Clause 43. Act amended

This is a formal clause which specifies that this Part will amend the Local Government Act.

Clause 44. Section 3 amended

This clause amends definitions in section 3, which pertains to definitions in the Local Government Act.

· This sub-clause omits the definition of ‘returning officer’ in section 3. The omission of the definition of ‘returning officer’ in section 3 will establish the Electoral Commissioner as sole electoral service provider for all local government elections. This amendment is intended to provide certainty that an impartial authority conducts the elections and they are conducted to consistent standards across the Territory and would also facilitate Territory-wide absent voting and advertising and deliver the benefits of economies of scale and planning at elections.
· This sub-clause amends the following definitions in section 3. It:
o introduces a new definition of ‘by-election’ as mentioned in section 86, and
o introduces a new definition of ‘general election’ meaning either a general election mentioned in section 84; or a periodic general election mentioned in section 85.

Clause 45. Section 86 amended

This clause amends section 86, which pertains to local government by-elections. This clause omits subsections 86(3) and (4) and inserts subsections 86(3),(4) and (5). The subsections provide as follows:

· Subsection 86(3) provides that a by-election is to be held on a date fixed by the Electoral Commissioner.
· Subsection 86(4) provides that a date for a by-election must fall within 3 months after the Electoral Commissioner receives notice of a casual vacancy in the membership of the council for which the by-election is required.
· Subsection 86(5) provides that the by-election (including nomination of candidates and other related processes) is to be conducted as decided by the Electoral Commissioner.
Subsection 86(3),(4) and (5) give effect to the Electoral Commissioner’s recommendation that the Local Government Act prescribe parameters rather than set periods and allow some increased discretion in setting an election timetable for by-elections and is intended to allow some flexibility for the Electoral Commissioner to customise an election timetable that better suits the needs of each ward/council election, the sizes and needs of which vary greatly. These subsections in conjunction with amendments made to regulations 6 and 10 of the Local Government (Electoral) Regulations will allow the Electoral Commissioner the discretion to reduce the 43 day timetable in the case of very small by-elections and other necessary situations.

Clause 46. Section 88 amended

This clause amends section 88, by omitting sub-section 88(3). Sub-section 88(3) pertains to the returning officer fixing the date for a by-election. Sub-section 88(3) is omitted to effect the establishment of the Electoral Commissioner as sole electoral service provider for all local government elections.

Clause 47. Section 91 amended

This clause amends section 91, which pertains to disputing the validity of an election or poll.

(1) This sub-clause amends sub-section 91(1) to insert a reference to the ‘Electoral Commissioner’ as a person able to make an application to the Tribunal to dispute a result of an election or poll. This is consistent with the establishment of the Electoral Commissioner as sole electoral service provider for all local government elections.
(2) This sub-clause amends sub-section 91(2) (b) and makes minor amendments to improve readability of the legislation.
(3) This sub-clause omits sub-section 91(2) (c), which refers to the returning officer as a person with an interest in the result of an election or poll. The omission of sub-section 91(2)(c) is made in conjunction with a number of other amendments to remove references to ‘returning officer’ in the Local Government Act in order establish the Electoral Commissioner as the sole electoral service provider for local government elections.

Clause 48. Section 96 amended

This clause amends section 96, which pertains to the Minister’s power in relation to elections.

(1) This sub-clause makes minor statute law revision type amendments to section 96(1) to improve the readability of the legislation.
(2) This sub-clause omits sub-section 96(2), which refers to the returning officer being appointed by the Minister. This sub-section is no longer necessary as the Bill establishes the Electoral Commissioner as sole electoral service provider for all local government elections. The omission of sub-section 96(2) is made in conjunction with a number of other amendments to remove references to “returning officer” in the Local Government Act in order establish the Electoral Commissioner as the sole electoral service provider.

Clause 49. Section 274 amended

This clause amends section 274 which is a savings provision inserted into the Local Government Act by Part 3 of the Bill. The clause inserts subsection 274(3) which provides that if a fresh election is held after the commencement of Part 4, it must be conducted as if Parts 3 and 6 of the Electoral and Other Legislation Amendment Act 2011 had not commenced. The effect of subsection 274(3) is that it allows the former provisions of the Local Government Act to continue to apply in the event of a failed election where an election is held before the commencement of Parts 3 and 6.

Part 5 Amendment of Local Government (Electoral) Regulations commencing on Administrator’s assent

Clause 50. Regulations amended

This is a formal clause which specifies that this Part will amend the Local Government (Electoral) Regulations.

Clause 51. Regulation 3 amended

This clause amends regulation 3, which provides for definitions.

(1) This sub-clause omits the definitions of ‘election campaign material‘, ‘mobile polling period’ and ‘mobile polling place’ in regulation 3. This sub-clause inserts a new definition of ‘mobile polling period’ as defined in regulation 32(1) and a new definition of ‘mobile polling place’ as declared under regulation 32. This sub-clause has the effect of standardising definitions across the Local Government (Electoral) Regulations and the Electoral Act and harmonises provisions in the Local Government (Electoral) Regulations with the Electoral Act.
(2) This sub-clause amends regulation 3 to omit the definition of ‘polling hours’ and inserts a new definition of ‘polling hours’ in paragraph (c) which makes reference to a new declaration provision under regulation 32 for mobile polling places in the regulations and includes the dates and hours as changed under section 33.



Clause 52. Regulation 7 amended

This clause amends regulation 7, which pertains to the form of nomination for candidates.

(1) This sub-clause amends sub-regulation 7(2)(b) by making minor statute law revision type amendments to improve the readability of the legislation.
(2) This sub-clause omits sub-regulation 7(2)(c), which specifies that a nomination must be accompanied by a deposit of $100 cash or bank cheque. This sub-clause gives effect to the recommendation by the Electoral Commissioner that the Local Government (Electoral) Regulations be amended to remove the requirement for a candidate nomination deposit ($100) at local government elections and is intended to eliminate the difficulties associated with lodging deposits from remote locations.

Clause 53. Regulation 8 amended

This clause amends regulation 8, which pertains to the making and withdrawal of candidate nominations. This clause inserts regulation 8(3) which stipulates the procedure for lodgement or withdrawal of candidate nomination.

Sub-regulation 8(3)(a) specifies that lodgement of a nomination or withdrawal of nomination must be done by hand delivery to an authorised officer at an office of the returning officer or another place approved by the returning officer.

Sub-regulation 8(3)(b) specifies that lodgement of a nomination or withdrawal of nomination by electronic means must be done as approved by the returning officer. The Electoral Commissioner recommended that the Local Government (Electoral) Regulations be amended to stipulate that a nomination may only be lodged at the office of the Returning Officer or a Deputy Returning Officer and is intended to prescribe a universally adopted procedure in all jurisdictions in Australia.

Clause 54. Regulation 10 amended

This clause amends regulation 10, which pertains to declaration of nominated candidates and the determination of the order of names on the ballot paper.

The clause omits sub-regulation 10(2) and inserts sub-regulations 10(2) and 10(2A) which provide that:

· Sub-regulation 10(2) provides that the returning officer must rely on the declaration of eligibility accompanying the nomination of a candidate in deciding the candidate’s eligibility to stand for the election.
· Sub-regulation 10(2A) provides that a returning officer need not rely on the declaration of eligibility referred to in sub-regulation 10(2) if there is evidence contrary to that declaration and the returning officer accepts that evidence.
This clause gives effect to the recommendation by the Electoral Commissioner that the Local Government (Electoral) Regulations be amended to stipulate that the checks undertaken by the returning officer regarding candidate qualifications are limited and that he or she must rely on the candidate’s statement unless there is conclusive evidence to the contrary readily available.

Clause 55. Regulation 11 amended

This clause amends regulation 11, which pertains to the closing of the electoral rolls. This clause omits sub-regulation 11(1) and inserts regulation 11(1) to amend when an electoral roll closes. Sub-regulation 11(1)(a) provides that for a general election the electoral roll closes at 5pm on the 32nd day before polling day.

Sub-regulation 11(1)(b) provides that for a by-election, the electoral roll closes as decided by the returning officer. Sub-regulation 11(1)(b) gives effect to the Electoral Commissioner’s recommendation that the Local Government Act prescribe parameters rather than set periods and allow some increased discretion in setting an election timetable for by-elections and is intended to allow some flexibility to customise an election timetable that better suits the needs of each ward/council election, the sizes and needs of which vary greatly. This amendment, in conjunction with amendments made to section 86 of the Local Government Act and regulation 6 in Part 6, provides discretion to reduce the 43 day timetable in the case of very small by-election and other situations where it is necessary and appropriate.

Sub-regulation 11(1)(1A) provides that where the returning officer decides upon a date for the close of rolls for the purpose of a by-election, that the Electoral Commissioner must give public notice of that decision in a way considered suitable.


Clause 56. Regulation 18 amended

This clause amends regulation 20, which pertains to method of voting.

(1) This sub-clause amends regulation 18(2)(b) which outlines the procedure for numbering preferences on a ballot paper. The sub-clause makes minor statute law revision type amendments to section 18(2)(b) in order to make the wording consistent with section 50 of the Electoral Act and does not change the policy intention of subsection 18(2)(b).
(2) This sub-clause amends regulation18, which outlines the method for voting in Local Government elections. This clause amends regulation 18 by inserting a note after section 50(2). The note inserted by the clause clarifies that despite the provisions in regulation 18, the elector is taken to have indicated his or her preferences for all candidates in the circumstances specified in sections 45(3) to (3B). The Electoral Commissioner recommended that the Electoral Act be amended to provide for the relaxation of formality provisions of the current voting system for Legislative Assembly elections and that the Local Government Act and Local Government (Electoral) Regulations be harmonised with the Electoral Act. Regulation 18 outlines the method of voting to be used for Local Government elections and the note inserted clarifies the interaction between the method of voting and the amended formality provisions.

Clause 57. Regulation 20 amended

This clause amends regulation 20, which pertains to issuing of ballot papers at an ordinary polling place.

(1) This sub-clause amends regulation 20(1) to omit reference to the word ‘local’ so the regulation has broader application to polling places more generally.
(2) This sub-clause omits regulation 20(3) which defines ‘local polling place’. This sub-clause gives effect to the Electoral Commissioner’s recommendation that the Local Government (Electoral) Regulations provide for the issue of ordinary votes on polling day at a polling place outside of the council area but within a designated region and intended to allow ordinary votes to be issued at a polling place where many votes for an electorate are expected to be cast, even though it is outside the electorate, for example a regional centre.

Clause 58. Regulation 23 amended

This clause amends regulation 23, which pertains to the issuing of a ballot paper for declaration voting.

(1) This sub-clause replaces sub-regulations 23(1) (b) and (c), which pertains to information to be given to the issuing officer before issuing a ballot paper. The new sub-regulation 23(1)(b) provides that for a person mentioned in regulation 22(a) or (b) – the person declares to the officer that the person is in the situation mentioned in that subsection. Sub-regulation 24(1)(c) provides that for a person mentioned in regulation 22(c) or (d) the person: completes and signs, in the presence of the officer, a declaration in the approved form about the person being in the situation mentioned in that subsection; and the officer signs the declaration as a witness.
(2) This sub-clause replaces sub-regulation 23(2)(b), which pertains to action the issuing officer must take immediately after issuing the ballot paper. The new sub-regulation 23(2)(b)(i) provides that immediately after issuing a ballot paper to the person the officer must for a person mentioned in regulation 22(a) or (b) – mark the electoral roll to indicate the issue of the paper to the person. The new sub-regulation 23(2)(b)(ii) provides that immediately after issuing a ballot paper to the person the officer must for a person mentioned in regulation 22(c) or (d) – make a record of the issue of the paper to the person.

The amendments to regulation 23 give effect to the recommendations by the Electoral Commissioner in relation to declaration voting under the Local Government (Electoral) Regulations. This amendment clarifies the process for issuing a declaration ballot paper and harmonises the Local Government (Electoral) Regulations with current declaration voting procedures under the Electoral Act.

Clause 59. Regulation 24 amended

This clause amends regulation 24, which pertains to casting a declaration vote.

(1) This sub-clause amends sub-regulation 24(1) by inserting sub-regulation 24(1A) and 24(1B) after sub-regulation 24(1).
· Sub-regulation 24(1A) provides that for a person mentioned in regulation 22(a) voting at a polling place within the region for which the person is enrolled, after a ballot paper is issued to the person, the person must go to an unoccupied voting compartment at the polling place and there in private must: mark his or her vote on the ballot paper; and fold the ballot paper to conceal the vote; and place the ballot paper in a ballot box at the polling place; and then leave the polling place.
· Sub-regulation 24(1B) provides that for a person mentioned in sub-regulation 22(a) voting at a polling place outside the region for which the person is enrolled, or a person mentioned in sub-regulation 22(b), after a ballot paper is issued to the person, the person must go to an unoccupied voting compartment at the polling place and there in private must: mark his or her vote on the ballot paper; and fold the ballot paper to conceal the vote; and give the ballot paper to an officer at the polling place. The officer must, in the presence of the person, without unfolding the ballot paper, place it in an envelope on which the declaration appears, seal the envelope and mark on the envelope: the name of the area of the council or ward for which the person is enrolled; and the polling place at which the ballot paper is issued. The person must then leave the polling place.
(2) This sub-clause amends sub-regulation 24 (2) by omitting the word ‘after’ and inserting the words ‘for a person mentioned in regulation 22(c) or 22(d), after’.
The amendments to regulation 24 give effect to the recommendation by the Electoral Commissioner that the Local Government (Electoral) Regulations provide that a voter at a static or mobile polling place wishing to cast a vote for another ward of the council or another council area does so as an absent voter. This amendment clarifies the process for casting a declaration vote and harmonises the Local Government (Electoral) Regulations with current declaration voting procedures under the Electoral Act.

Clause 60. Regulation 25 amended

This clause amends regulation 25, which pertains to who may apply for postal voting papers. These sub-clauses amend sub-regulation 25(2), which pertains to reasons which render a person eligible for a postal vote.

(1) This sub-clause inserts the words ‘(other than a mobile polling place at which the person may vote)’ into sub-regulation 25(2)(a)(i).
(2) This sub-clause omits sub-regulation 25(2)(a)(iii) and (iv) and inserts sub-regulations 25(2)(a)(iii), 25(2)(a)(iv) and 25(2)(a)(iva). Sub-regulation 25(2)(a)(iii) provides that a person is eligible for a postal vote if throughout polling hours on polling day they will be unable to attend a polling place because of physical or other disability, illness, advanced pregnancy or another condition of the person. Sub-regulation 25(2)(a)(iv) provides that a person is eligible for a postal vote if throughout polling hours on polling day they 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. Sub-regulation 25(2)(a)(iva) provides that a person is eligible for a postal vote if throughout polling hours on polling day they will be unable to attend a polling place because the person will be caring for a person with a physical or other disability, illness, advanced pregnancy or other condition.
This amendment harmonises the Local Government (Electoral) Regulations with provisions in relation to eligibility for postal voting under the Electoral Act.

Clause 61. Regulation 27 amended

This clause amends regulation 27, which pertains to the issue of postal voting papers.

(1) This subclause omits sub-regulation 27(1)(b) and inserts a new sub-regulation 27(1)(b) which amends the material, in particular envelopes provided to an applicant for a postal vote. Sub-regulation 27(1)(b) as inserted specifies that a postal vote applicant is provided with a postal vote certificate printed on an envelope addressed to the returning officer. This amendment means that instead of two envelopes being issued to an applicant, that the postal vote certificate and the envelope to return the vote are a single envelope.
(2) This sub-clause amends sub-regulation 27(2) and makes minor amendments to assist readability of the legislation and to clarify that this subsection operations subject to subsections 27(3) and (4).
(3) This sub-clause amends sub-regulation 27(3) and makes a minor amendment to assist readability of the legislation.
(4) This sub-clause inserts sub-regulation 27(4) which allows an authorised officer discretion to send postal voting papers to an applicant whose application was received outside the timeframe specified in sub-regulation 27(3)(a) and (b). Sub-regulations 27(4) (a),(b) and (c) outline the factors which the officer may have regard to when deciding if it is appropriate to issue a postal voting paper to an application outside the specified timeframe. These factors include: special circumstances of the applicant; the need to allow sufficient time for the papers to be completed by the applicant by 6pm on polling day; and any other matters the officer considers relevant. The Electoral Commissioner recommended the Electoral Act include the right to apply for a postal vote to persons with a disability and subsection 60(4) allows the authorised officer flexibility to take into account special circumstances or other matters of postal vote applicants, including those persons with a physical or other disability. These amendments harmonise the Local Government (Electoral) Regulations with the Electoral Act.

Clause 62. Regulation 30 amended

This clause amends regulation 30, which provides for the casting of postal vote.

(1) This sub-clause omits sub-regulation 30(7), which provides that the envelope bearing the postal vote certificate be placed in the outer envelope. This sub-regulation is no longer necessary as sub-regulation 27(1) (b) means that where there were formerly two envelopes, they are now combined into a single envelope.
(2) This sub-clause omits sub-regulation 30(8), which refers to procedure in relation to the ‘the outer envelope’. This sub-regulation is no longer necessary as sub-regulation 27(1)(b) means that where there were formerly two envelopes, they are now combined into a single envelope.

Clause 63. Regulation 32 and 33 replaced

This clause replaces regulations 32 and 33, which pertain to authorisation of mobile polling, notice of the authorisation and variation to an authorisation of mobile polling. This clause inserts regulation 32 and the sub-regulations of regulation 32 provide as follows:

· Sub-regulation 32(1) gives the returning officer the authority to declare a specified place to be a mobile polling place where votes may be taken by an authorised officer during the mobile polling period.
· Sub-regulation 32(2) outlines the content of the declaration made by the returning officer under sub-regulation 32(1). The declaration may specify the classes of electors who may vote at the mobile polling place; and dates and hours during which votes may be cast at the place during the mobile polling period.
· Sub-regulation 32(3) outlines the factors the returning officer must have regard to in making the declaration, including whether there is a distinct community of electors who may be served by a mobile polling place; the practicality for those electors to attend another polling place for the election; and the practicality of establishing the mobile polling place for those electors having regard to their number and resources required for doing so.
· Sub-regulation 32(4) provides that only the class of electors specified in the declaration can vote at the mobile polling place.
· Sub-regulation 32(5) provides that the returning officer must give public notice of the declaration that is reasonable in the circumstances; and as far as practicable, notify the community or electors to be served by the mobile polling place in a way that is reasonable.
This clause inserts regulation 33 and the sub-regulations of regulation 33 provide as follows:

· Sub-regulation 33(1) provides that the returning officer may substitute another polling place for the mobile polling place or change the dates or hours specified for the place if satisfied there are special circumstances requiring the substitution or change.
· Sub-regulation 33(2) specifies that the returning officer must give public notice of the substitution or change that is reasonable and practicable.
Regulations 32 and 33 gives effect to the recommendation by the Electoral Commissioner that the Local Government (Electoral) Regulations set more specific criteria for the selection of locations for mobile polling that includes locations where residents experience difficulty in attending other polling place, where a high level of special needs exists or where a distinctive self regulated community exists but its numbers are not sufficient to warrant the establishment of a static polling place.

The amendments harmonise the Local Government (Electoral) Regulations with amendments to provisions in relation to mobile polling under the Electoral Act.

Clause 64. Regulation 35 amended

· Sub-regulation 35(1) omits the word ‘(1) Voting’ and is a minor statute law revisions amendment to improve the readability of this provision.
· Sub-regulation 35(2) is omitted as it is redundant and superseded by new regulation 32.

Clause 65. Regulation 37 amended

This clause amends regulation 37, which pertains to polling times. The clause omits sub-regulation 37(2) and inserts sub-regulations 37(2) and (3), which provide the following:

· Sub-regulation 37(2) provides that the times of polling at an early voting centre are to be as determined by the returning officer.
· Sub-regulation 37(3) provides that the times of polling at a mobile polling place are to be as specified in the declaration under regulation 32 for the place.
Sub-regulations 37(2) and (3) give effect to the recommendation by the Electoral Commissioner that the Local Government (Electoral) Regulations set more specific criteria for the selection of locations for mobile polling that includes locations where residents experience difficulty in attending other polling place, where a high level of special needs exists or where a distinctive self regulated community exists but its numbers are not sufficient to warrant the establishment of a static polling place.

The amendments harmonise the Local Government (Electoral) Regulations with amendments to provisions in relation to mobile polling under the Electoral Act.

Clause 66. Regulation 45 amended

This clause amends regulation 45, which pertains to formality provisions for ballot papers.

(1) This sub-clause omits sub-regulations 45(2) and (3) and inserts sub-regulations 45(2),(3),(3A) and (3B) to harmonise the Local Government voting system with the amendment to the voting system for the Legislative Assembly (the formality provision).
· Sub-regulations 45(2) outlines that despite the full preferential system outlined in sub-regulation 45(1)(b), a voter is taken to have indicated his or her preference for all the candidates in the circumstance mentioned in sub-regulations 45(3) to (3B). This sub-regulation explains that the current voting system (full preferential) operates subject to the use of a formality provision to allow a “” or “” to be recognised as a “1”.
· Sub-regulation 45(3) adopts a formality provision to allow a “” or “” to be recognised as a “1”, which enables a ballot paper marked in this way to be treated as formal if there is a clear expression of a voter’s intent. Subsection 45(3) allows a ballot paper to be treated as formal where there are two candidates only and where an elector has placed a “” or “” in one candidate square and has either placed a “2” in the other candidate square or left the other candidate square blank.
· Subsection 45(3A) adopts a formality provision to allow a “” or “” to be recognised as a “1”, which would enable a ballot paper marked in this way to be treated as formal if there is a clear expression of a voter’s intent. Subsection 45(3A) allows a ballot paper to be treated as formal where there are 3 or more candidates and an elector places a “” or “” in one candidate square and consecutively increasing whole numbers in the remaining squares.
· Sub-regulation 45(3B) adopts a formality provision to allow a “” or “” to be recognised as a “1”, which enables a ballot paper marked in this way to be treated as formal if there is a clear expression of a voter’s intent. Sub-regulation 45(3B) allows ballot paper to be treated as formal where there are 3 or more candidates and an elector places a “” or “” in one candidate square and consecutively increasing whole numbers in the remaining squares, except the last square which will indicate an elector’s last preference.
(2) This sub-clause amends the note heading for sub-regulation 45(4) and makes a minor statute law revision type amendment to improve the readability of the legislation.

Clause 67. Regulation 50 amended

This clause amends regulation 50, which pertains to the receipt of postal voting papers. Sub-regulation 50(a) refers to the ‘certificated envelope’ and the ‘outer envelope’, and is no longer necessary as regulation 27(1) provides that where there were formerly two envelopes, the certificate and outer envelope are now combined into a single envelope. This clause omits sub-regulations 50(a) to (c) and inserts sub-regulations as follows:

· Sub-regulation 50(a) provides that on receipt of postal voting papers an authorised officer must note on the elector’s postal vote certificate the date and time of receipt.
· Sub-regulation 50(b) provides that on receipt of postal voting papers an authorised officer must place the postal voting papers in a secure container.

· Sub-regulation 54(4) provides that if there are 2 or more candidates with the lowest number of votes and one or more of them are to be excluded from the count, the returning officer must decide, by lot, each candidate who is to be excluded. This sub-regulation aligns the provisions for resolution of ties in counting of votes for election of ordinary members with the provision for principal members of the council. At present the provisions for resolution of ties in counting of votes in election of principal members of the council is different from ordinary members.
· Sub-regulation 54(5) provides that if there are 2 candidates remaining in the count with the same number of votes, the returning officer must: carry out a recount of all ballot papers; and if the votes remain equal after the recount – decide by lot which is to be the successful candidate. The insertion of sub-regulation 54(5) aligns the provisions for resolution of ties in counting of votes for election of ordinary members with the provisions for principal members of the council. At present the provisions for resolution of ties in counting of votes in election of principal members of the council is different from ordinary members.

Clause 70. Regulation 62 amended

This clause omits the word ‘election’ from ‘election campaign material’ in sub-regulation 62(2) for consistency with the new term ‘campaign material’.

Clause 71. Regulation 64A inserted

This clause inserts regulation 64A after regulation 64, which pertains to the Electoral Commissioner’s power to approve electronic and other automated systems. The sub-regulations of regulation 64A provide as follows:

· Sub-regulation 64A(1) gives the Electoral 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.
· Sub-regulation 64A(2) provides that the Electoral Commissioner is restricted in approving the use of electronic and automated systems, and must 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; and the approved system would be supported by secure facilities where there are exceptional circumstances relating to the specified group of electors.
· Sub-regulation 64A(3) specifies that the Electoral Commissioner must, as soon as practicable after the approval, give public notice of approval to use an electronic or automated system.
· Sub-regulation 64A(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 the Act or the regulations.
Regulation 64A harmonises the Electoral Act, the Local Government Act and the Local Government (Electoral) Regulations to permit limited voting by electronic means at the discretion of the Electoral Commissioner and will allow a limited number of voters currently disenfranchised by a short election, the ability to vote by electronic means subject to tight and secure controls.

The effect of regulation 64A is to allow the Electoral Commissioner to approve electronic and other automated systems for use at the next local government election in March 2012.

Clause 72. Regulations 68 and 69 replaced

This clause repeals regulation 68 which sets criteria for when a candidate’s deposit is to be returned and regulation 69 which pertains to destruction of electoral papers.

The Electoral Commissioner recommended that the Local Government (Electoral) Regulations be amended to remove the requirement for a candidate nomination deposit ($100) at local government elections and this amendment is intended to eliminate the difficulties associated with lodging deposits from remote locations, accordingly as there is no longer a requirement for a candidate deposit, regulation 68 is redundant.

This clause also repeals regulation 69, which pertains to destruction of electoral papers and inserts new regulation 68, the sub-regulations of which provide as follows:

· Sub-regulation 68(1) provides that this provision applies to electoral papers in the possession of the returning officer that were used for an election.
· Sub-regulation 68(2) provides that the returning officer must securely store the electoral papers satisfied that they are no longer required for exercising a power or performing a function under these regulations.
· Sub-regulation 68(3) provides that the returning officer may destroy the papers when they are no longer required as mentioned in sub-regulation 68(2).

Regulation 68 gives effect to the recommendation by the Electoral Commissioner that the Electoral Commissioner be given the discretion to destroy electoral papers where they are no longer required for exercising a power or performing a function under the Electoral Act and recommended that the provisions for local government elections be harmonised with the amendments to the Electoral Act.

This clause also inserts Part 8, and inserts regulation 70 creating transitional provisions for the Electoral and Other Legislation Amendment Bill 2011. The transitional provision specifies that the amendments to regulation 7 and repeal of regulation 68 (requirement for a candidate nomination deposit ($100) at local government elections) does not apply if an invitation for nominations of candidates was made before the commencement of Part 5 (commencing on the Administrator’s assent). The effect of this provision is that a candidate deposit will not need to be paid at future local government elections after this provision has commenced.

Part 6 Amendment of Local Government (Electoral) Regulations commencing on 1 May 2012

Clause 73. Regulations amended

This is a formal clause which specifies that this Part will amend the Local Government (Electoral) Regulations.

Clause 74. Regulation 3 amended

This clause amends regulation 3, which contains the definitions for the regulations. This clause omits the current definition of ‘nomination day’ and introduces a new definition of ‘nomination day’ as defined in sub-regulation 8(4) of Part 6: for a general election – the 23rd day before polling day; or for a by-election – a day as decided by the Electoral Commissioner.

The amendment to the definition of ‘nomination day’ in regulation 3 gives effect to the Electoral Commissioner’s recommendation that the Local Government Act and Local Government Regulations prescribe parameters rather than set periods and allow some increased discretion in setting an election timetable for by-elections and is intended to allow some flexibility for the Electoral Commissioner to customise an election timetable that better suits the needs of each ward/council election.

The clause also inserts a definition of Electoral Commissioner, as the person appointed as Electoral Commissioner under section 314 of the Electoral Act. The definition of Electoral Commissioner in the Local Government (Electoral) Regulations is necessary because of various references in the regulations to the Electoral Commissioner in his role as sole provider for local government elections.

Clause 75. Regulation 5 repealed

This clause repeals regulation 5, which pertains to the Electoral Commissioner giving directions to returning officers on electoral process. This clause omits regulation 5 as the Bill establishes the Electoral Commissioner as sole electoral service provider for all local government elections, as recommended by the Electoral Commissioner, in order to provide certainty that an impartial authority conducts the elections and they are conducted to consistent and professional standards across the Territory.

Clause 76. Regulation 6 amended

This clause amends regulation 6, which pertains to the returning officer inviting nominations of candidates.

(1) This sub-clause amends regulation 6 heading by omitting ‘Returning officer’ and inserting ‘Electoral Commissioner’. This sub-clause removes reference to the ‘returning officer’ as the Bill establishes the Electoral Commissioner as sole electoral service provider for all local government elections.
(2) This sub-clause amends sub-regulation 6(1) by omitting reference to ‘returning officer’ and inserting ‘Electoral Commissioner’. This sub-clause removes reference to the ‘returning officer’ as the Bill establishes the Electoral Commissioner as sole electoral service provider for all local government elections.
(3) This sub-clause omits reference to ‘returning officer’ in sub-regulation 6(2)(b). This sub-clause removes reference to the ‘returning officer’ as the Bill establishes the Electoral Commissioner as sole electoral service provider for all local government elections.
(4) This sub-clause inserts a note after sub-regulation 6(2), which explains that section 86 of the Local Government Act provides that the Electoral Commissioner has discretion to conduct a by-election. This sub-clause gives effect to the Electoral Commissioner’s recommendation that the Local Government Act and regulations prescribe parameters rather than set periods and allow some increased discretion in setting an election timetable for by-elections and is intended to allow some flexibility for the Electoral Commissioner to customise an election timetable that better suits the needs of each ward/council election, the sizes and needs of which vary greatly.

Clause 77. Regulation 8 amended

This clause inserts sub-regulation (4) after regulation 8(3) to define a nomination day as follows: for a general election – the 23rd day before polling day; or for a by-election – a day as decided by the Electoral Commissioner.

This clause inserts sub-regulation (5) after regulation 8(4) requiring the Electoral Commissioner to give public notice as necessary where a decision is made by the Electoral Commissioner in relation to the nomination day for a by-election.

Clause 78. Regulation 11 amended

This clause amends regulation 11, which pertains to the closing of the rolls. It omits regulation 11(1), and inserts sub-regulations as follows:
· Sub-regulation 11(1) provides that the electoral roll closes for a general election – at 5pm on the 32nd day before polling day; or for a by-election – as decided by the Electoral Commissioner. This sub-regulation gives effect to the Electoral Commissioner’s recommendation that the Local Government Act prescribe parameters rather than set periods and allow some increased discretion in setting an election timetable for by-elections and is intended to allow some flexibility for the Electoral Commissioner to customise an election timetable that better suits the needs of each ward/council election.
· This clause amends sub-regulation 11(2) by omitting the reference to accessing the electoral roll ‘in accordance with a policy determined by the Electoral Commissioner’. The reference to access to the roll in sub-regulation 11(2) is unnecessary as subsection 88(6) of the Local Government Act provides that ‘access to the electoral roll for the area or ward is to be on the same basis as access to a roll under the Electoral Act’.

New sub-regulation 11(2) provides that where a decision is made by the Electoral Commissioner on the close of the electoral roll for a by-election, the Electoral Commissioner must give public notice of that decision as considered appropriate.

(1) This sub-clause amends sub-regulation 28(1) by omitting ‘Returning officer’ and inserting ‘Electoral Commissioner’ as the Bill establishes the Electoral Commissioner as sole electoral service provider for all local government elections.
(2) This sub-clause amends sub-regulation 28(1)(b) to clarify that the other procedures that may be followed for the purpose of recording applications of postal votes include those approved by the Electoral Commissioner through the use of an approved electronic or other automated system under regulation 64.
(3) This sub-clause omits sub-regulation 28(2) as it is redundant due to the amendment to sub-regulation 28(1)(b).

Clause 80. Regulation 63 amended

This clause amends regulation 63 relating to the review of electoral representation. It is a minor change to remove the reference to Electoral Commission replacing it with Electoral Commissioner to clarify that a council must consult with the Electoral Commissioner relating to an electoral review.

Clause 81. Regulations 64 and 64A replaced

This clause repeals regulation 64, which pertains to the appointment of the Returning Officer. The omission of regulation 64 removes references to the appointment of the Returning Officer as the Bill establishes the Electoral Commissioner as sole electoral service provider for all local government elections. This clause also repeals and replaces regulation 64A, which makes transitional provisions in relation to the Electoral Commissioner’s power to approve electronic and other automated systems. This clause inserts regulation 64 which establishes the power of the Electoral Commissioner to approve electronic and other automated systems. The sub-regulations of regulation 64 provide as follows:

· Sub-regulation 64(1) gives the Electoral 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.
· Sub-regulation 64(2) provides that the Electoral Commissioner is restricted in approving the use of electronic and automated systems, and must 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 Electoral Commissioner's functions under these Regulations; 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 for defence personnel in war zones to allow them to cast a vote via e-mail or the Internet.
· Sub-regulation 64(3) specifies that the Electoral Commissioner must, as soon as practicable after giving the approval, give notice to the public of the approval to use an electronic or automated system as decided by the Electoral Commissioner.
· Sub-regulation 64(4) specifies that use of an approved system has effect despite any other provisions in these Regulations.
Regulation 64 gives effect to the Electoral Commissioner’s recommendation that the Electoral Act permit limited voting by electronic means at the discretion of the Electoral Commissioner and will allow a limited number of voters currently disenfranchised by a short election, for example overseas or interstate electors, the option to vote by electronic means that are conducted under tight and secure controls.


Part 7 Other amendments commencing on 1 May 2012

Clause 82. Other laws amended

Schedule 3 makes amendments of a statute law revision nature to the Local Government Act and Local Government (Electoral) Regulations. These amendments reflect that from 1 May 2012 when Part 7 of the Electoral and Other Legislation Amendment Act 2011 commences and the Electoral Commissioner will be the sole provider of election services and will perform the role of the Returning Officer in all local government elections.

Part 8 Expiry of Act

Clause 83. Expiry

This is a formal clause which outlines when the Electoral and Other Legislation Amendment Act 2011 expires, that is the day after Part 7 commences.

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