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COMMONWEALTH ELECTORAL ACT 1918 - SECT 273

Scrutiny of votes in Senate elections

             (1)  Subject to section 273B, in a Senate election for a particular State or Territory, the scrutiny must be conducted, and the vacancies filled under this section or under section 273A.

             (2)  An Assistant Returning Officer must take the following steps in the presence of a polling official, and of any authorised scrutineers who attend:

                     (a)  exhibit each securely fastened ballot-box for the inspection of the scrutineers;

                     (b)  record the condition of the ballot-box;

                     (c)  open the ballot-box and:

                              (i)  remove the ballot papers from the box; and

                             (ii)  count the ballot papers without inspecting them; and

                            (iii)  record the number of ballot papers removed from the box;

                    (ca)  count the number of first preference votes marked in each of the squares above the line;

                     (d)  make, sign and keep a copy of a statement (which may be countersigned by a polling official, and by any scrutineers who are present if they so desire) setting out the number of first preference votes marked in each of the squares above the line and the number of ballot papers;

                   (da)  transmit the number of first preference votes marked in each of the squares above the line to the Divisional Returning Officer as soon as practicable;

                     (e)  seal up the ballot papers in a securely fastened container and endorse on each container a description of the contents of the container, and permit any scrutineers present, if they so desire, to countersign the endorsement;

                      (f)  transmit the container to the Divisional Returning Officer for the relevant Division as soon as practicable, together with the statement under paragraph (d).

             (3)  The Divisional Returning Officer for a Division must:

                     (a)  in relation to containers of ballot papers for the Division received under paragraph (2)(f), do the following:

                              (i)  open the containers of ballot papers;

                             (ii)  check the accuracy of the statement made under paragraph (2)(d) by carrying out the steps in paragraphs (2)(c) and (ca);

                            (iii)  repeat the steps in paragraphs (2)(d) to (e) (as if the reference in paragraph (2)(da) to the Divisional Returning Officer were a reference to the Australian Electoral Officer for the State that includes the Division); and

                     (b)  in relation to ballot-boxes for the Division received under this Act by the Divisional Returning Officer--repeat the steps in paragraphs (2)(c) to (e) (as if the reference in paragraph (2)(da) to the Divisional Returning Officer were a reference to the Australian Electoral Officer for the State that includes the Division ) ; and

                     (c)  keep a copy of:

                              (i)  the statement made under paragraph (2)(d) by the Assistant Returning Officer; and

                             (ii)  the statements made by the Divisional Returning Officer under that paragraph (as a result of subparagraph (a)(iii) and paragraph (b) of this subsection); and

                     (d)  transmit the containers sealed under paragraph (2)(e) (as a result of subparagraph (a)(iii) and paragraph (b) of this subsection) to the Australian Electoral Officer for the State that includes the Division as soon as practicable, together with the statements made by the Divisional Returning Officer.

             (4)  An Australian Electoral Officer must:

                     (a)  scrutinise all ballot papers received by him or her under paragraph (3)(d); and

                     (b)  reject any informal ballot papers; and

                     (c)  make, sign and keep a record of the preferences on the ballot papers that have been received by him or her (including informal ballot papers, and formal ballot papers that are not sequentially numbered).

             (7)  Where, for the purposes of the succeeding provisions of this section:

                     (a)  the number of ballot papers or votes in any category is required to be ascertained;

                     (b)  a quota, a transfer value or the order of standing of continuing candidates in a poll is required to be determined; or

                     (c)  a candidate is required to be identified;

the Australian Electoral Officer for the State shall ascertain the number, determine the quota, transfer value or order, or identify the candidate, as the case may be.

             (8)  The number of first preference votes given for each candidate and the total number of all such votes shall be ascertained and a quota shall be determined by dividing the total number of first preference votes by 1 more than the number of candidates required to be elected and by increasing the quotient so obtained (disregarding any remainder) by 1, and any candidate who has received a number of first preference votes equal to or greater than the quota shall be elected.

             (9)  Unless all the vacancies have been filled, the number (if any) of votes in excess of the quota (in this section referred to as surplus votes ) of each elected candidate shall be transferred to the continuing candidates as follows:

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

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

and any continuing candidate who has received a number of votes equal to or greater than the quota on the completion of any such transfer shall be elected.

           (10)  Unless all the vacancies have been filled, the surplus votes (if any) of any candidate elected under subsection (9), or elected subsequently under this subsection, shall be transferred to the continuing candidates in accordance with paragraphs (9)(a) and (b), and any continuing candidate who has received a number of votes equal to or greater than the quota on the completion of any such transfer shall be elected.

           (11)  Where a continuing candidate has received a number of votes equal to or greater than the quota on the completion of a transfer under subsection (9) or (10) of the surplus votes of a particular elected candidate, no votes of any other candidate shall be transferred to the continuing candidate.

           (12)  For the purposes of the application of paragraphs (9)(a) and (b) in relation to a transfer under subsection (10) or (14) of the surplus votes of an elected candidate, each ballot paper of the elected candidate that was obtained by the candidate on a transfer under this section shall be dealt with as if any vote it expressed for the elected candidate were a first preference vote, as if the name of any other candidate previously elected or excluded had not been on the ballot paper and as if the numbers indicating subsequent preferences had been altered accordingly.

           (13)  Where, after the counting of first preference votes or the transfer of surplus votes (if any) of elected candidates, no candidate has, or fewer than the number of candidates required to be elected have, received a number of votes equal to the quota:

                     (a)  the candidate who stands lowest in the poll must be excluded; or

                     (b)  if a bulk exclusion of candidates may be effected under subsection (13A), those candidates must be excluded;

and the ballot papers of the excluded candidate or candidates must be distributed in accordance with subsection (13AA).

     (13AA)  Where a candidate is, or candidates are, excluded in accordance with this section, the ballot papers of the excluded candidate or candidates must be transferred as follows:

                     (a)  the total number of ballot papers:

                              (i)  expressing a first preference for an excluded candidate; or

                             (ii)  received by an excluded candidate on distribution from another excluded candidate at a transfer value of 1 vote;

                            being ballot papers expressing the next available preference for a particular continuing candidate must be transferred at a transfer value of 1 vote to the continuing candidate and added to the number of votes of the continuing candidate;

                     (b)  the total number (if any) of other ballot papers obtained by an excluded candidate or the excluded candidates, as the case may be, must be transferred beginning with the ballot papers received by that candidate or those candidates at the highest transfer value and ending with the ballot papers received at the lowest transfer value, as follows:

                              (i)  the total number of ballot papers received by the excluded candidate or candidates, as the case may be, at a particular transfer value and expressing the next available preference for a particular continuing candidate must be multiplied by that transfer value;

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

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

        (13A)  The procedure for a bulk exclusion, and the circumstances in which such an exclusion may be made, are as follows:

                     (a)  a continuing candidate (in this subsection called Candidate A ) shall be identified, if possible, who, of the continuing candidates who each have a number of notional votes equal to or greater than the vacancy shortfall, stands lower or lowest in the poll;

                     (b)  a continuing candidate (in this subsection called Candidate B ) shall be identified, if possible, who:

                              (i)  stands lower in the poll than Candidate A, or if Candidate A cannot be identified, has a number of notional votes that is fewer than the vacancy shortfall;

                             (ii)  has a number of notional votes that is fewer than the number of votes of the candidate standing immediately higher than him or her in the poll; and

                            (iii)  if 2 or more candidates satisfy subparagraphs (i) and (ii)--is the candidate who of those candidates stands higher or highest in the poll;

                     (c)  in a case where Candidate B has been identified and has a number of notional votes fewer than the leading shortfall--Candidate B and any other continuing candidates who stand lower in the poll than that candidate may be excluded in a bulk exclusion; and

                     (d)  in a case where Candidate B has been identified and has a number of notional votes equal to or greater than the leading shortfall:

                              (i)  a continuing candidate (in this subsection called Candidate C ) shall be identified who:

                                        (A)  has a number of notional votes that is fewer than the leading shortfall; and

                                        (B)  if 2 or more candidates satisfy sub-subparagraph (A)--is the candidate who of those candidates stands higher or highest in the poll; and

                             (ii)  Candidate C and all other continuing candidates who stand lower in the poll than that candidate may be excluded in a bulk exclusion.

        (13B)  Where, apart from this subsection, the number of continuing candidates after a bulk exclusion under subsection (13A) would be fewer than the number of remaining unfilled vacancies, subsection (13A) shall operate to exclude only the number of candidates, beginning with the candidate who stands lowest in the poll, that would leave sufficient continuing candidates to fill the remaining unfilled vacancies.

        (13C)  Notwithstanding any other provision of this section (other than subsection (18)), where a candidate or candidates has or have been elected and there are surplus votes as a result of that election, paragraphs (13A)(a), (b), (c) and (d) may be applied as if references in those paragraphs to notional votes were references to adjusted notional votes.

           (14)  Any continuing candidate who has received a number of votes equal to or greater than the quota on the completion of a transfer under subsection (13) or (15) of ballot papers of an excluded candidate or candidates, as the case may be, shall be elected, and, unless all the vacancies have been filled, the surplus votes (if any) of the candidate so elected shall be transferred in accordance with paragraphs (9)(a) and (b), except that, where the candidate so elected is elected before all the ballot papers of the excluded candidate or candidates, as the case may be, have been transferred, the surplus votes (if any) of the candidate so elected shall not be transferred until the remaining ballot papers of the excluded candidate or candidates, as the case may be, have been transferred in accordance with paragraphs (13AA)(a) and (b) to continuing candidates.

           (15)  Subject to subsection (17) where, after the transfer of all of the ballot papers of an excluded candidate or the excluded candidates, as the case may be, no continuing candidate has received a number of votes greater than the quota:

                     (a)  the continuing candidate who stands lowest in the poll must be excluded; or

                     (b)  if a bulk exclusion of candidates may be effected under subsection (13A), those candidates must be excluded;

and the ballot papers of the excluded candidate or candidates must be transferred in accordance with subsection (13AA).

           (16)  Where a candidate is elected during a transfer of ballot papers under subsection (13) or (15), no other ballot papers of an excluded candidate or candidates, as the case may be, shall be transferred to the candidate so elected.

           (17)  In respect of the last vacancy for which two continuing candidates remain, the continuing candidate who has the larger number of votes shall be elected notwithstanding that that number is below the quota, and if those candidates have an equal number of votes the Australian Electoral Officer for the State shall have a casting vote but shall not otherwise vote at the election.

           (18)  Notwithstanding any other provision of this section, where the number of continuing candidates is equal to the number of remaining unfilled vacancies, those candidates shall be elected.

           (19)  At the conclusion of the scrutiny, the Australian Electoral Officer must place in containers all ballot papers transmitted to the officer under paragraph (3)(d), seal the containers and endorse a description of the contents on each container.

           (20)  For the purposes of this Act and the Representation Act 1983 :

                     (a)  the order of election of candidates in a Senate election shall be taken to be in accordance with the order of the count as a result of which they were elected, the candidates (if any) elected on the count of first preference votes being taken to be the earliest elected; and

                     (b)  where 2 or more candidates are elected as a result of the same count, the order in which they shall be taken to have been elected shall be in accordance with the relative numbers of their votes, the candidate with the largest number of votes being taken to be the earliest elected, but if any 2 or more of those candidates each have the same number of votes, the order in which they shall be taken to have been elected shall be taken to be in accordance with the relative numbers of their votes at the last count before their election at which each of them had a different number of votes, the candidate with the largest number of votes at that count being taken to be the earliest elected, and if there has been no such count the Australian Electoral Officer for the State shall determine the order in which they shall be taken to have been elected.

           (21)  Subject to subsections (22) and (23), where, after any count under this section, 2 or more candidates have surplus votes, the order of any transfers of the surplus votes of those candidates shall be in accordance with the relative sizes of the surpluses, the largest surplus being transferred first.

           (22)  Subject to subsection (23), where, after any count under this section, 2 or more candidates have equal surpluses, the order of any transfers of the surplus votes of those candidates shall be in accordance with the relative numbers of votes of those candidates at the last count at which each of those candidates had a different number of votes, the surplus of the candidate with the largest number of votes at that count being transferred first, but if there has been no such count the Australian Electoral Officer for the State shall determine the order in which the surpluses shall be dealt with.

           (23)  Where, after any count under this section, a candidate obtains surplus votes, those surplus votes shall not be transferred before the transfer of any surplus votes obtained by any other candidate on an earlier count.

           (25)  Where a candidate is elected by reason that the number of first preference votes received by the candidate, or the aggregate of first preference votes received by the candidate and all other votes obtained by the candidate on transfers under this section, is equal to the quota, all the ballot papers expressing those votes shall be set aside as finally dealt with.

           (26)  A ballot paper shall be set aside as exhausted where on a transfer it is found that the paper expresses no preference for any continuing candidate.

           (27)  In any case to which subsection 239(4) applies, a vote indicated on a ballot paper opposite the name of a deceased candidate shall be counted to the candidate next in the order of the voter's preference, and the numbers indicating subsequent preferences shall be deemed to be altered accordingly.

           (28)  For the purposes of this section:

                     (a)  a transfer under subsection (9), (10) or (14) of all the surplus votes of an elected candidate;

                     (b)  a transfer under paragraph (13AA)(a) of all ballot papers of an excluded candidate or excluded candidates, received by that candidate, or one of those candidates:

                              (i)  as the first preference vote; or

                             (ii)  on distribution from another excluded candidate at a transfer value of 1 vote; or

                     (c)  a transfer under paragraph (13AA)(b) of all ballot papers received by the excluded candidate or candidates, as the case may be, at a particular transfer value;

each constitutes a separate transfer.

           (29)  In this section:

"adjusted notional vote " , in relation to a continuing candidate, means, in a case where a candidate or candidates has or have been elected, the sum of:

                     (a)  the number of notional votes of the continuing candidate; and

                     (b)  the number, before the transfer of any of the surplus votes, of those surplus votes.

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

"leading shortfall " , in relation to a particular stage during the scrutiny in a Senate election, means the shortfall of the continuing candidate standing highest in the poll at that stage.

"notional vote " , in relation to a continuing candidate, means the aggregate of the votes obtained by that candidate and the votes obtained by each other candidate who stands lower in the poll than him or her.

"shortfall " , in relation to a continuing candidate at a particular stage during the scrutiny in a Senate election, means the number of votes that the candidate requires at that stage in order to reach the quota referred to in subsection (8).

"State " includes Territory.

"vacancy shortfall " , in relation to a particular stage during the scrutiny in a Senate election, means the aggregate of the shortfalls of that number of leading candidates equal to the number of remaining unfilled vacancies, the leading candidates being ascertained by taking the continuing candidate who stands highest in the poll, the continuing candidate who stands next highest in the poll, and so on in the order in which the continuing candidates stand in the poll.

           (30)  In this section, a reference to votes, or ballot papers, as the case may be, of or obtained or received by a candidate includes votes, or ballot papers, as the case may be, obtained or received by the candidate on any transfer under this section.

           (31)  For the purposes of this section, at any time after the counting of first preference votes the order of standing of the continuing candidates in the poll shall be determined as follows:

                     (a)  subject to paragraph (b), the continuing candidates shall stand in the poll in the order of the relative number of votes of each continuing candidate, with the continuing candidate with the greatest number of votes standing highest in the poll and the continuing candidate with the fewest number of votes standing lowest in the poll;

                     (b)  if 2 or more continuing candidates have the same number of votes, those candidates shall stand in the poll in the order of the relative number of votes of each of those candidates at the last count at which each of them had a different number of votes, with the continuing candidate with the greater or greatest number of votes at that count standing higher in the poll and the continuing candidate with the fewer or fewest number of votes at that count standing lower in the poll, but if there has been no such count the Australian Electoral Officer for the State shall determine the order of standing of those candidates in the poll.

           (32)  When the last vacancy is filled, the scrutiny shall immediately cease and any exclusion in progress shall not be completed.



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