Commonwealth Numbered Acts

CONSTITUTIONAL CONVENTION (ELECTION) ACT 1997 No. 128 of 1997 - SECT 101

(1) The further scrutiny must be conducted, and the vacancies filled:

   (a)  under section 102, if that section applies; or

   (b)  otherwise, under this section.

(2) As soon as practicable after the *close of the poll, the DRO must:

   (a)  produce all the envelopes referred to in subsection 97(13); and

   (b)  remove the ballot-papers from the envelopes; and

   (c)  make a *scrutiny of those ballot-papers; and

   (d)  reject all informal ballot-papers and place them in a separate parcel;
        and

   (e)  arrange the unrejected ballot-papers so scrutinised under the names of
        the respective candidates by placing in one parcel under the name of
        each candidate all the ballot-papers on which a first preference is
        indicated for that candidate; and

   (f)  count the first preference votes given for each candidate on such
        ballot-papers, and *transmit the following information, in an
        expeditious manner, to the AEO:

        (i)    the number of first preference votes given for each candidate;
               and

        (ii)   the total number of ballot-papers rejected as informal; and

   (g)  seal up the parcels and endorse on each parcel a description of its
        contents, and permit any scrutineers present, if they so desire, to
        countersign the endorsement; and

   (h)  transmit with the least possible delay the parcels of unrejected
        ballot-papers marked using *voting method B to the AEO and inform the
        AEO, in writing and in some expeditious manner, of the transmission.

(3) 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; or

   (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 AEO must ascertain the
        number, determine the quota, transfer value or order, or identify the
        candidate, as the case may be.

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

(5) 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 must be transferred to the continuing candidates as follows:

   (a)  the number of surplus votes of the elected candidate must be divided
        by the number of first preference votes received by the candidate and
        the resulting fraction is 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 must be
        multiplied by the transfer value, the number so obtained (disregarding
        any fraction) must be added to the number of first preference votes of
        the continuing candidate and all those ballot-papers must 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 must be elected.

(6) Unless all the vacancies have been filled, the surplus votes (if any) of
any candidate elected under subsection (5), or elected subsequently under this
subsection, must be transferred to the continuing candidates in accordance
with paragraphs (5)(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 must be elected.

(7) 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 (5) or
(6) of the surplus votes of a particular elected candidate, no votes of any
other candidate are to be transferred to the continuing candidate.

(8) For the purposes of the application of paragraphs (5)(a) and (b) in
relation to a transfer under subsection (6) 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 must be dealt with
as if any vote it expressed for the elected candidate were a first preference
vote, as if any other candidate previously elected or excluded had not been a
candidate and as if the subsequent preferences of the voter had been altered
accordingly.

(9) 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
        (11), those candidates must be excluded; and the ballot-papers of the
        excluded candidate or candidates must be distributed in accordance
        with subsection (10).

(10) 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.

(11) 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) must 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) must 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; and

        (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)Ð 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 shortfallÐCandidate B and any
        other continuing candidates who stand lower in the poll than that
        candidate may be excluded in a bulk exclusion;

   (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)
               must 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)Ðis
                     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.

(12) Where, apart from this subsection, the number of continuing candidates
after a bulk exclusion under subsection (11) would be fewer than the number of
remaining unfilled vacancies, subsection (11) is to 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.

(13) 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 (11)(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 (9) or
(15) of ballot-papers of an excluded candidate or candidates, as the case may
be, must be elected, and, unless all the vacancies have been filled, the
surplus votes (if any) of the candidate so elected must be transferred in
accordance with paragraphs (5)(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 must 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 (10)(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
        (11), those candidates must be excluded; and the ballot-papers of the
        excluded candidate or candidates must be transferred in accordance
        with subsection (10).

(16) Where a candidate is elected during a transfer of ballot-papers under
subsection (9) or (15), no other ballot-papers of an excluded candidate or
candidates, as the case may be, are to 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 must be
elected notwithstanding that that number is below the quota, and if those
candidates have an equal number of votes the AEO is to determine which of the
2 candidates is elected.

(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 must be elected.

(19) For the purposes of this Act:

   (a)  the order of election of candidates must 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 must be taken to have been elected must 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. However if any 2 or more of those candidates each have the
        same number of votes, the order in which they must be taken to have
        been elected must 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 AEO must
        determine the order in which they must be taken to have been elected.

(20) Subject to subsections (21) and (22), 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 must be in accordance with the
relative sizes of the surpluses, the largest surplus being transferred first.

(21) Subject to subsection (22), where, after any count under this section, 2
or more candidates have equal surpluses, the order of any transfers of the
surplus votes of those candidates must 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. However if
there has been no such count the AEO must determine the order in which the
surpluses must be dealt with.

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

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

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

(25) In any case to which section 110 applies, a vote indicated on a
ballot-paper opposite the name of a deceased candidate must be counted to the
candidate next in the order of the voter's preference, and the subsequent
preferences of the voter are taken to be altered accordingly.

(26) For the purposes of this section:

   (a)  a transfer under subsection (5), (6) or (14) of all the surplus votes
        of an elected candidate; or

   (b)  a transfer under paragraph (10)(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 (10)(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.

(27) 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 an 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 an election, means the number of votes
that the candidate requires at that stage in order to reach the quota referred
to in subsection (4). vacancy shortfall in relation to a particular stage
during the scrutiny in an 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.

(28) 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.

(29) 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 must be determined as follows:

   (a)  subject to paragraph (b), the continuing candidates 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 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 AEO must determine the order of
        standing of those candidates in the poll.

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