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TASMANIA
__________
ELECTORAL BILL 2004
__________
CONTENTS
PART 1 PRELIMINARY
1. Short title
2. Commencement
3. Interpretation
4. Electoral matter
5. Election expenditure
PART 2 ADMINISTRATION
Division 1 Tasmanian Electoral Commission
6. Establishment
7. Constitution
8. Members
9. Functions and powers of Commission
10. Commission not subject to direction or control
11. Delegation
12. Proceedings by or against Commission
13. Annual and other reports
Division 2 Electoral Commissioner
14. Appointment of Commissioner
15. Functions and powers
[Bill 63]-I
16. Delegation
17. Tenure and conditions
18. Remuneration
19. Leave of absence
20. Resignation
21. Suspension or removal of Commissioner
22. Supplementary provisions relating to Commissioner
23. Deputy Commissioner
Division 3 Returning officers and election officials
24. Returning officers
25. Acting returning officer
26. Election officials
27. Conditions of employment
28. Returning officer or election official to cease to hold office
on becoming a candidate
29. Staff of Commission
PART 3 ENROLMENT
30. State roll
31. Entitlement to enrolment
32. Enrolment
33. Enrolment forms and procedures
34. Compulsory enrolment and transfer
35. Joint roll arrangement with Commonwealth
36. Particulars contained on State roll
37. Division rolls
38. Public inspection of roll
39. Preparation of election and candidate rolls
40. Supply of rolls
41. Permitted use of rolls
42. Persons to provide information
2
43. Power of Commission to amend election roll
PART 4 REGISTRATION OF POLITICAL PARTIES
44. Application to register party
45. Publication of application for registration
46. Objections to registration of party
47. Grounds for rejecting application for registration
48. Commission to accept or reject application for
registration
49. Right of appeal to Supreme Court
50. Registration of political parties
51. Publication of decision
52. Party register
53. Performance or exercise of registered officer's functions
and powers by deputy registered officer
54. Adding to list of registered members
55. Deleting registered member
56. Change of registered officer
57. Change of party name or ballot paper name
58. Review of party register
59. Cancellation of registration of party: failure to return
review of party registration form
60. Cancellation of registration of party: less than 100
registered members
61. Cancellation of registration of party on application
62. Operation of Part suspended on issue of writ for election
PART 5 CONDUCT OF ELECTIONS
Division 1 Writs for holding elections
63. Issue of writs for Assembly general election
64. Issue of writ for Assembly by-election
65. Issue of writs for Council periodic elections
66. Issue of writ for Council by-election
3
67. Contents of writ for election
68. Writ directed to returning officer
69. Nomination day
70. Polling day
71. Day for return of writ
72. Duties of returning officer on receipt of writ
73. Extension of time
74. Fresh writ to be issued where election fails or partially
fails
Division 2 Nominations for election
75. Persons who may be nominated and elected
76. Persons ineligible for nomination
77. How and when nomination takes place
78. Declaration by candidate
79. Returning officer to endorse nomination
80. Ballot paper name of candidate
81. Names of registered parties on ballot papers
82. Multiple nominations
83. Withdrawal of nomination of candidate for election
84. Nominations invalid due to name of candidate
85. Right of appeal to Supreme Court in relation to invalid
name
86. Disposal of deposit lodged for election
87. Announcement of candidates
88. Election without poll
89. Election with poll
90. Death of candidate at election
Division 3 Arrangements for polling
91. Polling places
92. Ordinary, pre-poll and mobile polling places
93. Appointment of polling places
4
94. Hours of polling
95. Commissioner to make arrangements for polling
Division 4 Ballot papers
96. Preparation and printing of ballot papers
97. Design of Assembly ballot papers
98. Design of Council ballot papers
99. Printing of names on ballot papers
100. Instructions on ballot papers
101. Preparation of additional ballot papers
102. Marking of ballot papers
103. Informal ballot papers
Division 5 Scrutineers
104. Appointment of scrutineers
105. Presence of scrutineers
106. Scrutineering
Division 6 Entitlement to vote
107. Entitlement to vote
Division 7 Voting at ordinary, pre-poll and mobile
polling places
108. Entitlement to vote within division
109. Requesting ballot paper
110. Election official to issue ballot paper
111. Issue of ballot paper to be recorded on certified copy of
election roll
112. Vote to be marked in private
113. Assistance to certain electors at polling places
114. Mobile polling not to take place on medical grounds
115. Entitlement to vote absent from division
116. Entitlement to vote not on roll
117. Entitlement to vote already marked off roll
118. Issuing declaration vote
5
Division 8 General provisions at polling places and
other places where ballot papers are sorted, checked or
counted
119. Powers of returning officer, election official and police
officer at polling place or place where ballot material is
sorted, checked or counted
120. Persons entitled to be present at polling place or place
where ballot material is sorted, checked or counted
121. Ballot box to be exhibited and sealed
122. Close of polling electors present may vote
123. Spoilt ballot papers
124. Adjournment of polling
Division 9 Postal voting
125. Entitlement to postal vote
126. Application for postal vote
127. General postal voters
128. Issue of postal votes
129. Issue of replacement postal votes
130. Postal voting procedure
Division 10 Polling in Antarctica, remote areas and
outside Tasmania
131. Commission to approve procedures for voting in
Antarctica and remote areas
132. Commission to approve procedures for voting while
outside Tasmania
133. Entitlement to vote in Antarctica, remote areas or
outside Tasmania
134. Votes from Antarctica, remote areas or outside Tasmania
to be counted with postal votes
135. Requirements for voting procedures in Antarctica, remote
areas or outside Tasmania
136. Votes from Antarctica, remote areas or outside Tasmania
not to be disclosed
6
Division 11 Preliminary scrutiny of declaration votes
and postal votes
137. Commission to approve procedures for managing
declaration votes and postal votes
138. Preliminary scrutiny of declaration votes other than
postal votes
139. Preliminary scrutiny of postal votes
Division 12 Counting votes
140. Certain polling places may be combined for counting
141. Procedure at conclusion of polling at ordinary polling
place
142. Procedure at conclusion of pre-poll or mobile polling
143. Admitted declaration votes to be counted
144. Returning officer to recheck and finalise first preference
counts
145. Returning officer to distribute further preference votes
146. Ballot papers may be recounted
147. Ballot papers lost or destroyed
148. Declaration of poll and return of writ
149. Returning officer to forward results and election material
to Commission
Division 13 Custody of election material
150. Preservation of election material
151. Examination of election material
Division 14 Compulsory voting
152. Compulsory voting
153. Notice of failure to vote
154. Second notice no response
155. Determination of valid and sufficient reason
156. Determination notice reason not accepted
157. Option to pay penalty
7
PART 6 ELECTORAL EXPENDITURE IN RESPECT OF
COUNCIL ELECTIONS
Division 1 Candidate's expenditure
158. Election agent
159. Who may incur expenditure
160. Candidate's expenditure limit
161. Lodgment of candidate's election expenditure return
Division 2 Party expenditure
162. Party not to incur election expenditure
Division 3 Provisions relating to candidate's
expenditure
163. Commission to check returns
164. Return available for public inspection
165. Power of Commission to require information
PART 7 OFFENCES
Division 1 General offences
166. Use of roll for other than permitted purpose
167. Prohibited disclosure or commercial use of rolls
168. Offence to induce elector not to vote
169. Unlawfully marking ballot paper
170. Possession of forged ballot paper
171. Wager on result of elections prohibited
172. Failure to deliver postal vote, &c.
173. Offences by scrutineers
174. Offences by election official
175. Unauthorised access to election material
Division 2 Offences relating to polling places
176. Offences within polling place
177. Persons removed from polling place not to re-enter
without permission
8
178. Offences within 100 metres of polling place
179. Offence relating to polling places access
180. Election official not to act improperly
Division 3 Failure to enrol or vote
181. Offence to fail to enrol
182. Offence to fail to vote
Division 4 Corrupt practices
183. Interpretation: Division 4
184. False or misleading statements or declarations
185. Signing electoral papers
186. Witnessing electoral papers
187. Offences relating to voting
188. Electoral bribery
189. Electoral treating
190. Electoral intimidation
Division 5 Offences relating to advertising and other
campaigning
191. Interpretation for purposes of Division
192. Campaign material to be authorised
193. Authorisation not required on specified items
194. Newspaper and periodical reportage and commentary
195. Letters to the editor
196. Advertorials
197. Candidate names not to be used without authority
198. Misleading and deceptive electoral matter
199. Campaigning on polling day
Division 6 Offences relating to electoral expenses
200. Offences relating to electoral expenses
Division 7 Continuing offences
201. Continuing offences
9
PART 8 DISPUTED ELECTIONS, ELIGIBILITY AND
VACANCIES
Division 1 Interpretation
202. Interpretation: Part 8
Division 2 Jurisdiction and powers of Supreme Court
203. Jurisdiction of Supreme Court to hear and determine
application
204. Rules of Court
205. Application of Supreme Court Rules
Division 3 Disputed elections
206. Election may be disputed
207. Entitlement to lodge application
208. Form of application
209. Application to be accompanied by deposit
210. Time for lodging application
211. Application to be served
212. Parties to application
213. Hearing of application
214. Inquiries by Court
215. Withdrawal of application made under section 206
216. Determination of application under section 206
217. Date of effect of orders
218. Costs of application
219. Limitation on taking effect of orders under this Part
220. Appeals
Division 4 Reference to Supreme Court of qualifications,
vacancies and eligibility
221. Reference to Supreme Court of questions as to
qualification, vacancy or eligibility
222. Speaker or President to state case
223. Parties to reference
10
224. Powers of Supreme Court on hearing of reference under
section 221
225. Determination, &c., to be sent to House affected
226. Application of certain sections of this Act to reference
under section 221
PART 9 CASUAL VACANCIES IN ASSEMBLY
227. Procedure if vacancy occurs in Assembly
228. Qualifications to contest recount to fill vacancy in
Assembly
229. How and when to nominate to contest recount
230. Announcement of nominations to contest recount
231. Election without recount
232. Election with recount
233. When by-election to be conducted rather than recount
PART 10 MISCELLANEOUS
234. Injunctions
235. Evidentiary provisions
236. Ballot papers, &c., to be evidence
237. Certain crimes to be tried by justices
238. Prosecutions for offences involving corrupt or illegal
practices
239. Immaterial errors not to void election
240. Disqualification from being elected, &c.
241. Costs and expenses of election
242. Disposal of money received by election official or
returning officer
243. Regulations
244. Administration of Act
245. Savings and transitional
246. Consequential amendments
247. Act repealed
11
SCHEDULE 1 MEMBERSHIP OF COMMISSION
SCHEDULE 2 MEETINGS OF COMMISSION
SCHEDULE 3 PRINTING AND COLLATION OF
BALLOT PAPERS
SCHEDULE 4 METHOD OF COUNTING VOTES
RECORDED AT ASSEMBLY ELECTION
SCHEDULE 5 METHOD OF COUNTING VOTES
RECORDED AT COUNCIL ELECTION
SCHEDULE 6 METHOD OF FILLING VACANCY
ARISING IN HOUSE OF ASSEMBLY
SCHEDULE 7 SAVINGS AND TRANSITIONAL
SCHEDULE 8 CONSEQUENTIAL AMENDMENTS
SCHEDULE 9 ACT REPEALED
12
ELECTORAL BILL 2004
(Brought in by the Minister for Justice and Industrial
Relations, the Honourable Judith Louise Jackson)
A BILL FOR
An Act to provide for the holding of elections to
elect persons as members of the Tasmanian
Parliament, to regulate the conduct of those
elections, to provide for the enrolment of electors
for the purposes of those elections, to repeal the
Electoral Act 1985, to amend the Constitution Act
1934 and to provide for related matters
Be it enacted by His Excellency the Governor of Tasmania,
by and with the advice and consent of the Legislative
Council and House of Assembly, in Parliament assembled,
as follows:
PART 1 PRELIMINARY
Short title
1. This Act may be cited as the Electoral Act 2004.
Commencement
2. This Act commences on a day to be proclaimed.
[Bill 63] 13
s. 3 No. Electoral 2004
Interpretation
3. In this Act, unless the contrary intention appears
"approved" means approved by the Commission;
"Assembly" means the House of Assembly of the
Parliament of Tasmania;
"Assembly by-election" means an election to elect
a Member in respect of an Assembly division
pursuant to a writ issued under section 64;
"Assembly division" means a division, determined
in accordance with the Constitution Act 1934,
for the return of members to represent the
electors of that division in the Assembly;
"Assembly election" means an election to elect
Members in respect of an Assembly division
and includes an Assembly by-election;
"Assembly general election" means the elections
held or to be held contemporaneously to elect
Members in respect of all Assembly divisions
pursuant to writs issued under section 63;
"ballot material" means ballot papers, postal vote
applications, declaration vote envelopes and
postal vote declaration envelopes;
"ballot paper" means a ballot paper prepared
under section 96 or 101;
"ballot paper name" means
(a) in respect of a registered party, the
name appearing in the party register in
accordance with section 52(2)(b); and
14
2004 Electoral No. s. 3
(b) in respect of a candidate, the name
referred to in section 80;
"candidate" means a person who has been publicly
announced as a candidate under section 87;
"candidate roll" means the candidate roll prepared
under section 39;
"close of poll" means 6 p.m. on polling day;
"close of roll" in relation to an election, means 6
p.m. on the day of issue of the writ for the
holding of that election;
"Commission" means the Tasmanian Electoral
Commission established under section 6;
"Commissioner" means the Electoral
Commissioner appointed under section 14;
"Commonwealth Act" means the Commonwealth
Electoral Act 1918 of the Commonwealth;
"Commonwealth roll" means the roll of the
electors for the State of Tasmania required by
section 81 of the Commonwealth Act;
"corrupt practice" means an offence that is a
crime by virtue of this Act;
"Council" means the Legislative Council of the
Parliament of Tasmania;
"Council by-election" means an election to elect a
Member in respect of a Council division
pursuant to a writ issued under section 66;
"Council division" means a division, determined
in accordance with the Constitution Act 1934,
15
s. 3 No. Electoral 2004
for the return of a member to represent the
electors of that division in the Council;
"Council election" means an election to elect a
Member in respect of a Council division and
includes a Council by-election;
"Council periodic election" means an election
held or to be held to elect a Member in respect
of a Council division pursuant to a writ issued
under section 65;
"declaration vote" means a vote marked on a
ballot paper issued under section 118;
"declaration vote envelope" means a declaration
vote envelope referred to in section 118;
"deputy registered officer" means a person whose
name appears in the party register as the
deputy registered officer of a party;
"division" means an Assembly division or a Council
division;
"division roll" means a division roll prepared and
kept under section 37;
"election" means an Assembly election or a Council
election;
"election agent" means a person appointed under
section 158;
"election expenditure" has the meaning given by
section 5;
"election official" means a person appointed under
section 26;
16
2004 Electoral No. s. 3
"election roll" means the election roll prepared
under section 39;
"elector" means a person whose name appears on a
roll;
"electoral matter" has the meaning given by
section 4;
"existing party" means a registered party or a
registered political party, within the meaning
of the Commonwealth Act;
"expenditure limit" means the expenditure limit
referred to in section 160;
"expenditure period" means
(a) in the case of a Council periodic election,
the period beginning on 1 January in the
year in which the election is to be held
and ending at the close of poll; or
(b) in the case of a Council by-election, the
period beginning on the day on which
the seat of a Member of the Council
becomes vacant and ending at the close
of poll;
"first preference", in relation to a vote recorded for
a candidate at an election, means the
recording of the number "1" in the box next to
the candidate's name on a ballot paper used at
the election;
"functions" includes duties;
"illegal practice" means an offence under this Act
that is not a corrupt practice or an offence
under section 182, and includes aiding,
abetting or instigating the commission of, and
17
s. 3 No. Electoral 2004
attempting or conspiring to commit, such an
offence;
"informal ballot paper" means a ballot paper
which is informal as specified in section 103;
"intending candidate" means a person who has
publicly declared his or her intention to seek
election as a Member;
"Member" means a Member of the Council or the
Assembly;
"mobile polling place" means a place referred to
in section 92(3);
"nomination day", in relation to an election,
means the day fixed under section 67(1) or
section 73(1)(a) on or before which candidates
for election are to be nominated;
"nomination form" means a form referred to in
section 77;
"ordinary polling place" means a place referred to
in section 92(1);
"party" means a group of persons, whether
incorporated or not, that exists for political
purposes and includes any branch in
Tasmania of such a group that is established
outside Tasmania;
"party name" means the name appearing in the
party register in accordance with
section 52(2)(a);
"party register" means the register maintained by
the Commission pursuant to section 52;
18
2004 Electoral No. s. 3
"party secretary" means the secretary or, if there
is no position of secretary, the chief
administrative officer (however described) of a
party;
"polling day", in relation to an election, means the
day fixed or specified under section 67(1)(b) on
which polling for that election is to be held in
the event of the election being contested;
"polling place" means a place referred to in
section 91;
"postal vote" means a vote marked on a ballot
paper issued under section 128;
"postal vote declaration envelope" means a
postal vote declaration envelope referred to in
section 128;
"pre-poll polling place" means a place referred to
in section 92(2);
"prisoner" means a person who is serving a
sentence of imprisonment for an offence
against a law of the State, another State, a
Territory or the Commonwealth;
"public body name" means the name, or an
abbreviation or acronym of the name, of a
prominent corporation or organisation;
"publish" means publish by any means including by
publication on the internet;
"registered member" means a person whose name
appears in the party register as a registered
member of a party;
19
s. 4 No. Electoral 2004
"registered officer" means a person whose name
appears in the party register as the registered
officer of a party;
"registered party" means a party, the name of
which appears in the party register as a
registered party;
"returning officer" means a person appointed
under section 24 or 25;
"roll" means the State roll, a division roll or an
election roll;
"scrutineer" means a person appointed under
section 104;
"State roll" means the State roll prepared and kept
under section 30;
"voting screen" means a compartment in which a
person may mark a ballot paper without any
other person seeing how the ballot paper is
marked.
Electoral matter
4. (1) For the purposes of this Act
"electoral matter" means matter which is intended
to, is likely to or has the capacity to affect
voting in an election.
(2) Without limiting subsection (1), matter is to be
taken to be intended or likely to affect voting in an election
if it
(a) contains an express or implicit reference to, or
comment on
20
2004 Electoral No. s. 5
(i) the election; or
(ii) the Government, the Opposition, a
previous Government or a previous
Opposition; or
(iii) the Government or Opposition, or a
previous Government or Opposition, of
the Commonwealth or a State or
Territory; or
(iv) a member or former member of the
Parliament of the Commonwealth or a
State or of the legislature of a Territory;
or
(v) a party, a branch or division of a party
or a candidate or group of candidates in
the election; or
(vi) an issue submitted to, or otherwise
before, the electors in connection with
the election; or
(b) contains
(i) a photograph of a candidate in an
election; or
(ii) a drawing or printed matter which
purports to depict a candidate in an
election or which purports to be a
likeness or representation of any such
candidate.
Election expenditure
5. (1) For the purposes of this Act
21
s. 5 No. Electoral 2004
"election expenditure", in relation to a candidate
at a Council election means, subject to
subsection (2), expenditure that
(a) relates to promoting or procuring the
election of the candidate; and
(b) is incurred by or with the authority of
the candidate
(i) within the expenditure period; or
(ii) before the expenditure period in
respect of goods, or goods and
services, which are or are to be
supplied or provided to, or made
use of by or with the authority of,
the candidate during the
expenditure period.
(2) Election expenditure does not include
expenditure which relates to
(a) the personal and reasonable living and
travelling expenses of the candidate and of an
election agent appointed by him or her; or
(b) the purchase of any roll; or
(c) the renting or hiring of premises for the
purposes of that campaign; or
(d) the appointment of scrutineers; or
(e) the conveying of electors to and from polling
places for the purpose of voting.
22
2004 Electoral No. s. 6
PART 2 ADMINISTRATION
Division 1 Tasmanian Electoral Commission
Establishment
6. The Tasmanian Electoral Commission is established.
Constitution
7. The Tasmanian Electoral Commission consists of
(a) the Commissioner; and
(b) two other members.
Members
8. (1) The members of the Commission referred to in
section 7(b) are appointed by the Governor.
(2) Before a person is appointed as a member of the
Commission, the Minister is to consult
(a) the Parliamentary leader of each party
represented in the Assembly; and
(b) the President of the Council.
(3) A person is not eligible to be appointed as a
member of the Commission referred to in section 7(b) if
that person is, or has been in the period of 5 years
immediately preceding the date on which it is proposed to
appoint that person
(a) a Member of a House of Parliament of the
Commonwealth or a State or Territory; or
23
s. 9 No. Electoral 2004
(b) a member of a party that is registered under
this Act or under an Act of the Commonwealth
or another State or a Territory as a political
party or a member of a similar organisation.
(4) The Governor may appoint a member of the
Commission, other than the Commissioner, to be
chairperson of the Commission.
(5) Schedule 1 has effect with respect to membership
of the Commission.
(6) Schedule 2 has effect with respect to meetings of
the Commission.
Functions and powers of Commission
9. (1) In addition to the functions conferred on it by any
other provisions of this Act or any other Act, the
Commission has the following functions:
(a) to advise the Minister on matters relating to
elections;
(b) to consider and report to the Minister on
matters referred to it by the Minister;
(c) to promote public awareness of electoral and
parliamentary topics by means of educational
and information programs and by other
means;
(d) to provide information and advice on electoral
issues to the Parliament, the Government,
Government departments and State
authorities, within the meaning of the State
Service Act 2000;
(e) to publish material on matters relating to its
functions;
24
2004 Electoral No. s. 10
(f) to investigate and prosecute illegal practices
under this Act.
(2) The Commission may do all things necessary or
convenient to be done, including employing persons, for or
in connection with or incidental to the performance of its
functions.
(3) Without limiting subsection (2) and in addition
to any power conferred on the Commission by any other
provision of this Act or any other Act, the Commission, in
addition to conducting Assembly elections or Council
elections, may conduct ballots or elections for a person or
organisation and may charge fees for that service.
Commission not subject to direction or control
10. The Commission is not subject to the direction or
control of the Minister in respect of the performance or
exercise of its functions or powers.
Delegation
11. The Commission may, by resolution, delegate to a
member of the Commission, a returning officer, an election
official, a member of the staff of the Commission or any
other person all or any of its functions or powers under
this Act or any other Act, other than this power of
delegation.
Proceedings by or against Commission
12. The Commission may institute or be a party to
proceedings under this or any other Act.
25
s. 13 No. Electoral 2004
Annual and other reports
13. The Commission, as soon as practicable after 30 June
in each year, is to lay before each House of Parliament a
report on the performance of its functions and the exercise
of its powers during the period of 12 months ending on
that date and may, at any time, lay before each House of
Parliament a report on any matter arising in connection
with the performance of its functions or exercise of its
powers.
Division 2 Electoral Commissioner
Appointment of Commissioner
14. (1) The Governor may appoint a person to be Electoral
Commissioner.
(2) Before a person is appointed as Electoral
Commissioner, the Minister is to consult
(a) the Parliamentary leader of each party
represented in the Assembly; and
(b) the President of the Council.
(3) A person is not eligible to be appointed as
Electoral Commissioner if the person is, or has been in the
period of 5 years immediately preceding the date on which
it is proposed to appoint that person
(a) a Member of a House of Parliament of the
Commonwealth or a State or Territory; or
(b) a member of a party that is registered under
this Act or under an Act of the Commonwealth
or another State or a Territory as a political
party or a member of a similar organisation.
26
2004 Electoral No. s. 15
Functions and powers
15. (1) The Commissioner is to be the chief executive
officer of the Commission.
(2) In addition to the functions and powers imposed
or conferred under this Act, the Commissioner has such
other functions and powers as are imposed or conferred on
the Commissioner by or under any other Act.
(3) The Commissioner may give written direction to
election officials and members of the staff of the
Commission with respect to the performance of their
functions and the exercise of their powers under this Act.
Delegation
16. The Commissioner may, in writing, delegate to a
returning officer, an election official or member of the staff
of the Commission all or any of the Commissioner's
functions or powers under this Act or any other Act, other
than this power of delegation.
Tenure and conditions
17. (1) The Commissioner holds office for the period (not
exceeding 7 years) specified in his or her instrument of
appointment.
(2) The Commissioner holds office on such terms
and conditions in relation to matters not provided for by
this Act as are specified in his or her instrument of
appointment.
(3) The Commissioner is eligible for reappointment.
27
s. 18 No. Electoral 2004
(4) The Commissioner may hold any other office that
is compatible with the performance of his or her functions
as Commissioner.
Remuneration
18. (1) The Commissioner is to be paid such remuneration
and allowances as are specified in the instrument of
appointment.
(2) Remuneration payable under this section is to be
paid from the Consolidated Fund without further
appropriation than this section.
Leave of absence
19. The Governor may grant the Commissioner leave of
absence on such terms and conditions as the Governor
determines.
Resignation
20. The Commissioner may resign office by written notice
given to the Governor.
Suspension or removal of Commissioner
21. (1) The Commissioner may, at any time, be removed
from office by the Governor on addresses from both Houses
of Parliament.
(2) The Governor may suspend the Commissioner
from office if the Governor is satisfied that the
Commissioner
28
2004 Electoral No. s. 21
(a) is incapable of properly performing the
functions of Commissioner; or
(b) has shown himself or herself incompetent to
properly perform those functions or has
neglected to properly perform those functions;
or
(c) has been absent without leave granted under
section 19 from 3 consecutive meetings of the
Commission; or
(d) is or has become bankrupt or has applied to
take the benefit of any law for the relief of
bankrupt or insolvent debtors, has
compounded with his or her creditors or made
an assignment of his or her remuneration or
estate for their benefit; or
(e) has been convicted, in Tasmania or elsewhere,
of a crime or an offence punishable by
imprisonment for a term exceeding 12 months;
or
(f) has contravened clause 8 of Schedule 2; or
(g) has been guilty of misconduct.
(3) If the Commissioner has been suspended from
office under subsection (2), the Commissioner is to be
restored to office unless
(a) a statement of the grounds of the
Commissioner's suspension is laid before each
House of Parliament during the first 7 sitting-
days of the House following the suspension;
and
(b) each House of Parliament, during the session
of the House in which the statement is so laid,
and within 30 sitting-days of the statement
29
s. 22 No. Electoral 2004
being so laid, passes an address requesting the
removal of the Commissioner from office.
Supplementary provisions relating to Commissioner
22. (1) The Commissioner is an employee for the purposes
of the Retirement Benefits Act 1993 and the Long Service
Leave (State Employees) Act 1994.
(2) If an employee, within the meaning of the State
Service Act 2000, is appointed to the office of
Commissioner, that employee is entitled to retain all the
employee's existing and accruing rights as if the
employee's service in that office were a continuation of his
or her service as an employee within the meaning of that
Act.
(3) Where a person ceases to hold the office of
Commissioner and becomes a State Service officer or State
Service employee, that person's service in that office is to
be regarded as service in the State Service for the purpose
of determining his or her rights as an employee, within the
meaning of that Act.
Deputy Commissioner
23. (1) The Governor may appoint a person employed
under the State Service Act 2000 to be Deputy Electoral
Commissioner.
(2) If the Commissioner is unable, for any period, to
perform or exercise the functions or powers of the
Commissioner, the Deputy Electoral Commissioner may
perform those functions or exercise those powers during
that period.
30
2004 Electoral No. s. 24
(3) All acts and things done or omitted to be done by
the Deputy Electoral Commissioner pursuant to
subsection (2) are as valid, and have the same
consequences, as if they had been done or omitted to be
done by the Commissioner.
Division 3 Returning officers and election officials
Returning officers
24. (1) The Commission is to appoint a returning officer
for each division.
(2) Subject to and in accordance with any directions
given by the Commission, the returning officer is
responsible for conducting every election in the division for
which he or she is appointed.
(3) The functions and powers of a returning officer
appointed under subsection (1) are
(a) the functions and powers specified by or under
this Act in respect of a returning officer or an
election official; and
(b) any other functions and powers not
inconsistent with this Act as may be specified
by the Commission.
(4) The Commission may require any person
appointed under this section to sign an approved
declaration with respect to the performance or exercise of
his or her functions or powers.
(5) A person holding office as a returning officer is
not subject to the State Service Act 2000.
31
s. 25 No. Electoral 2004
(6) A State Service officer or State Service employee
may hold office as a returning officer in conjunction with
his or her employment in the State Service.
Acting returning officer
25. (1) If a returning officer is unable, for any period, to
perform or exercise the functions or powers of that office,
the Commission may appoint a person to act as returning
officer for that period.
(2) A person appointed under subsection (1), while
acting as returning officer, is to perform or exercise the
functions or powers of that office.
(3) A person holding office as an acting returning
officer is not subject to the State Service Act 2000.
(4) A State Service officer or State Service employee
may hold office as an acting returning officer in
conjunction with his or her employment in the State
Service.
Election officials
26. (1) The Commission or a returning officer may
appoint appropriate persons to be election officials for
Assembly or Council elections or any other ballots or
elections conducted by the Commission.
(2) The functions and powers of an election official
appointed under this section are
(a) the functions and powers specified by or under
this Act in respect of an election official; and
32
2004 Electoral No. s. 27
(b) any other functions and powers not
inconsistent with this Act as may be specified
by the Commission.
(3) The Commission may require any person
appointed under this section to sign an approved
declaration with respect to the performance or exercise of
his or her functions or powers.
(4) A person holding office as an election official is
not subject to the State Service Act 2000.
(5) A State Service officer or State Service employee
may hold office as an election official in conjunction with
his or her employment in the State Service.
Conditions of employment
27. (1) A returning officer or an election official is entitled
to be paid the remuneration and allowances determined by
the Commission.
(2) The terms and conditions of employment of a
returning officer or an election official are to be such as
may be determined by the Commission.
Returning officer or election official to cease to hold
office on becoming a candidate
28. (1) If at any time a person who holds office as a
returning officer or an election official is nominated as a
candidate, that person, by operation of this section, ceases
to hold that office, unless he or she is a person to whom
section 2(1) of the Constitution (State Employees) Act 1944
applies.
(2) A person who has nominated as a candidate is
not eligible for appointment as a returning officer or an
33
s. 29 No. Electoral 2004
election official unless the election for which the person
was nominated has been held and he or she was not
returned as a Member at that election.
Staff of Commission
29. Subject to and in accordance with the State Service
Act 2000, persons may be appointed or employed for the
purpose of enabling the functions of the Commission to be
carried out.
34
2004 Electoral No. s. 30
PART 3 ENROLMENT
State roll
30. (1) The Commission must keep a State roll of the
persons enrolled in accordance with section 32.
(2) The State roll may be kept by electronic means
or any similar means.
(3) The State roll must indicate the Assembly
division and Council division for which each person is
enrolled.
(4) Each person enrolled on the State roll is to be
enrolled
(a) for the Assembly division which relates to the
address in respect of which the person is
enrolled; and
(b) for the Council division which relates to the
address in respect of which the person is
enrolled.
(5) A person is not entitled to be enrolled on the
State roll more than once at any one time.
Entitlement to enrolment
31. (1) A person, other than a prisoner, is entitled to be
enrolled on the State roll if the person is entitled to be
enrolled on the Commonwealth roll.
(2) A person who, but for the fact of being a prisoner,
would be entitled to be enrolled on the Commonwealth roll
is entitled to be enrolled on the State roll if serving a
sentence of imprisonment for a term of less than 3 years.
35
s. 32 No. Electoral 2004
Enrolment
32. (1) Except in the case of a prisoner, if an arrangement
has been made under section 35, a person enrolled on the
Commonwealth roll is taken to be enrolled on the State
roll.
(2) If an arrangement has been made under
section 35, a prisoner who is enrolled on the
Commonwealth roll is taken to be enrolled on the State
roll if the prisoner is entitled to be enrolled under
section 31(2).
(3) Notwithstanding that an arrangement has been
made under section 35, subsection (4) and section 33 apply
to a person who is entitled to be enrolled under
section 31(2) but who is not entitled to be enrolled on the
Commonwealth roll because he or she is a prisoner.
(4) If no arrangement has been made under
section 35
(a) a person may be enrolled on the State roll only
in accordance with procedures approved under
section 33(a); and
(b) the particulars of an elector shown on the
State roll may be amended only in accordance
with procedures approved under section 33(b);
and
(c) the name of an elector may be removed from
the State roll only in accordance with
procedures approved under section 33(c).
Enrolment forms and procedures
33. If no arrangement has been made under section 35,
the Commission is to approve forms and procedures to
36
2004 Electoral No. s. 34
(a) enrol on the State roll a person who is entitled
to be so enrolled; and
(b) amend the particulars of an elector on the
State roll; and
(c) remove from the State roll the name of an
elector who is deceased or not entitled to be
enrolled.
Compulsory enrolment and transfer
34. (1) If a person
(a) is not enrolled on the State roll; and
(b) has attained the age of 18 years; and
(c) is entitled under section 31 to be enrolled on
the State roll
that person must apply to enrol in accordance with the
forms and procedures approved under section 33.
(2) If a person
(a) is enrolled on the State roll; and
(b) has changed his or her place of residence; and
(c) is entitled under section 31 to be enrolled on
the State roll in respect of a new address
that person must apply to enrol in respect of that new
address in accordance with the forms and procedures
approved under section 33.
(3) An application required under subsection (1) or
(2) must be made within 21 days of being required to do so.
37
s. 35 No. Electoral 2004
(4) If an arrangement has been made under
section 35, a person is taken to have complied with
subsections (1) and (2) if the person has made application
to enrol under the Commonwealth Act.
Joint roll arrangement with Commonwealth
35. (1) The Governor may arrange with the Governor-
General of the Commonwealth for, or for the carrying out
of a procedure relating to, the preparation, alteration or
revision of the State roll, in any manner consistent with
the provisions of this Act, jointly by the State and the
Commonwealth, for the purpose of the State roll being
used for State or Commonwealth elections or for any other
purpose.
(2) The Governor may arrange with the Governor-
General of the Commonwealth for the exchange of
information necessary for the preparation, alteration or
revision of the State roll under this Act and a roll under
the Commonwealth Act.
Particulars contained on State roll
36. (1) Except as provided in subsection (5), the State roll
is to contain the following particulars in relation to each
elector:
(a) surname or family name;
(b) Christian or given names;
(c) title;
(d) place of living or other approved address;
(e) such other particulars as may be approved.
38
2004 Electoral No. s. 37
(2) If a person is taken to be enrolled on the State
roll under section 32(1), the particulars recorded on the
Commonwealth roll in respect of that person are, as far as
practicable, to be taken to be the particulars contained on
the State roll.
(3) An elector may request that his or her address
not be shown on the State roll, on the ground that this
would place the personal safety of the elector or members
of the elector's family at risk.
(4) The Commission is to approve forms and
procedures to determine if, following a request under
subsection (3), there are reasonable grounds for believing
that the inclusion of the address of an elector on the State
roll would place the personal safety of the elector or
members of the elector's family at risk.
(5) If, in accordance with forms and procedures
approved under subsection (4), a determination is made
that there are reasonable grounds for believing that the
inclusion of the address of an elector on the State roll
would place the personal safety of the elector or members
of the elector's family at risk, the address of the elector is
not to be shown on the roll.
Division rolls
37. (1) There is to be a division roll for each division
which is to contain the details of each elector shown on the
State roll as being enrolled for that division.
(2) Subject to subsection (3), the Commission is to
print each division roll at least once a year.
(3) A print of a division roll is to specify only the
name and address of each elector shown on that roll but is
not to include the address of any elector whose address,
39
s. 38 No. Electoral 2004
pursuant to section 36(5), does not appear on the State
roll.
(4) A print of a division roll may be provided to a
person only in accordance with section 38 or 40.
Public inspection of roll
38. (1) The Commission may make the name and address
of each elector, other than an elector whose address,
pursuant to section 36(5), does not appear on the State
roll, available for inspection by members of the public
without fee in such printed or electronic means as are
approved and at such places as the Commission may
determine.
(2) The Commission may make the details of an
elector, other than an elector whose address, pursuant to
section 36(5), does not appear on the State roll, available
for verification by members of the public without fee in
such printed or electronic means as are approved and at
such places as the Commission may determine.
Preparation of election and candidate rolls
39. (1) The Commission is to prepare, as soon as
practicable after the close of roll for an election, the
election roll and candidate roll for that election.
(2) The election roll and candidate roll are to be in
approved forms and, subject to subsection (4), are to
include only the name and address of all electors who
(a) are on the relevant division roll as at the close
of roll for the election; and
(b) have attained the age of 18 years on polling
day.
40
2004 Electoral No. s. 40
(3) An election roll or candidate roll is not to include
the address of any elector whose address, pursuant to
section 36(5), does not appear on the State roll.
(4) An election roll may include approved numbers
or markings for administrative purposes.
Supply of rolls
40. (1) The Commission is to prepare, at least once per
year, an electronic edition of the State roll and of each
division roll for the purposes of this section.
(2) On written request, in an approved form, by the
registered officer of a registered party, the Commission is
to provide the registered officer with any of the following:
(a) the latest electronic edition of the State roll
and such future editions as may be requested;
(b) a copy of the latest print of each division roll,
printed under section 37, and such future
prints of each division roll as may be
requested.
(3) On written request, in an approved form, by a
Member, the Commission is to provide the Member with
any of the following:
(a) the latest electronic edition of the division roll
for the division which he or she represents and
such future editions as may be requested;
(b) a copy of the latest print of the division roll,
printed under section 37, for the division
which he or she represents and such future
prints of that division roll as may be
requested.
(4) For the purposes of subsections (2) and (3)
41
s. 41 No. Electoral 2004
(a) an electronic edition of a roll is to specify only
the names, titles, residential addresses and
postal addresses of electors but is not to
include the address of any elector whose
address, pursuant to section 36(5), does not
appear on the State roll; and
(b) an electronic edition of a roll is, if practicable,
to clearly indicate the variations between that
edition and the previous edition.
(5) On request, in an approved form, by a person
who has nominated as a candidate for an election, the
Commission is to provide that person with a printed copy
of the relevant candidate roll.
(6) The Commission may provide to any other
person, body or organisation, as it may approve, a copy of
the State roll or any part of that roll in printed or
electronic form.
(7) For the purposes of subsection (6)
(a) an approval by the Commission is to be in
writing and is to specify the purpose for which
information contained in the roll may be used;
and
(b) a copy of the roll may include the names,
residential addresses, postal addresses and
such other particulars relating to the electors
as the Commission considers relevant to the
purpose for which the roll may be used.
Permitted use of rolls
41. (1) A person provided with an electronic edition of a
roll under section 40(2) or (3), is permitted to use that roll
only for the following purposes:
42
2004 Electoral No. s. 42
(a) any purpose connected with an election or
referendum;
(b) monitoring the accuracy of information on the
roll;
(c) the performance by a Member of his or her
functions as a Member.
(2) A person, body or organisation provided with a
roll or part of a roll under section 40(6) is permitted to use
that roll only for the purpose specified by the Commission
in the approval granted under that section.
Persons to provide information
42. (1) Every State employee, every employee of a local
authority, and every elector and person entitled to be
enrolled on the State roll is to, on being requested to do so
by an election official, provide all such information as may
be required in connection with the preparation, alteration
or revision of a roll.
(2) In subsection (1), a reference to a State employee
is a reference to an employee within the meaning of the
Long Service Leave (State Employees) Act 1994.
(3) A police officer is to assist the Commission by
making such inquiries and collecting such information as
the Commission may specify and in so assisting the
Commission has the powers of an election official.
(4) Without limiting subsection (1)
(a) the Registrar of Births, Deaths and Marriages
is to provide to the Commission, on request,
particulars entered in the register of deaths in
respect of the death of persons aged 17 years
or older; and
43
s. 43 No. Electoral 2004
(b) the Director of Corrective Services is to
provide to the Commission, on request,
particulars in respect of a person who has
attained the age of 17 years and who is in
prison by reason of that person being
sentenced to a term of imprisonment.
Power of Commission to amend election roll
43. If the Commission is satisfied that, due to an
administrative error or other cause
(a) a name appears on an election roll and should
not appear on that roll; or
(b) a name does not appear on an election roll and
should appear on that roll; or
(c) the details of an elector shown on an election
roll are not correct
the Commission may amend that election roll accordingly.
44
2004 Electoral No. s. 44
PART 4 REGISTRATION OF POLITICAL PARTIES
Application to register party
44. (1) An application for registration of a party under
this Part is to be in writing in accordance with the
approved form and is to
(a) be signed by the party secretary; and
(b) set out the name of the party, which
(i) is not to be the name of an existing
party, unless the party to be registered
has obtained the written consent of the
existing party; and
(ii) is not to include the word "independent";
and
(c) set out the ballot paper name, which is the
form of the name of the party to appear on
ballot papers and
(i) is not to be the name of an existing
party, unless the party to be registered
has obtained the written consent of the
existing party; and
(ii) is not to include the word "independent";
and
(iii) is not to consist of more than 6 words;
and
(d) set out the name and address of the person
who is to be the registered officer of the party
and be signed by that person; and
45
s. 45 No. Electoral 2004
(e) set out the name and address of the person
who is to be the deputy registered officer of the
party and be signed by that person; and
(f) set out the names and addresses of at least
100 members of the party who are to be the
registered members; and
(g) be accompanied by the statutory declarations
referred to in subsection (3); and
(h) be lodged with the Commission.
(2) A person is not eligible to be a registered officer,
deputy registered officer or registered member unless that
person is an elector.
(3) Each of the persons listed in accordance with
subsection (1)(f) is to make a statutory declaration in an
approved form that he or she
(a) is a member of the party in relation to which
the application is made; and
(b) supports the application for registration of
that party.
Publication of application for registration
45. (1) As soon as practicable after an application is
received by the Commission, the Commission is to, if that
application complies with section 44, publish a notice of
the application
(a) in the Gazette; and
(b) in 3 daily newspapers circulating generally in
the State; and
46
2004 Electoral No. s. 46
(c) by any other means determined by the
Commission.
(2) The notice is to
(a) include the particulars referred to in
section 44(1)(a), (b), (c), (d), (e) and (f); and
(b) state that objections to the registration of the
party, in accordance with section 46, may be
lodged with the Commission.
(3) If the Commission determines that any of the
particulars referred to in subsection (2)(a) are obscene or
may cause offence it may, in the notice referred to in
subsection (1), omit or amend those particulars and
include in the notice advice that some particulars have
been omitted or amended and that the original application
may be inspected at the office of the Commission.
Objections to registration of party
46. (1) A person may, not later than 30 days after the
publication of the notice referred to in section 45, lodge
with the Commission an objection against the registration
of the party.
(2) An objection lodged under subsection (1) is to be
only on a ground specified in section 47.
Grounds for rejecting application for registration
47. (1) The Commission may reject an application to
register a party
(a) if the application does not comply with the
requirements of section 44; and
47
s. 48 No. Electoral 2004
(b) if the Commission believes on reasonable
grounds that information set out in the
application, or in documents required to
accompany the application, is incorrect.
(2) The Commission is to reject an application to
register a party if the Commission considers that
(a) the name of the party or the ballot paper name
is obscene, offensive or frivolous; or
(b) the name of the party or the ballot paper name
so nearly resembles an existing party name
that it is likely to be confused with or
mistaken for that party name; or
(c) the name of the party or the ballot paper name
would otherwise be likely to cause confusion if
registered.
(3) The Commission may reject an application to
register a party if the name of the party or the ballot paper
name
(a) is a public body name; or
(b) so nearly resembles a public body name that it
is likely to be confused with or mistaken for
the public body name.
Commission to accept or reject application for
registration
48. (1) The Commission, not later than 21 days after the
last day on which objections may be lodged under
section 46(1) in respect of an application for registration of
a party, is to consider that application and
(a) accept that application; or
48
2004 Electoral No. s. 49
(b) reject that application in accordance with
section 47.
(2) In considering an application for registration of a
party, the Commission is to take into account any
objection in respect of that application which has been
lodged under section 46(1), and may take into account any
other information.
(3) As soon as practicable after the Commission
decides to accept or reject an application, it must give the
party secretary, and any person who lodged an objection in
respect of that application, written notice of
(a) the decision; and
(b) the reasons for the decision; and
(c) any right to appeal the decision under
section 49.
Right of appeal to Supreme Court
49. (1) If the Commission decides to reject an application
to register a party under section 48, the party secretary
may appeal that decision to the Supreme Court.
(2) If the Commission decides to accept an
application to register a party under section 48, any
person who lodged an objection under section 46 may
appeal that decision to the Supreme Court.
(3) An appeal to the Supreme Court may be lodged
in accordance with the Supreme Court Rules 2000 not
later than the eighth day after the day on which the
Commission decides to accept or reject the application to
register a party.
49
s. 50 No. Electoral 2004
(4) An appeal is to be heard and determined by a
Judge or Master of the Supreme Court as soon as
practicable.
(5) On an appeal, an order for costs may not be
made against the appellant unless the Judge or Master is
satisfied that the appeal is frivolous or vexatious.
(6) No action or proceeding may be brought in
respect of a decision of the Commission under section 48
except as provided by this section.
Registration of political parties
50. (1) The Commission is to register a party as soon as
practicable after its decision to accept an application in
accordance with section 48(1) if no objection in relation to
that application has been lodged with the Commission
under section 46.
(2) The Commission is to register a party if
(a) in accordance with section 48(1), the
Commission accepts an application to register
the party; and
(b) an objection was lodged with the Commission
under section 46; and
(c) no appeal was lodged in accordance with
section 49
as soon as practicable after the time by which appeals may
be lodged has expired.
(3) The Commission is to register a party if
(a) an appeal was lodged in accordance with
section 49; and
50
2004 Electoral No. s. 51
(b) the effect of the decision of the Supreme Court
is that the application to register the party
should be accepted
as soon as practicable after that decision.
Publication of decision
51. The Commission is to publish, in the Gazette and 3
daily newspapers circulating generally in the State
(a) notice of the registration of a party, as soon as
practicable after that registration; or
(b) notice of the decision to reject an application to
register a party, as soon as practicable after
completion of the appeal process, if any.
Party register
52. (1) The Commission is to prepare and maintain the
party register.
(2) The party register is to contain the following
particulars in respect of each registered party:
(a) the name of the party;
(b) the ballot paper name;
(c) the name and address of the registered officer
of the party;
(d) the name and address of the deputy registered
officer of the party;
(e) the names and addresses of the registered
members of the party.
51
s. 53 No. Electoral 2004
(3) If the Commission is satisfied that particulars in
the party register in relation to a registered member or
the registered officer are no longer correct, the
Commission may correct those particulars.
(4) Subsection (3) does not authorise the
Commission to add or delete the name of a registered
member or the registered officer.
(5) The party register may be kept electronically.
(6) The Commission is to ensure that
(a) the party register is available for inspection,
without the payment of a fee, by members of
the public at the office of the Commission; and
(b) a copy of all or part of the party register is
available on request without the payment of a
fee.
Performance or exercise of registered officer's
functions and powers by deputy registered officer
53. If the registered officer of a party is unable to perform
or exercise his or her functions or powers under this Act,
the deputy registered officer of the party may perform
those functions or exercise those powers.
Adding to list of registered members
54. (1) An application to add the name of an elector to the
list of registered members of a party in the party register
is to be in writing, in accordance with the approved form,
and lodged with the Commission.
52
2004 Electoral No. s. 55
(2) An application under subsection (1) is to be
signed by the registered officer and accompanied by the
statutory declaration referred to in subsection (3).
(3) The person whose name is proposed to be added
to the register is to make a statutory declaration that he
or she
(a) is a member of the party; and
(b) agrees to become a registered member in
relation to that party.
(4) On receiving an application that complies with
this section, the Commission is to amend the party
register accordingly and give notice in writing of the
change to the registered officer.
Deleting registered member
55. (1) An application to delete the name of a registered
member of a party from the party register is to be in
writing, in accordance with the approved form, and lodged
with the Commission.
(2) An application under subsection (1) is to be
(a) if the registered member is no longer a
member of the party, signed by the registered
officer; or
(b) if the registered member no longer wishes to
be a registered member of the party, signed by
the registered member.
(3) On receiving an application that complies with
this section, the Commission is to amend the party
register accordingly and give notice in writing of the
change to the registered officer and, if practicable, to the
person whose name has been deleted.
53
s. 56 No. Electoral 2004
Change of registered officer
56. (1) An application to change the registered officer of a
registered party or the deputy registered officer of a
registered party is to be in writing, in accordance with the
approved form, and lodged with the Commission.
(2) An application under subsection (1) is to be
signed by the party secretary, 3 registered members of the
party and the person who is to be the registered officer or
deputy registered officer.
(3) On receiving an application that complies with
this section, the Commission is to amend the party
register accordingly and give notice in writing of the
change to the party secretary.
Change of party name or ballot paper name
57. (1) An application to change the name or ballot paper
name of a party is to be in writing, in accordance with the
approved form, and lodged with the Commission.
(2) An application under subsection (1) is to be
signed by the registered officer and 3 registered members
of the party and is to include a statement that the change
of name has been approved by the executive or other
controlling body of the party.
(3) This Part applies to an application under this
section, subject to any necessary changes, as if it were an
application for registration of a party under section 44.
Review of party register
58. (1) Subject to subsection (3), the Commission may
review a registered party.
54
2004 Electoral No. s. 58
(2) Before conducting a review of a registered party,
the Commission is to give notice in writing to the
registered officer of the party that the party is to be
reviewed and include with that notice an approved review
of party registration form
(a) setting out the names and addresses of the
registered members; and
(b) indicating if any registered member is not
currently an elector; and
(c) setting out the name and address of the
registered officer.
(3) The Commission may not review a party more
than once in any year unless
(a) the Commission believes for any reason that
less than 100 registered members of the party
remain eligible to be registered members of
that party; or
(b) an objection to the cancellation of registration
of the party has been received in accordance
with section 61(6).
(4) The registered officer is to indicate on the review
of party registration form
(a) next to the name of each registered member
(i) whether or not the member is a current
member of the registered party; and
(ii) the new address for the member if he or
she has changed his or her address; and
(b) the new address for the registered officer if he
or she has changed his or her address
55
s. 59 No. Electoral 2004
and return it to the Commission within 30 days of the date
of the notice.
(5) If the registered officer indicates on the review of
party registration form that a registered member is not a
current member of the party, the registered officer must
provide to the Commission, with that form, an application
to delete the name of that member in accordance with
section 55.
(6) The registered officer may also provide to the
Commission, together with the review of party registration
form, an application to add the name of an elector in
accordance with section 54.
(7) On the return of a review of party registration
form and any accompanying application to delete from or
add to the list of registered members, the Commission is
to
(a) amend the party register accordingly; and
(b) delete from the party register the name and
address of any registered member who is not
an elector.
Cancellation of registration of party: failure to
return review of party registration form
59. (1) If the registered officer of a party has not
completed and returned a review of party registration
form in accordance with section 58(4), the Commission is
to give notice in an approved form to that officer that, if
the review of party registration form is not received before
the expiration of 30 days from the date of the notice, the
Commission will cancel the registration of that party.
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2004 Electoral No. s. 60
(2) A copy of the notice given under subsection (1) is
to be published in the Gazette and in 3 daily newspapers
circulating generally in the State.
(3) If a review of party registration form is not
returned within the period specified in the notice given
under subsection (1), the Commission is to cancel the
registration of the party and delete all particulars in
relation to that party from the party register and give
notice in writing of the cancellation and deletion to the
former registered officer.
Cancellation of registration of party: less than 100
registered members
60. (1) If after the Commission has amended the party
register in accordance with section 58(7) there are less
than 100 registered members of a party, the Commission
is to give notice in an approved form to the registered
officer of that party
(a) that if, after the expiration of 30 days from the
date of the notice, there are not at least 100
registered members of the party, the
Commission will cancel the registration of the
party; and
(b) inviting the registered officer to lodge an
application to add the names of further
electors to the list of registered members
under section 54.
(2) A copy of the notice given under subsection (1) is
to be published in the Gazette and in 3 daily newspapers
circulating generally in the State.
(3) If
57
s. 61 No. Electoral 2004
(a) after the period specified in the notice given
under subsection (1); and
(b) after processing any applications under
section 54 or 55 received during that period
there are not at least 100 registered members of the party,
the Commission is to cancel the registration of the party,
delete all particulars in relation to that party from the
party register and give notice in writing of the cancellation
and deletion to the former registered officer.
Cancellation of registration of party on application
61. (1) An application to cancel the registration of a
registered party is to be in writing, in accordance with the
approved form, and lodged with the Commission.
(2) An application under subsection (1) is to be
signed by 3 registered members and accompanied by the
statutory declarations referred to in subsection (3).
(3) Each of the registered members referred to in
subsection (2) is to make a statutory declaration that
(a) the registered party has ceased to exist; or
(b) the application is in consequence of the proper
action of the executive or other controlling
body of the party.
(4) As soon as practicable after receiving an
application that complies with this section, the
Commission is to give notice of the application in an
approved form to the registered officer stating that
objections may be lodged in accordance with
subsection (6).
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2004 Electoral No. s. 62
(5) A copy of the notice given under subsection (4) is
to be published in the Gazette and in 3 daily newspapers
circulating generally in the State.
(6) A registered member of the party or the
registered officer of the party may, within 30 days of the
publication of the notice under subsection (5), lodge with
the Commission an objection to the cancellation of the
registration of the party.
(7) If the Commission receives an application that
complies with this section and no objection is lodged in
accordance with subsection (6), the Commission is to, as
soon as practicable, cancel the registration of the party
and delete all particulars in relation to that party from the
party register and give notice in writing of the cancellation
and deletion to the former registered officer and the 3
registered members referred to in subsection (2).
(8) If an objection is received in accordance with
subsection (6), the Commission is to review the registered
party in accordance with section 58.
Operation of Part suspended on issue of writ for
election
62. During the period commencing with the issue of a writ
for an election and ending with the return of that writ no
action is to be taken under this Part.
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s. 63 No. Electoral 2004
PART 5 CONDUCT OF ELECTIONS
Division 1 Writs for holding elections
Issue of writs for Assembly general election
63. Whenever
(a) a proclamation dissolving the Assembly is
published in the Gazette; or
(b) the terms for which Members of the Assembly
have been elected expire by effluxion of time
writs for the holding of an Assembly general election are
to be issued by the Governor not less than 5 days and
within 10 days after that publication or the expiry of those
terms.
Issue of writ for Assembly by-election
64. As soon as practicable after
(a) a report under section 233(3) is received by the
Governor; or
(b) the Supreme Court makes an order under
section 216 that a by-election is to be held
a writ for the holding of a by-election to fill the vacancy is
to be issued by the Governor.
Issue of writs for Council periodic elections
65. (1) Subject to subsection (2), writs are to be issued by
the Governor for the holding of the periodical elections of
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2004 Electoral No. s. 66
Members of the Council required to be held in a year in
accordance with section 19 of the Constitution Act 1934.
(2) The writs referred to in subsection (1) are to be
issued not earlier than 51 days nor later than 14 days
before the day fixed by or in accordance with section 19(4)
of the Constitution Act 1934.
Issue of writ for Council by-election
66. (1) Except as provided by subsection (2), whenever the
seat of a Member of the Council becomes vacant otherwise
than by reason of the expiry of his or her term of office, a
writ for the holding of a by-election to fill the vacancy is to
be issued by the Governor within 40 days after the
vacancy occurs.
(2) Subject to subsection (3), in the event of the seat
of a Member of the Council becoming vacant at any time
during the period
(a) commencing on 1 January immediately
preceding polling day for the next Council
periodic elections; and
(b) ending with the day on which writs for the
holding of those elections are issued
a writ for the holding of a by-election is not, unless the
Governor otherwise determines, required to be issued
until the day on which the writs for those Council periodic
elections are issued.
(3) If in any year
(a) a Council periodic election is required in a
division; and
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s. 67 No. Electoral 2004
(b) the seat of the Member for that division
becomes vacant between 1 January and
polling day for that election
a writ for the holding of a by-election is not, unless the
Governor otherwise determines, required to be issued.
(4) Where in any year a writ for the holding of a by-
election to fill a vacancy occurring in the seat of a Member
of the Council is not issued until the date on which the
writs for the Council periodic elections for that year are
issued, the writ for the by-election is to specify the same
dates as the writs for those Council periodic elections.
(5) The Governor may, by proclamation, extend the
period of 40 days referred to in subsection (1).
Contents of writ for election
67. (1) A writ for the holding of an election is to be in
accordance with the prescribed form and is to
(a) fix the day on or before which candidates for
election are to be nominated; and
(b) in the case of
(i) an Assembly election, fix the day on
which polling for the election is to be
held in the event of the election being
contested; or
(ii) a Council periodic election, specify the
day fixed by or in accordance with
section 19(4) of the Constitution Act
1934 on which polling for the election is
to be held in the event of the election
being contested; or
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2004 Electoral No. s. 68
(iii) a Council by-election, fix the day on
which polling for the election is to be
held in the event of the election being
contested; and
(c) the day on or before which the writ is to be
returned to the Governor.
(2) For the purposes of this Act, a writ to which
subsection (1) applies is taken to have been issued at 6
p.m. on the date on which the writ was issued.
Writ directed to returning officer
68. A writ for the holding of an election is to be directed to
the returning officer for the division concerned.
Nomination day
69. Nomination day is to be a day which is not less than 7
days, nor more than 21 days, after the date on which the
writ for the election was issued, or such later day as the
Governor may fix by proclamation.
Polling day
70. (1) The polling day fixed for
(a) an Assembly election is to be a Saturday
which is not less than 14 days, nor more than
30 days, after nomination day; or
(b) a Council periodic election is to be the day
fixed by or in accordance with section 19(4) of
the Constitution Act 1934; or
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s. 71 No. Electoral 2004
(c) a Council by-election is to be a Saturday which
is not less than 14 days, nor more than 30
days, after nomination day.
(2) In the case of an Assembly general election, the
same day is to be fixed for polling in each Assembly
division.
Day for return of writ
71. The day fixed for the return of a writ for an election is
to be a day which is not later than 60 days after the date
of the issue of that writ or such later day as the Governor,
by proclamation, may direct.
Duties of returning officer on receipt of writ
72. The returning officer for a division, on receiving a writ
for an election in respect of that division, is to
(a) endorse on the writ the date of its receipt; and
(b) fix a place at which and the hours during
which he or she will receive nominations; and
(c) as soon as practicable publish, in at least one
newspaper approved for the purpose and
circulating generally in the division, a notice
of
(i) the receipt of the writ; and
(ii) the particulars of the writ; and
(iii) the address of the place and hours fixed
under paragraph (b).
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2004 Electoral No. s. 73
Extension of time
73. (1) If a writ for an election has been issued and not
returned, and the Governor considers it appropriate, the
Governor may by proclamation fix
(a) another day on or before which candidates for
election are to be nominated; or
(b) another day on which polling for the election is
to be held in the event of the election being
contested; or
(c) another day on or before which the writ is to
be returned to the Governor.
(2) Any dates fixed by the Governor under
subsection (1) are not subject to section 69, 70 or 71.
(3) If the Governor issues a proclamation under
subsection (1), the returning officer for the relevant
division is to, as soon as practicable, publish in at least
one newspaper approved for the purpose and circulating
generally in the division, a notice of that proclamation.
Fresh writ to be issued where election fails or
partially fails
74. If an Assembly election fails or partially fails, or a
Council election fails, a writ for the holding of a fresh
election in respect of the division concerned is to be issued
by the Governor
(a) within 10 days after polling day; or
(b) if the failure or partial failure of the election
does not become apparent until after polling
day, within 10 days after the day on which
that failure or partial failure becomes
apparent.
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s. 75 No. Electoral 2004
Division 2 Nominations for election
Persons who may be nominated and elected
75. A person may be nominated as a candidate for election
and may be elected as a Member of the Assembly or the
Council if the person is
(a) qualified under the Constitution Act 1934 to be
elected; and
(b) not ineligible under section 76.
Persons ineligible for nomination
76. (1) A person is ineligible to be nominated as a
candidate for election to represent a division if
(a) the person is
(i) the holder of a seat in the other House of
the Parliament of Tasmania; or
(ii) in the case of a nomination at a Council
election, the holder of a seat in another
Council division; or
(iii) in the case of a nomination at an
Assembly by-election, the holder of a
seat in another Assembly division; or
(b) the person is a candidate for an election in
another division of either House for which the
writ has not been returned; or
(c) the person is a Member of the Parliament of
the Commonwealth.
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2004 Electoral No. s. 77
(2) A person is not ineligible under
subsection (1)(a)(ii) to be nominated as a candidate for
election to represent a Council division where his or her
term of office as a Member is to cease at the election by the
operation of a determination under section 29A(1) of the
Legislative Council Electoral Boundaries Act 1995.
How and when nomination takes place
77. (1) A nomination of a person as a candidate for
election is invalid unless it complies with the
requirements of this section.
(2) Except as provided in subsection (3), (4) or (5),
the nomination is to
(a) be in an approved form; and
(b) include the name, ballot paper name, address
and occupation of the person being nominated;
and
(c) be signed by at least 10 nominators, other
than the candidate, who are electors entitled
to vote at the election to which the nomination
relates; and
(d) be consented to in a statement signed by the
person being nominated; and
(e) include a declaration made by the person
being nominated that complies with
section 78; and
(f) be lodged, posted or sent by facsimile so as to
be received by the returning officer for the
division after the issue of the writ for the
election and, subject to section 90, before noon
on nomination day.
67
s. 77 No. Electoral 2004
(3) If one or more persons are being nominated to
appear on an Assembly ballot paper in a group under a
heading of the ballot paper name of a registered party, the
nomination is to
(a) be in an approved form; and
(b) include the name, ballot paper name, address
and occupation of each person being
nominated; and
(c) be signed by the registered officer of the party,
as nominator; and
(d) include a statement signed by the registered
officer that the party has endorsed those
persons; and
(e) be consented to by each person being
nominated, in a statement signed by each such
person; and
(f) include a declaration made by each person
being nominated that complies with
section 78; and
(g) be lodged, posted or sent by facsimile so as to
be received by the returning officer for the
division or the Commissioner after the issue of
the writ for the election and, subject to
section 90, before noon on nomination day.
(4) If one or more persons are being nominated to
appear on an Assembly ballot paper in a group not under a
heading of the ballot paper name of a registered party, the
nomination is to
(a) be in an approved form; and
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2004 Electoral No. s. 77
(b) include the name, ballot paper name, address
and occupation of each person being
nominated; and
(c) be signed by at least 100 nominators, other
than the candidates, who are electors entitled
to vote at the election to which the nomination
relates; and
(d) be consented to by each person being
nominated, in a statement signed by each
person being nominated; and
(e) include a declaration made by each person
being nominated that complies with
section 78; and
(f) be lodged, posted or sent by facsimile so as to
be received by the returning officer for the
division after the issue of the writ for the
election and, subject to section 90, before noon
on nomination day.
(5) If a person is being nominated to appear on a
Council ballot paper together with the name of a
registered party, the nomination is to
(a) be in an approved form; and
(b) include the name, ballot paper name, address
and occupation of the person being nominated;
and
(c) be signed by the registered officer of the party,
as nominator; and
(d) include a statement signed by the registered
officer that the party has endorsed that
person; and
69
s. 78 No. Electoral 2004
(e) be consented to in a statement signed by the
person being nominated; and
(f) include a declaration made by the person
being nominated that complies with
section 78; and
(g) be lodged, posted or sent by facsimile so as to
be received by the returning officer for the
division or the Commissioner after the issue of
the writ for the election and, subject to
section 90, before noon on nomination day.
(6) Any consent or declaration required under
subsection (2), (3), (4) or (5) may be provided by another
approved method.
(7) At the time the nomination is lodged, the
nomination deposit is to be lodged with the returning
officer or the Commissioner.
(8) The nomination deposit is $400 per person
nominated, in legal tender or in a cheque drawn by an
authorised deposit-taking institution or other financial
institution on itself.
(9) A nomination is not invalid by reason of a formal
defect or error in it if the returning officer or the
Commissioner receiving the nomination is satisfied that
the provisions of this Act have been substantially complied
with in relation to it.
Declaration by candidate
78. The declaration referred to in section 77(2)(e), (3)(f),
(4)(e) or (5)(f) is to be in the prescribed form.
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2004 Electoral No. s. 79
Returning officer to endorse nomination
79. (1) As soon as practicable after receiving a
nomination, the Commissioner or the returning officer is
to endorse the nomination form as accepted if he or she is
satisfied that
(a) the nomination is in accordance with
section 77; and
(b) the person being nominated is not known by
the Commissioner or the returning officer to
be ineligible under section 76 to be nominated.
(2) The acceptance of a nomination by the
Commissioner or the returning officer is conclusive
evidence that
(a) if the nomination was lodged under
section 77(2), at least 10 of the nominators
were nominators eligible under
section 77(2)(c); or
(b) if the nomination was lodged under
section 77(3) or (5), the nominator was the
registered officer of the relevant registered
party; or
(c) if the nomination was lodged under
section 77(4), at least 100 of the nominators
were nominators eligible under
section 77(4)(c).
Ballot paper name of candidate
80. (1) A candidate is to specify on the nomination form a
ballot paper name which is to be the form in which the
person's name is to appear on the ballot papers for the
election.
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s. 81 No. Electoral 2004
(2) The Commissioner may approve a ballot paper
name, other than a form of the candidate's name, if
satisfied that the person is commonly known by that
name.
Names of registered parties on ballot papers
81. (1) If one or more persons are nominated in
accordance with section 77(3), the names of those
candidates are to appear on the ballot paper in a separate
column under a heading of the ballot paper name of the
registered party.
(2) If a person is nominated in accordance with
section 77(5), the ballot paper name of the registered party
is to appear on the ballot paper under the name of that
candidate.
Multiple nominations
82. If at noon on nomination day a person is nominated as
a candidate for election in more than one division having
that nomination day, each nomination of that person is
invalid.
Withdrawal of nomination of candidate for election
83. (1) Subject to subsection (2), a person nominated as a
candidate for election in accordance with section 77 may
withdraw that nomination by notice signed by the person
or by another approved method and lodged with the
Commissioner or the returning officer, as appropriate,
before noon on nomination day.
(2) A person nominated as a candidate for election in
accordance with section 77(3) or (5) may withdraw that
72
2004 Electoral No. s. 84
nomination only with the consent, in an approved form, of
the registered officer who nominated that person.
(3) A person nominated as a candidate for election in
accordance with section 77(4) may withdraw that
nomination only with the consent, in an approved form, of
each of the other persons nominated in the same group.
Nominations invalid due to name of candidate
84. (1) In this section
"business day" means a day when the place fixed
for receiving nominations for the relevant
division is open for business.
(2) The Commission may determine that a
nomination in respect of a person as a candidate for an
election is invalid on the ground that the person has
changed his or her name to a name which
(a) is a party name; or
(b) so nearly resembles a party name that it is
likely to be confused with, or mistaken for, a
party name; or
(c) includes the word "independent" or a word of
similar import; or
(d) is a public body name; or
(e) so nearly resembles a public body name that it
is likely to be confused with, or mistaken for,
the public body name; or
(f) is obscene or offensive.
(3) The Commission may also determine that a
nomination in respect of a person as a candidate for an
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s. 85 No. Electoral 2004
election is invalid if the person has changed his or her
name to a name which the Commission considers could
cause confusion.
(4) If the Commission determines that a nomination
is invalid on a ground mentioned in subsection (2) or (3), it
must
(a) advise the person nominated in writing of the
decision; and
(b) state reasons for the decision; and
(c) inform the person of any right to appeal to the
Supreme Court under section 85; and
(d) if the nomination was received before 5 p.m.
on the fourth business day before nomination
day, make the decision available to the person
at the place fixed for receiving nominations for
the relevant division before 5 p.m. on the third
business day before nomination day.
Right of appeal to Supreme Court in relation to
invalid name
85. (1) In this section
"business day" has the same meaning as in
section 84.
(2) A person
(a) whose nomination was received before 5 p.m.
on the fourth business day before nomination
day; and
(b) who is aggrieved by a determination of the
Commission under section 84(2) or (3) that the
nomination is invalid may, not later than 5
74
2004 Electoral No. s. 86
p.m. on the second business day before
nomination day, appeal to the Supreme Court
against the determination.
(3) An appeal is to be heard and determined by a
Judge or Master of the Supreme Court as soon as
practicable.
(4) On an appeal, an order for costs may not be
made against the appellant unless the Judge or Master is
satisfied that the appeal is frivolous or vexatious.
(5) No action or proceeding may be brought in
respect of a determination of the Commission under
section 84(2) or (3) except as provided by this section.
Disposal of deposit lodged for election
86. (1) The sum deposited with the returning officer or
the Commissioner in accordance with section 77(8) is to be
held in an approved account until the writ for the election
is returned.
(2) The deposit is to be returned to a candidate if the
candidate
(a) withdraws the nomination under section 83; or
(b) is elected; or
(c) at any stage of the scrutiny, obtained a
number of votes which is not less than 20%
of
(i) in the case of an Assembly election, a
quota as defined in Schedule 4; or
(ii) in the case of a Council election, an
absolute majority of votes as defined in
Schedule 5.
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s. 87 No. Electoral 2004
(3) If a candidate dies before polling day, the deposit
is to be returned to the candidate's personal
representatives.
(4) If an election fails, the deposit is to be returned
to each candidate.
(5) The deposit is to be forfeited to the Crown and
paid by the returning officer into the Treasury to the
credit of the Consolidated Fund unless it is returned to the
candidate under subsection (2), (3) or (4).
Announcement of candidates
87. (1) At noon on the day after nomination day, the
returning officer is to publicly produce all nomination
forms that have been endorsed as accepted under
section 79(1), and not withdrawn under section 83, and
(a) publicly announce
(i) the names of the persons who are
candidates at the election; and
(ii) in the case of an Assembly election, the
group, if any, in which they are
included; and
(b) display, at the office of the returning officer, a
notice containing the details of that
announcement.
(2) Unless the Commission otherwise determines,
the Commissioner, a returning officer or an election
official is not to disclose any information in relation to a
nomination received until the announcement referred to in
subsection (1)(a).
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2004 Electoral No. s. 88
Election without poll
88. (1) If the number of candidates for an election does
not exceed the number required to be elected, the
returning officer for the division concerned is to
(a) in the case of an Assembly election, as soon as
practicable after the announcement of
candidates, publicly declare those candidates
to be duly elected as Members of the Assembly
for that division; and
(b) in the case of a Council periodic election, on
polling day, publicly declare the candidate to
be duly elected as a Member of the Council for
that division; and
(c) in the case of a Council by-election, as soon as
practicable after the announcement of
candidates, publicly declare the candidate to
be duly elected as a Member of the Council for
that division.
(2) The Commissioner is to publish a declaration
made under subsection (1) in at least one newspaper
approved for the purpose and circulating generally in the
division and return the writ to the Governor endorsed
according to that declaration.
Election with poll
89. (1) If the number of candidates for an election exceeds
the number required to be elected, the returning officer for
the division concerned is to announce that a poll will take
place on the day fixed by the writ for that election.
(2) As soon as practicable after the announcement of
candidates under section 87, the returning officer is to
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s. 89 No. Electoral 2004
(a) for the purposes of Schedule 3 determine, by
an approved method, the random order in
which the names of candidates are to appear
in each column on the first batch of ballot
papers; and
(b) in the case of an Assembly election, for the
purposes of section 97(6) determine, by an
approved method, the random order in which
the columns mentioned in section 97(2) and
(3), if any, are to appear on the ballot papers.
(3) The Commissioner is to, as soon as practicable,
publish in at least one newspaper approved for the
purpose and circulating generally in the division a notice
(a) that a poll will take place on the day fixed by
the writ for that election; and
(b) in the case of an Assembly election, listing
(i) the groups in the order they are to
appear on the ballot paper; and
(ii) the names of the candidates in
alphabetical order within each group;
and
(c) in the case of a Council election, listing the
names of the candidates in alphabetical order;
and
(d) including a statement to the effect that the
names of the candidates on ballot papers are
rotated and may not appear in the order
shown in the notice.
(4) The Commissioner may also publish the notice
referred to in subsection (3) in any other approved
manner.
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2004 Electoral No. s. 90
(5) The Commissioner is to, on or before polling day,
publish in at least one newspaper approved for the
purpose and circulating generally in the division a notice
listing the polling places approved for that election.
Death of candidate at election
90. (1) If a person nominated as a candidate for an
election dies before noon on nomination day
(a) nominations for that election may be lodged
until noon on the day after nomination day;
and
(b) candidates are to be announced as soon as
practicable after noon on the day after
nomination day.
(2) If, in relation to an Assembly election, a person
nominated as a candidate dies after noon on nomination
day and before polling day, and
(a) there are no more than 5 candidates
remaining, the election is to proceed in
accordance with section 88 as if the remaining
candidates were the only candidates
nominated; or
(b) there are more than 5 candidates remaining,
the election is to proceed in accordance with
section 89 and the votes cast for the deceased
candidate are to be counted as votes cast for
the candidate next in order of the elector's
preference.
(3) If, in relation to a Council election, a person
nominated as a candidate dies after noon on nomination
day and before polling day, the election fails.
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(4) If a candidate dies on or after polling day for an
election, the count for that election is to be conducted as if
the candidate had not died and, if that candidate receives
sufficient votes to be elected, a vacancy is taken to have
occurred in his or her seat as if he or she had died on the
day after the declaration of the poll.
(5) If, in accordance with subsection (4), a vacancy is
taken to have occurred
(a) in the case of an Assembly election, that
vacancy is to be filled as provided by Part 9;
and
(b) in the case of a Council election, that vacancy
is to be filled as provided by section 74.
Division 3 Arrangements for polling
Polling places
91. A polling place is a place appointed by the
Commission at which electors may vote and may be an
ordinary polling place, a pre-poll polling place or a mobile
polling place.
Ordinary, pre-poll and mobile polling places
92. (1) An ordinary polling place is a place appointed by
the Commission at which electors may vote on polling day.
(2) A pre-poll polling place is a place appointed by
the Commission at which electors may vote during
specified time periods before polling day.
(3) A mobile polling place is a mobile unit appointed
by the Commission at which electors may vote during
specified time periods on or before polling day.
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2004 Electoral No. s. 93
(4) The Commission may appoint a hospital,
convalescent home, nursing home or other place as a place
at which a mobile polling place may be operated.
Appointment of polling places
93. (1) The Commission is to appoint, in respect of each
Assembly division and Council division, such polling
places as the Commission considers appropriate for the
conduct of an election in relation to that division.
(2) The Commission may appoint, in respect of an
Assembly division or a Council division, a polling place
which is located outside the boundaries of that division.
(3) The Commission may, subject to subsection (4),
terminate the appointment of a polling place in respect of
an Assembly division or a Council division.
(4) The Commission is not to terminate the
appointment of a polling place in respect of a division
between the issue of the writ and the return of the writ for
an election in respect of that division, unless it is
necessary to do so for circumstances beyond the
Commission's control.
(5) The Commission is to, as soon as practicable,
publish in the Gazette notice of an appointment or a
termination of an appointment made under this section.
Hours of polling
94. (1) Each ordinary polling place is to be open for
polling from 8 a.m. on polling day until the close of poll.
(2) The Commissioner is to determine the times
during which each pre-poll polling place and mobile
polling place is to be open for polling.
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Commissioner to make arrangements for polling
95. The Commissioner is to make arrangements for the
conduct of a poll in accordance with this Act, and in
particular is to
(a) provide appropriate numbers of election
officials; and
(b) provide, at each polling place, appropriate
numbers of
(i) certified copies of the election roll; and
(ii) ballot papers; and
(iii) declaration voting materials; and
(iv) voting screens; and
(v) ballot boxes which can be securely
fastened.
Division 4 Ballot papers
Preparation and printing of ballot papers
96. (1) Ballot papers for use at elections are to be
prepared and printed by the Commissioner in an approved
form and in accordance with this Division.
(2) Ballot papers to be issued as postal votes under
section 128 are to have the additional word `postal' on
them.
(3) Except as provided by section 101, ballot papers
are to be authenticated by an approved mark.
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2004 Electoral No. s. 97
Design of Assembly ballot papers
97. (1) The ballot paper names of the candidates for
Assembly elections are to be printed in columns with a box
printed next to each name.
(2) Each group of candidates nominated under
section 77(3) to appear on a ballot paper under a heading
of the ballot paper name of a registered party is to be
listed in a separate column on the ballot paper under that
name.
(3) Each group of candidates nominated under
section 77(4) to appear on a ballot paper as a group is to be
listed in a separate column on the ballot paper under a
heading "Group" followed by a capital letter representing
the position of the column.
(4) The first column on the ballot paper (when
reading from left to right) is Column A, and each
subsequent column to the right of Column A is designated
by a successive letter of the English alphabet.
(5) If more than 26 columns are required, the
Commission is to determine the headings to be used.
(6) The order in which the columns mentioned in
subsections (2) and (3) are to be printed on the ballot
paper is to be the order determined under section 89(2)(b).
(7) Candidates nominated under section 77(2) are to
be listed in a column under the heading "ungrouped", and
that column is to be printed on the ballot paper in a
position to the right of the columns mentioned in
subsections (2) and (3).
(8) The Commissioner may, if he or she considers it
impractical to print the ballot paper names of all
candidates nominated under section 77(2) in a single
column, print those names in more than 1 column with
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(a) each column headed "ungrouped"; and
(b) as close as possible to equal numbers of names
in each column; and
(c) the names to be included in each column being
determined in accordance with Schedule 3;
and
(d) those columns printed on the ballot paper in
positions to the right of the columns
mentioned in subsections (2) and (3).
(9) The ballot paper names of the candidates within
each column are to be printed on each batch of ballot
papers in the order specified in Schedule 3.
(10) Ballot papers are to be collated in an approved
manner so that each ballot paper is followed by a ballot
paper having the ballot paper names in a different order
within each column.
Design of Council ballot papers
98. (1) The ballot paper names of the candidates for
Council elections are to be in a single column with a box
printed next to each name.
(2) The ballot paper names of the candidates are to
be printed on each batch of ballot papers in the order
specified in Schedule 3.
(3) Ballot papers are to be collated in an approved
manner so that each ballot paper is followed by a ballot
paper having the ballot paper names in a different order.
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2004 Electoral No. s. 99
Printing of names on ballot papers
99. (1) The surname or family name of each candidate for
election is to be in more conspicuous type than the
remaining part of the ballot paper name.
(2) The surname or family name of each candidate
for election may be on a different line to the remaining
part of the ballot paper name.
(3) As far as practicable the ballot paper names of
candidates are to be printed in the same fonts and styles.
(4) As far as practicable the ballot paper names of
parties are to be printed in the same fonts and styles.
(5) If the Commissioner considers that a similarity
in the ballot paper names of 2 or more candidates is likely
to cause confusion, a description or addition is to be
included with each such name to enable them to be
distinguished from each other.
Instructions on ballot papers
100. Instructions on the ballot paper are to indicate that
(a) the elector is to number the boxes from 1 to a
number (being the number of candidates) in
order of choice; and
(b) the elector's vote will not count unless the
elector numbers
(i) in the case of an Assembly ballot paper,
at least five boxes; and
(ii) in the case of a Council ballot paper, at
least the number of boxes required
under section 102(2)(a).
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Preparation of additional ballot papers
101. (1) If a returning officer or the election official in
charge of a polling place is unable to provide an elector
with a ballot paper printed in accordance with section 96,
he or she is to prepare a ballot paper which as far as
practicable duplicates the required ballot paper.
(2) Returning officers and election officials in charge
of polling places are to keep a record in an approved
manner of the number of ballot papers prepared in
accordance with subsection (1).
(3) A ballot paper prepared under subsection (1) is
to be taken to be a ballot paper for the purposes of this Act
if it is authenticated by the initials of the election official.
Marking of ballot papers
102. (1) In respect of an Assembly election, an elector
(a) must mark the ballot paper by placing,
without omission or duplication, the numbers
1, 2, 3, 4 and 5 in the boxes next to the names
of candidates in order of preference; and
(b) may place further consecutive numbers in any
or all of the boxes next to the names of the
remaining candidates.
(2) In respect of a Council election, an elector
(a) must mark the ballot paper by placing,
without omission or duplication
(i) if there are more than 3 candidates, the
numbers 1, 2 and 3 in the boxes next to
the names of the candidates in order of
preference; or
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2004 Electoral No. s. 103
(ii) if there are 3 candidates, the numbers 1,
and 2 in the boxes next to the names of
the candidates in order of preference; or
(iii) if there are 2 candidates, the number 1
in the box next to the name of the
candidate of first preference; and
(b) may place further consecutive numbers in any
or all of the remaining boxes next to the
names of the remaining candidates.
Informal ballot papers
103. (1) A ballot paper is informal if
(a) it is not authenticated by
(i) the initials of an election official; or
(ii) an approved mark; or
(b) there is no vote recorded on the ballot paper;
or
(c) the vote is recorded on the ballot paper
otherwise than in accordance with section 102;
or
(d) there is on the ballot paper a mark or writing
which identifies the elector who marked that
ballot paper.
(2) If an Assembly ballot paper has preferences
above the number 5 marked on it and
(a) one or more of those numbers is omitted or
duplicated; and
(b) the ballot paper would otherwise be formal
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s. 104 No. Electoral 2004
the numbers including and above such, or the first such,
omission or duplication are to be disregarded and the
ballot paper is to be treated as being formal.
(3) If a Council ballot paper having more than 3
candidates has preferences above the number 3 marked on
it and
(a) one or more of those numbers is omitted or
duplicated; and
(b) the ballot paper would otherwise be formal
the numbers including and above such, or the first such,
omission or duplication are to be disregarded and the
ballot paper is to be treated as being formal.
(4) A ballot paper is not to be treated as informal or
rejected at the counting of votes if, in the opinion of the
returning officer, the elector's intention is clearly indicated
on the ballot paper.
Division 5 Scrutineers
Appointment of scrutineers
104. (1) A candidate at an election, or a person nominated
to contest a recount under Part 9, may appoint one or
more persons who are not candidates at that election to be
scrutineers on his or her behalf.
(2) The appointment of a scrutineer is to be in an
approved form signed by the candidate.
(3) Before commencing his or her functions as a
scrutineer, a scrutineer
(a) is to produce to an election official his or her
appointment as a scrutineer; and
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2004 Electoral No. s. 105
(b) is to sign a declaration, in an approved form,
that he or she will perform the functions in
accordance with this Division and preserve the
secrecy of the voting.
Presence of scrutineers
105. (1) Subject to subsection (2) or (3), a candidate is
entitled to be represented by one or more scrutineers at
any polling place or other place where ballot material is
sorted, checked or counted.
(2) The number of scrutineers representing a
candidate at a polling place which is open for polling is not
to exceed the number of election officials issuing ballot
papers at that polling place.
(3) The number of scrutineers representing a
candidate at a polling place or other place when ballot
material is sorted, checked or counted is not to exceed the
number of election officials sorting, checking or counting
at that place.
(4) An election official is to supply a scrutineer with
an identity badge to be worn or displayed by the scrutineer
while scrutineering.
Scrutineering
106. (1) A scrutineer may observe the issuing, sorting,
checking and counting of ballot material.
(2) A scrutineer may bring to the attention of an
election official any matter the scrutineer believes may not
be in accordance with the provisions of this Act.
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s. 107 No. Electoral 2004
(3) If, under subsection (2), a scrutineer brings a
matter to the attention of an election official, that official
is to
(a) consider the request; and
(b) take any action he or she considers
appropriate; and
(c) if requested by the scrutineer, record details of
the request and the action taken.
Division 6 Entitlement to vote
Entitlement to vote
107. (1) An elector whose name appears on the election
roll for an election is entitled to vote at that election.
(2) A person whose name does not appear on the
election roll for an election is entitled to vote at that
election if
(a) the person's name has been on the division roll
for the relevant division at some time during
the 4-year period ending on the day of the
close of roll for that election; and
(b) the person has continuously resided within the
current boundaries of the relevant division
since that person's name was removed from
that division roll.
(3) A person whose name does not appear on the
election roll for an election is entitled to vote at that
election if the returning officer is satisfied that the
omission of the person's name from the election roll was
due to an administrative error.
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2004 Electoral No. s. 108
(4) A person is not entitled to vote more than once at
any election.
Division 7 Voting at ordinary, pre-poll and mobile
polling places
Entitlement to vote within division
108. (1) A person who is entitled to vote at an election in
a division, may vote
(a) on polling day at an ordinary polling place
appointed in respect of that division; or
(b) before polling day at a pre-poll polling place if
he or she
(i) expects to be unable to attend a polling
place on polling day; or
(ii) is a person whose address is not
included on the roll pursuant to
section 36(5); or
(c) on or before polling day at a mobile polling
place if he or she
(i) is a resident of an institution appointed
as a place at which a mobile polling
place may be operated; or
(ii) such other person as may be approved.
(2) When requesting a ballot paper before polling
day, a person entitled to do so under subsection (1)(b)(i) is
to make a declaration in an approved form that he or she
is unable to attend a polling place on polling day.
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Requesting ballot paper
109. A person may request a ballot paper from an election
official at a polling place by
(a) stating his or her name and address; and
(b) answering any questions asked by the election
official in accordance with section 110(2); and
(c) if the person is requesting a ballot paper at a
pre-poll polling place, signing the declaration
required under section 108(2).
Election official to issue ballot paper
110. (1) An election official is to issue a ballot paper,
which has been initialled by the election official, to a
person requesting a ballot paper if
(a) the election official is satisfied that
(i) the person is entitled under
section 107(1) to vote at the election; and
(ii) the name of the person has not been
marked on the certified copy of the
election roll provided to the election
official as having already been issued a
ballot paper; and
(b) the person states that he or she has not
already voted at the election; and
(c) at a pre-poll polling place, the person has
made the declaration required under
section 108(2).
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2004 Electoral No. s. 111
(2) An election official may ask a person requesting
a ballot paper questions for the purpose of deciding
whether to issue a ballot paper under subsection (1).
Issue of ballot paper to be recorded on certified
copy of election roll
111. At the time of issuing a ballot paper to an elector, the
election official is to mark, in an approved manner, the
name of that elector on a certified copy of the election roll.
Vote to be marked in private
112. Subject to section 113, an elector who has been
issued with a ballot paper is to, without delay
(a) go to an unoccupied voting screen in the
polling place; and
(b) mark his or her vote on the ballot paper in
accordance with the directions on that ballot
paper; and
(c) fold the ballot paper so as to conceal the vote
and place it in a ballot box in the polling place;
and
(d) leave the polling place.
Assistance to certain electors at polling places
113. (1) The Commission may approve any procedures
that are reasonable and appropriate to assist an elector at
an ordinary, pre-poll or mobile polling place who is unable
to vote without assistance.
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s. 114 No. Electoral 2004
(2) If an elector is to be assisted in voting, an
election official at the polling place is to advise any
scrutineers present of the approved procedure by which
the elector will be voting.
Mobile polling not to take place on medical grounds
114. If the person in charge of an institution which is
appointed as a place at which a mobile polling place may
be operated, or his or her delegate, informs an election
official that a visit to a resident is forbidden on medical
grounds, election officials are not to visit that resident.
Entitlement to vote absent from division
115. (1) On polling day, a person who is entitled to vote at
an election in a division may, if he or she is absent from
that division, lodge a declaration vote at an ordinary
polling place appointed for another division.
(2) Before polling day, a person who is entitled to
vote at an election in a division may, if he or she will be
unable to attend a polling place on polling day, lodge a
declaration vote at a pre-poll polling place or mobile
polling place appointed for another division.
(3) When requesting a declaration vote under
subsection (1) or (2), a person is to make a declaration that
he or she is entitled to vote at the election in the specified
division.
Entitlement to vote not on roll
116. (1) If an election official does not issue a ballot paper
to a person requesting a ballot paper, because the election
official is not satisfied that the person meets the
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2004 Electoral No. s. 117
requirements of section 110(1)(a)(i), the election official is
to advise that person of his or her entitlement to request a
declaration vote.
(2) When requesting a declaration vote under
subsection (1), a person is to make a declaration that he or
she is entitled to vote under section 107(2) or (3) for the
division in which the election is being conducted.
Entitlement to vote already marked off roll
117. (1) If an election official does not issue a ballot paper
to a person requesting a ballot paper, because the election
official is not satisfied that the person meets the
requirements of section 110(1)(a)(ii), the election official is
to advise that person of his or her entitlement to request a
declaration vote.
(2) When requesting a declaration vote under
subsection (1), a person is to make a declaration that he or
she has not already voted at the election.
Issuing declaration vote
118. (1) If a person referred to in section 115, 116 or 117
requests a declaration vote and the person indicates that
he or she has not already voted at the election, an election
official appointed for the purpose of issuing declaration
votes is to provide that person with an approved
declaration vote envelope.
(2) The person is to make the declaration required
under section 115, 116 or 117 on the declaration vote
envelope.
(3) The person is to provide, on the declaration vote
envelope, such details in respect of the person as may be
approved for the purposes of
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s. 118 No. Electoral 2004
(a) deciding whether to admit the vote; or
(b) amending the enrolment details in respect of
that person; or
(c) enrolling the person on the electoral roll.
(4) The election official is to
(a) witness the person make the declaration
required under subsection (2); and
(b) issue the person with a ballot paper, which
has been initialled by the election official; and
(c) instruct the person as to the approved
procedure by which he or she is to
(i) mark his or her vote on the ballot paper;
and
(ii) place the ballot paper in the declaration
vote envelope; and
(iii) place the declaration vote envelope in a
ballot box; and
(d) keep a record, in an approved manner, of all
persons issued with a ballot paper by the
election official under this section.
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2004 Electoral No. s. 119
Division 8 General provisions at polling places and
other places where ballot papers are sorted, checked
or counted
Powers of returning officer, election official and
police officer at polling place or place where ballot
material is sorted, checked or counted
119. (1) A returning officer, an election official or a police
officer has and may exercise such powers as may be
necessary to maintain order and keep the peace at or in
the immediate vicinity of a polling place or a place where
ballot material is being sorted, checked or counted.
(2) Without limiting any other powers conferred on
him or her by law, a returning officer, an election official
or a police officer may remove or cause to be removed
from
(a) a polling place or its immediate vicinity; or
(b) a place where ballot material is being sorted,
checked or counted or its immediate vicinity
a person who he or she believes on reasonable grounds is
committing, has committed or is attempting to commit an
offence under this Act.
(3) Without limiting any other powers conferred on
him or her by law, a police officer may without warrant
arrest or cause to be arrested a person who he or she
believes on reasonable grounds is committing, has
committed or is attempting to commit an offence under
this Act at or in the immediate vicinity of a polling place
or a place where ballot material is being sorted, checked or
counted.
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s. 120 No. Electoral 2004
Persons entitled to be present at polling place or
place where ballot material is sorted, checked or
counted
120. (1) Except as provided in subsection (2), the only
persons who are entitled to be present at a polling place or
other place where ballot material is sorted, checked or
counted are
(a) the election officials appointed to work at that
place; and
(b) scrutineers appointed in accordance with
section 104; and
(c) any other person authorised by the
Commissioner, the returning officer for the
division or the election official in charge of
that place.
(2) Electors who are voting or are about to vote are
entitled to be present at a polling place.
Ballot box to be exhibited and sealed
121. (1) At the commencement of polling at a polling place
the empty ballot box is to be exhibited and securely
fastened in the approved manner.
(2) In the case of a ballot box used for mobile polling,
the empty ballot box is to be exhibited and securely
fastened at the commencement of the first mobile polling
place at which it is to be used.
Close of polling electors present may vote
122. If an elector is in a polling place at a time at which
polling is to close at that polling place, and desires to vote,
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2004 Electoral No. s. 123
he or she is to be allowed reasonable time to vote and the
ballot paper is to be included in the poll.
Spoilt ballot papers
123. If an elector returns a ballot paper, which he or she
has spoilt, to an election official, the election official is to,
in the approved manner
(a) issue the elector with a new ballot paper; and
(b) cancel and preserve the spoilt ballot paper.
Adjournment of polling
124. (1) The Commissioner may adjourn the polling at a
polling place on polling day if for any reason it is not
practicable to proceed.
(2) If polling is adjourned and the Commission
believes that it is not reasonably practicable for an elector
affected by the adjournment to cast a vote at another
polling place, the Commission is to
(a) arrange for the adjourned polling to resume as
soon as practicable but no later than 21 days
after polling day; and
(b) fix a place at which and the hours during
which the adjourned polling is to occur; and
(c) as soon as practicable publish, in at least one
newspaper approved for the purpose and
circulating generally in the division, a notice
of the arrangements for the adjourned polling
including the place and hours fixed under
paragraph (b).
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s. 125 No. Electoral 2004
(3) Where polling at a polling place in a division has
been adjourned, only an elector who was entitled to vote
on polling day at the election in that division and who has
not already voted is entitled to vote at the adjourned
polling.
(4) In this Act, where appropriate, a reference to
polling day for an election is taken to include a day on
which adjourned polling occurs.
Division 9 Postal voting
Entitlement to postal vote
125. (1) An elector who is entitled to vote at an election in
a division may vote by postal vote if he or she
(a) expects to be unable to attend a polling place
on polling day; or
(b) is an elector whose address is not included on
the roll pursuant to section 36(5).
(2) When applying for a postal vote, an elector
entitled to do so under subsection (1)(a) is to make a
declaration that he or she is unable to attend a polling
place on polling day.
Application for postal vote
126. (1) An application for a postal vote is to
(a) be in accordance with the approved form; and
(b) include such details in respect of the applicant
as may be approved for the purpose of
identifying the applicant; and
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2004 Electoral No. s. 127
(c) include the address for which the person
claims to be enrolled; and
(d) include the address to which the ballot paper
is to be sent; and
(e) if required by section 125(2), include the
declaration referred to in that subsection; and
(f) be signed by the applicant or authenticated by
another approved method; and
(g) be lodged with a returning officer or a person
approved for the purpose, before
(i) if the postal vote is to be sent within
Australia, 6.00 p.m. on the second day
before polling day; or
(ii) if the postal vote is to be sent outside
Australia, 6.00 p.m. on the fourth day
before polling day.
(2) An application for a postal vote is to be made
available for public inspection at the office of the returning
officer from and including the third day after polling day
until the expiration of the relevant period specified in
section 150(1).
(3) Before making an application available for
inspection under subsection (2), the returning officer is to
remove any information other than the elector's name
from an application lodged by an elector whose address,
pursuant to section 36(5), does not appear on the roll.
General postal voters
127. (1) The Commission may approve arrangements to
obtain details of electors registered under the
Commonwealth Act as general postal voters.
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s. 128 No. Electoral 2004
(2) If the details of an elector are obtained under an
arrangement made under subsection (1), that elector is to
be issued with a postal vote in accordance with section 128
as if an application for a postal vote that complies with
section 126 had been received.
(3) Subject to subsection (4), the name and address
of electors issued with a postal vote under subsection (2)
are to be made available for public inspection at the office
of the returning officer from and including the third day
after polling day until the expiration of the relevant period
specified in section 150(1).
(4) The returning officer is not to make available for
public inspection under subsection (3) the address of an
elector if that elector's address does not appear on the roll
pursuant to section 36(5).
Issue of postal votes
128. (1) If a returning officer, or a person approved for the
purpose, receives an application that complies with
section 126, an election official is to
(a) issue a ballot paper to the applicant by
posting, or delivering by an approved method,
to the address specified for this purpose on the
application, the following postal vote material:
(i) a ballot paper which complies with
section 96(2), and which has been
initialled by the election official;
(ii) approved instructions for the completion
and return of the postal ballot paper;
(iii) a postal vote declaration envelope and
any other envelope to be used for the
return of the postal ballot paper; and
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2004 Electoral No. s. 129
(b) keep a record, in an approved manner, of all
persons issued with a postal ballot paper by
the election official under this section.
(2) The postal ballot paper to be issued under
subsection (1) is to be
(a) for the division in respect of which the person
is enrolled; or
(b) if it appears to the election official that the
person is not enrolled, for the division
applicable to the address for which the person
claims to be enrolled.
(3) Any envelopes used for the issue or return of
postal ballot papers are to
(a) be approved; and
(b) make provision on the postal vote declaration
envelope for the voter to sign the required
declaration; and
(c) be designed to protect the secrecy of the vote.
Issue of replacement postal votes
129. (1) If an election official is satisfied that a person
who has been issued with postal vote material in
accordance with section 128(1)(a) has not received, or has
spoiled, any of that postal vote material, the election
official is to issue replacement postal vote material to that
person.
(2) Replacement postal vote material is to be issued
in accordance with the procedures in section 128.
(3) An election official is to keep a record, in an
approved manner, of all persons issued with replacement
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s. 130 No. Electoral 2004
postal vote material by the election official under this
section.
Postal voting procedure
130. (1) Before the close of poll, the voter, in accordance
with the approved instructions, is to
(a) mark the ballot paper; and
(b) place it in the postal vote declaration envelope
provided; and
(c) make and date the declaration on that
envelope; and
(d) return the envelope containing the ballot
paper by
(i) delivering it to a polling place before the
close of poll; or
(ii) posting it to the returning officer.
(2) The voter's declaration required under
subsection (1)(c) is that he or she voted on the ballot paper
contained in that envelope.
Division 10 Polling in Antarctica, remote areas
and outside Tasmania
Commission to approve procedures for voting in
Antarctica and remote areas
131. (1) The Commission is to approve procedures to
enable
(a) any elector, where practicable, to vote at an
election while in
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2004 Electoral No. s. 132
(i) the Australian Antarctic Territory,
including Macquarie Island and the
Territory of Heard Island and McDonald
Islands; and
(ii) a ship in transit to or from a place
mentioned in subparagraph (i) that has
been declared by the Commission to be
an Antarctic ship; and
(b) any elector, where practicable, to vote at an
election while in an area that has been
declared by the Commission to be a remote
area; and
(c) any vote cast in accordance with procedures
approved under this section to be transmitted
to the Commission.
(2) The Commission may declare an area to be a
remote area if it is satisfied that electors in that area do
not have reasonable opportunity to vote at an election
under other provisions of this Act.
Commission to approve procedures for voting while
outside Tasmania
132. The Commission may approve procedures to enable
(a) an elector, where practicable, to vote at an
election while outside Tasmania but within
Australia; and
(b) an elector, where practicable, to vote at an
election while outside Australia; and
(c) a vote cast in accordance with procedures
approved under paragraph (a) or (b) to be
transmitted to the Commission.
105
s. 133 No. Electoral 2004
Entitlement to vote in Antarctica, remote areas or
outside Tasmania
133. Any elector enabled to vote under procedures
approved under section 131 or 132 is entitled to vote in
accordance with those procedures.
Votes from Antarctica, remote areas or outside
Tasmania to be counted with postal votes
134. Any vote cast by an elector and transmitted to the
Commission in accordance with procedures approved
under section 131 or 132 is to be counted with the postal
votes for that election.
Requirements for voting procedures in Antarctica,
remote areas or outside Tasmania
135. Procedures approved under section 131 or 132 are, as
far as practicable, to provide for authentication of the vote
of an elector and the preservation of the secrecy of that
vote.
Votes from Antarctica, remote areas or outside
Tasmania not to be disclosed
136. Any person who becomes aware of how an elector,
voting in accordance with procedures approved under
section 131 or 132, voted is not to disclose this information
to any other person except in accordance with an approved
procedure.
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2004 Electoral No. s. 137
Division 11 Preliminary scrutiny of declaration
votes and postal votes
Commission to approve procedures for managing
declaration votes and postal votes
137. (1) The Commission is to approve procedures for the
conduct of
(a) the preliminary scrutinies of declaration vote
envelopes and postal vote declaration
envelopes under section 138 or 139; and
(b) the counting of votes under section 143.
(2) The preliminary scrutinies referred to in
subsection (1)(a) are as far as practicable to
(a) protect the secrecy of the vote; and
(b) ensure the security of all declaration votes;
and
(c) keep separate
(i) declaration votes issued to persons
entitled under section 115; and
(ii) declaration votes issued to persons
entitled under section 116 or 117; and
(iii) postal votes.
Preliminary scrutiny of declaration votes other
than postal votes
138. (1) The returning officer, in conducting a
preliminary scrutiny in accordance with procedures
approved under section 137, is to admit a declaration vote
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s. 139 No. Electoral 2004
envelope for further scrutiny at an election if he or she is
satisfied that
(a) the envelope was provided and returned in
accordance with section 118; and
(b) the appropriate declaration on the envelope is
signed and witnessed; and
(c) the voter is entitled to vote at that election.
(2) Notwithstanding subsection (1)(b), if a
declaration is not witnessed, the returning officer may
admit the declaration vote envelope if he or she is satisfied
that the declaration vote was otherwise issued in
accordance with section 118.
(3) The returning officer is to keep a record, in an
approved manner, of whether each declaration vote
envelope is admitted to further scrutiny or not.
Preliminary scrutiny of postal votes
139. (1) The returning officer, in conducting a
preliminary scrutiny in accordance with procedures
approved under section 137, is to admit a postal vote
declaration envelope for further scrutiny at an election if
he or she is satisfied that
(a) the declaration on the envelope is signed and
dated before the close of poll; and
(b) if the voter's postal vote application is
authenticated by the signature of the
applicant, the signature on the postal vote
declaration envelope is the same as the
signature on the application; and
(c) the envelope was received
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2004 Electoral No. s. 140
(i) at a polling place that is open for polling
at that election; or
(ii) by the returning officer by post or other
approved method no later than 10.00
a.m. on the second Tuesday after polling
day; and
(d) the voter is entitled to vote at that election.
(2) The returning officer is to keep a record, in an
approved manner, of all persons who have returned a
postal vote declaration envelope and whether that
envelope is admitted to further scrutiny or not.
Division 12 Counting votes
Certain polling places may be combined for
counting
140. In order to ensure the secrecy of the votes, the
Commission may approve combining the ballot papers
received at a polling place with the ballot papers received
at another polling place.
Procedure at conclusion of polling at ordinary
polling place
141. At the conclusion of polling at an ordinary polling
place an election official is to, in the approved manner
(a) count any unused and spoilt ballot papers; and
(b) verify the security of each ballot box; and
(c) open each ballot box and remove the ballot
papers; and
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s. 142 No. Electoral 2004
(d) reject and count all informal ballot papers;
and
(e) count the number of first preference votes
recorded for each candidate on ballot papers
not rejected under paragraph (d); and
(f) transmit the results of the count to the
returning officer; and
(g) reconcile all declaration envelopes issued or
received; and
(h) complete polling place management
documents; and
(i) parcel and forward all material specified by
the Commission to the returning officer.
Procedure at conclusion of pre-poll or mobile
polling
142. (1) At the conclusion of polling at a pre-poll polling
place or mobile polling place an election official is to, in the
approved manner
(a) count any unused and spoilt ballot papers; and
(b) verify the security of each ballot box; and
(c) complete polling place management
documents; and
(d) parcel and forward all material specified by
the Commission to the returning officer.
(2) After the close of poll, the returning officer is to,
in the approved manner
110
2004 Electoral No. s. 143
(a) open each ballot box received under
subsection (1) and remove the ballot papers;
and
(b) reconcile all declaration envelopes issued or
received; and
(c) reject and count all informal ballot papers;
and
(d) count the number of first preference votes
recorded for each candidate on ballot papers
not rejected under paragraph (c); and
(e) record the results of the count.
Admitted declaration votes to be counted
143. After the close of poll, the returning officer, in
accordance with procedures approved under section 137, is
to
(a) open declaration vote envelopes admitted for
further scrutiny under section 138; and
(b) open postal vote declaration envelopes
admitted for further scrutiny under
section 139; and
(c) remove the ballot papers; and
(d) reject and count all informal ballot papers;
and
(e) count the number of first preference votes
recorded for each candidate on all ballot
papers not rejected under paragraph (d); and
(f) record the results of the count.
111
s. 144 No. Electoral 2004
Returning officer to recheck and finalise first
preference counts
144. As soon as practicable the returning officer is to, in
accordance with approved procedures
(a) recheck all counts under sections 141, 142 and
143; and
(b) make any necessary amendments to counts
resulting from rechecks under paragraph (a);
and
(c) determine and record
(i) the total count of informal ballot papers;
and
(ii) the total counts of first preference votes
recorded for each candidate on ballot
papers that are not informal ballot
papers.
Returning officer to distribute further preference
votes
145. (1) Except as provided in subsection (2), as soon as
practicable after determining the total first preference
counts under section 144, the returning officer is to count
the further preference votes in accordance with Schedule 4
or Schedule 5 as the case requires.
(2) At a Council election, subject to the agreement of
the Commissioner, the returning officer may commence
the count of further preference votes before all ballot
papers are counted.
(3) The counting of votes under subsection (1) may
be conducted by an approved electronic means.
112
2004 Electoral No. s. 146
Ballot papers may be recounted
146. (1) At any time before declaring the result of an
election, the returning officer may choose to recount some
or all of the ballot papers.
(2) At any time before the returning officer declares
the result of an election, a candidate may request a
returning officer to recount some or all of the ballot
papers.
(3) A returning officer is to consider a request under
subsection (2) and decide whether or not to recount some
or all of the ballot papers.
(4) If a returning officer decides under subsection (3)
not to conduct a recount, the candidate may, before the
returning officer declares the result of the election, request
the Commission to review the decision.
(5) The Commission may direct a returning officer to
delay the declaration of the result of an election until a
review requested under subsection (4) is concluded.
(6) The Commission, after concluding a review
requested under subsection (4), may
(a) uphold the decision of the returning officer; or
(b) direct the returning officer to recount some or
all of the ballot papers.
(7) A request made by a candidate under
subsection (2) or (4) must specify the reasons for the
request.
Ballot papers lost or destroyed
147. (1) If any ballot papers that should have been
counted at the election have been lost or destroyed and the
113
s. 148 No. Electoral 2004
returning officer and the Commissioner are satisfied that
the votes contained on those ballot papers could not have
affected the result of the election, the returning officer
may complete the counting of votes without those ballot
papers and declare the result of the election.
(2) If any ballot papers that should have been
counted at the election have been lost or destroyed and the
returning officer is satisfied that those ballot papers could
have affected the result of the election, the returning
officer is not to declare the result of the election and is to
report the matter to the Commission.
(3) If in accordance with subsection (2) a returning
officer does not declare the result of an election and
reports the matter to the Commission, the Commission is
to review the decision of the returning officer and
(a) instruct the returning officer to declare the
result of the election; or
(b) make an application to the Supreme Court
under section 206.
Declaration of poll and return of writ
148. (1) Except as provided in section 147(2) or (3) or in
subsection (2) of this section, as soon as practicable after
completing the count under section 145, the returning
officer is to
(a) publicly declare the name of each candidate
elected; and
(b) endorse on the writ for the election the name
of each candidate elected; and
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2004 Electoral No. s. 149
(c) forward the writ to the Commissioner who is
to return it to the Governor within the period
specified.
(2) If, at a Council election, the returning officer and
the Commissioner are satisfied that the votes contained on
any ballot papers not yet returned by post or not yet
admitted to the count would not affect the result of the
election, the returning officer may, before the counting has
been completed, proceed in accordance with
subsection (1)(a), (b) and (c).
Returning officer to forward results and election
material to Commission
149. As soon as practicable after completing the count
under section 145, the returning officer is to, in accordance
with approved procedures
(a) provide to the Commission details of the
counting; and
(b) parcel all ballot papers, used declaration vote
envelopes, used postal vote declaration
envelopes and any other material as
determined by the Commission; and
(c) seal the parcels and forward them to the
Commission.
Division 13 Custody of election material
Preservation of election material
150. (1) Except as provided by subsection (2), the
Commission is responsible for the safe custody of parcels
forwarded to it under section 149 until
115
s. 151 No. Electoral 2004
(a) if no application under section 206 has been
lodged in respect of the election, the expiration
of the period during which the validity of the
election may be disputed under this Act; or
(b) if an application under section 206 has been
lodged in respect of the election, the Supreme
Court has determined the application and any
appeal from that determination has been
finalised.
(2) The Commission is responsible for the safe
custody of ballot papers included in the count under
section 145 in respect of an Assembly election until the
issue of the writ for the next following Assembly general
election.
(3) After the expiration of the relevant period
specified in subsection (1) or (2), the Commission may
cause the parcels forwarded to it under section 149 to be
destroyed.
Examination of election material
151. (1) The Commission may approve the opening of any
sealed parcel forwarded to it under section 149 and the
examination of the contents.
(2) Any approval under subsection (1) is to state the
purpose for which the approval is granted.
Division 14 Compulsory voting
Compulsory voting
152. (1) Every elector must vote at each election at which
he or she is entitled to vote.
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2004 Electoral No. s. 153
(2) After each election, the Commissioner is to
prepare a list of names and addresses of electors who
appear to have failed to vote at the election.
Notice of failure to vote
153. (1) Subject to subsection (4), as soon as practicable
after an election, the Commissioner is to send by post a
notice to each elector whose name appears on a list
prepared under section 152(2).
(2) The notice is to be in an approved form, specify
the date by which the notice is to be returned to the
Commissioner ("the return date"), and include a statement
to the effect that
(a) the elector appears to have failed to vote at the
election; and
(b) it is an offence to fail, without valid and
sufficient reason, to vote at an election; and
(c) if the elector voted at the election he or she
may, on or before the return date, provide the
Commissioner with particulars in writing of
when and where he or she voted; and
(d) if the elector failed to vote at the election and
does not wish to have the matter dealt with by
a court, the elector may, on or before the
return date
(i) provide the Commissioner with
particulars in writing of any valid and
sufficient reason for the failure; or
(ii) pay the Commissioner the penalty in
accordance with section 157.
117
s. 154 No. Electoral 2004
(3) The return date is to be a date not less than 21
days after the notice referred to in subsection (1) is posted.
(4) If the Commissioner is satisfied that an elector
whose name appears on a list prepared under
section 152(2) had a valid and sufficient reason for failing
to vote at the election, a notice is not to be sent to the
elector.
Second notice no response
154. (1) If a response to a notice referred to in section 153
is not received by the date by which the notice is to be
returned to the Commissioner, the Commissioner is, as
soon as practicable, to send a second notice to the elector.
(2) The second notice is to be in an approved form,
specify the date by which the notice is to be returned to
the Commissioner ("the return date") and include
(a) the statement required under section 153(2);
and
(b) a statement to the effect that a notice was sent
by post to the elector under section 153(1) and
that a response has not been received; and
(c) a statement to the effect that, if a response is
not received by the return date, the
Commissioner may institute proceedings for
an offence under section 182.
(3) The return date is to be a date not less than 14
days after the second notice is posted.
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2004 Electoral No. s. 155
Determination of valid and sufficient reason
155. (1) If the Commissioner receives information in
relation to an elector's failure to vote at an election, the
Commissioner is to determine whether, in his or her
opinion, the elector has a valid and sufficient reason for
failing to vote at the election.
(2) If the Commissioner determines that an elector
has a valid and sufficient reason for failing to vote at the
election, the Commissioner is to take no further action
under this Division.
Determination notice reason not accepted
156. (1) If an elector has been sent a notice in accordance
with section 153 or 154 and
(a) the elector provides the Commissioner with
particulars in writing of the reason for the
failure to vote; and
(b) the Commissioner determines under
section 155 that the reason is not valid and
sufficient
the Commissioner is to, as soon as practicable, send a
determination notice to the elector.
(2) The determination notice is to be in an approved
form, specify the date by which the determination notice is
to be returned to the Commissioner ("the return date") and
include a statement to the effect that
(a) the Commissioner has determined that the
reason provided by the elector is not valid and
sufficient; and
(b) it is an offence to fail, without valid and
sufficient reason, to vote at an election; and
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s. 157 No. Electoral 2004
(c) if the elector does not wish to have the matter
dealt with by a court, he or she may, on or
before the return date, pay the Commissioner
the penalty in accordance with section 157.
(3) The return date is to be a date not less than 14
days after the determination notice is posted.
Option to pay penalty
157. If an elector fails to vote at an election and pays a
penalty of 0.2 penalty units
(a) any liability of the elector under section 182 in
respect of the failure to vote is discharged; and
(b) proceedings for an offence against that section
are not to be instituted against the elector in
respect of the failure.
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2004 Electoral No. s. 158
PART 6 ELECTORAL EXPENDITURE IN
RESPECT OF COUNCIL ELECTIONS
Division 1 Candidate's expenditure
Election agent
158. (1) A candidate at a Council election may appoint a
person to be his or her election agent.
(2) An appointment under subsection (1) is to be in
writing and signed by the candidate.
(3) Only one person may hold an appointment as the
election agent for a particular candidate at any one time.
(4) The election agent of a candidate may incur or
authorise expenditure on behalf of that candidate.
Who may incur expenditure
159. (1) Subject to subsection (2), a person, other than a
candidate or the election agent of a candidate, must not
incur any expenditure with a view to promoting or
procuring the election of the candidate as a Member of the
Council.
(2) Subsection (1) does not preclude the payment or
giving of any money, security or equivalent of money
directly to a candidate or his or her election agent with a
view to promoting or procuring the election of the
candidate as a Member of the Council.
(3) A candidate at a Council election must not
authorise a person other than his or her election agent to
incur on his or her behalf expenditure with a view to
promoting or procuring the candidate's election.
121
s. 160 No. Electoral 2004
Candidate's expenditure limit
160. (1) A candidate at a Council election must not, in
respect of his or her campaign for that election, incur
election expenditure exceeding the expenditure limit.
(2) The expenditure limit is $10 000 in the year 2005
and increases by an additional $500 each subsequent year.
(3) If a court convicts a candidate of an offence
against subsection (1) it is to, at the time of conviction,
make a finding of the amount by which the candidate's
election expenditure exceeded the expenditure limit.
(4) For the purposes of subsection (1), expenditure
incurred by the election agent of a candidate is taken to
have been incurred by the candidate.
Lodgment of candidate's election expenditure
return
161. Every candidate at a Council election must complete
an election expenditure return which is to
(a) be in an approved form; and
(b) include particulars of
(i) all election expenditure that has been
paid by the candidate or paid on behalf
of the candidate by his or her election
agent; and
(ii) all disputed claims and all unpaid
claims against the candidate in respect
of any election expenditure; and
(c) be accompanied by any invoice account or
receipt in respect of each item of election
expenditure that exceeds $20; and
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2004 Electoral No. s. 162
(d) be signed and declared before a justice or a
commissioner for declarations; and
(e) be lodged with the Commission within 60 days
after the day on which the result of a Council
election is declared, or within such extended
period, not exceeding 30 days, as the
Commission may allow.
Division 2 Party expenditure
Party not to incur election expenditure
162. A person must not incur any expenditure for or on
behalf of a party with a view to promoting or procuring the
election of a candidate as a Member of the Council,
whether or not the candidate is an endorsed candidate of
the party.
Division 3 Provisions relating to candidate's
expenditure
Commission to check returns
163. On receiving a return lodged under section 161, the
Commission is to satisfy itself as to the authenticity and
accuracy of the return and that all particulars required to
be included in the return have been included.
Return available for public inspection
164. (1) The Commission is to
(a) keep returns for a period of 12 months; and
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s. 165 No. Electoral 2004
(b) during that period make those returns
available for inspection, free of charge, by a
member of the public.
(2) At the expiration of the period referred to in
subsection (1), the Commission may cause the returns to
be disposed of in an approved manner.
Power of Commission to require information
165. (1) If the Commission has reason to believe that a
person is in possession of information or records relating
to election expenditure, the Commission may, by written
notice, require
(a) the person to provide that information at a
specified time and place; or
(b) the person to produce for inspection any of
those records at a specified time and place; or
(c) the person to answer any question relating to
that expenditure at a specified time and place;
or
(d) any person who was a party to the compilation
of those records to make a statement providing
an explanation of them.
(2) The Commission may make and retain copies of
any records produced under subsection (1)(b) or of any
parts of those records.
(3) Any information provided, answer given or
statement made by a person in response to a requirement
made under subsection (1) may not be used in any
proceedings against that person except proceedings under
section 200(8) in relation to that information, answer or
statement.
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2004 Electoral No. s. 165
(4) A person is not obliged to provide any
information, produce records, answer a question or make a
statement under this section unless that person has first
been informed by the Commission that he or she is
required to do so.
(5) In any proceedings for an offence under this
section, a copy of a record or part of a record made under
subsection (2) is admissible in evidence in those
proceedings and, in the absence of evidence to the
contrary, the contents of the copy are presumed to be the
same as those on the original record or part.
(6) In this section
"records" includes books, accounts, minutes,
registers, deeds, writings or documents and
any other sources of information compiled,
recorded or stored in written form, on micro-
film or by electronic process, or in any other
manner or by any other means.
125
s. 166 No. Electoral 2004
PART 7 OFFENCES
Division 1 General offences
Use of roll for other than permitted purpose
166. A person who, or a body or organisation which,
without reasonable excuse, uses information obtained
from a roll provided in electronic form under section 40,
except for a purpose permitted under section 41, is guilty
of an offence.
Penalty: Fine not exceeding 100 penalty units or
imprisonment for a term not exceeding 3
months, or both.
Prohibited disclosure or commercial use of rolls
167. Except for a purpose permitted under section 41, a
person, body or organisation must not, without reasonable
excuse
(a) disclose to another person; or
(b) use for a commercial purpose
information that the person knows, or has reasonable
grounds for believing, has been obtained from, or by
means of, a roll provided in electronic form under
section 40.
Penalty: Fine not exceeding 100 penalty units or
imprisonment for a term not exceeding 3
months, or both.
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2004 Electoral No. s. 168
Offence to induce elector not to vote
168. A person must not induce or attempt to induce an
elector who is required to vote at an election not to vote at
that election.
Penalty: Fine not exceeding 10 penalty units.
Unlawfully marking ballot paper
169. (1) A person must not mark, or attempt or purport to
mark, a vote on a ballot paper issued to an elector under
this Act unless he or she is
(a) that elector; or
(b) a person assisting that elector in accordance
with a procedure approved under this Act.
Penalty: Fine not exceeding 100 penalty units or
imprisonment for a term not exceeding 3
months, or both.
(2) A person who fails, without reasonable excuse, to
mark a ballot paper in accordance with an elector's
instructions when assisting that elector in accordance with
a procedure approved under section 113 is guilty of an
offence.
Penalty: Fine not exceeding 100 penalty units or
imprisonment for a term not exceeding 3
months, or both.
Possession of forged ballot paper
170. A person must not, without reasonable excuse, have
in his or her possession a forged ballot paper.
127
s. 171 No. Electoral 2004
Penalty: Fine not exceeding 100 penalty units or
imprisonment for a term not exceeding 3
months, or both.
Wager on result of elections prohibited
171. A person who makes or is concerned in any wager or
bet on the result of an election is guilty of an offence.
Penalty: Fine not exceeding 10 penalty units.
Failure to deliver postal vote, &c.
172. A person to whom an application for a postal vote or
a postal vote declaration envelope containing or
purporting to contain a ballot paper is entrusted by an
elector for the purpose of posting or delivery to a returning
officer or delivery to a polling place and who fails to post or
deliver immediately the application or envelope is guilty of
an offence.
Penalty: Fine not exceeding 10 penalty units.
Offences by scrutineers
173. A scrutineer must not, at any polling place or other
place where ballot material is being sorted, checked or
counted
(a) fail to comply with a reasonable direction
given to the scrutineer by an election official;
or
(b) interfere with, or attempt to influence, an
elector or other person; or
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2004 Electoral No. s. 174
(c) communicate with a person except as is
necessary in undertaking his or her functions
as a scrutineer; or
(d) without the authority of an election official,
touch or interfere with any ballot material; or
(e) otherwise misconduct himself or herself.
Penalty: Fine not exceeding 10 penalty units.
Offences by election official
174. (1) An election official must not refuse or
deliberately neglect to perform a function which he or she
is required to perform by or under this Act.
Penalty: Fine not exceeding 200 penalty units or
imprisonment for a term not exceeding 9
months, or both.
(2) An election official must not fail to comply with
any direction given by or under the authority of this Act.
Penalty: Fine not exceeding 10 penalty units.
Unauthorised access to election material
175. (1) Except as approved under section 151, a person
must not intentionally break the seal of or intentionally
open any parcel sealed under section 149.
(2) A person must not use or examine material
contained in a sealed parcel referred to in section 151 for
a purpose other than a purpose approved under
section 151.
129
s. 176 No. Electoral 2004
(3) A person who contravenes or fails to comply with
subsection (1) or (2) is guilty of a crime, punishable on
indictment under the Criminal Code.
(4) Notwithstanding section 389 of the Criminal
Code, a person who is convicted of a crime under
subsection (3) is liable to a penalty of a fine not exceeding
300 penalty units or imprisonment for a term not
exceeding 12 months, or both.
Division 2 Offences relating to polling places
Offences within polling place
176. (1) Any person present in a polling place
(a) who is not entitled under section 120 to be
present; and
(b) who refuses to leave the polling place
immediately on being required to do so by an
election official, or by a police officer acting
under the direction or authority of the officer
in charge of the polling place
is guilty of an offence.
Penalty: Fine not exceeding 10 penalty units.
(2) A person must not, in a polling place
(a) act in a disorderly manner; or
(b) refuse or fail to comply with a lawful direction
given by the officer in charge of the polling
place or a police officer; or
(c) display or leave a card or paper which has on
it directions or instructions as to how an
elector should or might vote at the election.
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2004 Electoral No. s. 177
Penalty: Fine not exceeding 10 penalty units.
(3) Except in accordance with a procedure approved
under section 113, a person must not enter a voting screen
at a polling place while another person is occupying that
voting screen.
Penalty: Fine not exceeding 10 penalty units.
(4) A person must not, without lawful authority
(a) occupy a voting screen at a polling place for a
longer period than is necessary for the purpose
of marking his or her ballot paper; or
(b) obstruct or unnecessarily delay the
proceedings at a polling place; or
(c) remove a ballot paper from a polling place.
Penalty: Fine not exceeding 10 penalty units.
Persons removed from polling place not to re-enter
without permission
177. A person must not, without the permission of the
officer in charge of the polling place, re-enter a polling
place which is open for polling after having been removed
from the polling place under section 119.
Penalty: Fine not exceeding 50 penalty units or
imprisonment for a term not exceeding 1
month, or both.
Offences within 100 metres of polling place
178. A person must not, within 100 metres of, or within, a
polling place which is open for polling
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s. 179 No. Electoral 2004
(a) canvass for votes; or
(b) solicit the vote of an elector; or
(c) induce or attempt to induce an elector not to
vote for a particular candidate or particular
candidates.
Penalty: Fine not exceeding 10 penalty units.
Offence relating to polling places access
179. A person must not, while a polling place is open for
polling, prevent access, or obstruct the approaches, to that
polling place.
Penalty: Fine not exceeding 50 penalty units.
Election official not to act improperly
180. A returning officer or an election official must not
(a) influence the vote of an elector at an election
or, except by recording his or her own vote,
influence the result of an election; or
(b) disclose any information acquired in the
course of performing his or her functions
under this Act concerning the way in which a
particular elector voted at an election.
Penalty: Fine not exceeding 300 penalty units or
imprisonment for a term not exceeding 12
months, or both.
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2004 Electoral No. s. 181
Division 3 Failure to enrol or vote
Offence to fail to enrol
181. A person who fails to comply with section 34(3) is
guilty of an offence.
Penalty: Fine not exceeding 1 penalty unit.
Offence to fail to vote
182. (1) An elector entitled to vote at an election must
not, without a valid and sufficient reason, fail to vote at
the election.
Penalty: Fine not exceeding 1 penalty unit.
(2) Without limiting subsection (1), it is a valid and
sufficient reason for failing to vote if an elector
(a) was incapable of voting at the election; or
(b) was ineligible to vote at the election; or
(c) believes it to be part of his or her religious
duty to abstain from voting.
(3) Proceedings for an offence under subsection (1)
may be instituted only by the Commission or the Director
of Public Prosecutions.
Division 4 Corrupt practices
Interpretation: Division 4
183. In this Division
133
s. 184 No. Electoral 2004
"electoral paper" includes any application or
declaration made under this Act and any
approved form.
False or misleading statements or declarations
184. (1) A person must not, in giving any information,
filing a return or making an application under this Act
(a) make a statement or declaration knowing it to
be false or misleading; or
(b) omit any matter from a statement or
declaration knowing that without that matter
the statement or declaration is misleading.
(2) A person who contravenes or fails to comply with
subsection (1) is guilty of a crime, punishable on
indictment under the Criminal Code.
(3) Notwithstanding section 389 of the Criminal
Code, a person who is convicted of a crime under
subsection (2) is liable to a penalty of a fine not exceeding
300 penalty units or imprisonment for a term not
exceeding 12 months, or both.
Signing electoral papers
185. (1) Subject to subsection (2), a person, if required by
this Act to sign an electoral paper, must not sign it other
than with his or her personal signature.
Penalty: Fine not exceeding 100 penalty units or
imprisonment for a term not exceeding 3
months, or both.
(2) Where a person is unable to sign his or her name
in writing, the person is to be taken to have signed an
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2004 Electoral No. s. 186
electoral paper if the person makes a mark on the paper
by way of signature in the presence of a witness who is to
sign the electoral paper as a witness.
(3) A person must not sign the name of any other
person on an electoral paper.
Penalty: Fine not exceeding 100 penalty units or
imprisonment for a term not exceeding 3
months, or both.
(4) Nothing in this section affects the liability of a
person to be proceeded against for the crime of forgery,
but, if he or she is proceeded against for that crime, he or
she is not liable to be punished more than once in respect
of the same act.
Witnessing electoral papers
186. A person who
(a) signs his or her name as a witness on a blank
electoral paper; or
(b) signs his or her name as a witness on an
electoral paper which has been wholly or
partly completed unless it has been signed by
the person intended to sign it; or
(c) signs his or her name as a witness on an
electoral paper unless he or she has seen the
person, whose signature he or she purports to
witness, sign it; or
(d) writes on an electoral paper as his or her own
name
(i) the name of another person; or
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s. 187 No. Electoral 2004
(ii) any name not being his or her own
name
is guilty of an offence.
Penalty: Fine not exceeding 100 penalty units or
imprisonment for a term not exceeding 3
months, or both.
Offences relating to voting
187. (1) A person must not, at or in connection with an
election, directly or indirectly, personally or by any other
person on his or her behalf
(a) destroy a nomination form or ballot paper
except in accordance with section 150; or
(b) forge a ballot paper or utter a ballot paper
knowing it to be forged; or
(c) forge a declaration required by this Act or
utter such a declaration knowing it to be
forged; or
(d) without authority, remove a ballot paper from
a polling place; or
(e) fraudulently deposit a ballot paper, or a paper
purporting to be a ballot paper, in a ballot box
used at the election; or
(f) without authority, supply a ballot paper to a
person to enable a person to vote at the
election; or
(g) without authority, take, open, destroy or
interfere with a ballot box, declaration vote
envelope, postal vote declaration envelope or
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2004 Electoral No. s. 187
ballot paper used or to be used at the election;
or
(h) make a statement, or give an answer to a
question, referred to in section 110 which the
person knows is false or misleading; or
(i) impersonate an elector for the purpose of
voting at the election; or
(j) vote more than once at the election; or
(k) having voted at the election, apply for another
ballot paper in respect of the election; or
(l) apply to vote under this Act in the name of a
fictitious person or in the name of any other
person, whether living or dead; or
(m) deposit more than one ballot paper in a ballot
box that is being used for the purposes of the
election; or
(n) vote at the election after having voted at an
election in respect of another division held
contemporaneously with the first-mentioned
election.
(2) A person who contravenes or fails to comply with
subsection (1) is guilty of a crime, punishable on
indictment under the Criminal Code.
(3) Notwithstanding section 389 of the Criminal
Code, a person who is convicted of a crime under
subsection (2) is liable to a penalty of a fine not exceeding
300 penalty units or imprisonment for a term not
exceeding 12 months, or both.
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s. 188 No. Electoral 2004
Electoral bribery
188. (1) A person must not directly or indirectly
(a) promise or offer; or
(b) give; or
(c) ask for or receive
any property or benefit of any kind with the intention of
influencing a person's election conduct at an election.
(2) For the purposes of subsection (1)
"election conduct", in relation to a person,
means
(a) whether or not the person votes; or
(b) who the person votes for; or
(c) whether or not the person nominates as
a candidate for election or withdraws his
or her nomination; or
(d) whether the person expresses support
for or opposition to a candidate or group
of candidates; or
(e) whether or not the person lodges an
application under section 206 or applies
to withdraw an application under
section 215; or
(f) the performance or exercise by a
member of the Commission, a returning
officer, an election official or a member
of the staff of the Commission of his or
her functions or powers under this Act.
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2004 Electoral No. s. 189
(3) A person who contravenes or fails to comply with
subsection (1) is guilty of the crime of electoral bribery,
punishable on indictment under the Criminal Code.
(4) Notwithstanding section 389 of the Criminal
Code, a person who is convicted of the crime of electoral
bribery is liable to a penalty of a fine not exceeding 100
penalty units or imprisonment for a term not exceeding 2
years, or both.
(5) The crime of electoral bribery does not include
(a) a declaration of public policy or promise of
public action; or
(b) transporting electors to or from polling places
for the purpose of voting.
Electoral treating
189. (1) A person must not directly or indirectly
(a) supply food, drink or entertainment; or
(b) offer, promise or give a gift, donation or prize
to or for any person, club, association or body
with the intention of influencing a person's election
conduct at an election.
(2) For the purposes of subsection (1)
"election conduct", in relation to a person, has the
same meaning as in section 188.
(3) A person who contravenes or fails to comply with
subsection (1) is guilty of the crime of electoral treating,
punishable on indictment under the Criminal Code.
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s. 190 No. Electoral 2004
(4) Notwithstanding section 389 of the Criminal
Code, a person who is convicted of the crime of electoral
treating is liable to a penalty of a fine not exceeding 100
penalty units or imprisonment for a term not exceeding 2
years, or both.
(5) In proceedings for an offence under
subsection (1)(b) it is a defence to show that gifts,
donations or prizes similar in nature and in amount or
value are regularly given to the club, association or body
for similar purposes.
Electoral intimidation
190. (1) A person must not, by violence or intimidation,
influence or attempt to influence a person's election
conduct at an election.
(2) For the purposes of subsection (1)
"election conduct" has the same meaning as in
section 188.
(3) A person who contravenes or fails to comply with
subsection (1) is guilty of the crime of electoral
intimidation, punishable on indictment under the
Criminal Code.
(4) Notwithstanding section 389 of the Criminal
Code, a person who is convicted of a crime of electoral
intimidation is liable to a penalty of a fine not exceeding
1 000 penalty units or imprisonment for a term not
exceeding 5 years, or both.
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2004 Electoral No. s. 191
Division 5 Offences relating to advertising and
other campaigning
Interpretation for purposes of Division
191. In this Division, unless the contrary intention
appears
"address" means an address, other than a post
office box or an electronic address
(a) at which the person resides; or
(b) at or through which the person can be
readily contacted;
"responsible person" means the person taking
responsibility for causing electoral matter to
be printed, published or distributed.
Campaign material to be authorised
192. Subject to sections 193, 194 and 195, a person must
not between the issue of the writ for an election and the
close of poll at that election
(a) print, publish or distribute, or permit or
authorise another person to print, publish or
distribute, any printed electoral matter
without the name and address of the
responsible person being printed, in legible
characters, at the end of the electoral matter;
or
(b) publish, or permit or authorise another person
to publish, any electoral matter on the
internet without the name and address of the
responsible person appearing at the end of the
electoral matter.
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s. 193 No. Electoral 2004
Penalty: Fine not exceeding 100 penalty units or
imprisonment for a term not exceeding 3
months, or both.
Authorisation not required on specified items
193. Section 192 does not apply to printed electoral
matter which is printed on
(a) an item of clothing, lapel button or lapel
badge; or
(b) a pen, pencil or balloon; or
(c) a business card or visiting card that promotes
the candidacy of a person in an election; or
(d) a letter or card on which the name and
address of the sender appears; or
(e) any other approved item.
Newspaper and periodical reportage and
commentary
194. (1) Section 192 does not apply to electoral matter
contained in reportage or commentary in an issue of a
newspaper or periodical if the issue contains a statement
to the effect that the editor or a person whose name and
address appears in the statement has authorised the
publication of all electoral matter contained in reportage
or commentary in that issue.
(2) In this section, "reportage or commentary", in
relation to a newspaper or periodical, means everything in
the newspaper or periodical except advertisements and
letters to the editor.
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2004 Electoral No. s. 195
Letters to the editor
195. (1) Section 192 does not apply to a letter to the editor
of a newspaper or periodical if
(a) the name of the author and the locality of the
author's residence appears at the end; and
(b) the editor of the newspaper or periodical
(i) keeps, for 6 months after publication, a
written record of the address of the
author, as stated in the original of the
letter sent to the editor, or as otherwise
ascertained by the editor; and
(ii) provides, when requested by the
Commission, a copy of a record kept
under subparagraph (i).
(2) For the purposes of subsection (1)(a), it is
sufficient to identify the locality of an author's residence
by reference to
(a) the suburb or town including, or nearest to,
that residence; and
(b) in the case of a locality outside Tasmania, the
State, Territory or other country of that
residence.
Advertorials
196. The proprietor of a newspaper or periodical must
cause the word "advertisement" to be printed as a
headline, in letters not smaller than 10 point, to each
advertisement, article or paragraph in the proprietor's
newspaper containing electoral matter
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s. 197 No. Electoral 2004
(a) the insertion of which is, or is to be, paid for;
or
(b) for which any reward or compensation or
promise of reward or compensation is, or is to
be, made.
Penalty: Fine not exceeding 50 penalty units.
Candidate names not to be used without authority
197. (1) A person must not between the issue of the writ
for an election and the close of poll at that election print,
publish or distribute any advertisement, "how to vote"
card, handbill, pamphlet, poster or notice which contains
the name, photograph or a likeness of a candidate or
intending candidate at that election without the written
consent of the candidate.
Penalty: Fine not exceeding 300 penalty units or
imprisonment for a term not exceeding 12
months, or both.
(2) Subsection (1) does not apply to any matter
printed, published or distributed by the Commission or the
Commissioner in the course of promoting public awareness
of elections and parliamentary matters.
Misleading and deceptive electoral matter
198. A person must not
(a) print, publish or distribute, or permit or
authorise the printing, publishing or
distribution of, any printed electoral matter
that is intended to, is likely to or has the
capacity to mislead or deceive an elector in or
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2004 Electoral No. s. 199
in relation to the recording of his or her vote;
or
(b) publish on the internet, or permit or authorise
the publishing on the internet of, any electoral
matter that is intended to, is likely to or has
the capacity to mislead or deceive an elector in
or in relation to the recording of his or her
vote; or
(c) broadcast on radio or television, or permit or
authorise the broadcasting on radio or
television of, any electoral matter that is
intended to, is likely to or has the capacity to
mislead or deceive an elector in or in relation
to the recording of his or her vote.
Penalty: Fine not exceeding 200 penalty units or
imprisonment for a term not exceeding 6
months, or both.
Campaigning on polling day
199. (1) A person must not, on the polling day fixed for an
election, or on a day to which the polling for an election
has been adjourned
(a) distribute any advertisement, "how to vote"
card, handbill, pamphlet, poster or notice
containing any electoral matter; or
(b) publish or cause to be published in a
newspaper
(i) an advertisement for or on behalf of, or
relating in any way to, a candidate or
party; or
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s. 200 No. Electoral 2004
(ii) a matter or comment relating to a
candidate or a question arising from, or
an issue of, the election campaign.
Penalty: Fine not exceeding 100 penalty units or
imprisonment for a term of 3 months, or
both.
(2) Subsection (1) does not apply to any matter
printed, published or distributed by the Commission or the
Commissioner in the course of promoting public awareness
of elections and parliamentary matters.
Division 6 Offences relating to electoral expenses
Offences relating to electoral expenses
200. (1) A person who contravenes section 159 or 162 is
guilty of an offence.
Penalty: Fine not exceeding 200 penalty units or
imprisonment for a term not exceeding 6
months, or both.
(2) A candidate at a Council election who
contravenes section 160 by incurring any amount not
exceeding $1 000 in excess of the expenditure limit is
guilty of an offence.
Penalty: Fine not exceeding 0.05 penalty unit for
each $1 of that first-mentioned amount.
(3) A candidate at a Council election who
contravenes section 160 by incurring any amount
exceeding $1 000 in excess of the expenditure limit is
guilty of an offence.
Penalty: Fine not exceeding 150 penalty units.
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2004 Electoral No. s. 200
(4) A candidate who, without reasonable excuse,
fails to comply with section 161 within the period referred
to in that section, or, if the Commission has allowed that
period to be extended, within that extended period, is
guilty of an offence.
Penalty: Fine not exceeding 200 penalty units.
(5) If a court finds that a candidate who is successful
at a Council election is guilty of
(a) an offence under subsection (3) and, in respect
of that offence, the court makes a finding that
the candidate incurred electoral expenditure
that exceeded the expenditure limit by more
than $1 000, the court, if it is satisfied with
the correctness of that finding, is to declare
that candidate's election void unless the court
is satisfied that there are special
circumstances that make it undesirable or
inappropriate for it to make such a
declaration; or
(b) an offence under subsection (4), the court is to
declare that candidate's election void unless
the court is satisfied that there are special
circumstances of the kind referred to in
paragraph (a).
(6) A candidate who, in purported compliance with
section 161, files a return, invoice or receipt which is, to
his or her knowledge, false or misleading in a material
particular is guilty of an offence.
Penalty: Fine not exceeding 200 penalty units or
imprisonment for a term not exceeding 6
months, or both.
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s. 201 No. Electoral 2004
(7) A person must not, without reasonable excuse,
fail to comply with a requirement made under
section 165(1).
Penalty: Fine not exceeding 100 penalty units or
imprisonment for a term not exceeding 3
months, or both.
(8) A person who, in purported compliance with a
requirement made under section 165(1), provides
information, gives an answer or makes a statement which
is, or produces records which are, to his or her knowledge,
false or misleading in a material particular is guilty of an
offence.
Penalty: Fine not exceeding 100 penalty units or
imprisonment for a term not exceeding 3
months, or both.
(9) In any proceedings for an offence under this
section, a copy of a record or part of a record made under
section 165(2) is admissible in evidence in those
proceedings and, in the absence of evidence to the
contrary, the contents of the copy are to be presumed to be
the same as those on the original record or part.
Division 7 Continuing offences
Continuing offences
201. (1) If
(a) by or under a section, or a subsection of a
section, of this Act an act or thing is required
or directed to be done within a particular
period or before a particular time; and
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2004 Electoral No. s. 201
(b) failure to do that act or thing within the
period, or before the time, referred to in
paragraph (a) constitutes an offence; and
(c) that act or thing is not done within the period,
or before the time, referred to in
paragraph (a)
the following provisions of this subsection have effect:
(d) the obligation to do that act or thing
continues, notwithstanding that that period
has expired or that time has passed, until that
act or thing is done;
(e) if a person is convicted of an offence that is
constituted by failure to do that act or thing
within that period or before that time, as the
case may be, that person is guilty of a separate
and further offence in respect of each day after
the day of the conviction during which the
failure to do that act or thing continues;
(f) the fine applicable to each such separate and
further offence is an amount not exceeding 0.5
penalty units.
(2) Where
(a) by or under a section, or a subsection of a
section, of this Act an act or thing is required
or directed to be done but no period within
which or time by which that act or thing is to
be done is specified; and
(b) failure to do that act or thing constitutes an
offence; and
(c) a person is convicted of an offence in respect of
a failure to do that act or thing
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s. 201 No. Electoral 2004
that person is guilty of a separate and further offence in
respect of each day after the day of the conviction during
which the failure to do that act or thing continues and the
fine applicable to each such separate and further offence is
an amount not exceeding 0.5 penalty units.
(3) Charges against the same person for any number
of offences under subsection (1)(e) or subsection (2) may be
joined in the same complaint if those offences relate to a
failure to do the same act or thing.
(4) If a person is convicted of more than one offence
under subsection (1)(e) or more than one offence under
subsection (2), the court may impose one penalty in
respect of all the offences of which the person is so
convicted under that subsection, but that penalty is not to
exceed the sum of the maximum penalties that could be
imposed if the penalty were imposed in respect of each
offence separately.
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2004 Electoral No. s. 202
PART 8 DISPUTED ELECTIONS, ELIGIBILITY
AND VACANCIES
Division 1 Interpretation
Interpretation: Part 8
202. In this Part, unless the contrary intention appears
"the Full Court" means the Full Court of the
Supreme Court;
"recount" means a recount referred to in
section 232;
"the rules" means the Rules of Court made under
section 204 and the Supreme Court Rules 2000
to the extent that they apply under
section 205.
Division 2 Jurisdiction and powers of Supreme
Court
Jurisdiction of Supreme Court to hear and
determine application
203. (1) The Supreme Court has jurisdiction to hear and
determine an application under section 206 or determine a
question referred to it under section 221.
(2) The Supreme Court is to be constituted by a
judge sitting alone for the purpose of exercising the
jurisdiction conferred by subsection (1).
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s. 204 No. Electoral 2004
Rules of Court
204. Rules of Court, not inconsistent with this Act, may
be made under the Supreme Court Civil Procedure Act
1932 for the purposes of this Part.
Application of Supreme Court Rules
205. The Supreme Court Rules 2000 apply to proceedings
before the Supreme Court under this Part to the extent
that they are not inconsistent with the provisions of this
Act or any Rules of Court made under section 204.
Division 3 Disputed elections
Election may be disputed
206. (1) The validity of an election, a recount or the
return of a person as a Member of the Assembly or the
Council may be disputed by an application made to the
Supreme Court and not otherwise.
(2) The Supreme Court is not to determine an
application that
(a) is made by a person other than a person
referred to in section 207; or
(b) does not comply with sections 208, 209 and
210.
Entitlement to lodge application
207. (1) The following are entitled to make an application
under section 206:
(a) a candidate at the election or relevant election;
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2004 Electoral No. s. 208
(b) an elector entitled to vote at the election or
relevant election;
(c) the Commission;
(d) in the case of a recount, a person whose name
was on the roll, for the division in which the
recount was held, at the time of the recount.
(2) For the purposes of subsection (1), in the case of
a recount
"relevant election" means the election last held to
elect all the Members of the division in which
the recount was held.
Form of application
208. An application under section 206 is to
(a) be in the form prescribed by the rules; and
(b) state the matters prescribed by the rules.
Application to be accompanied by deposit
209. Except in the case of an application by the
Commission, an application under section 206 is to be
accompanied by a deposit of such amount as is prescribed
by the rules as security for costs.
Time for lodging application
210. (1) Except as provided in subsection (2), an
application under section 206 may be lodged with the
Registrar of the Supreme Court not later than 90 days
after
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s. 211 No. Electoral 2004
(a) the return of the writ for the election
concerned; or
(b) in the case of a recount, the Governor is
informed of the name of the elected candidate
in accordance with section 231 or
section 232(3)(b).
(2) If a returning officer is unable to decide which
candidate or candidates are to be declared elected, the
Commission may make an application under section 206
before the return of the writ.
Application to be served
211. The Registrar of the Supreme Court is to, as soon as
practicable after an application is made under section 206,
serve a sealed copy of the application on
(a) the person whose election is being disputed;
and
(b) if the Commission is not the applicant, the
Commission.
Parties to application
212. (1) The following are entitled to appear in a
proceeding under this Part:
(a) the person who made the application under
section 206;
(b) the Commission;
(c) the person whose election is being disputed;
(d) any other person with the leave of the Court.
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2004 Electoral No. s. 213
(2) A person who appears pursuant to
subsection (1)(b), (c) or (d), is taken to be a respondent to
the application.
Hearing of application
213. (1) An application under section 206 is to be heard in
open court, without a jury.
(2) In hearing an application under section 206, the
Supreme Court
(a) is to be guided by the substantial merits and
good conscience of the case; and
(b) is not bound by legal forms or technicalities or
by the rules of evidence.
(3) Notwithstanding that a respondent resigns or
Parliament is prorogued, if the respondent has been
returned as a Member, the hearing is to proceed.
(4) On the hearing of an application under
section 206, a charge of a corrupt or illegal practice may be
inquired into, and evidence in relation to the charge may
be received.
(5) On the hearing of an application under
section 206 complaining of an invalid election and
claiming a seat in the Assembly or the Council for some
person, the respondent may give evidence to prove that
that person was not duly elected, in the same manner as if
he or she had made an application under section 206 in
relation to the election of that person.
(6) If, in relation to an application under
section 206, it appears that there is an equality of votes
between any candidates at the election and that the
addition of a vote would entitle any of those candidates to
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s. 214 No. Electoral 2004
be declared elected, the Supreme Court is to refer the
matter to the Commission.
(7) On receipt of a matter referred to it under
subsection (6), the Commission is to decide between the
candidates by lot by an approved method and proceed as if
the candidate who was decided by that lot had received an
additional vote.
Inquiries by Court
214. (1) In determining an application under section 206,
the Supreme Court may make such inquiries as it
considers appropriate, including but not limited to
(a) an inquiry as to the identity of persons who
voted; and
(b) an inquiry as to whether or not ballot papers
were improperly admitted or rejected.
(2) The Court is not to inquire into the correctness of
any roll.
Withdrawal of application made under section 206
215. (1) A person who made an application under
section 206 may apply to the Supreme Court for leave to
withdraw that application.
(2) An application under subsection (1) is to be
(a) given by the Registrar of the Supreme Court
to the Commission and to each of the
respondents to the relevant application under
section 206; and
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2004 Electoral No. s. 215
(b) published by the Commission in at least one
newspaper approved for the purpose and
circulating generally in the division to which
the relevant application under section 206
relates.
(3) If there is more than one applicant in relation to
an application under section 206, all the applicants must
consent to the application for the withdrawal of that
application.
(4) A respondent to an application under section 206
may oppose an application for the withdrawal of that
application.
(5) Before the Supreme Court gives leave for the
withdrawal of an application made under section 206, the
Court is to inquire into the reasons for the application to
withdraw and, in the course of such an inquiry, is to
determine whether the application to withdraw
(a) was the result of an agreement, arrangement
or understanding; or
(b) was in consideration of
(i) the resignation, at any time in the
future, of the Member whose election is
being disputed; or
(ii) the withdrawal of any other application
made under section 206; or
(iii) any other matters.
(6) After making a determination under
subsection (5), the Supreme Court is to publish its reasons
for the determination as if it were giving reasons for a
judgment and may give leave to withdraw the application
or refuse leave to withdraw the application.
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Determination of application under section 206
216. Subject to section 215, the Supreme Court is to hear
and determine an application under section 206, and may
make an order that
(a) an election is void and a by-election is to be
held; or
(b) a person who has been declared elected was
not duly elected; or
(c) a person who has not been declared elected
was duly elected; or
(d) the application be dismissed in whole or part.
Date of effect of orders
217. (1) If the Supreme Court makes an order under
section 216(b), the Supreme Court is to, if appropriate,
determine the date on which the person ceases to be a
Member.
(2) If the Supreme Court makes an order under
section 216(c), the Supreme Court is to determine the date
on which the person is declared to be elected.
Costs of application
218. (1) At the hearing of an application under
section 206, the Supreme Court may
(a) award costs against an unsuccessful party to
the proceedings; and
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2004 Electoral No. s. 219
(b) make a recommendation that the costs of any
party to the proceedings or any specified part
of them be paid by the Crown.
(2) If costs are awarded to a party to an application
under section 206 against the applicant, the deposit paid
by the applicant under section 209 is to be applied towards
payment of the amount of costs awarded, but otherwise
the deposit is to be repaid to the applicant.
(3) The withdrawal of an application made under
section 206 is not to affect the liability of the applicant or
any other person for the payment of costs previously
incurred.
(4) All costs awarded in proceedings under this Part
are recoverable and enforceable in the same way and to
the same extent as costs awarded in an action before the
Supreme Court are recoverable and enforceable.
Limitation on taking effect of orders under this Part
219. An order of the Supreme Court under this Part is not
to take effect until
(a) the time limited for making an appeal against
the order has expired; or
(b) if an appeal is made within the period
prescribed by the rules, the appeal is finally
determined by the Full Court or, if the appeal
is withdrawn before being finally determined
by the Full Court, the day on which the appeal
is withdrawn.
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Appeals
220. (1) Subject to and in accordance with the rules, an
appeal against an order of the Supreme Court under this
Part may be made to the Full Court not later than 7 days
after the day on which that order is made, but only with
the special leave of the Supreme Court.
(2) At the hearing of an appeal under subsection (1),
the Full Court may confirm the order appealed against or
may quash that order, in which case the Court has and
may exercise all the powers that the Supreme Court has
and may exercise under this Part in relation to an
application under section 206.
Division 4 Reference to Supreme Court of
qualifications, vacancies and eligibility
Reference to Supreme Court of questions as to
qualification, vacancy or eligibility
221. (1) The Assembly may, by resolution, refer to the
Supreme Court any question relating to
(a) the qualification of a Member of the Assembly;
or
(b) a vacancy in the Assembly; or
(c) the eligibility of a person to be elected to the
Assembly under Part 9.
(2) The Council may, by resolution, refer to the
Supreme Court any question relating to
(a) the qualification of a Member of the Council;
or
(b) a vacancy in the Council.
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2004 Electoral No. s. 222
Speaker or President to state case
222. Whenever a question is referred to the Supreme
Court under section 221, the Speaker of the Assembly or,
as the case may be, the President of the Council is to give
the Court
(a) a statement of the question on which the
determination of the Court is desired; and
(b) any proceedings, papers, reports, documents
or other information relating to the reference
in the possession of the Assembly or Council,
as the case requires.
Parties to reference
223. (1) The Supreme Court may
(a) allow any interested person to be heard on the
hearing of a question referred to it under
section 221; or
(b) direct notice of a question referred to it under
section 221 to be served on a person.
(2) A person allowed to be heard or directed to be
served under subsection (1) becomes a party to the
question referred under section 221.
Powers of Supreme Court on hearing of reference
under section 221
224. The Supreme Court is to hear and determine a
question referred under section 221, and may make one or
more of the following orders:
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s. 225 No. Electoral 2004
(a) that a person who is not qualified to be a
Member of the Assembly, or, as the case may
be, of the Council, is disqualified from
continuing to be a Member of the Assembly or
the Council;
(b) that the seat of a Member of the Assembly, or,
as the case may be, of the Council, has become
vacant;
(c) that a person is not eligible to be elected to the
Assembly under Part 9;
(d) that a person who is not capable of sitting or
voting as a Member of the Assembly, or, as the
case may be, of the Council, is no longer
capable of sitting as a Member of the
Assembly or the Council;
(e) that the question be dismissed in whole or in
part.
Determination, &c., to be sent to House affected
225. After the hearing and determination of a question
referred under section 221, the Registrar of the Supreme
Court is to immediately forward to the Speaker of the
Assembly or, as the case may be, the President of the
Council, a copy of the Court's order.
Application of certain sections of this Act to
reference under section 221
226. The provisions of sections 204, 205, 213, 218(1) and
(4), 219 and 220 apply, in so far as they are capable of
applying and with any necessary modifications, to a
question referred under section 221 in the same way as
they apply to an application under section 206.
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2004 Electoral No. s. 227
PART 9 CASUAL VACANCIES IN ASSEMBLY
Procedure if vacancy occurs in Assembly
227. (1) If the Governor receives
(a) the resignation of a Member of the Assembly
pursuant to section 15 of the Constitution Act
1934; or
(b) a notice under subsection (2) informing the
Governor that a seat in the Assembly has
become vacant; or
(c) a notice from a returning officer that in
accordance with section 90(4) a vacancy has
been taken to have occurred
the Governor is to inform the Commissioner of the
vacancy.
(2) If a vacancy occurs in the Assembly otherwise
than because of
(a) the resignation of the Member; or
(b) the dissolution of the Assembly or the expiry
of the term for which Members of the
Assembly were elected at an Assembly general
election; or
(c) the failure or partial failure of an election in
respect of an Assembly division
the Speaker of the Assembly must, by notice signed by him
or her, inform the Governor that the seat has become
vacant.
(3) Subject to section 233, if the Commissioner is
informed of a vacancy under subsection (1) he or she is to,
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s. 228 No. Electoral 2004
if satisfied that it is practicable to fill the vacancy by
recount as provided in this Part, publish a notice which is
to
(a) be in an approved form; and
(b) be published as soon as practicable in at least
one newspaper approved for the purpose and
circulating generally in the relevant division;
and
(c) give notice of the vacancy; and
(d) call for nominations from eligible persons to
contest a recount to fill a vacancy in
accordance with this Part.
Qualifications to contest recount to fill vacancy in
Assembly
228. (1) A person may nominate to contest a recount to
fill a vacancy if the person
(a) was a candidate at the election to fill all the
seats for that division last held before the
vacancy occurred; and
(b) was not elected at that election; and
(c) is still qualified under the Constitution Act
1934 to be elected as a Member of the
Assembly.
(2) For the purposes of subsection (1)(c), a person is
still qualified under the Constitution Act 1934 to be elected
as a Member of the Assembly, notwithstanding that the
person
(a) was not living in Tasmania at the time the
vacancy occurred; or
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2004 Electoral No. s. 229
(b) did not live in Tasmania for a period between
the date of the election referred to in
subsection (1) and the date the vacancy
occurred.
How and when to nominate to contest recount
229. (1) A nomination of a person under section 228(1), to
contest a recount to fill a vacancy, is invalid unless it
complies with the requirements of this section.
(2) Subject to subsection (3), a nomination under
section 228(1) is to
(a) be in an approved form; and
(b) include a statement signed by the candidate
consenting to act in the event of his or her
election; and
(c) include a declaration signed by the candidate
that he or she is still qualified under the
Constitution Act 1934 to be elected as a
Member of the Assembly; and
(d) be lodged, posted or sent by facsimile so as to
be received by the Commissioner before noon
on the tenth day after the day on which the
notice of the vacancy was published under
section 227(3).
(3) A nomination under section 228(1) may be
provided by an approved method.
Announcement of nominations to contest recount
230. As soon as practicable after the close of nominations
for a recount, the Commissioner is to publicly produce all
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s. 231 No. Electoral 2004
nomination forms that he or she is satisfied are in
accordance with section 229 and
(a) publicly announce the names of the persons
who are to contest the recount; and
(b) display, at the office of the Commission, a
notice containing the details of that
announcement.
Election without recount
231. Subject to section 233, if the Commissioner receives
only one nomination made under section 228(1), a recount
is not required and the Commissioner is, as soon as
practicable, to
(a) publicly declare the candidate to be duly
elected as a Member of the Assembly to fill the
vacant seat; and
(b) by notice signed by him or her, inform the
Governor that the candidate has been elected.
Election with recount
232. (1) Subject to section 233, if the Commissioner
receives two or more nominations made under
section 228(1), the vacant seat is to be filled by a recount.
(2) A recount is to be conducted by the
Commissioner
(a) as soon as practicable after the close of
nominations for that recount; and
(b) in accordance with Schedule 6 and any
approved procedures.
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2004 Electoral No. s. 233
(3) As soon as practicable after completing a
recount, the Commissioner is to
(a) publicly declare the successful candidate to be
duly elected as a Member of the Assembly to
fill the vacant seat; and
(b) by notice signed by him or her, inform the
Governor that the successful candidate has
been elected.
When by-election to be conducted rather than
recount
233. (1) If
(a) a vacancy which the Governor would be
required to notify the Commissioner of under
section 227(1) occurs; and
(b) none of the candidates who were included in
the same registered party group as the
vacating Member are available to contest the
vacancy
the registered officer of that registered party may, by
notice in writing to the Commissioner no later than 24
hours after the close of nominations for the recount,
request that a by-election be held to fill the vacancy.
(2) For the purposes of subsection (1)(b) a
candidate
(a) is taken to be included in the same registered
party group if his or her name appeared under
the same party name on the ballot paper for
the election at which the vacating Member
was elected; and
(b) is taken to be not available if
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s. 233 No. Electoral 2004
(i) he or she provides the Commissioner
with a statutory declaration stating that
he or she will not be nominating to
contest the recount; or
(ii) the Commissioner is satisfied that he or
she is not eligible to contest the recount;
or
(iii) at the close of nominations, a
nomination for that candidate has not
been accepted.
(3) As soon as practicable after receiving a request
under subsection (1), the Commissioner is to
(a) report the request to the Governor; and
(b) take no further action in relation to the
conduct of a recount under this Part.
(4) Votes cast at an Assembly by-election are to be
counted in accordance with Schedule 4, with such
modifications as the Commission determines.
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2004 Electoral No. s. 234
PART 10 MISCELLANEOUS
Injunctions
234. (1) If a person has engaged, is engaging or is
proposing to engage in any conduct that constituted,
constitutes or would constitute a contravention of this Act,
the Supreme Court may, on the application of
(a) the Commission; or
(b) any person whose interests have been, are or
would be affected by the conduct
grant an injunction restraining the first-mentioned person
from engaging in the conduct and, if in the opinion of the
Court it is desirable to do so, requiring that person to do
any act or thing.
(2) If a person has refused or failed, is refusing or
failing, or is proposing to refuse or fail, to do an act or
thing that he or she is required by this Act to do, the
Supreme Court may, on the application of
(a) the Commission; or
(b) a person whose interests have been, are or
would be affected by the refusal or failure to
do that act or thing
grant an injunction requiring the first-mentioned person
to do that act or thing.
(3) If an application is made to the Supreme Court
for an injunction under subsection (1), the Court may, if in
the opinion of the Court it is desirable to do so, before
considering the application, grant an interim injunction
restraining a person from engaging in conduct of the kind
referred to in subsection (1) pending the determination of
the application.
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s. 234 No. Electoral 2004
(4) The Court may rescind or vary an injunction or
interim injunction granted under subsection (1), (2) or (3).
(5) If an application is made to the Supreme Court
for the grant of an injunction restraining a person from
engaging in conduct of a particular kind, the power of the
Court to grant the injunction may be exercised
(a) if the Court is satisfied that the person has
engaged in conduct of that kind, whether or
not it appears to the Court that the person
intends to engage again, or to continue to
engage, in conduct of that kind; or
(b) if it appears to the Court that, in the event
that an injunction is not granted, it is likely
the person will engage in conduct of that kind,
whether or not the person has previously
engaged in conduct of that kind and whether
or not there is an imminent danger of
substantial damage to any person if the first-
mentioned person engages in conduct of that
kind.
(6) If an application is made to the Supreme Court
for the grant of an injunction requiring a person to do a
particular act or thing, the power of the Court to grant the
injunction may be exercised
(a) if the Court is satisfied that the person has
refused or failed to do that act or thing,
whether or not it appears to the Court that the
person intends to refuse or fail again, or to
continue to refuse or fail, to do that act or
thing; or
(b) if it appears to the Court that, in the event
that an injunction is not granted, it is likely
that the person will refuse or fail to do that act
or thing, whether or not the person has
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2004 Electoral No. s. 235
previously refused or failed to do that act or
thing and whether or not there is an imminent
danger of substantial damage to any person if
the first-mentioned person refuses or fails to
do that act or thing.
(7) If the Commission makes an application to the
Supreme Court for the grant of an injunction under this
section, the Court is not to require the Commission or any
other person, as a condition of granting an interim
injunction, to give an undertaking as to damages.
(8) If the Supreme Court has power under this
section to grant an injunction restraining a person from
engaging in particular conduct, or requiring a person to do
a particular act or thing, the Court may, either in addition
to or in substitution for the grant of the injunction, order
that person to pay damages to any other person.
Evidentiary provisions
235. A document purporting to be a certificate by the
Commission, Commissioner or a returning officer and
stating
(a) that an election specified in the certificate was
held on the day specified in the certificate; or
(b) that a person specified in the certificate was a
candidate at a specified election; or
(c) that a person specified in the certificate is an
elector and that he or she has failed to record
his or her vote at an election that was held on
the day specified in the certificate
is admissible as evidence of its contents in any legal
proceedings.
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s. 236 No. Electoral 2004
Ballot papers, &c., to be evidence
236. (1) If any used ballot paper or other document
purporting to have been taken from a parcel forwarded to
the Commission under section 149 has been certified by
the Commission as having been taken from that parcel,
the certification by the Commission is admissible in
evidence in proceedings before any court that the ballot
paper or other document was so taken and that, in the
case of a ballot paper, it was deposited in a ballot box or
otherwise received in accordance with this Act and, if
another document, that it was used at the election to
which the certification relates.
(2) A used ballot paper certified in accordance with
subsection (1) is evidence of a vote recorded at the election
concerned.
Certain crimes to be tried by justices
237. (1) Where a person is brought before justices on a
complaint for a crime under
(a) section 184; or
(b) section 187; or
(c) section 189; or
(d) any other section of this Act prescribed by the
regulations for the purposes of this section
the justices, instead of asking the person to plead under
section 56A of the Justices Act 1959, may ask the person
whether he or she is willing to be tried by the justices
instead of by a jury.
(2) Subject to subsection (3), if a person to whom
subsection (1) applies, or if he or she is under the age of 16
years his or her parent or guardian, signifies the person's
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2004 Electoral No. s. 238
willingness to be tried by the justices, the section creating
the offence is taken to have created a simple offence and
the complaint is to be dealt with accordingly.
(3) If, in a case to which subsection (1) applies, the
complainant, before the defendant is asked whether he or
she objects to being tried by the justice
(a) shows to the justices that the defendant
(i) is under committal to the Supreme
Court for trial or sentence; or
(ii) has been charged with an offence for
which he or she may be so committed,
the examination into which is pending
or not concluded; and
(b) requests that the procedure provided by this
section should not apply
the justices may proceed as if this section had not been
enacted.
Prosecutions for offences involving corrupt or
illegal practices
238. (1) Whenever the Director of Public Prosecutions has
reason to believe that a person may have engaged in a
corrupt practice at an election, whether as a result of a
determination under section 216 by the Supreme Court or
otherwise, the Director of Public Prosecutions is to
consider the matter with a view to determining whether or
not there is sufficient evidence to support a prosecution
against that person in respect of the corrupt practice and,
if there is such evidence, whether such a prosecution
should be instituted.
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s. 239 No. Electoral 2004
(2) Whenever the Commission has reason to believe
that a person may have committed an illegal practice,
whether as a result of a finding under section 216 by the
Supreme Court or otherwise, the Commission is to
consider the matter with a view to determining whether or
not there is sufficient evidence to support a prosecution
against that person in respect of the offence and, if there is
such evidence, whether such a prosecution should be
instituted.
Immaterial errors not to void election
239. An election may not be declared void merely on
account of
(a) any irregularity or delay in the declaration of
nominations, polling for the election or the
return of the writ for the election; or
(b) the absence of a returning officer or an
election official which in the opinion of the
Supreme Court did not affect the result of the
election; or
(c) an omission or error by the Commission, the
Commissioner, a returning officer or an
election official which in the opinion of the
Supreme Court did not affect the result of the
election.
Disqualification from being elected, &c.
240. (1) Any candidate or other person who is convicted of
a corrupt practice or who is found by the Supreme Court
under Part 8 to have engaged in a corrupt practice is, for a
period of 4 years from and including the date of the
conviction or finding, incapable
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2004 Electoral No. s. 241
(a) of being elected to, and sitting as a Member of,
either the Assembly or the Council; and
(b) of being enrolled as an elector or of voting at
any election under this Act.
(2) If the return of a person who was a candidate at
an election is void by virtue of the operation of section 216
and the Supreme Court makes a determination under that
section declaring the election to have been void, that
person is not qualified to be a candidate at an election that
is subsequently held in consequence of the first-mentioned
election having been declared void.
Costs and expenses of election
241. The costs and expenses incurred in or in connection
with the conduct of an election are a charge on the
Consolidated Fund and are payable out of the
Consolidated Fund without further appropriation than
this section.
Disposal of money received by election official or
returning officer
242. All money received by an election official or
returning officer under this Act is to be paid to the
Treasurer and is taken to have been received on account of
the Consolidated Fund.
Regulations
243. (1) The Governor may make regulations for the
purposes of this Act.
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s. 244 No. Electoral 2004
(2) The regulations may be made so as to apply
differently according to matters, limitations or
restrictions, whether as to time, circumstance or
otherwise, specified in the regulations.
(3) The regulations may authorise any matter to be
from time to time determined, applied or regulated by the
Commission or Commissioner.
Administration of Act
244. Until provision is made in relation to this Act by
order under section 4 of the Administrative Arrangements
Act 1990
(a) the administration of this Act is assigned to
the Minister for Justice and Industrial
Relations; and
(b) the department responsible to that Minister in
relation to the administration of this Act is the
Department of Justice.
Savings and transitional
245. The savings and transitional provisions set out in
Schedule 7 have effect.
Consequential amendments
246. The legislation specified in Schedule 8 is amended as
specified in that Schedule.
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2004 Electoral No. s. 247
Act repealed
247. The Act specified in Schedule 9 is repealed and any
Statutory Rules made under that Act are rescinded or
revoked.
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sch. 1 No. Electoral 2004
SCHEDULE 1 MEMBERSHIP OF COMMISSION
Section 8(5)
Interpretation
1. In this Schedule
"member" means a member of the Commission but
does not include the Commissioner.
Term of office
2. A member is appointed for such period, not exceeding 7
years, as is specified in the member's instrument of
appointment and, if eligible, may be reappointed.
Holding other office
3. The holder of an office who is required by the terms of
his or her employment to devote the whole of his or her
time to the functions of that office is not disqualified
from
(a) holding that office and also the office of a
member; or
(b) accepting any remuneration payable to a
member.
State Service Act 2000
4. (1) The State Service Act 2000 does not apply in
relation to a member in his or her capacity as a member.
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2004 Electoral No. sch. 1
(2) A person may hold the office of member in
conjunction with State Service employment.
Remuneration and conditions of appointment
5. (1) A member is entitled to be paid such remuneration
and allowances as are specified in the member's
instrument of appointment.
(2) A member who is a State Service officer or State
Service employee is not entitled to remuneration or
allowances under this clause except with the approval of
the Minister administering the State Service Act 2000.
(3) Remuneration payable under this clause is to be
paid from the Consolidated Fund without further
appropriation than this subclause.
(4) A member holds office on such terms and
conditions in relation to matters not provided for by this
Act as are specified in the member's instrument of
appointment.
Leave of absence
6. The Governor may grant a member leave of absence on
such terms and conditions as the Governor determines.
Resignation
7. A member may resign office by written notice given to
the Governor.
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Suspension or removal of member from office
8. (1) A member may, at any time, be removed from office
by the Governor on addresses from both Houses of
Parliament.
(2) The Governor may suspend a member from office
if the Governor is satisfied that the member
(a) is incapable of properly performing the
functions of a member; or
(b) has shown himself or herself incompetent to
properly perform those functions or has
neglected to perform those functions; or
(c) has been absent without leave granted under
clause 6 from 3 consecutive meetings of the
Commission; or
(d) is or has become bankrupt or has applied to
take the benefit of any law for the relief of
bankrupt or insolvent debtors, compounded
with the member's creditors or made an
assignment of the member's remuneration or
estate for their benefit; or
(e) has been convicted, in Tasmania or elsewhere,
of a crime or an offence punishable by
imprisonment for a term of 12 months or
longer or a fine of 300 penalty units or more;
or
(f) has contravened clause 8 of Schedule 2; or
(g) has been guilty of misconduct.
(3) If a member has been suspended from office
under subclause (2), the member is to be restored to office
unless
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2004 Electoral No. sch. 1
(a) a statement of the grounds of the member's
suspension is laid before each House of
Parliament during the first 7 sitting-days of
the House following the suspension; and
(b) each House of Parliament, during the session
of the House in which the statement is so laid,
and within 30 sitting-days of the statement
being so laid, passes an address requesting the
removal of the member from office.
Acting members
9. (1) In the absence of a member, the Governor may
appoint a person to act in the place of the member if that
person is eligible for appointment as a member.
(2) Anything done by or in relation to a person
purporting to act under this section is not invalid on the
ground that
(a) the occasion for the person's appointment had
not arisen; or
(b) there is a defect or irregularity in connection
with the person's appointment; or
(c) the person's appointment ceased to have
effect; or
(d) the occasion for the person to act had not
arisen or had ceased.
Validation of proceedings, &c.
10. (1) An act or proceeding of the Commission or of a
person acting under any direction of the Commission is
not invalidated by reason only that at the time when the
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sch. 1 No. Electoral 2004
act or proceeding was done, taken or commenced there
was a vacancy in the office of a member.
(2) All acts and proceedings of the Commission or of
a person acting under a direction of the Commission are,
despite the subsequent discovery of a defect in the
appointment of a member or that any other person was
disqualified from acting as, or incapable of being, a
member, as valid as if the member had been duly
appointed and was qualified to act as, or capable of being,
a member, and as if the Commission had been fully
constituted.
Presumptions
11. In any proceeding by or against the Commission,
unless evidence is given to the contrary, proof is not
required of
(a) the constitution of the Commission; or
(b) the appointment of any member.
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2004 Electoral No. sch. 2
SCHEDULE 2 MEETINGS OF COMMISSION
Section 8(6)
Interpretation
1. In this Schedule
"member" means a member of the Commission.
Convening of meetings
2. (1) Any member may convene a meeting of the
Commission.
(2) The chairperson is to convene such meetings of
the Commission as are necessary for the efficient conduct
of its functions.
Presiding at meetings
3. (1) The chairperson of the Commission is to preside at
all meetings of the Commission at which he or she is
present.
(2) If the chairperson is not present at a meeting of
the Commission, the Commissioner is to preside.
Quorum and voting at meetings
4. (1) Two members constitute a quorum at a meeting of
the Commission.
(2) A meeting of the Commission at which a quorum
is present is competent to transact any business of the
Commission.
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sch. 2 No. Electoral 2004
(3) The person presiding at a meeting of the
Commission has a deliberative vote and, in the event of an
equality of votes, also a casting vote.
Conduct of meetings
5. (1) Subject to this Act, the Commission may regulate
the calling of, and the conduct of business at, its meetings
as it considers appropriate.
(2) The Commission may permit members to
participate in a particular meeting or all meetings by
(a) telephone; or
(b) video conference; or
(c) any other means of communication approved
by the Commission.
(3) A member who participates in a meeting under a
permission granted under subclause (2) is taken to be
present at the meeting.
(4) Without limiting subclause (1), the Commission
may allow a person to attend a meeting for the purpose of
advising or informing it on any matter.
Resolutions without meetings
6. (1) If all members appointed sign a document
containing a statement that they are in favour of a
resolution in the terms set out in the document, a
resolution in those terms is taken to have been passed at a
meeting of the Commission held on the day on which the
document is signed or, if the members do not sign it on the
same day, on the day on which the last of the members
signs the document.
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(2) If a resolution is taken to have been passed
under subclause (1), each member is to be
(a) advised immediately of the matter; and
(b) given a copy of the terms of the resolution.
(3) For the purposes of subclause (1), 2 or more
separate documents containing a statement in identical
terms, each of which is signed by one or more members, is
taken to constitute one document.
Minutes
7. The Commission is to keep accurate minutes of its
meetings.
Disclosure of interests
8. (1) If a member has a direct or indirect pecuniary
interest in a matter being considered, or about to be
considered, by the Commission, the member must, as soon
as practicable after the relevant facts come to the
member's knowledge, disclose the nature of the interest to
the Commission.
Penalty: Fine not exceeding 100 penalty units or a
term of imprisonment not exceeding 3
months, or both.
(2) The disclosure is to be recorded in the minutes of
the Commission and, unless the Commission otherwise
determines, a member who has made a disclosure under
subclause (1) in relation to a matter must not
(a) be present during any deliberation of the
Commission in relation to the matter; or
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(b) take part in any decision of the Commission in
relation to the matter.
(3) For the purpose of making a determination
under subclause (2), the member to whom the
determination relates must not
(a) be present during any deliberation of the
Commission for the purpose of making the
determination; or
(b) take part in making the determination.
(4) Subclause (1) does not apply in respect of an
interest that arises only because the member is also a
State Service officer or State Service employee.
General procedure
9. (1) Except as provided by this Act, the Commission
may regulate its own proceedings.
(2) The Commission may inform itself on any matter
in such manner as it thinks fit.
Presumptions
10. In any proceeding by or against the Commission,
unless evidence is given to the contrary, proof is not
required of
(a) any resolution of the Commission; and
(b) the presence of a quorum at any meeting of
the Commission.
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SCHEDULE 3 PRINTING AND COLLATION OF
BALLOT PAPERS
Sections 97 and 98
Interpretation
1. In this Schedule, unless the contrary intention
appears
"column", in relation to a ballot paper, means a
column of candidates' names printed on the
ballot paper in accordance with section 97 or
98;
"favoured position", in relation to a column of a
ballot paper, means (reading from the top of
the column)
(a) if the names of 2 candidates are to
appear in the column the first position
in the column; and
(b) if the names of 3 candidates are to
appear in the column the first and
third positions in the column; and
(c) if the names of 4 candidates are to
appear in the column the first and
fourth positions in the column; and
(d) if the names of 5 candidates are to
appear in the column the first, third
and fifth positions in the column; and
(e) if the names of 6 candidates are to
appear in the column the first, second,
fifth and sixth positions in the column;
and
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(f) if the names of 7 candidates are to
appear in the column the first, second,
sixth and seventh positions in the
column; and
(g) if the names of 8 candidates are to
appear in the column the first, second,
seventh and eighth positions in the
column; and
(h) if the names of 9 candidates are to
appear in the column the first, second,
eighth and ninth positions in the
column; and
(i) if the names of 10 or more candidates
are to appear in the column the first,
second, third and last 3 positions in the
column.
Ballot papers to be printed in equal batches
2. In relation to each candidate whose name is required to
be included in the column or, as the case may be, one of
the columns of a ballot paper in accordance with section 97
or 98
(a) there is to be printed, in respect of each of the
favoured positions for that column, a batch of
ballot papers on which the name of that
candidate appears in such a favoured position;
and
(b) the number of ballot papers in each batch on
which the name of that candidate appears in
that column in a particular favoured position
is, as far as is practicable, to be equal to the
number of ballot papers in each of the other
batches of ballot papers on which the name of
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2004 Electoral No. sch. 3
every other candidate whose name is to be
included in that column appears in that
favoured position.
Order of names of candidates on first batch
3. For the printing of the first batch of ballot papers, the
names of the candidates in the column or, as the case may
be, in each of the columns are to be listed in the order
determined under section 89(2)(a).
Order for subsequent batches
4. Subject to the provisions of this Schedule, the printing
order for subsequent batches is to be as prescribed by the
regulations.
Sequence of names of candidates
5. If 6 or more names are to be included in a column, the
name of a candidate is not to appear immediately above
the name of a particular other candidate on more than one
batch of ballot papers if the names of both candidates
would be in favoured positions in that column.
Collation of ballot papers
6. Before ballot papers for an election in respect of an
electoral division are distributed to returning officers, the
Commissioner is to, as far as is practicable, ensure that
each issue of ballot papers is collated in such a way that
the ballot paper immediately following another ballot
paper in the issue is in a form different from that of the
other ballot paper.
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Issuing of ballot papers
7. When issuing ballot papers, an election official is to, as
far as is practicable, issue an elector with a ballot paper in
a different form from the previous ballot paper he or she
issued.
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SCHEDULE 4 METHOD OF COUNTING VOTES
RECORDED AT ASSEMBLY ELECTION
Sections 145 and 233
Interpretation
1. (1) In this Schedule, unless the contrary intention
appears
"quota" means the number of votes sufficient to
elect a candidate at an election;
"second preference recorded for a candidate"
means the recording of the number "2" in the
box next to the name of a candidate on a ballot
paper;
"surplus" means the number of votes which a
candidate has obtained, at any stage of the
counting of votes, in excess of the quota;
"transfer value" means that portion of a vote
which is transferred to the candidate next in
the order of the elector's preference because it
is unused by
(a) an elected candidate who has obtained a
surplus; or
(b) a candidate excluded on account of his or
her having the least number of votes.
(2) For the purpose of the definition of "transfer
value" in subclause (1), the transfer value of a vote is
either one or a fraction of one.
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First preference votes to be counted
2. The number of first preferences recorded for each
candidate, on ballot papers which are not informal ballot
papers, is to be counted.
Quota
3. The aggregate number of first preferences so recorded
is to be divided by one more than the number of
candidates required to be elected, and the quotient
increased by one, disregarding any remainder, is to be the
quota and (except as provided in clause 11) no candidate is
to be elected until he or she obtains a number of votes
equal to or greater than the quota.
Candidate with quota to be elected
4. A candidate who has, after the first preferences have
been counted, a number of votes equal to or greater than
the quota is to be declared elected.
Candidate with exact quota
5. If the number of first preferences obtained by a
candidate is equal to the quota, all the ballot papers on
which a first preference is recorded for that candidate are
to be set aside as finally dealt with.
Surplus first preference votes to be distributed
6. If the number of first preferences obtained by a
candidate is in excess of the quota, the surplus is to be
transferred to the other candidates not yet declared
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elected, next in the order of the electors' respective
preferences, in the following manner:
(a) all the ballot papers on which a first
preference is recorded for the elected
candidate are to be re-examined, and the
number of second preferences, or, in the case
provided for in clause 13, third or next
consecutive preferences, recorded for each
unelected candidate are to be counted;
(b) the surplus of the elected candidate is to be
divided by the total number of votes obtained
by the candidate on the counting of the first
preferences, and the resulting fraction is to be
the transfer value;
(c) the number of second or other preferences,
ascertained in paragraph (a) to be recorded for
each unelected candidate, is to be multiplied
by the transfer value;
(d) the resulting number, disregarding any
fractional remainder, is to be transferred to
each unelected candidate, and added to the
number of votes obtained by him or her on the
counting of the first preferences.
Order of distributing surpluses
7. (1) If, on the counting of the first preferences or on a
transfer, more than one candidate has a surplus, the
largest surplus is to be dealt with first and, if at that stage
more than one candidate has a surplus, the then largest
surplus is to be dealt with, and so on, but if one candidate
has obtained a surplus at a count or transfer previous to
that at which another candidate obtains a surplus, the
surplus of the former is to be dealt with first.
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(2) If 2 or more surpluses are equal, the surplus of
the candidate who was recorded as having the highest
number of votes at the last count or transfer at which the
candidates had an unequal number of votes is to be dealt
with first, and, if the candidates have had an equal
number of votes at all preceding counts or transfers, the
candidate whose surplus is to be dealt with first is to be
determined by an approved method.
Method of dealing with surplus votes obtained at a
transfer of a surplus
8. (1) If the number of votes obtained by a candidate is
increased to a number which is equal to, or exceeds, the
quota by a transfer under clause 6, the candidate is to be
declared elected.
(2) In a case to which subclause (1) applies,
notwithstanding the fact that the candidate has reached
the quota, the transfer is to be completed, and all the votes
to which the candidate is entitled from the transfer are to
be transferred to the candidate, but no votes of any other
candidate are to be transferred to him or her.
(3) If the number of votes obtained by a candidate is
increased by a transfer under clause 6 to a number which
is equal to the quota, all the ballot papers on which such
votes are recorded are to be set aside as finally dealt with.
(4) If the number of votes obtained by a candidate is
increased by a transfer under clause 6 to a number which
exceeds the quota, his or her surplus is to be transferred to
the candidates next in the order of the electors' respective
preferences, in the following manner:
(a) the ballot papers on which are recorded the
votes obtained by the elected candidate in the
last transfer are to be re-examined, and the
number of third, or, in the case provided for in
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clause 13, next consecutive preferences
recorded for each unelected candidate are to
be counted;
(b) the surplus of the elected candidate is to be
divided by the total number of ballot papers
mentioned in paragraph (a), and the resulting
fraction is to be the transfer value;
(c) the number of third or other preferences,
ascertained in accordance with paragraph (a)
as having been recorded for each unelected
candidate, is to be multiplied by the last-
mentioned transfer value;
(d) the resulting number, disregarding any
fractional remainder, is to be credited to each
unelected candidate and added to the number
of votes previously obtained by him or her.
Method of transferring votes of excluded candidates
9. (1) If, after the first preferences have been counted and
all surpluses, if any, have been transferred as provided by
this Schedule, no candidate, or less than the number of
candidates required to be elected, has or have obtained the
quota, the candidate who, at that count or transfer, has
the least number of votes is to be excluded, and all the
votes obtained by him or her are to be transferred to the
candidates next in the order of the electors' respective
preferences, in the same manner as provided by clause 6.
(2) The votes received by the excluded candidate are
to be sorted into groups according to their transfer values
when received by that candidate.
(3) The groups are to be transferred, at the transfer
value at which they were received, in the following order:
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sch. 4 No. Electoral 2004
(a) firstly, the group with the highest transfer
value;
(b) secondly, the remaining groups in descending
order of transfer value.
(4) Each of the transfers which takes place under
subclause (3) is to be taken for all purposes to be a
separate transfer.
Method of dealing with surplus votes obtained at a
transfer from an excluded candidate
10. (1) If the number of votes obtained by a candidate is
increased by a transfer under subclause (4), clause 9 or
clause 11 to a number which is equal to, or exceeds, the
quota, the candidate is to be declared elected.
(2) In a case to which subclause (1) applies,
notwithstanding the fact that the candidate has reached
the quota, the transfer is to be completed, and all the votes
to which the candidate is entitled from the transfer are to
be transferred to him or her, but no other votes are to be
transferred to him or her.
(3) If, by a transfer under subclause (4), clause 9 or
clause 11, the number of votes obtained by a candidate is
increased to a number of votes which is equal to, but does
not exceed, the quota, all the ballot papers on which those
votes are recorded are to be set aside as finally dealt with.
(4) If, by a transfer under subclause (4), clause 9 or
clause 11, the number of votes obtained by a candidate is
increased to a number which exceeds the quota, his or her
surplus is to be transferred to the candidates next in the
order of the electors' respective preferences in the same
manner as provided by clause 8(4), but, in the case of a
transfer of the votes of an excluded candidate under
clause 9 or 11, that surplus is not to be dealt with until all
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2004 Electoral No. sch. 4
the votes of that excluded candidate have been
transferred.
(5) If a surplus exists, it is to be dealt with before
any other candidate is excluded.
Exclusion of candidates to continue
11. The process of excluding the candidate who has polled
the next lowest number of votes at the election and
transferring to other candidates his or her votes, in
accordance with clause 9, is to be repeated until all the
candidates, except the number required to be elected, have
been excluded, and the unexcluded candidates who have
not already been so declared are then to be declared
elected.
Candidates with equal number of votes
12. If on any count 2 or more candidates have an equal
number of votes and one of them is to be excluded, then
whichever of those candidates was recorded as having the
least number of votes at the last count or transfer at which
they had an unequal number of votes is to be excluded,
and, if those candidates have had an equal number of
votes at all preceding counts or transfers, the candidate to
be excluded is to be determined by an approved method.
Next available preferences
13. In determining which candidate is next in the order of
an elector's preference, any candidates who have been
declared elected or who have been excluded are not to be
considered, and the order of the elector's preference is to
be determined as if the names of those candidates had not
been on the ballot paper.
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Ballot paper taken to be exhausted
14. If on a transfer it is found that on a ballot paper there
is no candidate opposite whose name a number is placed,
other than a candidate who has been declared elected or
excluded, the ballot paper is to be set aside as exhausted.
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SCHEDULE 5 METHOD OF COUNTING VOTES
RECORDED AT COUNCIL ELECTION
Section 145
Interpretation
1. In this Schedule, a reference to an absolute majority of
votes, in relation to a candidate at an election, is a
reference to a number of votes greater than one-half of the
total number of ballot papers on which electors have
recorded their votes for the candidate at the election, other
than exhausted and informal ballot papers.
First preference votes to be counted
2. The number of first preferences recorded for each
candidate is to be counted, and all informal ballot papers
are to be rejected.
Candidate with absolute majority of votes to be
elected
3. If a candidate obtains an absolute majority of votes, he
or she is to be elected.
Candidate with fewest votes to be excluded
4. If no candidate has an absolute majority of votes, the
candidate who has the least number of votes is to be
excluded, and each ballot paper counted to him or her is,
unless exhausted, to be counted to the unexcluded
candidate next in the order of the elector's preference.
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Exclusion of candidates to continue
5. If no candidate then has an absolute majority of votes,
the process, as specified in clause 4, of excluding the
candidate who has the fewest votes and counting each of
the ballot papers counted to him or her, unless exhausted,
to the unexcluded candidate next in the order of the
elector's preference is to be repeated until one candidate
has an absolute majority of votes.
Formal ballot papers to be counted until exhausted
6. Every ballot paper not rejected as informal is to be
counted in every count until it becomes exhausted, and
then is to be rejected in all further counts.
Ballot paper taken to be exhausted
7. When a candidate is excluded, any ballot paper counted
to him or her is to be taken to be exhausted if there is not
indicated on it a consecutive preference for one unexcluded
candidate.
Candidates with equal number of votes
8. (1) If on any count 2 or more candidates have an equal
number of votes and one of them is to be excluded, then
whichever of those candidates was recorded as having the
least number of votes at the last count at which they had
an unequal number of votes is to be excluded, and if those
candidates have had an equal number of votes at all
preceding counts, the candidate to be excluded is to be
determined by an approved method.
(2) If following the final count a candidate is
excluded in accordance with subclause (1) and only one
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2004 Electoral No. sch. 5
unexcluded candidate remains, that unexcluded candidate
is to be elected.
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SCHEDULE 6 METHOD OF FILLING VACANCY
ARISING IN HOUSE OF ASSEMBLY
Section 232
Interpretation
1. In this Schedule
(a) a reference to a consenting candidate, in
relation to a vacant seat in the Assembly, is a
reference to a person who nominates himself
or herself for the vacant seat as provided in
section 228; and
(b) a reference to the relevant election, in relation
to a vacant seat, is a reference to the election
last held, whether under this Act or the
Electoral Act 1985, to fill all of the seats for
the Assembly division which the vacating
member formerly represented in the
Assembly; and
(c) a reference to the vacating member is a
reference to the member whose seat in the
Assembly has become vacant; and
(d) a reference to the vacant seat is a reference to
the seat of the vacating member.
Case where there is only one consenting candidate
2. If there is only one consenting candidate, the
Commissioner is to immediately
(a) declare the candidate to be duly elected as a
member of the Assembly to fill the vacant
seat; and
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2004 Electoral No. sch. 6
(b) by writing under his or her hand notify the
Governor of the election of the candidate.
Case where there are 2 or more consenting
candidates
3. If there are 2 or more consenting candidates, the
Commissioner is to, within 7 days after the date fixed for
the receipt of nominations, proceed to ascertain in the
manner provided by clause 4, by an examination of all the
completed ballot papers counted at the relevant election
for the member whose seat has become vacant and the
ballot papers directed to be counted for the vacating
member as so provided, which of the consenting
candidates is to be elected to fill the vacant seat.
Provisions to apply to determine which of 2 or more
consenting candidates is to be elected
4. (1) In this clause, a reference to the completed ballot
papers counted for the vacating member is
(a) if, after the first preferences were counted at
the relevant election, the number of first
preferences recorded for that member was
equal to or exceeded the quota required for
election to the Assembly, a reference to all the
ballot papers on which those first preferences
were recorded; and
(b) in any other case, a reference to all the
completed ballot papers counted for that
member at the time of his or her election,
including ballot papers relating to votes that
were transferred to him or her.
(2) If
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(a) the member whose seat has become vacant
was, by virtue of clause 11 of Schedule 4,
declared elected at the relevant election after
the candidate who was lowest on the poll at
that election had been excluded from the
counting; and
(b) the votes obtained by the excluded candidate
were not required to be transferred to the
candidates next in the order of the electors'
respective preferences
so many of those votes as would have been transferred to
that member if the votes of the excluded candidate had
been transferred to the candidates next in the order of the
electors' respective preferences, are, for the purposes of
this clause, to be taken to have been so transferred to, and
to be obtained by, that member and the completed ballot
papers representing those votes are to be counted for that
member.
(3) The ballot papers counted, or by subclause (2),
directed to be counted, for the vacating member are to be
examined, and all the votes obtained, or taken to have
been obtained, by him or her are to be transferred to and
counted for the consenting candidates first or next in the
order of the electors' respective preferences.
(4) The votes obtained as first preferences by the
vacating member at the relevant election are to be
transferred to the next preferred candidate at that
election, with the transfer value of each of those votes
determined in accordance with subclause (5), and the
other votes (if any) of the vacating member are then to be
dealt with in the order of the transfers in which they were
obtained and at the transfer value determined in
accordance with subclause (6).
(5) If the votes obtained as first preferences by the
vacating member
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2004 Electoral No. sch. 6
(a) were sufficient to elect the member, the
transfer value of those votes is the fraction
determined by dividing the number of votes
sufficient to elect the member by the total
number of votes obtained by the member; or
(b) were insufficient to elect the member, the
transfer value of those votes is one.
(6) If the votes obtained by the vacating member at
an individual count, other than the votes obtained as first
preferences
(a) did not provide a sufficient number of votes to
elect that member, the transfer value of the
votes obtained on such a count is that at which
they were obtained by the member; or
(b) provided a sufficient number of votes to elect
the member, the transfer value of the votes
received at that count is that which would
have provided the number of votes which the
member required to be elected immediately
prior to that count.
(7) Each of the transfers which takes place under
subclause (4) is to be taken for the purposes of this
Schedule to be a separate transfer.
(8) For the purposes of determining which
consenting candidate is first or next in the order of the
electors' preferences
(a) the name of, and first choices recorded at the
relevant election for, an excluded candidate
who is a consenting candidate at the election
to fill the vacant seat are, for the purposes of
that last-mentioned election, not to be omitted
from any completed ballot papers transferred
to the vacating member, but are to be counted
for that consenting candidate; and
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(b) any candidates who were declared elected at
the relevant election or who are not consenting
candidates are to be disregarded and the order
of the electors' respective preferences is to be
determined as if the names of those candidates
had not been included on the ballot papers.
(9) If, in relation to a completed ballot paper, it is
found that there is no candidate opposite whose name a
number has been placed other than a candidate
(a) who has already been declared elected; or
(b) who is not a consenting candidate; or
(c) whose name must, by virtue of section 103(2),
be omitted from the ballot paper when
determining the order of the electors'
respective preferences
the ballot paper is to be set aside as exhausted.
(10) After the number of votes in favour of each
consenting candidate has been ascertained in accordance
with the preceding provisions of this clause, the method of
counting votes set out in Schedule 5 where one member
only has to be returned for a division is, with any
necessary modifications, to be applied and followed, and
the Commissioner is to declare the consenting candidate
who obtains an absolute majority of the votes within the
meaning of that Schedule to be duly elected to fill the
vacant seat.
Case where vacating member elected under this
Schedule
5. If the seat of a member of the Assembly becomes vacant
and the vacating member was himself or herself elected
under the provisions of this Schedule or of Schedule 5 to
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2004 Electoral No. sch. 6
the Electoral Act 1985 (as in force immediately before the
commencement of this Act)
(a) the Commissioner, for the purpose of filling
the vacancy, is to examine the ballot papers
that, at the relevant election, were counted for
the member in whose place the vacating
member was elected (including voting papers
representing votes transferred to the last-
mentioned member); and
(b) the foregoing provisions of this Schedule are
accordingly to be construed subject to
paragraph (a).
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SCHEDULE 7 SAVINGS AND TRANSITIONAL
Section 245
Definitions
1. In this Schedule
"repealed Act" means the Electoral Act 1985.
State roll
2. The State roll in existence immediately before the
commencement of this Act is abolished and any person on
the Commonwealth roll immediately before that
commencement is taken, on that commencement, to be on
the State roll.
Registered parties
3. (1) Any party which, immediately before the
commencement of this Act, was registered under Part IV
of the repealed Act is, on and after that commencement,
taken to be registered under and subject to this Act.
(2) A person who, immediately before the
commencement of this Act, was registered under Part IV
of the repealed Act as an endorsement representative of a
registered party is, on and after that commencement,
taken to be the registered officer of that registered party
registered under and subject to this Act.
(3) A person who, immediately before the
commencement of this Act, was registered under Part IV
of the repealed Act as a registered member of a registered
party is, on and after that commencement, taken to be a
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2004 Electoral No. sch. 7
registered member of that registered party registered
under and subject to this Act.
Chief Electoral Officer
4. The person who, immediately before the
commencement of this Act, held the office of Chief
Electoral Officer under the repealed Act is, on that
commencement, taken to have been appointed as Electoral
Commissioner under this Act and, subject to this Act, is to
hold office for the remainder of the period specified in the
instrument of his or her appointment under the repealed
Act.
Deputy Chief Electoral Officer
5. The person who, immediately before the
commencement of this Act, held the office of Deputy Chief
Electoral Officer under the repealed Act is, on that
commencement, taken to have been appointed as Deputy
Electoral Commissioner under this Act and, subject to this
Act, is to hold office under the terms specified in the
instrument of his or her appointment under the repealed
Act.
Pending legal proceedings
6. (1) If, immediately before the commencement of this
Act, a proceeding under the repealed Act has not been
decided, the proceeding may be heard and decided under
that Act as if it had not been repealed.
(2) If, immediately before the commencement of this
Act, the Chief Electoral Officer was a party to a legal
proceeding pending or existing in any court or tribunal,
the Electoral Commissioner is substituted for the Chief
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sch. 7 No. Electoral 2004
Electoral Officer as party to the proceeding and has the
same rights and obligations as the Chief Electoral Officer
had in the proceeding.
Arrangement with the Commonwealth
7. The arrangement made under section 21 of the
repealed Act and in force immediately before the
commencement of this Act is taken to be an arrangement
made under section 35 of this Act.
Contracts, agreements or arrangements
8. Any contract, agreement, arrangement or undertaking
entered into by the Chief Electoral Officer is, if not
executed, discharged or otherwise terminated before the
commencement of this Act, taken to be a contract,
agreement, arrangement or undertaking entered into with
the Commission.
Acts, &c., done by or to Chief Electoral Officer
9. All acts, matters and things done or omitted to be done
by, or done or suffered in relation to, the Chief Electoral
Officer before the commencement of this Act are, on and
after that commencement, to have the same force and
effect as if they had been done or omitted to be done by, or
done or suffered in relation to, the Commission.
Transitional regulations
10. (1) The Governor may make regulations containing
other provisions of a savings or transitional nature
consequent on the enactment of this Act.
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2004 Electoral No. sch. 7
(2) A provision made under subclause (1) may take
effect as from the commencement of this Act or a later day.
(3) A provision made under subclause (1) is to, if the
regulations under this clause so provide, have effect
notwithstanding the foregoing clauses of this Schedule.
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sch. 8 No. Electoral 2004
SCHEDULE 8 CONSEQUENTIAL AMENDMENTS
Section 246
Constitution Act 1934
1. Section 3 is amended by inserting after the definition of
"Redistribution Tribunal" the following definition:
"State roll" has the same meaning as in the
Electoral Act 2004;
2. Section 14(2) is amended by omitting "or is in prison
under any conviction".
3. Sections 28 and 29 are repealed and the following
section is substituted:
Assembly and Council electors
28. Subject to the provisions of this Act and the
Electoral Act 2004, every person who is aged 18
years or more and is an Australian citizen is entitled
to be enrolled on the State roll as an elector
(a) for the Assembly division in which the
person lives; and
(b) for the Council division in which the
person lives
and, when so enrolled, is qualified to vote at any
election of a Member to serve in either of those
divisions.
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2004 Electoral No. sch. 9
SCHEDULE 9 ACT REPEALED
Section 247
Electoral Act 1985 (No. 46 of 1985)
Government Printer, Tasmania 213