SCHEDULE 6 - Method of filling vacancy arising in House of Assembly

Section 231

1.    Interpretation

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 227 ; 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.

2.    Case where there is only one consenting candidate

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

(b) by writing under his or her hand notify the Governor of the election of the candidate.

3.    Case where there are 2 or more consenting candidates

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.

4.    Provisions to apply to determine which of 2 or more consenting candidates is to be elected

(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 –

(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 –

(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

(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.

5.    Case where vacating member elected under this Schedule

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 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 ballot 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) .