Victorian Consolidated Legislation

Local Government Act 1989 - SECT 38

By-elections

38. By-elections



(1) Unless subsection (1AA) applies, an election to fill an extraordinary
vacancy must be held on a Saturday which is not later than the 100th day after
the extraordinary vacancy.





(1A) The date of an election under subsection (1) must be-

   (a)  fixed by the Minister; and

   (b)  published in the Government Gazette.

(1AA) For the purposes of determining when the period under subsection (1)
commences, the extraordinary vacancy is to be taken to have occurred-

   (a)  if the extraordinary vacancy occurs within 6 months before a general
        election, on the date that the Council decides to fill the vacancy
        under section 37; or

   (b)  if the returning officer determines that the extraordinary vacancy
        cannot be filled by a countback under Schedule 3A, on the date on
        which the returning officer makes that determination.

(1AB) Despite subsection (1), if the Minister considers that the process for
holding an election to fill an extraordinary vacancy would be adversely
affected by the Christmas and New Year holiday period if the date of the
election was fixed in accordance with that subsection, the Minister may fix a
date for the holding of the election on a day which is a Saturday not later
than the 150th day after the extraordinary vacancy and is as soon as is
reasonably practicable.

(1AC) For the purposes of subsection (1AB), the Minister-

   (a)  may specify as the entitlement date a date which is more than 57 days
        before the date of the election;

   (b)  must publish the date of the election and the entitlement date in the
        Government Gazette.

(1B) The Chief Executive Officer must notify the Minister that an
extraordinary vacancy has occurred within 3 working days of becoming aware of
the extraordinary vacancy.

(2) If an extraordinary vacancy is caused by the ouster of a Councillor from
office by the Supreme Court, the extraordinary vacancy occurs on the following
days-

   (a)  if notice of appeal to the Court of Appeal is not served within the
        period allowed, on the day after that period;

   (b)  if an appeal to the Court of Appeal is dismissed, on the day the
        decision is given.



(2A) If an extraordinary vacancy is caused by the declaration of a municipal
electoral tribunal, the extraordinary vacancy occurs on the following days-

   (a)  if an application for review to the Victorian Civil and Administrative
        Tribunal is not served within 7 days of the decision of the municipal
        electoral tribunal, on the day after that period;

   (b)  if an application for review to the Victorian Civil and Administrative
        Tribunal is dismissed, on the day the decision is given.



(2AA) If an extraordinary vacancy is caused by the decision of the Victorian
Civil and Administrative Tribunal on an application for review, the
extraordinary vacancy occurs on the day the decision is given.

(2B) Subsection (2A) or (2AA) applies in respect of a general election and for
that purpose all the extraordinary vacancies are deemed to have occurred on
the same day as determined in accordance with that subsection.



(2C) Despite subsection (3), if more than one extraordinary vacancy in a ward
is caused by the declaration of a municipal electoral tribunal or the decision
of the Victorian Civil and Administrative Tribunal, an election must be held
to fill all the extraordinary vacancies at the same time.

(3) If more than 1 extraordinary vacancy occurs in respect of the same ward
and an election is required to be held to fill the vacancies on the same day,
one election must be held to fill all the extraordinary vacancies at the same
time.

(4) Despite anything to the contrary in this section, in exceptional
circumstances, on the recommendation of the Minister, the Governor in Council
may by Order in Council postpone the election day under this section to
another Saturday as nearest as possible to the election day.









Division 7-Conduct of elections and polls of voters