Victorian Consolidated Legislation

Local Government Act 1989 - SCHEDULE 2

PROVISIONS WITH RESPECT TO THE HOLDING OF AN ELECTION Section 41

1. Returning officer and staff



(1) An election must be held before a returning officer.

(2) The returning officer is to be-

   (a)  the Chief Executive Officer; or

   (b)  a member of Council staff appointed in writing by the Chief Executive
        Officer to be the returning officer; or



   (c)  if the Council has appointed an Electoral Commission or another
        Council to conduct the election, a person appointed in writing by the
        Electoral Commission or Council to be the returning officer.





(3) The returning officer must appoint in writing at least one deputy
returning officer.



(4) A deputy returning officer is an authorised person for the purposes of
this Act.

(5) If the returning officer dies, resigns or becomes incapable of acting, a
deputy returning officer nominated for the purpose of this subsection in his
or her instrument of appointment is to be the returning officer.

(6) The returning officer may by instrument of delegation delegate to any
deputy returning officer or authorised person any power or duty of the
returning officer other than this power of delegation.

(7) The returning officer may appoint-

   (a)  authorised persons to exercise the powers or duties delegated to them;
        and

   (b)  interpreters for the purposes of an election.

(8) A person who is a candidate at the election or a Councillor of the Council
in respect of which the election is to be held cannot be appointed or act as a
returning officer, authorised person or interpreter at the election or
otherwise assist in the conduct of the election.

2. Declaration before carrying out duties



(1) The returning officer must before acting as the returning officer for the
first time in respect of a Council make a declaration in writing containing
the details required by the regulations.

(2) Any person appointed to be an authorised person or interpreter at an
election must make a declaration in writing containing the details required by
the regulations before carrying out any duties at that election.

3. Notice of election



(1) Not less than 40 days nor more than 60 days before an election, the
returning officer must give public notice of the election.

(2) The public notice must specify that nominations will be received at the
place specified in the public notice by the returning officer during the
period beginning on the day that the certified voters' roll becomes available
and ending at 12 noon on the 32nd day before election day.





4. Returning officer to give election advice

The returning officer may give any advice to members of the public relating to
the conduct of an election that the returning officer considers appropriate.

5. Nomination form



(1) A candidate for election must-

   (a)  complete a nomination form containing the details required by the
        regulations; and





   (b)  sign the nomination form; and





   (c)  make a declaration in writing containing the details required by the
        regulations; and



   (d)  pay to the Council the nomination fee of $250 or such higher amount as
        is prescribed in cash or by cheque drawn on account of an authorised
        deposit-taking institution.



(1A) Unless subclause (1B) applies, a candidate must sign the declaration
referred to in subclause (1)(c) in the presence of the returning officer.



(1B) If a candidate is unable to sign the declaration referred to in subclause
(1)(c) in the presence of the returning officer, the candidate must provide
with the declaration a statutory declaration specifying that he or she-

   (a)  is nominating;

   (b)  has personally signed the declaration;

   (c)  is unable to sign the declaration in the presence of the returning
        officer and the reason or reasons why he or she is unable to do so.

(2) A candidate must be named in a nomination form by specifying-



   (a)  the surname and the christian or given name, or one or more of the
        christian or given names and the address under which the candidate is
        or is entitled to be enrolled on the voters' roll; or

   (b)  in the case of a by-election where the candidate is not enrolled on
        the voters' roll-the surname and the christian or given name, or one
        or more of the christian or given names and the address under which
        the candidate is entitled to be enrolled.

(3) If a candidate has changed his or her name from that which appears on the
voters' roll, the candidate must attach evidence of the change of name to the
nomination form.

(4) The candidate's name is to appear on the ballot-paper in the form
specified in the notice under subclause (2).

(5) For the purposes of subclause (4) a christian or given name may be
specified by-

   (a)  an initial standing for that name; or

   (b)  a commonly accepted variation of that name, including an abbreviation
        or an alternative form of that name; or



   (c)  a commonly used other name specific to the candidate by which the
        candidate is usually identified.



(6) A name cannot be specified on a ballot-paper under subclause (5)(c) unless
the candidate produces evidence to the satisfaction of the returning officer
that the proposed name is a commonly used other name specific to the candidate
by which the candidate is usually identified.

(7) A title or other designation cannot be included with, or as part of, the
name of a candidate on a ballot-paper.

6. Validity of candidature



(1) A person is not eligible to be a candidate for election if-

   (a)  the nomination form is not properly completed; or



   (b)  the nomination fee has not been paid.





(2) The returning officer can only reject a nomination-

   (a)  if section 70(6) or 70(7) applies; or

   (b)  if clause 5 has not been complied with; or

   (c)  under subclause (3A).

(3) If the returning officer is satisfied that clause 5 has been complied
with, the returning officer cannot reject the nomination because of-

   (a)  any possible defect or error in the qualification of the candidate; or

   (b)  any formal defect or error.

(3A) The returning officer must reject as being void a nomination from a
person who is not enrolled on the voters' roll for the municipality unless the
nomination is accompanied by a statutory declaration stating-

   (a)  that the person is entitled to be enrolled being an entitlement other
        than under section 12(1) or 12(2);

   (b)  the grounds on which he or she claims to be entitled;

   (c)  what steps he or she has taken to be enrolled.



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(7) The returning officer must return any rejected nomination form to the
person who submitted it.



(8) If the returning officer becomes aware before the election day that a
nomination to which subclause (2)(a) or (2)(c) applies has not been rejected,
the following provisions apply to that nomination-

   (a)  if practicable, the returning officer must give public notice before
        the election day of the name of the person whose nomination is void;

   (b)  the returning officer must take all practicable steps to remove the
        name of the person whose nomination is void from the ballot-papers;

   (c)  if the returning officer receives a completed ballot-paper on which
        the name of the person whose nomination is void has not been removed,
        the name of that person and any figure next to the name are to be
        treated as removed and the ballot-paper is to be given effect to in
        the voter's order of preference in respect of the remaining
        candidates.

7. Withdrawal of nomination



(1) A candidate may withdraw a nomination before 12 noon on the 32nd day
before election day.







(2) A notice of withdrawal must contain the details required by the
regulations and must be signed by the candidate.

(3) The returning officer must keep the nomination form.



(4) The returning officer must retain the nomination fee paid by a candidate
who withdraws their nomination under this clause.

8. Retirement of a candidate



(1) A candidate may retire before a declaration of an election is made or, if
an election is to be held, before the day of the election, only in accordance
with this clause.

(1A) A candidate may retire before the day of an election if the retirement
will result in an uncontested election.



(2) To retire in any other circumstance, a candidate must obtain an order from
the Magistrates' Court that one of the following applies to the candidate-

   (a)  he or she is not qualified to be a candidate as required by section
        28(1);

   (b)  he or she is disqualified by section 29(1) or 29(2);



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(3) The candidate must give the returning office a notice of retirement signed
by the candidate and, if applicable, a copy of the order obtained under
subclause (2).

(4) The retirement takes effect upon the returning officer receiving the
notice of retirement and, if applicable, the copy of the order.

(4A) If practicable, the returning officer must give public notice of a
retirement before the day of the election.



(5) The following provisions apply upon the retirement of a candidate who has
obtained an order under subclause (2)-



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   (b)  if a candidate retires after the ballot-papers have been printed the
        returning officer must take all practicable steps to remove the name
        of the retiring candidate from the ballot-papers;

   (c)  if the returning officer receives a completed ballot-paper on which
        the name of the retiring candidate has not been removed, the name of
        the retiring candidate and any figure next to the name are to be
        treated as removed and the ballot-paper is to be given effect to in
        the voter's order of preference in respect of the remaining
        candidates;

   (d)  if a candidate retires after 4 p.m. on the Monday before the day of
        the election, the returning officer may permit the remaining
        candidates to remove the name of the retiring candidate from their
        how-to-vote cards in a manner approved by the returning officer.

(6) The returning officer must keep the nomination form.



(7) The returning officer must retain the nomination fee paid by a candidate
who retires under this clause.

9. Death of a candidate





(1) If a candidate dies before 12 noon on the 32nd day before election day,
the nomination becomes void.









(2) If a candidate dies after 12 noon on the 32nd day before election day but
before the close of voting in the election, the following provisions apply-

   (a)  if the candidate dies after the ballot-papers have been printed, the
        returning officer must take all practicable steps to remove the name
        of the dead candidate from the ballot-papers;

   (b)  if the returning officer receives a completed ballot-paper on which
        the name of the dead candidate has not been removed, the name of the
        dead candidate and any figure next to the name are to be treated as
        removed and the ballot-paper is to be given effect to in the voter's
        order of preference in respect of the remaining candidates;

   (c)  if the candidate dies after 4 p.m. on the Monday before election day,
        the returning officer may permit the remaining candidates to remove
        the name of the dead candidate from their how-to-vote cards in a
        manner approved by the returning officer.

(3) The returning officer must keep the nomination form.

(4) The returning officer must return the nomination fee to the candidate's
personal representative.



10. Filling of vacancies



(1) If-

   (a)  the number of candidates; or



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   (c)  the withdrawal, retirement or death of a candidate-



means that the number of candidates is equal to or less than the number of
vacancies to be filled at an election, the returning officer must declare the
candidate or candidates to be elected and give public notice of the
declaration.

(2) If the returning officer declares the candidate or candidates to be
elected under subclause (1)(a), the declaration must be made-

   (a)  in the case of a by-election, immediately after 12 noon on the 32nd
        day before election day; or





   (b)  in the case of any other election, in accordance with clause 23.





(2A) If a by-election is required following the death or resignation of a
candidate, the vacancy is deemed to have occurred on election day.



(3) If there are no candidates for an election the election fails and the
returning officer must give public notice that the election has failed.

(4) A vacancy caused if there is no candidate or the number of candidates is
less than the number of vacancies is to be treated as an extraordinary vacancy
occurring on the 32nd day before election day.



(4A) A vacancy to which subclause (4) applies is to be filled at a by-election
held using the voters' roll certified for the general election in respect of
which the vacancy has arisen.



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(6) If the number of candidates exceeds the number of vacancies to be filled,
an election must be held.

(7) The returning officer must give notice of-

   (a)  an extraordinary vacancy under subclause (4); and

   (b)  an election under subclause (6).

11. Availability of nomination information



(1) The returning officer must ensure that nomination forms are available for
inspection during ordinary office hours at the returning officer's office.

(2) The returning officer may provide a list of candidates for an election
which specifies contact details for each candidate.



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14. Ballot-papers



(1) Ballot-papers for an election must contain the details required by the
regulations.



(2) The returning officer must as soon as practicable after 12 noon on the
32nd day before election day hold a ballot by lot whether manually or by
electronic means to determine the order in which the name of each candidate is
to appear on the ballot-paper.



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(4) If in the opinion of the returning officer a similarity in the names of 2
or more candidates is likely to cause confusion, the returning officer may
arrange for the names of the candidates to be printed with a description or
addition to distinguish them from each other.

(5) Despite subclause (4), a ballot-paper must not contain any reference to
the allegiance of a candidate to any political party or other cause or to the
fact that a candidate has no such allegiance.

(6) Subclause (5) does not apply to the name of a candidate.



15. Scrutineers



(1) A candidate may appoint 1 or more scrutineers.





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(2A) The appointment of a scrutineer must be made in writing containing the
details required by the regulations and must be delivered to the returning
officer.



(2B) A separate form must be used for each appointment of a scrutineer.



(3) A person cannot be appointed as a scrutineer if he or she is-

   (a)  a Councillor of the Council; or

   (b)  a candidate at the election; or

   (c)  a candidate at any other election conducted simultaneously with that
        election in relation to the same Council; or



   (d)  a person appointed by an Electoral Commission or another Council to be
        involved in the conduct of the election if that Electoral Commission
        or Council has been appointed to conduct the election.







(4) Before a scrutineer can act as a scrutineer she or he must make a written
declaration containing the details required by the regulations.



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17. Power to keep the peace



(1) The returning officer and any person authorised by the returning officer
for the purpose have the following powers-

   (a)  to maintain and enforce order and keep the peace at any election or
        voting centre;



   (b)  without any warrant to cause any person who-

   (i)  obstructs the approaches to any voting centre; or

   (ii) behaves in a disorderly manner-



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to be removed;

   (c)  without warrant to cause any person reasonably suspected of committing
        an offence against this Act to be arrested.



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23. Declaration of result



(1) The returning officer must as soon as practicable on or after election day
publicly declare the result of the election by giving the name or names of the
candidate or candidates elected.

(2) The returning officer must as soon as practicable after publicly declaring
the result-

   (a)  give public notice of-

   (i)  the name or names of the Councillor or Councillors elected; and

   (ii) the order in which the Councillors were elected; and

   (b)  advise the Minister of the result.

24. Refund of deposit

The nomination fee paid for or on behalf of a candidate must be repaid to the
candidate on the certificate of the returning officer if-

   (a)  the candidate is declared elected; or

   (b)  the total number of first preference votes in the candidate's favour
        is at least equal to 4% of the total number of first preference votes
        in favour of all the candidates in the election.

25. Death or incapacity of an elected candidate before the declaration of the
result



(1) The death or incapacity of an elected candidate after the close of voting
but before the declaration of the result does not affect the declaration of
the election of any other elected candidates.

(2) The vacancy arising as a result of the death or incapacity of the elected
candidate is to be treated as an extraordinary vacancy occurring on the day on
which the candidate would have been declared elected.



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