Victorian Consolidated Legislation

Local Government Act 1989 - SCHEDULE 3A-PROVISIONS

WITH RESPECT TO FILLING EXTRAORDINARY VACANCIES

1. Definitions

In this Schedule- eligible candidate means a person who-

   (a)  was a candidate at the relevant election; and

   (b)  did not withdraw or retire from, and was not elected at, that
        election; and

   (c)  is still eligible to be elected as a Councillor; relevant election
        means the election at which the vacating Councillor was elected;
        vacating Councillor means the person whose departure created the
        extraordinary vacancy (even if that person never became a Councillor).

2. Exclusion of candidate



(1) The returning officer must exclude from participation in a countback any
candidate which the returning officer knows has died or has otherwise ceased
to be eligible to be elected as a Councillor.

(2) An exclusion under subclause (1) may be made-

   (a)  before the public notice is published under clause 6; or

   (b)  after the public notice is published under clause 6 unless the
        countback procedure has been commenced.

3. Filling of multiple vacancies



(1) If there is more than one extraordinary vacancy to be filled at any time,
the extraordinary vacancy that occurred first is to be filled first.

(2) If, in the opinion of the returning officer, it is impossible to determine
which vacancy occurred first, the vacating Councillor who was elected first
(either at the same election or in point of time) is deemed to have left her
or his office before the other vacating Councillor or Councillors.

(3) If it is still not possible to determine which vacancy occurred first
despite subclause (2), the returning officer must determine by lot which
extraordinary vacancy is to be filled first.

(4) The returning officer may comply with clause 6 in respect of an
extraordinary vacancy even while she or he or another returning officer is
complying with those subclauses in respect of another extraordinary vacancy.

4. Procedure if there are no eligible candidates

If there are no eligible candidates, the countback fails and clause 7A
applies.

5. Procedure if there is only one eligible candidate



(1) This clause applies if there is only one eligible candidate.

(2) The returning officer must invite in writing the candidate to complete a
written declaration specifying that the candidate is still eligible to be a
Councillor.

(3) A written declaration under subclause (2) must be given to the returning
officer within 14 days of the date of the written invitation.

(4) If the candidate complies with this clause, the returning officer must
declare the candidate elected in accordance with clause 17.

(5) If the candidate does not comply with this clause, the countback fails and
clause 7A applies.

6. Procedure if there is more than one eligible candidate



(1) This clause applies if there is more than one eligible candidate.

(2) Within 14 days of the extraordinary vacancy occurring, the returning
officer must-

   (a)  publish a public notice in accordance with subclause (3); and

   (b)  give written notice in accordance with subclause (3) to each eligible
        candidate at their last known address.

(3) The public notice and the written notice must specify-

   (a)  the date, time and place for the conduct of the countback;

   (b)  that an eligible candidate is entitled to appoint scrutineers for the
        countback;

   (c)  the contact details of the returning officer.

(4) The date for the conduct of the countback must be the date which is at
least 14 days after the date of the public notice which in the opinion of the
returning officer is the earliest practicable date to conduct the countback.

(5) The countback must be conducted in accordance with Part 2.

7. Conduct of countback



(1) The returning officer must make reasonable efforts to notify the candidate
who would be declared elected as a result of the countback and invite the
candidate to complete a written declaration within 48 hours that the candidate
is still eligible to become a Councillor.

(2) If the candidate completes the written declaration under subclause (1),
clause 17 applies.

(3) If the candidate does not complete the written declaration under subclause
(1), a further count is to be conducted as soon as is practicable after the
period in subclause (1) has expired until-

   (a)  a candidate who would be declared elected as a result of the countback
        and is invited to complete a written declaration within 48 hours that
        the candidate is still eligible to become a Councillor does so; or

   (b)  if there is only one candidate remaining, the candidate is invited to
        complete a written declaration within 48 hours that the candidate is
        still eligible to become a Councillor and does so; or

   (c)  there are no eligible candidates remaining.

(4) For the purposes of the application of subclause (3), each time the
process is repeated, the preferences for any candidate who has failed to
complete the written declaration when invited to do so are excluded in the
countback.

(5) If subclause (3)(a) or (3)(b) applies, clause 17 applies.

(6) If subclause (3)(c) applies, the countback has failed and clause 7A
applies.

7A. Procedure if the countback fails



(1) If the countback fails or the returning officer is otherwise unable to
fill the extraordinary vacancy by a countback-

   (a)  the returning officer must notify the Chief Executive Officer;

   (b)  a by-election must be held to fill the extraordinary vacancy.

(2) Despite clause 3(1), by-elections to fill 2 or more vacancies may be held
at the same time.

8. Other matters

Clauses 15 and 17 of Schedule 2 and clauses 12 and 13 of Schedule 3 apply to a
countback of votes.





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10. Counting of votes at a countback



(1) The returning officer may count the votes at a countback manually or by
the use of electronic counting equipment and systems.

(2) The returning officer must not use electronic counting equipment and
systems unless the returning officer, after conducting any tests for the
purpose that the returning officer considers appropriate, certifies in writing
that-

   (a)  the electronic form of the ballot-papers is an accurate copy of all
        the ballot-papers on which a vote was cast in the relevant election;
        and

   (b)  the countback can be conducted using electronic counting equipment and
        systems.

(3) If the countback is conducted using electronic counting equipment and
systems, the returning officer may modify the process applying under clauses
11 to 16 to the extent necessary to facilitate the use of the electronic
counting equipment and systems.

11. Relevant ballot-papers to be ascertained

The following ballot-papers must be brought together-

   (a)  if the vacating Councillor obtained a quota on first preferences, all
        the ballot-papers on which those preferences are marked; or

   (b)  if the vacating Councillor was elected after a transfer or transfers
        of ballot-papers-

   (i)  all the ballot-papers counted to the vacating Councillor at the time
        that she or he was elected; and

   (ii) if the vacating Councillor was declared elected under clause 11B(19)
        of Schedule 3 following the exclusion of a candidate, all of the
        ballot-papers that-

                (A)  were not transferred to her or him from that candidate or
                     those candidates because it was unnecessary; and

                (B)  showed a next available preference for the vacating
                     Councillor.



12. Votes to be transferred from vacating Councillor to eligible candidates



(1) Those ballot-papers must then be transferred to the participating eligible
candidates in accordance with the next available preference shown on the
ballot-papers, at their respective transfer values, beginning with the
ballot-papers with the highest transfer value and ending with the
ballot-papers with the lowest transfer value, and must be transferred as
follows-

   (a)  the total number of ballot-papers of a particular transfer value that
        show the next available preference for a particular participating
        eligible candidate must be multiplied by that transfer value; and

   (b)  the number obtained under paragraph (a) (disregarding any fraction)
        must be credited as votes to that candidate; and

   (c)  all those ballot-papers must be transferred to that candidate.

(2) The transfer value of a ballot-paper is-

   (a)  in the case of a ballot-paper received by the vacating Councillor as a
        first preference-1;

   (b)  in the case of a ballot-paper received by the vacating Councillor
        after the count of first preferences, but before the transfer at which
        she or he was elected-the transfer value at which it was received by
        the vacating Councillor;

   (c)  in the case of a ballot-paper received by the vacating Councillor at
        the transfer at which she or he was elected-the number obtained by
        dividing the number of votes by which the vacating Councillor,
        immediately before that transfer, was short of the quota, by the
        number of ballot-papers transferred to the vacating Councillor at that
        transfer;

   (d)  in the case of a ballot-paper specified in clause 11(b)(ii)-the
        transfer value at which the ballot-paper would have been transferred
        to the vacating Councillor if a transfer had been necessary.

(3) For the purposes of this clause-

   (a)  a preference expressed for one of the following people is to be
        disregarded-

   (i)  the vacating Councillor; or

   (ii) a person elected at the relevant election or at a countback of votes;
        or

   (iii) a person who is not participating in the countback of votes; and

   (b)  a preference that has been disregarded is to be taken to be
        substituted for the next available preference on the ballot-paper that
        is not for a person listed in paragraph (a)(i), (ii) or (iii); and

   (c)  a first preference for a participating eligible candidate who was
        excluded at the relevant election that appears on a ballot-paper that
        was transferred to the vacating Councillor is to be counted for that
        candidate.

13. Countback to be stopped if absolute majority obtained



(1) After the transfers required by clause 12 have been completed, if a
participating eligible candidate has an absolute majority the returning
officer must declare that candidate to be elected.

(2) For the purposes of this clause, a candidate has an absolute majority if
the number of votes credited to that candidate is more than 50% of the total
number of votes credited to all the participating eligible candidates after
the transfers.

14. Next stage (if necessary)



(1) If no participating eligible candidate has an absolute majority of votes,
the participating eligible candidate with the fewest votes must be excluded.

(2) The excluded candidate's ballot-papers must be transferred to the
continuing participating eligible candidates in accordance with the
preferences shown on those ballot-papers, at their respective transfer values,
beginning with the ballot-papers with the highest transfer value and ending
with those with the lowest transfer value, as follows-

   (a)  the total number of ballot-papers received by the excluded candidate
        at a particular transfer value and expressing the next available
        preference for a particular continuing eligible candidate must be
        multiplied by that transfer value; and

   (b)  the number obtained under paragraph (a) (disregarding any fraction)
        must be added to the number of votes of that continuing candidate; and

   (c)  all those ballot-papers must be transferred to that continuing
        candidate.

(3) The transfer value of a ballot-paper for the purposes of this clause is
the same as the transfer value set out in clause 12(2).

(4) After doing this in respect of each continuing participating eligible
candidate, if a candidate has an absolute majority the returning officer must
declare that candidate to be elected.



(5) For the purposes of this clause, a candidate has an absolute majority if
the number of votes credited to that candidate is more than 50% of the total
number of votes credited to all the continuing participating eligible
candidates after the transfers and additions required by subclause (2).

15. Process if vote equal



(1) If-

   (a)  a participating eligible candidate must be excluded; and

   (b)  2 or more of the continuing participating eligible candidates having
        the fewest votes have an equal number of votes after the process
        referred to in clause 13 or clause 14-

the candidate who had the fewest votes at the last count or transfer at which
they had an unequal number of votes is to be excluded.

(2) If there is no stage at which the 2 or more continuing participating
eligible candidates had an unequal number of votes, the returning officer must
decide by lot which candidate is to be excluded.

16. Final stage (if necessary)



(1) If no participating eligible candidate has an absolute majority of votes
the process described in clause 14 must be repeated until-

   (a)  a participating eligible candidate receives an absolute majority
        within the meaning of clause 14(5); or

   (b)  there are only 2 continuing participating eligible candidates, neither
        of whom has an absolute majority of votes.

(2) If subclause (1)(b) applies, the returning officer must declare to be
elected the candidate who had the most votes at the last count or transfer at
which the 2 candidates had an unequal number of votes.

(3) If there is no stage at which the 2 candidates had an unequal number of
votes, the returning officer must decide by lot which candidate is to be
elected.

17. Declaration of result



(1) As soon as possible after the election of a candidate, the returning
officer must publicly declare that candidate to be elected.

(2) The returning officer must as soon as is practicable after making such a
declaration-

   (a)  give public notice of the name of the person elected; and

   (b)  advise the Minister of the result.



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19. Replacement of a Councillor elected at a countback



(1) In this clause-

first vacating Councillor means a vacating Councillor who was elected at a
general election; later vacating Councillor means a vacating Councillor who
was elected to the office held by the first vacating Councillor as a result of
a countback of votes under this Schedule (even if she or he is not the
immediate successor of the first vacating Councillor).

(2) If an extraordinary vacancy is caused by the departure of a later vacating
Councillor, a reference in this Part (other than in subclause (1)) to vacating
Councillor is to be read as a reference to the first vacating Councillor.



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