ELECTORAL ACT 1907 - SECT 144

ELECTORAL ACT 1907 - SECT 144

144 .         Count of votes by returning officer, procedure for

        (1)         The procedure at the count of the votes by the returning officer for each district shall, if there are only 2 candidates, be as follows:

            (a)         The returning officer shall —

                  (i)         open all ballot boxes not opened by assistant returning officers; and

                  (ii)         count all the votes on the ballot papers found in such ballot boxes, rejecting all informal ballot papers, and ascertain the number of votes given for each candidate; and

                  (iii)         make and keep a record of the number of votes counted from each ballot box.

            (b)         The returning officer shall then —

                  (i)         ascertain from the communications received from assistant returning officers the number of votes given for each candidate at polling places where the ballot boxes have been opened by assistant returning officers and by persons voting at general polling places, absent voters and persons voting provisionally under section 119(4a), 122(2), or 122A and persons voting by early vote; and

            (ia)         ascertain and keep a record of the number of votes given for each candidate under Division 3 Subdivision 2; and

                  (ii)         add the votes so given for each candidate to the votes counted by himself in favour of each such candidate, so as to ascertain, for the whole district, the number of votes given for each candidate respectively.

            (c)         The candidate who has received the largest number of votes shall be declared by the returning officer duly elected.

            (d)         If the candidates have an equal number of votes section 145 applies.

        (2)         The procedure at the count of the votes by the returning officer for each district, if there are more candidates than 2, shall be as follows:

            (a)         The returning officer shall —

                  (i)         open all ballot boxes not opened by assistant returning officers; and

                  (ii)         arrange the ballot papers under the names of the respective candidates and place in a separate parcel all those on which a first preference is indicated for the same candidate, rejecting informal ballot papers; and

                  (iii)         count all the first preference votes given for each candidate respectively; and

                  (iv)         make and keep a record of the number of votes counted by him from each ballot box.

            (b)         The returning officer shall then —

                  (i)         ascertain from the communications received from assistant returning officers the number of first preference votes given for each candidate at polling places where the ballot boxes have been opened by such assistant returning officers and by persons voting at general polling places, absent voters and persons voting provisionally under section 119(4a), 122(2), or 122A and persons voting by early vote; and

            (ia)         ascertain and keep a record of the number of first preference votes given for each candidate under Division 3 Subdivision 2; and

                  (ii)         add the first preference votes so given for each candidate to the votes counted by himself in favour of each such candidate, so as to ascertain, for the whole district, the number of first preference votes polled by each candidate respectively.

            (c)         The candidate who has received the largest number of first preference votes shall, if such number constitutes an absolute majority of votes, be declared by the returning officer duly elected.

            (d)         If no candidate has an absolute majority of votes the returning officer —

                  (i)         shall open the packets of ballot papers received from the assistant returning officers, including ballot papers used for voting at general polling places, absent voters’ ballot papers and ballot papers used for provisional voting under section 119(4a), 122(2), or 122A and early ballot papers and deal with the ballot papers contained therein as prescribed by paragraph (a)(ii), adding such ballot papers to those previously counted by himself for each candidate; and

            (ia)         shall ascertain and keep a record of the number of first preference votes given for each candidate under Division 3 Subdivision 2, adding the votes to those previously counted by the returning officer for each candidate; and

                  (ii)         shall then declare the candidate who has obtained the fewest first preference votes to be a defeated candidate, and each ballot paper or vote record counted to the defeated candidate shall be distributed among the non-defeated candidates next in order of the elector’s preference.

            (e)         After such distribution the number of votes given to each non-defeated candidate shall again be ascertained.

            (ea)         The candidate who then has obtained the largest number of votes shall, if such number constitutes an absolute majority of votes, be declared duly elected.

            (f)         If no candidate then has an absolute majority of votes the process of declaring the candidate who has the fewest votes to be defeated, and distributing each of his ballot papers and vote records amongst the non-defeated candidates next in order of the voter’s preference shall be repeated, and the votes re-counted after every such redistribution until one candidate has obtained an absolute majority of votes, and such candidate shall then be declared duly elected.

            (fa)         A ballot paper or vote record shall be set aside as exhausted where on a count it is found that the ballot paper or vote record expresses no preference for any non-defeated candidate.

            (g)         If, after any count, the candidate with the fewest votes has to be declared to be defeated under paragraph (d) or (f), and 2 or more candidates (in this paragraph called the tied candidates ) have an equal number of votes (each other candidate having a larger number of votes) —

                  (i)         the returning officer shall make out in respect of each of the tied candidates a slip bearing the name of the candidate, and deal with the slips in accordance with Schedule 2; and

                  (ii)         the candidate whose name is on the slip obtained by the returning officer in accordance with clause 5 of Schedule 2 shall be declared to be defeated.

            (h)         If after any count 2 or more candidates have an equal number of votes and they are the only candidates, or the only non-defeated candidates, section 145 applies.

        (2a)         Where there are more candidates than 2 then, notwithstanding that a candidate has been declared duly elected, the process of excluding the candidate who has the fewest votes and distributing that candidate’s preferences to the candidate next in order of the elector’s preference shall be continued until there are only 2 unexcluded candidates.

        (2b)         At any time before a candidate has been declared duly elected the returning officer may, if he thinks fit, make a fresh scrutiny of all the ballot papers and vote records or any parcel of them and for that purpose has the same power in relation to the counting of the votes as on the first scrutiny and may reverse any decision given by an assistant returning officer on the original scrutiny and if after such scrutiny one of the candidates is found to have obtained an absolute majority of votes shall declare that candidate duly elected.

        (3)         In this section absolute majority of votes means a greater number than one-half of the whole number of ballot papers and vote records other than informal ballot papers and vote records.

        (3A)         For the purposes of subsection (3), if at any stage of the count, ballot papers or vote records have been set aside under subsection (2)(fa), the whole number of ballot papers and vote records, at that stage, are to be taken to be reduced by the number of those ballot papers and vote records set aside.

        (4)         Where the returning officer is satisfied that the votes —

            (a)         on any ballot papers issued at some remote polling place in connection with the election, which have not been received by him; and

            (b)         on any ballot papers used for voting at general polling places or absent voters’ ballot papers or ballot papers used for provisional voting under section 119(4a), 122(2), or 122A or ballot papers used for voting by early vote which have not been received by him,

                cannot, having regard to the number of those ballot papers, possibly affect the result of the election, he may subject to the concurrence of the Electoral Commissioner —

            (c)         if there are only 2 candidates, declare the candidate who has received the largest number of votes on the ballot papers then received and counted to be duly elected; or

            (d)         if there are more than 2 candidates and one candidate has received an absolute majority of the votes on the ballot papers then received and counted, declare such candidate duly elected; or

            (e)         if no candidate has an absolute majority of the votes, then received and counted, proceed with the scrutiny;

                without awaiting the receipt of the ballot papers which have not been received by him.

        [Section 144 amended: No. 59 of 1919 s. 5; No. 63 of 1948 s. 22; No. 57 of 1952 s. 12; No. 40 of 1987 s. 71 and 84; No. 79 of 1987 s. 64; No. 43 of 1996 s. 19; No. 36 of 2000 s. 48(8) and (9), 53, 69 and 82; No. 14 of 2016 s. 20.]