Local Government Act Amendment Act 1978 (Qld)

375 Q to itsf ANNO' VICESIMO SEPTIMO ELIZABETHAE SECUNDAE REGINAE No. 50 of 1978 An Act to amend the Local Government Act 1936-1977 in certain particulars [ASSENTED TO 12TH JUNE, 1978] BE IT ENACTED by the Queen's Most Excellent Majesty, by and with the advice and consent of the Legislative Assembly of Queensland in Parliament assembled , and by the authority of the same , as follows:- 1. Short title and citation . (1) This Act may be cited as the Local Government Act Amendment Act 1978. (2) In this Act the Local Government Act 1936-1977 is referred to as the Principal Act. (3) The Principal Act as amended by this Act may be cited as the Local Government Act 1936-1978.

376 Local Government Act Amendment Act 1978, No. 50 2. Amendment of s. 4 . Section 4 of the Principal Act is amended by- (a) omitting from the third paragraph of subsection (9) the words " chairman and members of the "; (b) omitting from paragraph (viii) of subsection (9c) the words " chairman and members of the ". 3. Amendment of s. 5 . Section 5 of the Principal Act is amended by- (a) in paragraph (ii) of subsection (1)- (i) omitting provision (h); (ii) relettering provision (i) and provision (j) as provision (h) and provision (i) respectively; (iii) inserting in provision (i) as so relettered after the word " Town " the words " or Shire "; (iv) omitting the proviso; (v) omitting the paragraph commencing with the words " The same or any subsequent Order in Council "; (b) omitting from provision (a) of paragraph (v) of subsection (2) all words from and including the words " other Local Authority " to the end thereof and substituting the words " Valuer-General pursuant to the Valuation of Land Act1944-1977 ". 4. Amendment of s. 6 . Section 6 of the Principal Act is amended in subsection (1) by- (a) omitting from paragraph (i) the sentence commencing with the words " If the Town is divided " and substituting the following sentences:- " If the Town is divided into divisions for the purposes of this Part IV only of this Act, each division shall be assigned in like manner from time to time one or more members. All members, including the chairman where a member is appointed as chairman from amongst their number pursuant to a direction of the Governor in Council under section 7 (5) (b), but, in any other case, excluding the chairman, shall be so assigned."; (b) in paragraph (ii)- (i) omitting the first and second paragraphs and substituting the following paragraphs:- " Every Shire shall be governed by a council comprised of not more than 13 members including the chairman, and not less than five members, including the chairman, as the Governor in Council from time to time declares by Order in Council. If the Shire is divided into divisions for the purposes of this Part IV, each division shall be assigned in like manner from time to time one or more members. Ali members, including the chairman where a member is appointed as chairman from amongst their number pursuant to a direction of the Governor in Council under section 7 (5) (b), but, in any other case, excluding the chairman, shall be so assigned. The number so assigned need not be the same for each division."; (ii) omitting the last paragraph and substituting the following paragraph :- " The chairman- (a) not being appointed as such by the members pursuant to section 7 (5) (c), shall not be assigned to any division; (b) shall be a member and councillor by virtue of his office.".

Local Government Act Amendment Act 1978, No. 50 377 5. Amendment of s. 7. Section 7 of the Principal Act is amended by- (a) omitting from paragraph (iii) of subsection (3) the words " the triennial " and substituting the words " a triennial or a fresh "; (b) omitting subsection (5) and substituting the following subsection:- " (5) Voters. (a) Save where the Governor in Council directs pursuant to paragraph (b) that the chairman shall be appointed by the members from amongst their number- (i) the chairman shall be elected by the electors of the Area; and (ii) the other members shall be elected- (A) where the Area is not divided, by the electors of the Area: and (B) where the Area is divided, for each division, by the electors of that division. (b) The Governor in Council may, on his own motion or on the application of the Local Authority of an Area, by Order in Council, direct that, on and after the date of the publication thereof or some other date specified therein and until the direction is by Order in Council cancelled, the chairman of a Local Authority shall be appointed by the members from amongst their number and thereupon the provisions of paragraphs (c), (d), (e), (f) and (g) shall apply. (c) Where the Governor in Council directs pursuant to paragraph (b) that the chairman shall be appointed by the members from amongst their number- (i) the chairman in office at the date of the publication of the Order in Council shall remain in office until the conclusion of the next ensuing triennial election or fresh election as the case may be; and (ii) the members present at the first meeting of the Local Authority after the conclusion of- (A) each triennial election held pursuant to subsection (8); and (B) each fresh election held pursuant to section 4 (9), 4 (9A) or 8, or at some adjournment of such meeting shall appoint one of their number to be chairman who shall, subject to this Act, hold office until the conclusion of the next triennial election. Until a chairman is appointed pursuant to this paragraph the clerk shall preside at the meeting referred to in provision (ii) and at all adjournments thereof until a chairman has been appointed and while so presiding shall have and may exercise all the powers and authorities of the chairman other than the right to vote. (d) Where twenty-one days after the day appointed for holding the first meeting of the Local Authority after the conclusion of the triennial election or fresh election, as the case may be, have elapsed and no appointment of a member to be chairman has been made, the Governor in Council may appoint a member to be chairman and the member so appointed shall be deemed to have been duly appointed by the members of the Local Authority under paragraph (c). 13 67042

378 Local Government Act Amendment Act 1978, No. 50 (e) Subject to paragraph (f), at a meeting of the Local Authority, the members present may appoint one of the members to be chairman in place of the chairman previously appointed and then in office in which case the member so appointed shall assume office as chairman and, subject to this Act, shall hold office until the conclusion of the next triennial election. (f) A resolution for the appointment of one of the members to be chairman in place of the chairman then in office shall not be passed by the Local Authority unless notice of intention to move such resolution is given to each of the members including the chairman not less than fourteen days before the date of the meeting at which the resolution is to be moved. (g) The office of a chairman appointed pursuant to paragraph (c) is vacated in addition to the circumstances set out in subsection (4), if another member is appointed to be chairman under paragraph (e)."; (c) in subsection (8)- (i) omitting paragraph (i) and substituting the following paragraph:- " (i) In every Area, a triennial election of the Council constituting the Local Authority of such Area shall be held."; (ii) omitting from paragraph (ii) the words " chairman and members " and substituting the words " Council constituting the Local Authority "; (iii) omitting paragraph (iii) and substituting the following paragraph:- ( iii) Each triennial election- (a) where the Governor in Council has directed pursuant to subsection (5) (b) that the chairman be appointed by the members from amongst their number, shall be for the election of the whole number of members only of which the Council constituting the Local Authority is comprised; (b) in any other case, shall be for the election of the chairman and the whole number of members of which the Council constituting the Local Authority is comprised."; (d) in subsection (10)- (i) inserting in paragraph (ii) after the words " In the case of a Town " the words ", other than a Town in respect of which a direction of the Governor in Council pursuant to subsection (5) (b) that the chairman shall be appointed by the members from amongst their number is current "; (ii) inserting in paragraph (iii) after the word " hereinbefore " the words " in this subsection ". 6. New s. 8A. The Principal Act is amended by inserting after section 8 the following section:- " 8A. Extension of term of Council elected at fresh election. Where- (a) the Council constituting the Local Authority of an Area has been elected at a fresh election held pursuant to a direction under section 4 (9) or 8; and (b) the period of time between the date of the conclusion of that fresh election and the date upon which the next ensuing triennial election of the Council constituting

Local Government Act Amendment Act 1978, No. 50 379 the Local Authority is appointed to be held under section 7 (8) is less than twelve months, the Governor in Council may direct by Order in Council that that triennial election shall not be held whereupon the Council constituting the Local Authority elected at the fresh election shall continue in office as if the triennial election had been held and each member thereof shall be deemed to have been duly elected thereat.". 7. Amendment of s. 19 . Section 19 of the Principal Act is amended by inserting in subsection (4) at the end thereof the following paragraph: " In determining which tender or quotation is the most advantageous in respect of a contract for the furnishing of any goods or materials to be financed either wholly or partly by way of money borrowed pursuant to the provisions of section 22 or by way of subsidy paid by the Treasurer of Queensland, a Local Authority may take into consideration the requirements of the Treasurer of Queensland at the material time in relation to the granting of preference to manufacturers.". 8. Amendment of s. 21 . Section 21 of the Principal Act is amended by- (a) omitting from the second paragraph of the section the words " (10) Rural rate; " and substituting the following words:- " (10) Rural and rural residential rates; (10A) Differential urban rates;"; (b) omitting subsection (1) and substituting the following subsection:- " (1) (a) General rate. The Local Authority shall in each year make and levy a general rate upon the rateable value of land in the Area. Except as hereinafter provided such rate shall be made and levied equally upon the rateable value of land in the Area. (b) Case of divisions . Where an Area is divided the amounts of the general rates made and levied upon t''e rateable land in the several divisions need not be the same, but every general rate made and levied in respect of a division shall, except as hereinafter provided, be made and levied equally upon the rateable value of all rateable land in the division. (c) Application of general rate. A general rate made and levied pursuant to this subsection shall be applied, in accordance with the provisions of the Act, to defray the expenses to be incurred by the Local Authority in exercising and performing all or any of the functions of local government with the following exceptions, namely:- (i) undertakings; (ii) sewerage undertakings and cleansing services; and (iii) agricultural drainage, but such exceptions do not preclude payments authorized by this Act to be made in respect of such undertakings, sewerage undertakings, cleansing services and agricultural drainage from the general rate.";

380 Local Government Act Amendment Act 1978, No. 50 (c) omitting the heading occurring immediately before subsection (10) being the words " RURAL RATE " and substituting the heading " RURAL AND RURAL RESIDENTIAL RATES "; (d) omitting subsection (10) and substituting the following subsection:- " (10) Rural and rural residential rates. (i) Notwithstanding the provisions hereinbefore contained in this section requiring the general rate to be made and levied equally upon the rateable value of rateable land in any Area or division, any such rate- (a) on the rateable value of rateable land in any Area or division which is not in demand for building sites or residential areas or for any purpose other than rural pursuits, and which in the opinion of the Local Authority is being reasonably used for primary production or cannot be put to any profitable use at the time any such rate is made and levied; or (b) on the rateable value of rateable land in any Area or division (not being land of a class referred to in provision (a)) that is included in a Rural Residential Zone or similar zone under a town planning scheme prepared by the Local Authority and approved by the Governor in Council pursuant to this Act or that is being used for a purpose normally associated with land included in such a zone, may be less in amount than the amount of any such rate made and levied on the rateable value of other rateable land in the same Area or division. (ii) In the implementation of this subsection, a Local Authority may make and levy- (a) general rates on the rateable value of rateable land described in paragraph (i) (a) at two levels of rating, one being at a higher level than the other, where in the opinion of the Local Authority as expressed in a resolution of the Local Authority detailing the circumstances and defining the lands subject to each of the two levels of rating, such differential rating is warranted; (b) a general rate on the rateable value of rateable land described in paragraph (i) (b) of a different amount than the general rate made and levied on the rateable value of land described in paragraph (i) (a)."; (e) inserting after subsection (10) the following heading and subsection:- " DIFFERENTIAL URBAN RATES (10A) Differential urban rates . (i) Where a Local Authority resolves to make and levy a general rate or general rates in accordance with subsection (10) on the rateable value of rateable land in its Area or a division thereof described in paragraph (i) (a) of that subsection, it may, with the prior approval of the Governor in Council, make and levy rates on the rateable value of remaining land in the Area or division as the case may be, at two levels of rating, one being at a higher level than the other, where, in the opinion of the Local Authority as expressed in a resolution of the

Local Government Act Amendment Act 1978, No. 50 381 Local Authority detailing the circumstances and defining the land subject to each of the two levels of rating, such differential rating is warranted. (ii) Land may be defined for the purposes of paragraph (i) by reference to the real property description or the metes and bounds of the land or by delineation of that land on a map.". 9. Amendment of s. 23. Section 23 of the Principal Act is amended by inserting in paragraph (ii) of subsection (2) after provision (f) the following expression and words:- f( (g) In the discretion of the Local Authority, but subject to regulations, the transfer of moneys to the long service leave payments reserve fund if any ". 10. Amendment of s. 23A. Section 23A of the Principal Act is amended by omitting paragraph (i) of subsection (2) and substituting the following paragraph:- " (i) The long service leave payments reserve fund shall consist of all moneys from time to time received from the general fund or any other fund from which salaries or wages of officers or servants of the Local Authority are paid, being moneys the payment of which in any year from the general fund or such other fund, whether by way of oncost charges or otherwise, has been authorized by the Local Authority by resolution.". 11. Amendment of s. 24 . Section 24 of the Principal Act is amended by omitting from subsection (1) (i) (f) provision (7) and substituting the following provision:- (7) A college and/or hostel for students of any primary, secondary, technical or tertiary educational institution: ". 12. Amendment of s. 25. Section 25 of the Principal Act is amended by- (a) omitting subsection (2) and substituting the following Subsection:- " (2) Separate budgets for funds . Subject to subsection (5), the Local Authority shall cause to be framed a separate budget for each fund established and kept by it pursuant to sections 23 and 23A."; (b) omitting from subsection (4) paragraph (iii) and substituting the following paragraph:- " (iii) (a) The Local Authority shall observe the budget and, subject to paragraph (b), shall as nearly as may be balance such budget. (b) Paragraph (a) shall not apply in respect of the budgets for the plant maintenance reserve fund, the plant renewal and purchase fund, the maintenance reserve fund, the undertaking renewal and purchase fund, the undertaking extension, renewal and improvement fund, the general reserve fund and the long service leave payments reserve fund.

382 Local Government Act Amendment Act 1978, No. 50 (c) If at the end of any year there is a surplus or deficit in any fund, such surplus or deficit shall be carried forward and in the case of an applicable fund shall be taken into account when framing the budget and when making and levying rates and charges in respect of that fund for the next ensuing year.". 13. Amendment of s. 32 . Section 32 of the Principal Act is amended by- (a) omitting subsection (2) and substituting the following subsection:- " (2) (i) Extension of service beyond Area. A Local Authority may with the approval of the Minister and the agreement of another Local Authority extend any work, service or undertaking into the Area of such other Local Authority. (ii) Contracts with other Local Authorities . A Local Authority which has undertaken or is undertaking the provision of sewerage or of an undertaking within the meaning of this Act may enter into contracts with another Local Authority for- (a) subject to the Minister's approval where prescribed in paragraph (i), the extension of sewerage or of the undertaking into the Area or part of the Area of that other Local Authority, or the interconnexion of sewerage or the undertaking in the two Areas; or (b) the supply and sale in bulk or otherwise of the product or service of the undertaking, on such terms and conditions as may be agreed upon between the Local Authorities. (iii) Settlement of Disputes . Where a Local Authority following a request to do so from another Local Authority fails within a reasonable time- (a) to agree to the extension of any work, service or undertaking into its Area or into the Area of that other Local Authority; or (b) to enter into a contract in respect of a matter referred to in paragraph (ii); or (c) to agree upon the terms and conditions of a proposed contract in respect of a matter referred to in paragraph (ii), then either Local Authority may refer the matter to the Minister. (iv) Where a contract has been made between Local Authorities, either before or after the commencement of the Local Government Act Amendment Act 1978, in respect of a matter referred to in paragraph (ii) and a Local Authority is dissatisfied with the terms and conditions thereof or with a decision of another Local Authority in relation thereto or some dispute of whatever nature and cause arises or has arisen in respect of that contract or to the implementation thereof then any Local Authority interested therein may refer the matter to the Minister. (v) Where any matter is referred to the Minister pursuant to paragraph (iii) or (iv), he shall make such investigations into the matter as he shall see fit and shall report thereon to the Governor in Council who shall determine the matter.

Local Government Act Amendment Act 1978, No. 50 383 (vi) A determination of the Governor in Council pursuant to paragraph (v) shall be final and shall be carried into effect by the Local Authorities concerned. (vii) Contracts with persons and bodies . Subject to the Minister's approval where prescribed in paragraph (i) and notwithstanding the provisions of section 21, the Local Authority which has undertaken or is undertaking the provision of sewerage or of an undertaking within the meaning of this Act may enter into contracts with any person or body either within or beyond its Area for the supply and sale of the product or service of such sewerage or such undertaking to him or them in such manner and under such conditions as the Local Authority thinks proper, and in so doing may make such arrangements as it may consider expedient with such person or body either individually or collectively for the erection, construction and maintenance of works ano any other matters, and things necessary for the sale and supply of such product or service of such sewerage or undertaking. (viii) For the purpose of this subsection, the term " Local Authority " shall include " Brisbane City Council "; (b) inserting after subsection (8c) the following subsection:- " (8D) Subject to compliance with the provisions of this subsection, the Local Authority may contribute to any Crown corporation or instrumentality, towards the cost of construction, operation and maintenance of any facility on land used for or in connexion with primary, secondary, technical or tertiary education purposes situated within the Area of the Local Authority or, with the prior approval of the Minister, outside that Area. A contribution under this subsection shall not be made unless such facility is made available for use by- (a) the Local Authority for public purposes; or (b) members of the public; or (c) both the Local Authority for public purposes and members of the public, in accordance with an agreement setting out the terms and conditions of such use and extent of use of such facility, executed prior to that contribution, by the Local Authority and the Crown Corporation or instrumentality.". 14. Amendment of s. 33. Section 33 of the Principal Act is amended by inserting after subsection (18n) the following subsection.- " (18c) Discretionary powers of Governor in Council and Court in case of non-compliance with procedure . (1) Where, in respect of- (a) an application by a Local Authority to the Minister for the approval of a town planning scheme under subsection (3); (b) an application by a Local Authority to the Minister for amendment of a town planning scheme under subsection (5); or (c) a recommendation of the Minister to amend a town planning scheme under subsection (6),

384 Local Government Act Amendment Act 1978, No. 50 any provision of the subsection in question has not been complied with but the Governor in Council considers- (i) that there has been substantial compliance with the provision; and (ii) that no person has been adversely affected by such non-compliance, the Governor in Council may direct that it be taken that such provision has been complied with and thereupon he may consider the application or recommendation concerned as if there had been full compliance with the subsection in question. (2) Where, in respect of- (a) an application to a Local Authority to exclude land from a zone and to include the land so excluded in another zone under subsection (6A); (b) an application to a Local Authority for approval, consent or permission to use any land or to erect or use any building or other structure for a purpose permitted by a town planning scheme; or (c) an application to a Local Authority for consent to use or develop land or use or erect a building or other structure for a purpose permitted under a by-law made by the Local Authority for controlling the use and development of land pending the coming into force of a town planning scheme, any provision of this section or of a by-law applying thereto has not been complied with but the Court considers- (i) that there has been substantial compliance with the provision; and (ii) that no person has been adversely affected by such non-compliance, the Court may direct that it be taken that such provision has been complied with and thereupon it shall be taken accordingly.". 15. Amendment of s. 34 . Section 34 of the Principal Act is amended by- (a) inserting in provision (b) of subsection (6) after the words " and drained " the words " and any other necessary works have been carried out (b) in subsection (7)- (i) inserting in the first paragraph after the words " draining the roads " the words " and carrying out any other necessary works "; (ii) omitting the words " work of constructing and draining the roads " where they appear in the second paragraph and substituting the words " works to be executed by the Local Authority "; (iii) omitting from the first and second paragraphs the word " work " wherever it appears and substituting in each case the word " works "; (c) in subsection (8)- (i) relettering provisions (b) and (c) as provisions (c) and (d) respectively; (ii) inserting after provision (a) the following provision:- (b) Any necessary works have been carried out in accordance with the requirements of the Local Authority or as may be prescribed by by-law; ";

Local Government Act Amendment Act 1978, No. 50 385 (d) omitting subsection (8A) and substituting the following subsection:- " (8A) If, at any time, the Minister is of the opinion that the Local Authority has failed to observe in any respect an agreement in connexion with the subdivision of land entered into between it and a person who is or was the applicant for the subdivision in question, the Minister may give to the Local Authority such orders and directions as he considers necessary to ensure the observance by it of the agreement. The Local Authority shall, within such time as the Minister may specify, carry out to his satisfaction the requirements of such orders and directions."; (e) inserting after subsection (12E) the following subsection:- " (12F) It shall not be competent for a Local Authority to require, either as a condition of approval of an application for a subdivision of land (whether or not the subdivision involves the opening of a road) or pursuant to a by-law, whether made before or after the date of the coming into force of this subsection, that works which the Local Authority may lawfully require to be executed in association with the subdivision of the land shall be so executed by the Local Authority.". 16. Amendment of s. 47. Section 47 of the Principal Act is amended in subsection (23) by omitting from the proviso to paragraph (a) the words "Any such rate shall be levied on the valuation made pursuant to the repealed provisions." and substituting the words " On and from the 1st July 1978 any such rate shall be made and levied on the rateable value of land.". 17. Amendment of s. 49AA. Section 49AA of the Principal Act is amended by- (a) inserting in the heading after the words " function room " the words " or theatre premises "; (b) inserting in subsection (1) after the definition " function room license " the following expression and definitions:- LC " theatre license " means a theatre license granted under and in accordance with the Liquor Act1912-1978; " theatre premises " means premises in respect of which a theatre license is in force at any material time"; (c) in subsection (2) inserting after the words " function room " the words " or theatre premises "; (d) in subsection (3)- (i) inserting after the words " the function room " the words " or theatre premises "; (ii) inserting after the words " function room license " the words or theatre license as the case may be "; (e) in subsection (4) inserting after the words " function room " the words " or theatre premises "; (f) in subsection (5)- (i) inserting after the words " the function room " the words " or theatre premises ";

386 Local Government Act Amendment Act 1978, No. 50 (ii) inserting after the words " that function room " the words " or, as the case may be, a theatre license granted under Part VIc of that Act in respect of those theatre premises "; (g) inserting in subsection (6) after the words " a function room " the words " or a theatre license in respect of theatre premises ". 18. Amendment of Third Schedule. The Third Schedule to the Principal Act is amended by- (a) in rule 1, inserting after the words " as the case may be " the following expression and definition:- (d) "Absolute majority of votes " means a number of votes greater than one-half of the number of all the electors who vote at an election, exclusive of electors whose ballot-papers are rejected; but the casting vote of the returning officer, when given, shall be included in reckoning an absolute majority of votes "; (b) omitting rule 17 and substituting the following rule:- " 17. Destination of money paid on nomination . The returning officer shall- (a) pay into the general fund the moneys paid to him as aforesaid by all such candidates as do not at the poll receive- (i) in the case where a system of preferential voting is operative a number of first preference votes equal at least to one-fifth part of the first preference votes received by the successful candidate; or (ii) in any other case a number of votes equal at least to one-fifth part of the votes received by the successful candidate (if there is only one) or such one of the successful candidates (if there are more than one) as received the smallest number of votes; and (b) after the election, repay to each candidate who has been returned without a poll, or who has received a number of votes or as the case may be first preference votes equal to the number of votes specified in paragraph (a), whether he is declared elected or not, the moneys so paid by or for him respectively, and the same may, in default of such repayment, be recovered by action before any two justices. In the case of an election for the office of member or members in a divided Area, for the purpose of ascertaining whether an unsuccessful candidate for a particular division is entitled to repayment of moneys paid in respect of his nomination, regard shall be had only to the number of votes or, as the case may be, first preference votes polled by candidates for office in that particular division."; (c) inserting after rule 21 the following rule:- " 21A. Preferential voting where directed by Governor in Council. (1) Subject to this rule, the Governor in Council, may, on his own motion or on the application of the Local Authority of an

Local Government Act Amendment Act 1978, No. 50 387 Area, by Order in Council, direct that, on and after the date specified therein and until the direction is cancelled by further Order in Council, voting at every triennial election and every fresh election held in an Area shall be conducted by a system of preferential voting. (2) The Governor in Council shall not make a direction pursuant to subrule (1) unless- (a) the Area is divided into divisions for the purposes of Part IV; and (b) one member only is to be returned to the Local Authority for each such division."; (d) in rule 22- (i) omitting the word " When " and substituting the words " Save where a system of preferential voting is operative pursuant to rule 21A, when "; (ii) numbering rule 22 as so amended as subrule (1); (iii) inserting after subrule (1) as so numbered the following subrules :- " (2) Where a system of preferential voting is operative pursuant to rule 21A and a poll is taken for the election for the office of chairman or, as the case may be, member- (a) the candidate who has received the largest number of first preference votes for each such office shall, if that number constitutes an absolute majority of votes, be elected; (b) if no candidate has received an absolute majority of first preference votes, the returning officer shall make a second count; (c) on the second count the candidate who has received the fewest first preference votes shall be excluded, and each ballot-paper counted to him shall be counted to the candidate next in the order of the voter's preference; (d) if any candidate then has an absolute majority of votes he shall be elected; but if no candidate then has an absolute majority of votes, the process of excluding the candidate who has the fewest votes and counting each of his ballot-papers to the continuing candidate next in the order of the voter's preference shall be repeated until one candidate has received an absolute majority of votes; (e) the candidate who has received an absolute majority of votes shall be elected. Subject to rule 23, if on any count two or more candidates have an equal number of votes, and one of them has to be excluded, that candidate amongst them who had the least number of votes at the last count at which they had not an equal number of votes, shall be excluded. If such candidates had an equal number of votes at all preceding counts or there was no preceding count, the returning officer shall determine between them by lot which of them shall be excluded.

388 Local Government Act Amendment Act 1978, No. 50 (3) In subrule (2)- continuing candidate " means the candidate not already excluded at the count; and determine by lot " means determine in accordance with the following direction:- The names of the candidates concerned having been written on similar slips of paper, and the slips having been folded so as to prevent identification and mixed and drawn at random the candidate whose name is first drawn shall be excluded."; (e) in rule 23, (i) omitting from subrule (1) the words " gross number of votes received for each candidate " and substituting the words " result of the election "; (ii) inserting after subrule (1) the following subrule:- " (IA) Where the returning officer has ascertained upon an examination and count of all the ballot-papers taken at the different polling places that the result of the election cannot be affected by any votes required to be counted under the provisions of these rules which he may receive thereafter, he may at once publicly notify as aforesaid the name of the candidate or candidates who has or have been elected. Nevertheless, he shall, in the manner hereinbefore prescribed, examine and count all such votes as are required to be counted under the provisions of these rules."; (iii) omitting subrule (2) and substituting the following subrule:- (2) In the event of- (a) where a system of preferential voting is operative pursuant to rule 21A, (i) there being two candidates only and they have an equal number of first preference votes; or (ii) a final count being made between two candidates and they have an equal number of votes; or (b) where no system of preferential voting is operative, any two or more candidates having an equal number of votes, the returning officer shall decide by his casting vote which shall be elected."; (iii) omitting from subrule (3) the words " the case of an equality of votes " and substituting the words " conformity with subrule (2) "; (f) in rule 47- (i) omitting subrule (1) and substituting the following subrule:- (1) The elector having received a ballot-paper- (a) where a system of preferential voting is operative pursuant to rule 21 A and in the case of an election for the office of chairman or, as the case may be, member,

Local Government Act Amendment Act 1978, No. 50 389 shall in one of the compartments provided for the purpose, place the figure 1 in the square opposite the name of the candidate for whom he votes as his first preference for each such office, and shall give contingent votes for all the remaining candidates by placing, as the case requires, the figures 2, 3, 4 (and so on, as the case requires) in the square opposite their names respectively so as to indicate by numerical sequence the order of his preference for them; or (b) in other cases, shall, in one of the compartments provided for the purpose, mark his ballot-paper-in the case of the election of chairman, by placing the figure 1 in the square opposite the name of the candidate for whom he desires to vote; and in the case of the election of members- (i) where one candidate has to be elected, by placing the figure 1 in the square opposite the name of the candidate for whom he desires to vote; or (ii) where more than one candidate has to be elected, by placing in the squares respectively opposite the names of the candidates for whom he desires to vote- (A) where two candidates have to be elected, the figures 1 and 2 respectively; (B) where three candidates have to be elected, the figures 1, 2 and 3 respectively, and so on, according to the number of candidates to be elected. Each vote so numbered in consecutive order shall be a vote. He shall make no other mark or writing thereon, and shall forthwith fold up the paper in such manner as will conceal his vote and deposit it in the ballot box in the presence of the presiding officer."; (ii) omitting paragraphs (b) and (c) from the second proviso of subrule (2) and substituting the following paragraph:- (b) Mark the ballot-paper as prescribed in subrule (1) in the manner the elector says he desires to vote."; (iii) relettering paragraph (d) as paragraph (c); (g) in rule 50- (i) omitting from subrule (1) the word " Every " and substituting the words " Save where a system of preferential voting is operative pursuant to rule 21 A, every "; (ii) inserting after subrule (1) as amended the following subrule:- " (IA) Where a system of preferential voting is operative pursuant to rule 21A, every ballot-paper which- (a) has no vote indicated on it, or does not have every square completed by consecutive figures commencing with the figure 1; or

390 Local Government Act Amendment Act 1978, No. 50 (b) has upon it any mark or writing not by these rules authorized to be put thereon which in the opinion of the returning officer will or may enable any person to identify the ballot-paper or the elector, shall be rejected at the close of the poll: Provided that where the elector has indicated his first preference for one candidate and his contingent votes for all remaining candidates except one, and the square opposite the name of that one candidate has been left blank, it shall be deemed that the voter's preference for that candidate is his last and that accordingly he has indicated the order of his preference for all candidates: Provided further that where there are two candidates only and the voter has indicated his vote by placing the figure 1 in the square opposite the name of one candidate and has left the other square blank, the voter shall be deemed to have indicated the order of his preference for the candidates."; (h) in rule 51- (i) inserting in provision (i) after the words " number of votes the words " or, where a system of preferential voting is operative, the number of first preference votes "; (ii) inserting in provision (ii) after the words " of the votes " the words " or, as the case may be, first preference votes "; (i) in rule 52- (i) inserting in provision (i) after the words " number of votes " the words " or, where a system of preferential voting is operative, the number of first preference votes "; (ii) inserting in provision (ii) after the words " of the votes " the words " or, as the case may be, first preference votes "; (j) in rule 53- (i) inserting in provision (i) after the words " number of votes " the words " or, where a system of preferential voting is operative, the gross number of first preference votes "; (ii) omitting provision (ii) and substituting the following provision:- (ii) In the presence of his poll clerk, if any, and of such candidates and scrutineers as may attend, open such sealed parcels and- (A) where a system of preferential voting is operative, examine and count the number of first preference votes for each candidate at each polling-place and if no candidate has received an absolute majority of first preference votes, make a second count and thereafter, if necessary, continue counting as prescribed by these rules until one candidate has received an absolute majority of votes; and (B) in any other case, examine and count the number of votes for each candidate at each polling-place; and "; (iii) omitting from provision (iii) the words "After having counted the same " and substituting the words "After ascertaining each candidate who has been elected ";

Local Government Act Amendment Act 1978, No. 50 391 (k) in rule 61, omitting provision (iv) and substituting the following provision:- (iivv)) The voter shall then, in the presence of but not in the sight of the person before whom he is voting or in the sight of any other person- (a) where a system of preferential voting is operative and in the case of an election for the office of chairman or, as the case may be, member, vote by placing the figure 1 in the square opposite the name of the candidate for whom he votes as his first preference for each such office, and giving contingent votes for all the remaining candidates by placing, as the case requires, the figures 2, 3, 4 (and so on, as the case requires) in the squares opposite their names respectively so as to indicate by numerical sequence the order of his preference for them; and (b) in other cases, vote-in the case of the election of chairman, by placing the figure 1 in the square opposite the name of the candidate for whom he desires to vote; and in the case of the election of members- (i) where one candidate has to be elected, by placing the figure 1 in the square opposite the name of the candidate for whom he desires to vote; or (ii) where more than one candidate has to be elected, by placing in the squares respectively opposite the names of the candidates for whom he desires to vote- (A) where two candidates have to be elected, the figures 1 and 2 respectively; (B) where three candidates have to be elected, the figures 1, 2 and 3 respectively, and so on, according to the number of candidates to be elected. Each vote so numbered in consecutive order shall be a vote. The voter shall make no other mark or writing on the postal ballot-paper; "; (1) omitting from provision (c) of subrule (1) of rule 65 the expression " 21 " and substituting the word " seven "; (m) in rule 78- (i) omitting from subrule (1) the word " Every " and substituting the words " Save where a system of preferential voting is operative pursuant to rule 21A, every "; (ii) inserting after subrule (1) as amended the following subrule:- " (lA) Where a system of preferential voting is operative pursuant to rule 21A, every ballot-paper which- (a) has no vote indicated on it, or does not have every square completed by consecutive figures commencing with the figure 1; or (b) has upon it any mark or writing not by these rules authorized to be put thereon which in the opinion of the returning officer will or may enable any person to identify the ballot-paper or the elector, shall be rejected at the close of the poll:

392 Local Government Act Amendment Act 1978, No. 50 Provided that where the elector has indicated his first preference for one candidate and his contingent votes for all remaining candidates except one, and the square opposite the name of that one candidate has been left blank, it shall be deemed that the voter's preference for that candidate is his last and that accordingly he has indicated the order of his preference for all candidates: Provided further that where there are two candidates only and the voter has indicated his vote by placing the figure 1 in the square opposite the name of one candidate and has left the other square blank, the voter shall be deemed to have indicated the order of his preference for the candidates.".