Torres Strait Regional Authority Election (Casual Vacancies) Rules 1998 (Cth)
Commonwealth of Australia
Aboriginal and Torres Strait Islander Commission Act 1989
Torres Strait Regional Authority Election (Casual Vacancies) Rules 1998
I, JOHN JOSEPH HERRON, Minister for Aboriginal and Torres Strait Islander Affairs, make the following Rules under section 143G of the Aboriginal and Torres Strait Islander Commission Act 1989.
Dated 1 May 1998.
JOHN HERRON
Minister for Aboriginal and Torres Strait Islander Affairs
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PART 1—PRELIMINARY
Name of Rules
1. These Rules are the Torres Strait Regional Authority Election (Casual Vacancies) Rules 1998.
Commencement
2. These Rules commence on gazettal.
Definitions
3. (1) In these Rules, unless the contrary intention appears:
Act means the Aboriginal and Torres Strait Islander Commission Act 1989.
by-election means a by-election conducted under Part 3.
casual vacancy means the vacancy in the Authority left by a former member.
declaration day means the day 21 days after the date shown on the notice sent by the returning officer under rule 7.
declaration time means 12.00 noon on declaration day.
elected member means a member of the Authority elected under the Torres Strait Regional Authority Election Rules or declared to be elected under these Rules.
former member means an elected member of the Authority:
(a) who has died or resigned from the Authority; or
(b) in relation to whom the Authority has made a declaration under subsection 143R (1), (1A) or (3) of the Act; or
(c) whom the Minister has removed from office under subsection 143S (5) or (6) or 143T (1) of the Act.
relevant election, for a casual vacancy, means the most recently held election for the relevant electorate.
relevant electorate, for a casual vacancy, means the electorate for which the former member was elected.
returning officer means a member of the staff of the Electoral Commission who is designated by the Electoral Commissioner as the returning officer for the filling of a casual vacancy.
unsuccessful candidate, for a casual vacancy, means a person:
(a) who was nominated for election in the relevant election; and
(b) whose nomination was accepted by the returning officer for the relevant election; and
(c) whose nomination was not withdrawn or cancelled before the hour of nomination; and
(d) who was not elected.
(2) In these Rules, unless the contrary intention appears, a word or phrase defined in the Torres Strait Regional Authority Election Rules has the same meaning as in those Rules.
Notice to Authority
4. If the Minister:
(a) receives the resignation of an elected member of the Authority under section 143Q of the Act; or
(b) removes an elected member of the Authority from office under subsection 143S (5) or (6) or 143T (1) of the Act;
the Minister must notify the Authority in writing of the casual vacancy.
Request to the Electoral Commissioner
5. (1) Subject to subrule (2), if:
(a) an elected member of the Authority dies; or
(b) the Authority receives notice from the Minister under rule 3; or
(c) the Authority makes a declaration in relation to an elected member of the Authority under subsection 143R (1) or (1A) of the Act, and:
(i) no action is taken by the person affected by the declaration under the Administrative Appeals Tribunal Act 1975; or
(ii) all action under that Act in relation to the declaration has been concluded); or
(d) the Authority makes a declaration in relation to an elected member of the Authority under subsection 143R (3) of the Act;
the Authority must ask the Electoral Commissioner to arrange for the filling of the casual vacancy in accordance with these Rules.
(2) Subrule (1) does not apply if the Minister has fixed a day or days for polling under subsection 142Y (2) of the Act.
Electoral Commissioner to fill casual vacancy
6. (1) If the Electoral Commissioner receives a request under rule 5, the Electoral Commissioner must arrange for the filling of the casual vacancy in accordance with these Rules.
(2) If the returning officer has not completed the process of filling a casual vacancy when the Minister fixes a day for a poll, the Electoral Commissioner must not complete the arrangements referred to in subrule (1).
(3) If there is no unsuccessful candidate, the Electoral Commissioner must, as soon as practicable, notify the Authority in writing accordingly.
PART 2—RECOUNT OF VOTES
Notice to unsuccessful candidates
7. (1) If a casual vacancy for an electorate is to be filled, the returning officer must give each unsuccessful candidate for the electorate a written notice:
(a) stating:
(i) that the vacancy exists; and
(ii) that a recount is to be held to fill the vacancy; and
(b) asking the unsuccessful candidate whether he or she wants to have his or her name included in the recount; and
(c) stating the address to which the unsuccessful candidate must send the declaration under rule 8.
(2) The notice under subrule (1) may be:
(a) delivered, or sent by prepaid post, to the unsuccessful candidate:
(i) at the address to which an objection to his or her enrolment must be sent under section 116 of the Electoral Act; or
(ii) if the unsuccessful candidate is no longer on a Roll, at the address to which an objection would have had to be sent under section 116 of the Electoral Act on the last occasion when he or she was enrolled; or
(b) given to the unsuccessful candidate by hand.
(3) The returning officer must also publish a notice in a newspaper circulating in the relevant electorate stating:
(a) that the vacancy exists; and
(b) the time and place that is fixed for the recount.
Declaration by unsuccessful candidate
8. (1) If an unsuccessful candidate wants to be included in the recount, the unsuccessful candidate must declare that he or she:
(a) is qualified under section 142V of the Act to be elected as a member for the relevant electorate; and
(b) consents to act if elected.
(2) A declaration made under subrule (1) must be:
(a) in the approved form; and
(b) signed by the unsuccessful candidate in the presence of an authorised witness.
(3) A declaration made under this rule must be given or sent to the returning officer:
(a) by hand; or
(b) by post; or
(c) by facsimile transmission.
Time for receipt of declarations
9. A declaration must be received at the address specified under paragraph 7 (1) (c) by the declaration time.
Rejection of declaration
10. (1) Subject to subrule (2), a declaration must be rejected by the returning officer if, and only if, it does not comply with rules 8 and 9.
(2) A declaration must not be rejected because of a formal defect or error if it substantially complies with rule 8.
Withdrawal of declaration
11. (1) An unsuccessful candidate may withdraw his or her declaration before the declaration time by lodging a notice of withdrawal with the returning officer.
(2) If a declaration is withdrawn under subrule (1), the unsuccessful candidate must not be included in the recount.
(3) A notice under this rule must be given or sent to the returning officer:
(a) by hand; or
(b) by post; or
(c) by facsimile transmission.
Proceedings on declaration day
12. At the declaration time the returning officer must:
(a) attend at the address specified under paragraph 7 (1) (c); and
(b) produce all declarations received from unsuccessful candidates under rule 8; and
(c) announce the names and places of residence of those unsuccessful candidates.
Further action in relation to declarations
13. (1) If no unsuccessful candidate has made a declaration, the Electoral Commissioner must notify the Authority in writing that he or she cannot proceed with the filling of the casual vacancy by recounting votes.
(2) If only 1 unsuccessful candidate has made a declaration, the returning officer must declare that unsuccessful candidate to be elected.
(3) If more than 1 unsuccessful candidate has made a declaration, a recount must be held.
(4) If the Authority receives a notice from the Electoral Commissioner under subrule (1) or subrule 6 (3), the Authority must notify the Minister that the vacancy cannot be filled by recounting votes.
(5) If the returning officer declares a candidate to be elected under subrule (2), the returning officer must, as soon as practicable after declaration time:
(a) make and sign a statement setting out the name of the person elected; and
(b) give a copy of the statement to the Electoral Commissioner.
(6) As soon as practicable after receiving the statement, the Electoral Commissioner must give a copy of the statement to the Authority.
Public notice of proceedings on declaration day
14. (1) As soon as practicable after declaration day, the returning officer must arrange for a statement of the proceedings on declaration day to be published in a newspaper circulating in the relevant electorate.
(2) The statement must set out:
(a) the names and places of residence of the unsuccessful candidates (if any) from whom declarations have been received; and
(b) the further action taken, or to be taken, under subrule 13 (1), (2) or (3).
Returning officer to conduct recount
15. If a recount is to be held, the returning officer must proceed to a recount of the votes cast in the relevant election as soon as practicable after declaration time.
Scrutineers at the recount
16. (1) Each unsuccessful candidate whose name is included in the recount may appoint scrutineers to represent him or her at the recount.
(2) An unsuccessful candidate is not entitled to be represented at the recount by a number of scrutineers that is greater than the number of officers engaged in the recount.
(3) An appointment of a scrutineer must:
(a) be made in writing signed by the unsuccessful candidate; and
(b) state the name and address of the scrutineer; and
(c) be given or sent to the returning officer:
(i) by hand; or
(ii) by post; or
(iii) by facsimile transmission.
(4) Every scrutineer must sign an undertaking in the approved form.
(5) All proceedings at the recount must be open to the inspection of the scrutineers.
Conduct of the recount
17. The returning officer must conduct the recount in accordance with the Schedule.
Declaration of the recount
18. (1) As soon as practicable after the result of the recount has been decided, the returning officer must:
(a) make and sign a statement setting out the result of the recount and the name of the person elected; and
(b) give a copy of the statement to the Electoral Commissioner; and
(c) arrange for a copy of the statement to be published in a newspaper circulating in the relevant electorate.
(2) As soon as practicable after receiving the statement, the Electoral Commissioner must give a copy of the statement to the Authority.
PART 3—BY-ELECTIONS
Conduct of by-elections
19. (1) If the Authority notifies the Minister under subrule 13 (4) that the Electoral Commissioner cannot proceed with the filling of a casual vacancy by recounting votes, a by-election must be held to fill the casual vacancy, unless the vacancy arises in a calendar year in which an election is to be held.
(2) The by-election must be conducted in accordance with the Torres Strait Regional Authority Election Rules in force on the day on which the notice is published in the Gazette under subrule 20 (2) as if the by-election were an election for the relevant electorate.
Timing of by-elections and location of polling places
20. (1) The Minister must, by notice, fix a day or days for polling in a by-election.
(2) The Minister must issue the notice:
(a) within a period of not more than 12 months after the casual vacancy arises; and
(b) subject to subrule (3), before the beginning of the year in which the next election is to be held.
(3) If it is not possible to issue the notice before the beginning of the year in which the next election is to be held, the Minister must issue the notice as soon as practicable after the beginning of the year.
(4) The Minister must publish a copy of the notice in the Gazette at least 60 days before the day, or the first of the days, fixed in the notice.
(5) The Electoral Commissioner must, by notice, appoint by name the polling places he or she considers necessary for the by-election.
(6) The Electoral Commissioner must give a copy of the notice to the Authority at least 14 days before the day, or the first of the days, fixed under subrule (1).
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SCHEDULE Rule 17
PROCEDURE AT THE RECOUNT
1. (1) In this Schedule, unless the contrary intention appears:
ballot-papers of the former member means:
(a) if the former member obtained an absolute majority on first preferences—the ballot-papers on which those first preferences are marked; or
(b) if the former member was elected after a transfer or transfers of ballot-papers—all the ballot-papers counted to the former member at the time when he or she was elected.
continuing unsuccessful candidate means an unsuccessful candidate who:
(a) has made a declaration under rule 8; and
(b) is not excluded from the recount.
(2) In this Schedule, unless the contrary intention appears, a word or phrase defined or used in Schedule 2A to the Act has the same meaning as in that Schedule.
2. For the recount:
(a) a number marked on a ballot-paper is taken to express a preference for a candidate if it is part of a sequence of consecutive unrepeated numbers beginning with 1 marked on the ballot-paper; and
(b) preferences expressed for:
(i) the former member; and
(ii) unsuccessful candidates who have not made a declaration under rule 8;
must be disregarded; and
(c) the numbers on ballot-papers that show preferences subsequent to those specified in paragraph (b) are taken to be altered accordingly.
3. For the recount, a continuing unsuccessful candidate has an absolute majority if, after any particular transfer conducted in the course of the recount, the number of votes credited to that candidate is more than 50% of the total number of votes credited at that stage of the recount to all the continuing unsuccessful candidates.
4. The returning officer must, at the time and place fixed for the recount, in the presence of the scrutineers in attendance (if any) and an officer of the Australian Public Service:
(a) produce the ballot-papers bearing votes credited to the former member; and
(b) deal with those ballot-papers in accordance with this Schedule.
5. The ballot-papers of the former member must be transferred to the unsuccessful candidates who have made a declaration under rule 8 by transferring each of the former member’s ballot-papers to the unsuccessful candidate for whom the highest available preference is shown on the ballot-paper.
6. If an unsuccessful candidate who has made a declaration under rule 8 receives an absolute majority, that unsuccessful candidate must be declared to be elected.
7. If no unsuccessful candidate has an absolute majority after the process referred to in clause 5:
(a) the unsuccessful candidate with the fewest votes must be excluded; and
(b) each of his or her ballot-papers must be transferred to the continuing unsuccessful candidate for whom the next available preference is shown on the ballot-paper.
8. If:
(a) after the process referred to in clause 5 or 7, 2 or more continuing unsuccessful candidates have an equal number of votes; and
(b) a further continuing unsuccessful candidate must be excluded;
the returning officer is to decide by lot which candidate is to be excluded.
9. If, after the process referred to in clause 7, no continuing unsuccessful candidate has received an absolute majority, the process described in clause 7 is to be repeated until:
(a) a continuing unsuccessful candidate has received an absolute majority of the votes of the former member; or
(b) there are only 2 continuing unsuccessful candidates.
10. If there are only 2 continuing unsuccessful candidates:
(a) the continuing unsuccessful candidate with the most votes must be declared to be elected; or
(b) if the continuing unsuccessful candidates have an equal number of votes—the returning officer is to decide by lot which candidate is to be elected.
11. A ballot-paper must be set aside as exhausted if, at any stage during the recount, it is found that the ballot-paper expresses no preference for a continuing unsuccessful candidate.
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