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Rules/Other as amended, taking into account amendments up to Regional Council Election (Casual Vacancies) Amendment Rules 2002 (No. 1)
Registered 06 Sep 2010
Start Date 26 Nov 2002
End Date 01 Jul 2005

Aboriginal and Torres Strait Islander Commission (Regional Council Election) (Casual Vacancies) Rules 1990

as amended

made under section 113 of the

This compilation was prepared on 26 November 2002
taking into account amendments up to
Regional Council Election (Casual Vacancies) Amendments Rules 2002 (No. 1)

Prepared by the Office of Legislative Drafting,
Attorney-General’s Department, Canberra


Contents

Part 1                    Preliminary

                        1     Name of Rules [see Note 1]                                              3

                        2     Interpretation                                                                   3

                        3     Advice or notice to Commission                                        4

                        4     Request to the Electoral Commissioner                             4

Part 2                    Recount of votes

                        5     Advice to unsuccessful candidates                                    6

                        6     Declaration by unsuccessful candidate                              6

                        7     Rejection of declaration                                                    7

                        8     Time for receipt of declarations                                          7

                        9     Withdrawal of declaration                                                  7

                       10     Proceedings on declaration day                                        7

                       11     Further action in relation to declarations                             7

                       12     Public notice of proceedings on relevant day                      8

                       13     Returning officer to conduct recount                                   8

                       14     Scrutineers at the recount                                                8

                       15     Conduct of the recount                                                     9

                    15A     Electronic recount                                                            9

                       16     Declaration of the recount                                                 9

Part 3                    By-elections

                       17     Conduct of by-elections                                                  10

                       18     Timing of by-elections and location of polling places          10

Schedule 1           Procedure at the recount                                               11

Notes                                                                                                          15

 

 


Part 1                 Preliminary

  

1              Name of Rules [see Note 1]

                These Rules are the Aboriginal and Torres Strait Islander Commission (Regional Council Election) (Casual Vacancies) Rules 1990.

2              Interpretation

         (1)   In these Rules, unless the contrary intention appears:

authorised witness has the same meaning as in the Regional Council Election Rules.

by-election means a by-election conducted under Part 3.

casual vacancy means the vacancy in a Regional Council left by a former member of the Regional Council.

Chairperson has the same meaning as in section 127 of the Act.

declaration day means the day 21 days after the date shown on the notification sent by the returning officer under rule 5.

declaration time means 12.00 noon on declaration day.

former member means a member of a Regional Council:

                (a)    who has:

                          (i)    died; or

                         (ii)    resigned from the Regional Council; or

               (b)    in relation to whom the Commission has made a declaration under subsection 121 (1) or (3) or 122 (1) of the Act; or

                (c)    whom the Commission has removed under subsection 122A (5) of the Act;

hour of nomination has the same meaning as in rule 19 of the Regional Council Election Rules.

relevant election, in relation to a casual vacancy, means the election for a ward at which the former member was elected.

relevant ward, in relation to a casual vacancy, means the Regional Council ward 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 in relation to the filling of a particular casual vacancy.

unsuccessful candidate means a person:

                (a)    who was nominated for election in the relevant election; and

               (b)    whose nomination for election for the relevant ward was accepted by a Regional Returning Officer; and

                (c)    whose nomination was not withdrawn or cancelled before the hour of nomination; and

               (d)    who was not elected; and

                (e)    whose nomination for the election has not been found to be invalid by the Federal Court of Australia.

the Act means the Aboriginal and Torres Strait Islander Commission Act 1989.

the Regional Council Election Rules means the Rules made under paragraph 113 (1) (a) of the Act for the conduct of Regional Council elections.

         (2)   In these Rules, unless the contrary intention appears, a word or phrase defined for the purposes of the Regional Council Election Rules has the same meaning as in those Rules.

3              Advice or notice to Commission

         (1)   If the Minister receives the resignation of a member of a Regional Council under section 120 of the Act, the Minister is to advise the Commission in writing of the casual vacancy.

         (2)   Where a casual vacancy occurs in the membership of a Regional Council due to the death of a member, the Chairperson or the Deputy Chairperson, or the alternate to the Deputy Chairperson, of the Regional Council must notify the Commission in writing of the vacancy.

4              Request to the Electoral Commissioner

         (1)   Subject to subrule (2), if the Commission:

                (a)    receives:

                          (i)    advice from the Minister under subrule 3 (1); or

                         (ii)    notice from the Chairperson or the Deputy Chairperson, or the alternate to the Deputy Chairperson, of a Regional Council under subrule 3 (2); or

               (b)    makes a declaration in relation to a member of a Regional Council under subsection 121 (1) 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

                (c)    makes a declaration in relation to a member of a Regional Council under subsection 121 (3) or 122 (1) of the Act; or

               (d)    removes a member of a Regional Council under subsection 122A (5) of the Act;

the Commission must ask the Electoral Commissioner to arrange for the filling of the casual vacancy in accordance with these Rules.

      (1A)   Also, after the election of a Commissioner as Commission Chairperson under section 31A of the Act, the Commission 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 104 (2) of the Act.

         (3)   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).

         (4)   If there is no unsuccessful candidate, the Electoral Commissioner must, as soon as practicable, advise the Commission in writing accordingly.

Part 2                 Recount of votes

  

5              Advice to unsuccessful candidates

         (1)   The returning officer must:

                (a)    notify each unsuccessful candidate in writing:

                          (i)    that the vacancy exists; and

                         (ii)    that a recount is to be held to fill the vacancy; and

               (b)    ask the unsuccessful candidate if he or she wants to have his or her name included in the recount; and

                (c)    state the address to which the unsuccessful candidate must forward the declaration under subrule 6 (1); and

               (d)    publish a notice in a newspaper which circulates in the relevant ward.

         (2)   The notice under subrule (1) may be sent by prepaid post to the unsuccessful candidate:

                (a)    at the address to which an objection to his or her enrolment must be sent under section 116 of the Electoral Act; or

               (b)    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 on which he or she was enrolled.

         (3)   For the purposes of paragraph 5 (1) (d), a notice published by the returning officer must state:

                (a)    that the vacancy exists; and

               (b)    the time and place that is fixed for the recount.

6              Declaration by unsuccessful candidate

         (1)   If an unsuccessful candidate wants to have his or her name included in the recount, he or she must declare that:

                (a)    he or she is qualified under section 102 of the Act to be elected as a member for the relevant ward; and

               (b)    he or she 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;

               (b)    by post; or

                (c)    by facsimile transmission.

7              Rejection of declaration

         (1)   Subject to subrule (2), a declaration is to be rejected by the returning officer if, and only if, it does not comply with subrule 6 (1).

         (2)   A declaration must not be rejected because of a formal defect or error if it substantially complies with subrule 6 (1).

8              Time for receipt of declarations

         (1)   A declaration must be received at the address specified in paragraph 5 (1) (c) not later than the declaration time on declaration day.

         (2)   In spite of rule 7, if a declaration is received after the declaration time on declaration day, the declaration must be disregarded.

9              Withdrawal of declaration

         (1)   An unsuccessful candidate may withdraw his or her declaration at any time before the declaration time by lodging a notice of withdrawal with the returning officer.

         (2)   Where a declaration is withdrawn under subrule (1), the name of the unsuccessful candidate must not be included in a recount.

10            Proceedings on declaration day

         (1)   At the declaration time on declaration day the returning officer must:

                (a)    attend at the place stated for the purposes of paragraph 5 (1) (c); and

               (b)    produce all declarations received from unsuccessful candidates; and

                (c)    announce the names and place of residence of all unsuccessful candidates from whom declarations have been received.

         (2)   If:

                (a)    there is only 1 unsuccessful candidate; and

               (b)    the returning officer receives a declaration from that unsuccessful candidate;

the returning officer may declare that unsuccessful candidate to be elected as soon as practicible after receiving that unsuccessful candidate’s declaration without waiting for the declaration day.

11            Further action in relation to declarations

         (1)   If no unsuccessful candidate has made a declaration, the Electoral Commissioner must advise the Commission 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 Commission receives advice from the Electoral Commissioner under subrule (1) or subrule 4 (4), the Commission must advise the Minister that the vacancy cannot be filled by recounting votes.

12            Public notice of proceedings on relevant day

         (1)   As soon as practicable after the relevant day, the returning officer must arrange for a statement of the proceedings on the relevant day to be published in a newspaper circulating in the relevant ward.

         (2)   The statement must set out:

                (a)    the names and place 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 11 (1), (2) or (3).

         (3)   In this rule:

relevant day means:

                (a)    declaration day; or

               (b)    if a candidate was declared elected under subrule 10 (2) on a day before declaration day — the day when the candidate was declared elected.

13            Returning officer to conduct recount

                If a recount is to be held, the returning officer must proceed to the recount of the votes cast in the relevant election as soon as practicable after declaration time on declaration day.

14            Scrutineers at the recount

         (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:

                          (i)    in writing signed by the unsuccessful candidate; or

                         (ii)    by facsimile transmission and signed by the unsuccessful candidate before transmission.

               (b)    be addressed to the returning officer; and

                (c)    give the name and address of the scrutineer.

         (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.

15            Conduct of the recount

                In conducting the recount for the purposes of these Rules, the returning officer must deal with the ballot-papers as specified in Schedule 1.

15A         Electronic recount

         (1)   A recount may be conducted electronically, either entirely or in part, in accordance with the principles set out in Schedule 1.

         (2)   If a voter’s intentions, as shown on a ballot-paper, have been recorded in electronic form:

                (a)    a recount may be conducted by reference to that record; and

               (b)    the requirements of paragraph 5 (a) of Schedule 1 are met if the scrutineers have access to that record.

16            Declaration of the recount

         (1)   As soon as possible after the result of a recount is decided, the returning officer must:

                (a)    make out a statement setting out the result of the recount and the name of the person elected as a result of the recount; 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 ward.

         (2)   As soon as practicable after receiving the statement, the Electoral Commissioner must give a copy of the statement to the Commission.

Part 3                 By-elections

  

17            Conduct of by-elections

         (1)   If the Commission advises the Minister under subrule 11 (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 a round of Regional Council elections is to be held.

         (2)   A by-election must be conducted in accordance with the Regional Council Election Rules in force on the day on which notice is published in the Gazette under subrule 18 (2) as if the by-election were an election for a Regional Councillor for the relevant ward in a round of Regional Council elections.

         (3)   This rule does not prevent more than 1 casual vacancy being filled at the same by-election.

18            Timing of by-elections and location of polling places

         (1)   The Minister must, by notice in writing, fix a day, or days, for polling in a by-election within a period:

                (a)    of not more than 12 months after the casual vacancy arises; and

               (b)    that ends before the beginning of the calendar year in which the next round of Regional Council elections is to  be held.

         (2)   The Minister must publish a copy of the notice under subrule (1) in the Gazette  at least 60 days before the day, or the first of the days, fixed in the notice.

         (3)   The Electoral Commissioner must, by notice in writing, appoint by name such polling places as he or she considers necessary for the by-election.

         (4)   The Electoral Commissioner must give a copy of the notice under subrule (3) to the Commission at least 14 days before the day, or the first of the days, fixed under subrule (1).

 


Schedule 1        Procedure at the recount

(rules 15 and 15A)

  

1.      (1)   In this Schedule, unless the contrary intention appears:

ballot-papers of the former member means:

                (a)    where the former member obtained a quota on first preferences — the ballot‑papers on which those first preferences are marked; or

               (b)    where the former member was elected after a transfer or transfers of ballot-papers:

                          (i)    all the ballot‑papers counted to the former member at the time that he or she was elected; and

                         (ii)    where the former member was declared elected under clause 16 of Schedule 2 to the Act following the exclusion of a candidate or the bulk exclusion of candidates — all the ballot-papers which:

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

                                   (B)     showed a next available preference for the former member.

continuing unsuccessful candidate means an unsuccessful candidate who:

                (a)    has made a declaration under subrule 6 (1); and

               (b)    is not excluded from the recount.

         (2)   In this Schedule, unless the contrary intention appears, a word or phrase:

                (a)    defined for the purposes of; or

               (b)    used in;

Schedule 2 to the Act has the same meaning as in that Schedule.

2.             For the purposes of the recount, the transfer value of a ballot‑paper is:

                (a)    in the case of ballot papers received by the former member as first preferences — 1; or

               (b)    in the case of ballot‑papers received by the former member after the count of first preferences but before the transfer at which he or she was elected — the transfer value at which they were received by the former member; or

                (c)    in the case of ballot‑papers received by the former member at the transfer at which he or she was elected — the number obtained by dividing the number of votes by which the former member, immediately before that transfer, was short of the quota, by the number of ballot‑papers transferred to the former member at that transfer; or

               (d)    in the case of ballot‑papers specified in paragraph (b)(ii) of the definition of “ballot‑papers of the former member” — the transfer value at which the ballot‑papers would have been transferred to the former member if a transfer had been necessary.

3.             For the purposes of the recount:

                (a)    a number marked on a ballot‑paper is to be 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)    elected members; and

                         (iii)    unsuccessful candidates who have not made a declaration under subrule 6 (1);

                        must be disregarded; and

                (c)    the numbers on ballot‑papers which show preferences subsequent to those specified in paragraph (b) are taken to be altered accordingly.

4.             For the purposes of 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.

5.             The returning officer must, at the time and place fixed for the recount, in the presence of the scrutineers in attendance (if any) and of 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.

6.             The votes of the former member must be transferred to the unsuccessful candidates who have made a declaration under subrule 6 (1) by transferring the former member’s ballot‑papers in accordance with the highest 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 those with the lowest transfer value, as follows:

                (a)    the total number of ballot‑papers of a particular transfer value which show the highest available preference for a particular unsuccessful 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 the unsuccessful candidate; and

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

7.             If an unsuccessful candidate who has made a declaration under subrule 6 (1) receives an absolute majority, that unsuccessful candidate must be declared to be elected.

8.             If no unsuccessful candidate has an absolute majority after the process referred to in item 6:

                (a)    the unsuccessful candidate with the fewest votes must be excluded; and

               (b)    his or her ballot‑papers must be transferred to the continuing unsuccessful candidates, in accordance with the preferences shown on them, 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:

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

                         (ii)    the number obtained under subparagraph (i) (disregarding any fraction) must be added to the number of votes of the continuing unsuccessful candidate; and

                         (iii)    all those ballot-papers must be transferred to the continuing unsuccessful candidate.

9.             If, after the process referred to in item 8, no continuing unsuccessful candidate has received an absolute majority, the process described in item 8 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.           If:

                (a)    after the process referred to in item 6 or 8, 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.

12.           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.


Notes to the Aboriginal and Torres Strait Islander Commission (Regional Council Election) (Casual Vacancies) Rules 1990

Note 1

The Aboriginal and Torres Strait Islander Commission (Regional Council Election) (Casual Vacancies) Rules 1990 (in force under the Aboriginal and Torres Strait Islander Commission Act 1989) as shown in this compilation is amended as indicated in the Tables below.

Table of Rules

Title

Date of notification
in Gazette

Date of
commencement

Application, saving or
transitional provisions

Regional Council Election (Casual Vacancies) Rules

15 Nov 1990
(see Gazette 1990, No. S298)

15 Nov 1990

 

Regional Council Election (Casual Vacancies) Rules (Amendment)

29 Sept 1993
(see Gazette 1993, No. S293)

29 Sept 1993

Regional Council Election (Casual Vacancies) Rules (Amendment No. 2)

16 Mar 1995
(see Gazette 1995, No. S92)

16 Mar 1995

Regional Council Election (Casual Vacancies) Amendment Rules 1999 (No. 1)

1 Dec 1999
(see Gazette 1999, No. GN48)

1 Dec 1999

Regional Council Election (Casual Vacancies) Amendment Rules 2002 (No. 1)

26 Nov 2002
(see Gazette 2002, No. S445 )

26 Nov 2002

Table of Amendments

ad. = added or inserted      am. = amended      rep. = repealed      rs. = repealed and substituted

Provision affected

How affected

Heading to Part 1.................

ad. No. 2, 1995

R. 1.........................................

rs. No. 1, 1999; No. 1, 2002

R. 2.........................................

am. No. 2, 1995; No. 1, 1999; No. 1, 2002

R. 3.........................................

am. No. 2, 1995

R. 4.........................................

am. No. 1, 1993; No. 2, 1995; No. 1, 1999

Heading to Part 2.................

ad. No. 2, 1995

R. 5.........................................

am. No. 2, 1995

R. 6.........................................

rs. No. 2, 1995

R. 7.........................................

am. No. 2, 1995

R 9..........................................

am. No. 2, 1995

R. 10.......................................

am. No. 2, 1995; No. 1, 2002

R. 11.......................................

am. No. 2, 1995

R. 12.......................................

am. No. 2, 1995

 

rs. No. 1, 2002

R. 13.......................................

rep. No. 2, 1995

R. 14.......................................
(renumbered r. 13)

rs. No. 2, 1995

R. 15.......................................
(renumbered r. 14)

am. No. 2, 1995

R. 16.......................................
(renumbered r. 15)

am. No. 2, 1995; No. 1, 2002

R. 15A....................................

ad. No. 1, 2002

R. 17.......................................
(renumbered r. 16)

rs. No. 2, 1995

Heading to Part 3.................

ad. No. 2, 1995

R. 18.......................................
(renumbered r. 17)

rs. No. 2, 1995

R. 18.......................................

ad. No. 2, 1995

Heading to Schedule 1

ad. No. 1, 2002

Schedule...............................

am. No. 2, 1995

 

rep. No. 1, 2002