Federal Register of Legislation - Australian Government

Primary content

Rules/Other as made
This instrument amends the Torres Strait Regional Authority Election Rules 1996 to insert rules prescribing the manner in which casual vacancies in the TSRA are to be filled. The inserted rules largely mirror those in the Torres Strait Regional Authority Election (Casual Vacancy) Rules 1998 which sunsetted on 1 April 2016. This instrument also makes consequential and technical amendments to the Torres Strait Regional Authority Election Rules 1996.
Administered by: Prime Minister and Cabinet
Registered 14 Apr 2016
Tabling HistoryDate
Tabled HR18-Apr-2016
Tabled Senate19-Apr-2016
Date of repeal 16 Apr 2016
Repealed by Division 1 of Part 3 of Chapter 3 of the Legislation Act 2003

Commonwealth Coat of Arms

Torres Strait Regional Authority Election Rules Amendment Instrument 2016

I, Nigel Scullion, Minister for Indigenous Affairs, make the following instrument.

 

Dated     12.4.16

 

 

NIGEL SCULLION


 

 

 

 

 

 

 

 

 

1              Name

                This is the Torres Strait Regional Authority Election Rules Amendment Instrument 2016.

2              Commencement

                (1)  Each provision of this instrument specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1.  The whole of this instrument

Day after registration on the Federal Register of Legislative Instruments

Note:          This table relates only to the provisions of this instrument as originally made. It will not be amended to deal with any later amendments of this instrument.

                (2)  Any information in column 3 of the table is not part of this instrument. Information may be inserted in this column, or information in it may be edited, in any published version of this instrument. 

 

3              Authority

                This instrument is made under section 143G of the Aboriginal and Torres Strait Islander Act 2005.

 

4              Schedules

                Legislation that is specified in a Schedule to this Instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Instrument has effect according to its terms.

 

 

 

 

 

 

 

 

 

Schedule 1     Amendments

 

Torres Strait Regional Authority Election Rules 1996

 

[1]                  Rule 1 (heading)

Omit “[see Note 1]”.

[2]                  Rule 1 (note)

Repeal the note.

[3]                  Rule 2 (definition of approved)

Repeal the definition

[4]                  Rule 2

Insert casual vacancy means the vacancy in the TSRA left by a former member”.

[5]                  Rule 2 (definition of Division)

Repeal the definition

[6]                  Rule 2

Insert “electoral paper means a paper, document, form or notice provided for or required under the Act or these Rules relating to an election”

[7]                  Rule 2

Insert:

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”

[8]                  Rule 2 (definition of officer)

Omit “a Divisional Returning Officer”.

[9]                  Rule 2

Insert “Returning Officer means a person appointed under rule 3A”.

[10]              Rule 2

Insert:

unsuccessful candidate, for a casual vacancy, means a person:

                (a)    who was nominated for election in the most recently held election for the electorate for which the former member was elected; and

               (b)    whose nomination was accepted by the returning officer for the most recently held election for the electorate for which the former member was elected; and

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

               (d)    who was not elected.

[11]              Subule 2(6)

Repeal the subrule.

[12]              After Rule 3

Insert:

3A           Returning Officer

                Where:

         (a)   a TSRA election is required to be held under section 142Y of the Act; or;

         (b)   a casual vacancy occurs in a TSRA ward;

                the Electoral Commissioner must appoint a person over the age of 18 years to be the Returning Officer for these Rules.

[13]              Subparagraph 4(2)(d)(ii)

Omit “or the Commission”

[14]              Rule 25

Omit “the Schedule”, substitute “Schedule 1”.

[15]              Subparagraph 31(1)(e)(ii)

Omit “or the Commission”

[16]              Rule 40

Omit “the Schedule”, substitute “Schedule 1”.

[17]              Subparagraph 44(3)(e)(ii)

Omit “or the Commission”

[18]              Paragraph 89(2)(b)

Omit “if the Returning Officer directs an Assistant Returning Officer to conduct the scrutiny the Assistant Returning Officer”, substitute “a person employed or engaged under Division 4 of Part II of the Commonwealth Electoral Act 1918 appointed by the Returning Officer for that purpose”.

[19]              Rule 89A

Omit “110”, substitute “143D”

[20]              After Part 5

Insert:

Part 5A               Casual Vacancies

Division 1              Preliminary

101A       Interpretation

                In this Part , unless the contrary intention appears:

declaration day means the day 21 days after the date shown on the notice sent by the Returning Officer under rule 101E.

101B      Notice to TSRA

                If the Minister:

                (a)    receives the resignation of an elected member of the TSRA under section 143Q of the Act; or

               (b)    removes an elected member of the TSRA from office under subsection 143S (5) or (6) or 143T (1) of the Act;

the Minister must notify the TSRA in writing of the casual vacancy.

101C      Request to the Electoral Commissioner

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

                (a)    an elected member of the TSRA dies; or

               (b)    the TSRA receives notice from the Minister under rule 101B; or

                (c)    the TSRA makes a declaration in relation to an elected member of the TSRA 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 TSRA makes a declaration in relation to an elected member of the TSRA under subsection 143R (3) of the Act;

the TSRA 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.

101D      Electoral Commissioner to fill casual vacancy

         (1)   If the Electoral Commissioner receives a request under rule 101C, 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 TSRA in writing accordingly.

Division 2              Recount of Votes

101E       Notice to unsuccessful candidates

         (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 101F.

         (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 electorate for which the former member was elected stating:

                (a)    that the vacancy exists; and

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

101F       Declaration by unsuccessful candidate

         (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 electorate for which the former member was elected; 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.

101G      Time for receipt of declarations

                A declaration must be received at the address specified under paragraph 101E (1) (c) by 12.00 noon on declaration day.

101H      Rejection of declaration

         (1)   Subject to subrule (2), a declaration must be rejected by the returning officer if, and only if, it does not comply with rules 101F and 101G.

         (2)   A declaration must not be rejected because of a formal defect or error if it substantially complies with rule 101F.

101I        Withdrawal of declaration

         (1)   An unsuccessful candidate may withdraw his or her declaration before 12.00 noon on declaration day 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.

101J       Proceedings on declaration day

                At 12.00 noon on declaration day the Returning Officer must:

                (a)    attend at the address specified under paragraph 101E (1) (c); and

               (b)    produce all declarations received from unsuccessful candidates under rule 101F; and

                (c)    announce the names and places of residence of those unsuccessful candidates.

101K      Further action in relation to declarations

         (1)   If no unsuccessful candidate has made a declaration, the Electoral Commissioner must notify the TSRA 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 TSRA receives a notice from the Electoral Commissioner under subrule (1) or subrule 101D (3), the TSRA 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 12.00 noon on declaration day:

                (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 TSRA.

101L       Public notice of proceedings on declaration day

         (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 electorate for which the former member was elected.

         (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 101K (1), (2) or (3).

101M      Returning officer to conduct recount

                If a recount is to be held, the Returning Officer must proceed to a recount of the votes cast in the most recently held election for the electorate for which the former member was elected as soon as practicable after 12.00 noon on declaration day.

101N      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 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.

101O      Conduct of the recount

                The Returning Officer must conduct the recount in accordance with Schedule 2.

101P       Declaration of the recount

         (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 electorate for which the former member was elected.

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

Division 3              By-elections

101Q      Conduct of by-elections

         (1)   If the TSRA notifies the Minister under subrule 101K (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 these Rules as in force on the day on which the notice is published in the Gazette under subrule 101R (2) as if the by-election were an election for the electorate for which the former member was elected.

101R      Timing of by-elections and location of polling places

         (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 TSRA at least 14 days before the day, or the first of the days, fixed under subrule (1).

[21]              Paragraph 127(1)(b)

Omit “section 140”, substitute “section 143I”

[22]              Rule 131

Repeal the rule, substitute:

131         Storage and destruction of electoral papers

         (1)   After the scrutiny for an election is completed, the officer who conducted the scrutiny must:

                (a)    parcel, in separate sealed parcels, the following classes of electoral papers received in relation to the election:

                          (i)    ballot-papers;

                         (ii)    voter cards;

                        (iii)    postal voter cards; and

                        (iv)    pre-poll voter cards; and

               (b)    ensure the safe custody of the electoral papers as parcelled until the Electoral Commissioner authorises their destruction.

         (2)   The Electoral Commissioner may authorise the destruction of the electoral papers only when:

                (a)    a notice is published in the Gazette under s 142Y(2) of the Act for the next election; and

               (b)    The electoral papers are no longer required by the Electoral Commission for exercising a function under the Act or these Rules.

[23]              Rule 132

Repeal the rule

[24]              Rule 134

Omit “ballot papers, voter cards, pre-poll voter cards, postal voter cards and other documents”, substitute “electoral papers”

[25]              After Rule 134

Insert:

134A Approved forms

         (1)   The Electoral Commissioner may approve forms for these Rules by notice published in the Gazette.

         (2)   If the Electoral Commissioner approves a form for a particular purpose, the approved form must be used for that purpose.

[26]              Schedule – Grounds on which to apply for postal or pre-poll vote (heading)

After “Schedule”, insert “1”.

[27]              After Schedule 1

Insert:

SCHEDULE 2     PROCEDURE AT THE RECOUNT

            (Rule 101O)

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 101F; 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 101F;

                        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 a person employed or engaged under Division 4 of Part II of the Commonwealth Electoral Act 1918:

                (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 101F 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 101F 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.