Parliamentary Electorates and Elections Act 1912 No 41

An Act to consolidate enactments relating to Parliamentary electorates and elections.

Part 1 Name of Act and interpretation

1 Name of Act

This Act may be cited as the Parliamentary Electorates and Elections Act 1912.

s 1: Am 1918 No 40, sec 8. Subst 1921 No 19, sec 2 (1). Am 1928 No 55, secs 9 (1) (b), 17, 33 (a); 1937 No 35, Second Sch; 1975 No 108, sec 4 (a); 1976 No 20, Sch 2 (1); 1977 No 133, Sch 1 (1); 1978 No 79, Sch 2 (1); 1979 No 39, Sch 1 (1); 1981 No 28, Sch 1 (1). Subst GG No 172 of 31.10.1986, p 5321.

2 Repeal

(1)  The Acts mentioned in Schedule 1, to the extent therein expressed, are hereby repealed.

(2), (3)    (Repealed)

s 2: Am 1987 No 132, Sch 1 (1).

3 Definitions

(1)  In this Act, except in so far as the context or subject-matter otherwise indicates or requires:

Abbreviation, in relation to the name of a party, includes an alternative name of the party.

Antarctic elector means an elector who is entitled under Division 18 of Part 5 to be treated as an Antarctic elector.

Assembly means the Legislative Assembly of New South Wales.

Assembly general election means an election held for the return of members of the Assembly pursuant to writs issued by the Governor upon the dissolution or expiry of the Assembly.

Authorised agent includes any person holding the written authority of any candidate to act on the candidate’s behalf for the election then pending.

Authorised witness means a person who is an authorised witness for the purposes of this Act by virtue of section 114B.

By-election means an election held for the return of a member of the Assembly pursuant to a writ other than a writ issued in respect of an Assembly general election.

Commonwealth Act means the Commonwealth Electoral Act 1918 of the Commonwealth.

Commonwealth subdivision means a subdivision of an electoral division for the election of a member of the House of Representatives pursuant to the Commonwealth Act.

Council means the Legislative Council of New South Wales.

Divisional returning officer means the Commonwealth divisional returning officer for the Commonwealth electoral division in which the particular State subdivision is situate.

Elector means any person whose name appears on a roll.

Electoral paper includes any electoral claim and any prescribed form.

Election means an election of any member or members of the Assembly or a periodic Council election.

Electoral district or district means a district for the election of a member to serve in the Assembly.

Eligible overseas elector means an elector who is enrolled or remains enrolled under section 20A or 20B and treated as an eligible overseas elector.

Endorsed means endorsed, selected or otherwise accredited to stand as a representative of a party.

Enrolled means named on the electoral roll in force and applicable for the time being.

Group means a group constituted in accordance with clause 3 of the Sixth Schedule to the Constitution Act 1902.

Group voting square means a square printed on a ballot-paper for a periodic Council election above the names of the candidates included in a group who have duly requested under section 81C (1A) a group voting square for the purposes of the election.

Hospital includes a convalescent home and an institution similar to a hospital or convalescent home.

Itinerant elector means an elector who is enrolled under section 20C and treated as an itinerant elector.

Member means member of the Assembly or member of the Council.

Officer includes any person discharging the duties of any office under Part 4.

Party means a body or organisation, incorporated or unincorporated, having as one of its objects or activities the promotion of the election to the Assembly or the Council of a candidate or candidates endorsed by it or by a body or organisation of which it forms a part.

Periodic Council election has the meaning ascribed thereto by section 3 of the Constitution Act 1902.

Postal voting officer means a postal voting officer appointed under Division 3 of Part 5.

Prescribed means prescribed by this Act, or by any Schedule thereto, or by any regulation made thereunder.

President means the President of the Council.

Principal Returning Officer means the person appointed as such under section 21A (10) (a).

Proclaimed means published by proclamation.

Proclamation means proclamation by the Governor in the Gazette.

Real place of living includes the place of living to which a person, when temporarily living elsewhere, has a fixed intention of returning for the purpose of continuing to live at that place.

Registered officer of a registered party means the person shown in the Register of Parties under Part 4A as the registered officer of the party, and (except in Part 4A) includes a person shown in that Register as a deputy registered officer of the party.

Registered party means a party registered in accordance with Part 4A.

Registrar means registrar of the subdivision.

Regulations means regulations made under this Act.

Returning officer includes any person lawfully authorised to act for a returning officer, or to act in the place of a returning officer, but does not include the Principal Returning Officer.

Roll means a roll of electors entitled to vote at elections under this Act.

Speaker means the Speaker of the Assembly.

Subdivision means subdivision of a district and includes also any unsubdivided district.

Territory means the Australian Capital Territory or the Northern Territory.

(2)  A reference in this Act to a poll for a district or an election for a district is a reference to a poll or an election for the return of a member of the Assembly.

(3)  A reference (however expressed) to residence or reside:

(a)  in any provision of this Act relating to the preparation, alteration or revision of rolls, or

(b)  in any regulation, form or electoral paper relating to or used in connection with the preparation, alteration or revision of rolls,

shall be read as a reference to place of living or live, as the case may be.

(4)  Notes included in this Act are explanatory notes and do not form part of this Act.

s 3: Am 1928 No 55, secs 10 (1) (a), 15 (b), 18; 1975 No 108, sec 4 (b); 1976 No 20, Sch 1 (1); 1978 No 75, Sch 2 (2); 1987 No 132, Sch 1 (2); 1987 No 173, Sch 2 (1); 1990 No 111, Sch 1 (1); 1999 No 31, Sch 1.29 [1]; 1999 No 70, Sch 1 [1] [2].

Part 2 Distribution of electorates

pt 2, hdg: Am 1978 No 75, Sch 2 (3); 1979 No 39, Sch 1 (2).

3A–5 (Repealed)

s 3A: Ins 1918 No 40, sec 3 (i). Am 1921 No 19, sec 2 (2). Rep 1926 No 12, sec 8 (1).

s 4: Am 1918 No 40, sec 3 (ii); 1926 No 12, sec 8 (2); 1949 No 23, sec 2 (a); 1969 No 43, sec 2 (1) (a); 1973 No 44, sec 2 (1) (a). Rep 1979 No 39, Sch 1 (3).

s 5: Am 1918 No 40, sec 3 (iii); 1926 No 12, sec 8 (3); 1949 No 23, sec 2 (b); 1969 No 43, sec 2 (1) (b); 1973 No 44, sec 2 (1) (b). Rep 1979 No 39, Sch 1 (4).

6 Appointment of commissioners for redistribution of seats

(1)  When any distribution of electoral districts becomes necessary under the provisions of the Constitution Act 1902, the Governor shall, by commission under the Great Seal, appoint three persons to be commissioners for the purposes of this Part, and to be called the “Electoral Districts Commissioners”, to carry out the distribution.

(2)  Of the persons appointed:

(a)  one must be, or have been, a Judge of the Supreme Court, and

(b)  one must be the person who for the time being holds the office of Electoral Commissioner, and

(c)  one must be the person who for the time being holds the office of Surveyor-General under the Public Sector Management Act 1988.

(3)  The names of the persons so appointed shall be published in the Gazette.

(4)  When a distribution of electoral districts becomes necessary under the Constitution Act 1902 as a result of the enactment of the Constitution and Parliamentary Electorates and Elections Amendment Act 1997, the appointment of Electoral Districts Commissioners to carry out the distribution must be made within one month after the date of assent to that Act.

(5)  In any other case, the appointment of commissioners under this section must occur no more than 2 years after the date of return of the writs for choosing the Legislative Assembly that exists at the time the distribution becomes necessary under the provisions of the Constitution Act 1902. However, if that 2 year period has passed when the distribution becomes necessary, then the commissioners must be appointed within 6 months after the day that the distribution becomes necessary.

s 6: Subst 1928 No 55, sec 4 (1); 1949 No 23, sec 2 (c). Subst 1952 No 16, sec 2 (a). Am 1975 No 108, Sch 1; 1979 No 39, Sch 1 (5); 1997 No 88, Sch 2 [1] [2].

6A Commissioners may use services of officers of Public Service

For the purposes of carrying out the powers and duties conferred and imposed upon the Electoral Districts Commissioners with respect to the carrying out of a distribution, the Electoral Districts Commissioners may, with the approval of the Minister of the department concerned, make use of the services of any of the officers and employees of the Public Service including members of the police force.

s 6A: Ins 1928 No 55, sec 4 (1). Am 1949 No 23, sec 2 (d). Subst 1952 No 16, sec 2 (a). Am 1979 No 39, Sch 1 (6).

7 Duration of office etc

(1)  The office of a commissioner shall be tenable for the period named in such commission, and, if necessary, for such extended period, to be named in a further commission, as the Governor may deem proper for the completion of the distribution in respect whereof such firstmentioned commission has been issued.

(2)  The office of a commissioner shall be vacated if for any cause the commissioner ceases to possess the qualification for appointment mentioned in section 6 (2).

(3)  A commissioner may be paid such remuneration as may be determined by the Governor. Each commissioner shall be entitled to such travelling allowances as may be fixed by the Governor.

s 7: Am 1928 No 55, sec 4 (2). Rep 1949 No 23, sec 2 (e). Ins 1952 No 16, sec 2 (a). Am 1975 No 108, Sch 1.

8 Chairperson

At any meeting of the commissioners the person who is or has been a Judge of the Supreme Court shall, when present, be chairperson; and in that person’s absence the Electoral Commissioner shall be chairperson.

s 8: Subst 1928 No 55, sec 4 (3). Rep 1949 No 23, sec 2 (e). Ins 1952 No 16, sec 2 (a). Am 1975 No 108, Sch 1; 1997 No 88, Sch 2 [3].

9 Rules

The commissioners may, subject to the provisions of this Act, make rules for the conduct of their proceedings (including the conduct of their proceedings in public), but no such rule shall have any force until the same has been approved by the Governor.

s 9: Rep 1949 No 23, sec 2 (e). Ins 1952 No 16, sec 2 (a). Am 1979 No 39, Sch 1 (7).

10 Quorum—casting vote of chairperson

At all meetings of the commissioners two shall form a quorum, and in the event of an equality of votes the chairperson shall have a casting vote in addition to his or her original vote.

s 10: Rep 1949 No 23, sec 2 (e). Ins 1952 No 16, sec 2 (a).

11 Disqualifications for appointment as commissioner

(1)  A person shall not be appointed a commissioner under this Act if he or she is a person:

(a)  who is a bankrupt, is applying to take the benefit of any law for the relief of bankrupt or insolvent debtors, whose debts are subject to a composition with his or her creditors, or whose remuneration would, on his or her appointment, be subject to an assignment for their benefit,

(b)  who has been convicted in New South Wales of a crime or an offence which is punishable by imprisonment for 12 months or more, or has been convicted elsewhere than in New South Wales of a crime or an offence which, if committed in New South Wales, would have been a crime or an offence so punishable, or

(c)  who is a temporary patient, a continued treatment patient, a protected person or an incapable person within the meaning of the Mental Health Act 1958, or a person under detention under Part 7 of that Act.

(2)  A commissioner shall be deemed to have vacated office if the commissioner:

(a)  becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit,

(b)  is convicted in New South Wales of a crime or an offence which is punishable by imprisonment for 12 months or more, or is convicted elsewhere than in New South Wales of a crime or an offence which, if committed in New South Wales, would be a crime or an offence so punishable, or is convicted of a crime or an offence, whether in New South Wales or elsewhere, and is sentenced to imprisonment for that crime or offence, or

(c)  becomes a temporary patient, a continued treatment patient, a protected person or an incapable person within the meaning of the Mental Health Act 1958, or a person under detention under Part 7 of that Act.

s 11: Rep 1949 No 23, sec 2 (e). Ins 1952 No 16, sec 2 (a). Subst 1975 No 108, sec 4 (c).

12 Appointments to fill vacancies

If any commissioner dies or becomes permanently incapable from illness of performing the commissioner’s duties, or resigns office, or vacates office by reason of any of the causes mentioned in section 7 (2) or in section 11, the Governor shall by commission under the Great Seal appoint a person eligible under section 6 as commissioner in place of the original commissioner.

s 12: Am 1918 No 40, sec 3 (iv). Rep 1949 No 23, sec 2 (e). Ins 1952 No 16, sec 2 (a). Am 1975 No 108, Sch 1.

13 Redistribution of electoral districts by commissioners etc

(1)  It shall be the duty of the commissioners, and they are hereby directed, to distribute New South Wales into electoral districts and to do so with all due diligence after their appointment.

(2)  As soon as practicable after they have been appointed, the commissioners shall, by advertisement published in the Gazette:

(a)  invite suggestions in writing to be lodged with the commissioners, within 30 days after the date of advertisement, relating to the distribution of New South Wales into electoral districts,

(b)  invite comments to be lodged with the commissioners, within 14 days after the expiration of the period referred to in paragraph (a), relating to any suggestions received by the commissioners in pursuance of that paragraph, and

(c)  give notice that any suggestions or comments lodged with them pursuant to paragraph (a) or (b) will, immediately after the expiration of:

(i)  in relation to suggestions—the period referred to in paragraph (a), or

(ii)  in relation to comments—the 14 day period referred to in paragraph (b),

be made available at their office situated at a place specified in the advertisement.

(3)  Immediately after the expiration of the period referred to in subsection (2) (a), the commissioners shall make available for perusal at their office copies of any suggestions lodged with them in pursuance of that paragraph.

(4)  Immediately after the expiration of the 14 day period referred to in subsection (2) (b), the commissioners shall make available for perusal at their office copies of any comments lodged with them in pursuance of that paragraph.

(5)  The commissioners shall consider any suggestions or comments lodged with them in pursuance of subsection (2) before determining the names and boundaries of electoral districts.

(6)  The commissioners shall also obtain, and consider, the advice of a recognised demographer before determining the boundaries of electoral districts.

(7)  If the comments lodged with the commissioners under subsection (2) (b) are made orally, the obligation to make them available for perusal is an obligation to make a transcript or summary of the comments available.

s 13: Subst 1918 No 40, sec 3 (v). Am 1921 No 19, sec 2 (3); 1949 No 23, sec 2 (f); 1952 No 16, sec 2 (b). Subst 1969 No 43, sec 2 (1) (c); 1973 No 44, sec 2 (1) (c). Am 1975 No 108, Sch 1; 1979 No 39, Sch 1 (8); 1981 No 28, Sch 1 (2); 1990 No 111, Sch 1 (2); 1997 No 88, Sch 2 [4] [5].

14 Notice of proposed alteration of existing boundaries to be given

(1)  The prescribed notice of any proposed alteration of an electoral district shall be given by the commissioners in the Gazette and in some newspaper published or circulating in the district.

(1A)  That notice must refer to the fact that a written statement of the commissioners’ reasons for making the proposed alteration will be available for inspection at no cost during office hours at the offices of the Electoral Commissioner, for the period referred to in subsection (2).

(1B)  For that purpose, the commissioners must ensure that such a statement is provided to the Electoral Commissioner and the Electoral Commissioner must ensure that the statement is made available in accordance with the notice.

(2)  Suggestions or objections in writing may be lodged with the commissioners in relation to a proposed alteration of an electoral district within:

(a)  a period of 30 days, or

(b)  where some other period is prescribed, the prescribed period,

after the publication in the Gazette of the notice referred to in subsection (1).

(3)  The commissioners shall consider any suggestions or objections lodged with them in pursuance of subsection (2) before determining the names and boundaries of electoral districts.

(4)  The commissioners must complete their consideration of any suggestion or objection lodged with them as soon as is practicable and, in any event, before the expiration of the period of 60 days after the expiration of the period referred to in subsection (2).

(5)  The commissioners must hold an inquiry into any suggestion or objection unless the commissioners are of the opinion that:

(a)  the matters raised in the suggestion or objection were raised, or are substantially the same as matters that were raised, in suggestions or comments relating to the redistribution lodged with the commissioners in pursuance of section 13, or

(b)  the suggestion or objection is frivolous or vexatious.

(6)  The commissioners may hold one inquiry into a number of suggestions and objections.

(7)  Proceedings before the commissioners at an inquiry into any suggestion or objection must be held in public.

(8)  At an inquiry into any suggestion or objection, submissions in relation to the suggestion or objection may be made to the commissioners by or on behalf of the person who, or the organisation that, lodged the suggestion or objection with the commissioners and any person who, or organisation that, lodged suggestions or comments relating to the redistribution with the commissioners in pursuance of section 13.

(9)  At an inquiry into any suggestion or objection, the commissioners must consider all of the submissions made to them in relation to the suggestion or objection.

(10)  The commissioners are not bound by the legal rules of evidence and may regulate the conduct of proceedings at an inquiry into any suggestion or objection as they think fit.

(11)  Without limiting the generality of subsection (10), the following matters are within the absolute discretion of the commissioners:

(a)  the manner in which submissions may be made to the commissioners,

(b)  the time within which submissions may be made to the commissioners,

(c)  the extent to which the commissioners may be addressed, and the persons by whom they may be addressed, on any submission.

(12)  As soon as is practicable after the commissioners have concluded their inquiries into any suggestion or objection, they must determine the names and boundaries of electoral districts.

(13)  If, in the opinion of the commissioners, their determination is significantly different from the proposal notified in respect of any electoral district under subsection (1) the commissioners must publish in the Gazette and in a newspaper published or circulating in that district a statement to the effect that:

(a)  a person who, or an organisation that, was entitled to make submissions under subsection (8) may forthwith lodge with the commissioners a written objection, and

(b)  subject to subsection (5), the commissioners must hold an inquiry into any such objection.

(14)  If such a statement is published:

(a)  a person who, or an organisation that, was entitled to make submissions to an inquiry under this section may, forthwith upon the publication of the statement, lodge with the commissioners a written objection, and

(b)  subject to subsection (5), the commissioners must hold an inquiry into any such objection, and

(c)  subsections (5)–(11) apply to an inquiry into any such objection as if the objection were a suggestion or objection made under subsection (2).

(15)  As soon as is practicable after the commissioners have concluded their inquiries into any objection lodged under subsection (14), they must determine the names and boundaries of electoral districts.

s 14: Am 1949 No 23, sec 2 (g); 1952 No 16, sec 2 (c). Subst 1981 No 28, Sch 1 (3). Am 1997 No 88, Sch 2 [6] [7].

15 Report of commissioners to be proclaimed etc

(1)  The commissioners shall report to the Governor the names and boundaries of the electoral districts determined by them under any provision of this Part.

(2)  The Governor shall thereupon cause a proclamation setting out the names of such electoral districts and the boundaries thereof to be published in the Gazette.

(3)  Upon publication of a proclamation under subsection (2), the electoral districts specified in the proclamation shall, until altered by a further distribution under the Constitution Act 1902, be the electoral districts of New South Wales.

(4)  Notwithstanding subsection (3), the electoral districts existing immediately before the publication of a proclamation under subsection (2) shall, for the purposes of any by-election to be held before the dissolution or expiry of the Assembly next succeeding that publication, be the electoral districts of New South Wales.

s 15: Am 1918 No 40, sec 3 (vi); 1926 No 12, sec 8 (4); 1949 No 23, sec 2 (h); 1952 No 16, sec 2 (d); 1979 No 39, Sch 1 (9).

16, 17 (Repealed)

s 16: Rep 1979 No 39, Sch 1 (10).

s 17: Am 1918 No 40, sec 3 (vii); 1926 No 12, sec 8 (5); 1928 No 55, secs 5 (1) (a), 10 (1) (b). Rep 1969 No 43, sec 2 (1) (d).

17A Criteria for distributions

(1)  In carrying out a distribution, the commissioners shall, subject to complying with section 28 of the Constitution Act 1902:

(a)  have regard to demographic trends within the State and, as far as practicable, endeavour to ensure on the basis of those trends that, at the relevant future time, the number of electors enrolled in each electoral district will be equal (within a margin of allowance of 3 per cent more or less of the average enrolment in electoral districts at that future time), and

(b)  subject to paragraph (a), give due consideration, in relation to each electoral district, to:

(i)  community of interests within the electoral district, including economic, social and regional interests,

(ii)  means of communication and travel within the electoral district,

(iii)  the physical features and area of the electoral district,

(iv)  mountain and other natural boundaries, and

(v)  the boundaries of the existing electoral districts.

(2)  For the purposes of subsection (1) (a), the relevant future time is 4 years from the day of the return of the writs for choosing the Legislative Assembly that exists at the time the distribution is carried out.

s 17A: Ins 1928 No 55, sec 5 (1) (a). Am 1949 No 23, sec 2 (i); 1952 No 16, sec 2 (e); 1969 No 43, sec 2 (1) (e); 1973 No 44, sec 2 (1) (d). Subst 1979 No 39, Sch 1 (11); 1986 No 58, sec 2. Am 1987 No 173, Sch 1.

18 (Repealed)

s 18: Rep 1979 No 39, Sch 1 (12).

19 Application to commissioners of Royal Commissions Act 1923

The Electoral Districts Commissioners shall have the powers and immunities of a Commissioner, and the chairperson of the Electoral Districts Commissioners shall have the powers of a chairperson within the meaning of Division 1 of Part 2 of the Royal Commissions Act 1923, and the provisions of that Act with the exception of section 13 and Division 2 of Part 2 shall, mutatis mutandis, apply to any witness or person summoned by or appearing before the Electoral Districts Commissioners.

s 19: Subst 1926 No 12, sec 9 (1); 1928 No 55, sec 35 (1) (a); 1949 No 23, sec 2 (j). Subst 1952 No 16, sec 2 (f). Am 1975 No 108, Sch 1.

Part 3 Qualification of electors

pt 3: Subst 1928 No 55, sec 15 (a).

20 Qualification of electors

(1)  Subject to sections 21 and 32–41, all persons:

(a)  who have attained 18 years of age, and

(b)  who are:

(i)  Australian citizens, or

(ii)  persons (other than Australian citizens) who would, if the relevant Commonwealth law had continued in force, be persons who have the status of a British subject and who were, immediately before 26 January 1984, enrolled as electors for the Assembly or enrolled in any other State or Territory of the Commonwealth as electors for the House of Representatives,

shall be entitled to enrolment.

(2)  Subject to subsections (3) and (4) and section 21, an elector whose name is on the roll for a subdivision is entitled to vote at any election for the Assembly for the district.

(3)  An elector:

(a)  whose name has been placed on a roll in pursuance of a claim made under section 33A, and

(b)  who has not attained 18 years of age on the date appointed for the taking of the poll for an election,

is not entitled to vote at that election.

(4)  Notwithstanding section 33A or any enrolment in pursuance of a claim made under that section, for the purposes of this Act in its application in relation to an election, a person who has not attained 18 years of age on the date appointed for the taking of the poll for that election shall not be taken to be:

(a)  entitled to be enrolled on a roll, or

(b)  enrolled on a roll.

(5)  A person is not entitled to vote more than once at any Assembly general election, by-election or periodic Council election, or at more than one election for the Assembly or Council held on the same day.

(6)  An elector, other than a relevant elector, is not entitled to vote at an election as an elector of the subdivision of the district in respect of which the elector is enrolled unless the real place of living of the elector was, at some time within the 3 months immediately preceding polling day for that election, within that subdivision.

(7)  Notwithstanding anything in this Act:

(a)  an elector who has changed address to another place within the same subdivision, or to another subdivision of the same district, shall not be deemed by reason only of that change to be dispossessed of the qualification in respect of which the elector is enrolled, and

(b)  an elector who, within 3 months before any election has changed address to another district, may vote at that election for the district for which the elector’s name appears on the roll as provided by this Act for the purposes of that election.

(8)  In this section:

relevant Commonwealth law means the Australian Citizenship Act 1948 of the Commonwealth as amended and in force immediately before 1 May 1987 and the regulations in force immediately before that day under that Act as so amended and in force.

relevant elector means:

(a)  an Antarctic elector,

(b)  an eligible overseas elector, or

(c)  an itinerant elector.

s 20: Am 1926 No 12, sec 9 (2). Subst 1928 No 55, sec 15 (a). Am 1970 No 57, sec 2 (a); 1977 No 133, Sch 1 (2); 1982 No 112, Sch 1 (1); 1985 No 231, Sch 18. Subst 1987 No 132, Sch 1 (3).

20A Enrolled voters leaving Australia

An elector:

(a)  whose name is on the roll for a subdivision,

(b)  who intends to cease to reside in Australia and then, not later than 3 years after the day on which the elector ceases to reside there, to resume residing in Australia, whether in that subdivision or elsewhere, and

(c)  whose name appears on the electoral roll maintained under the Commonwealth Act for a Commonwealth subdivision and that roll is annotated to indicate that the elector is an eligible overseas elector under section 94 of the Commonwealth Act,

is, while the elector’s name continues to be included and annotated on the Commonwealth roll referred to in paragraph (c), entitled:

(d)  to have the elector’s name retained on the roll for the subdivision corresponding with the Commonwealth subdivision referred to in paragraph (c) with an annotation to indicate that the elector is an eligible overseas elector, and

(e)  to vote as an elector of the subdivision.

ss 20A–20C: Ins 1987 No 132, Sch 1 (4).

20B Eligibility of spouse or child of eligible overseas elector

(1)  A person:

(a)  who is the spouse or child of a person who is an eligible overseas elector in relation to a subdivision by virtue of section 20A,

(b)  who is living at a place outside Australia so as to be with or near the eligible overseas elector,

(c)  who had not attained 18 years of age when last ceasing to reside in Australia,

(d)  whose name is not, and has not been, on a roll,

(e)  who is not qualified for enrolment under section 20 but would be so qualified if the person resided in a subdivision,

(f)  who intends to resume residing in Australia not later than 3 years after the day on which the person attains 18 years of age, and

(g)  whose name has been added to an electoral roll maintained under the Commonwealth Act for a Commonwealth subdivision and that roll is annotated to indicate that the elector is an eligible overseas elector under section 95 of the Commonwealth Act,

shall be enrolled for the subdivision corresponding with the Commonwealth subdivision referred to in paragraph (g) for which the eligible overseas elector is enrolled with an annotation to indicate that the person is an eligible overseas elector and is, while the person’s name continues to be included and annotated on the Commonwealth roll referred to in paragraph (g), entitled:

(h)  to have the person’s name retained on the roll for the subdivision, and

(i)  to vote as an elector of the subdivision.

(2)  For the purposes of this section, where a child is adopted by a person, that child shall be taken to be the child of that person.

(3)  In this section:

child includes an exnuptial child.

spouse, in relation to a person (in this subsection referred to as the relevant person) includes a person who, although not legally married to the relevant person, lives with the relevant person as the spouse of the relevant person on a permanent and bona fide domestic basis.

ss 20A–20C: Ins 1987 No 132, Sch 1 (4).

20C Itinerant electors

A person:

(a)  who is in Australia but does not reside in any subdivision,

(b)  who is not entitled to have his or her name placed on or retained on the roll for any subdivision only because the person does not reside in any subdivision, and

(c)  whose name has been added to an electoral roll maintained under the Commonwealth Act for the Commonwealth subdivision with which the person has established a connection under section 96 of that Act and the roll maintained under that Act is annotated to indicate that the elector is an itinerant elector under section 96 of that Act,

shall have the person’s name added to the roll for the subdivision corresponding with the Commonwealth subdivision referred to in paragraph (c) with which the person has the connection with an annotation to indicate that the elector is an itinerant elector and is, while the person’s name continues to be included and annotated on the Commonwealth roll referred to in paragraph (c), entitled:

(d)  to have the person’s name retained on the roll for the subdivision, and

(e)  to vote as an elector of the subdivision.

ss 20A–20C: Ins 1987 No 132, Sch 1 (4).

21 Disqualifications from voting

A person shall not be entitled to have his or her name placed or retained on any roll if the person:

(a)  is a temporary patient, a continued treatment patient, a protected person or an incapable person within the meaning of the Mental Health Act 1958, or a person under detention under Part 7 of that Act,

(b)  has been convicted of a crime or an offence, whether in New South Wales or elsewhere, and has been sentenced in respect of that crime or offence to imprisonment for 12 months or more and is in prison serving that sentence, or

(c)  is the holder of a temporary entry permit or is a prohibited immigrant under the Migration Act 1958 of the Parliament of the Commonwealth, as amended and in force for the time being.

s 21: Subst 1928 No 55, sec 15 (a). Am 1969 No 43, sec 3 (a). Subst 1975 No 108, sec 4 (d). Am 1978 No 75, Sch 2 (4); 1982 No 112, Sch 1 (2).

Part 3A The Electoral Commissioner

pt 3A: Ins 1928 No 55, sec 8.

21A Appointment of Electoral Commissioner

(1) 

(a)  The Governor shall appoint an Electoral Commissioner for New South Wales.

(b)  The Electoral Commissioner is entitled to be paid remuneration in accordance with the Statutory and Other Offices Remuneration Act 1975.

(2)  Subject to this Act the Electoral Commissioner shall have the responsibility of administering this Act, and any provisions of any other Act so far as this Act and the said provisions relate to the registration or enrolment of electors, the preparation of lists and rolls of electors, and the conduct of elections.

(2A)  In addition to the powers, authorities, duties and functions conferred or imposed by this Act, the Electoral Commissioner shall have such powers, authorities, duties and functions as are conferred or imposed by or under any other Act.

(3)  The provisions of the Public Service Act 1979 shall not apply to the appointment of the Electoral Commissioner and the Electoral Commissioner shall not be subject to the provisions of that Act during his or her tenure of office.

(4)  The Electoral Commissioner shall subject to this Act hold office until he or she attains the age of sixty-five years, and shall be deemed to have vacated office upon the day upon which he or she attains that age.

No person who is of or above the age of sixty-five years shall be appointed as Electoral Commissioner.

(5)    (Repealed)

(6)  The Electoral Commissioner may be suspended from office by the Governor for misbehaviour or incompetence, but shall not be removed from office except in manner following, that is to say:

The Minister shall cause to be laid before Parliament a full statement of the grounds of suspension within seven sitting days after such suspension if Parliament is in session or if not then within seven sitting days after the commencement of the next session. An Electoral Commissioner suspended under this subsection shall be restored to office unless each House of Parliament within twenty-one days from the time when such statement has been laid before such House declares by resolution that the Electoral Commissioner ought to be removed from office, and if each such House within the time aforesaid does so declare, the Electoral Commissioner shall be removed by the Governor accordingly.

(7)  The Electoral Commissioner shall be deemed to have vacated office if he or she:

(a)  engages in New South Wales during his or her term of office in any paid employment outside the Public Service,

(b)  becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit,

(c)  is absent from duty for a period of fourteen consecutive days except on leave granted by the Governor,

(d)  becomes a temporary patient, a continued treatment patient, a protected person or an incapable person within the meaning of the Mental Health Act 1958, or a person under detention under Part 7 of that Act, or

(e)  resigns office by writing under his or her hand addressed to the Governor.

(8)  An Electoral Commissioner who at the date of appointment is an officer of the Public Service:

(a)  shall in the event of his or her office as Electoral Commissioner being discontinued or abolished, be eligible on the recommendation of the Public Service Board, to be appointed to some office in the Public Service not lower in classification and salary than that which he or she held at the date of appointment as Electoral Commissioner, and

(b)  shall, while such Electoral Commissioner continues to contribute to the Superannuation Fund, be entitled to all the benefits under the Superannuation Act 1916 to which he or she is entitled as such contributor.

(9)  In any Act, and in any regulations or by-laws, and in any instrument, a reference to the Chief Electoral Officer shall be read as a reference to the Electoral Commissioner appointed under this section.

(10)  A Principal Returning Officer and such staff as may be necessary to enable the Electoral Commissioner to exercise the Electoral Commissioner’s functions in relation to the administration of this Act shall be employed under the Public Service Act 1979.

(11) 

(a)  The Electoral Commissioner may, with the consent of the Governor, by writing under his or her hand, delegate to any officer of the Public Service, either generally or in any particular case or class of cases, all or any of the powers, authorities, duties and functions conferred and imposed upon the Electoral Commissioner by this Act or the regulations or by the Constitution Act 1902.

(b)  Any such officer shall, when acting within the scope of the delegation, be deemed to be the Electoral Commissioner for all purposes of this Act and the regulations.

(c)  The Electoral Commissioner may, by writing under his or her hand, revoke any such delegation.

(12)  Section 78E applies to and in respect of the Principal Returning Officer, as if a reference in that section to:

(a)  a postal voting officer were a reference to the Principal Returning Officer, and

(b)  a prescribed person were a reference to a justice of the peace.

(13)  The Principal Returning Officer may act in the place of the Electoral Commissioner during the illness or absence of the Electoral Commissioner and the Principal Returning Officer, while so acting, shall have and may exercise the functions of the Electoral Commissioner and shall be deemed to be the Electoral Commissioner.

(14)  For the purposes of subsection (13), a vacancy in the office of the Electoral Commissioner shall be deemed to be an absence from office of the Electoral Commissioner.

s 21A: Ins 1928 No 55, sec 8. Am 1949 No 23, sec 3; 1975 No 108, sec 4 (e), Sch 1; 1976 No 4, Sch 5; 1976 No 20, Sch 1 (2); 1978 No 75, Sch 2 (5); 1981 No 28, Sch 1 (4); GG No 172 of 31.10.1986, p 5321; 1987 No 132, Sch 1 (5).

Part 3B Arrangement with the Commonwealth as to rolls

pt 3B: Ins 1928 No 55, sec 12.

21AB Definition

In this Part:

State election means an election for the Assembly, a periodic Council election or a referendum and includes an election for a council of a local government area.

s 21AB: Ins 1991 No 94, Sch 1.

21B Arrangement with Commonwealth as to rolls

(1)  The Governor may arrange with the Governor-General of the Commonwealth for the preparation, alteration, and revision of rolls of electors for State elections in any manner consistent with the provisions of this Act, jointly by the State of New South Wales and the Commonwealth to the intent that the rolls may be used as electoral rolls for Commonwealth elections as well as for State elections and for such other purposes as the Governor may determine.

(2) 

(a)  When any such arrangement has been made the rolls may contain for the purposes of Commonwealth elections:

(i)  the names and descriptions of persons who are not entitled to be enrolled thereon as electors for State elections: Provided that it is clearly indicated in the prescribed manner that those persons are not enrolled thereon as electors for State elections, and

(ii)  distinguishing marks against the names of persons enrolled as electors for State elections to show that those persons are or are not also enrolled as electors for Commonwealth elections, and

(iii)  other particulars in addition to the prescribed particulars.

(b)  For the purposes of this Act, the names and descriptions, marks and particulars so contained shall not be deemed part of the roll.

s 21B: Ins 1928 No 55, sec 12. Am 1991 No 94, Sch 1.

21C Rolls

(1)  As soon as practicable after the making of an arrangement in pursuance of section 21B, rolls of electors for State elections shall be prepared as directed by the Governor in a proclamation published in the Gazette, and in the manner specified in the proclamation.

(2)  For the purposes of the first rolls prepared under the arrangement, any person who is enrolled on a Commonwealth roll in pursuance of any claim signed by the person, and who is entitled to be enrolled for State elections, shall be deemed to have made a claim under this Act for enrolment on the corresponding roll for State elections.

(3)    (Repealed)

(4)  If any such arrangement ceases to operate:

(a)  the rolls then in existence as added to or altered from time to time, or as compiled under the provisions of the law for the time being in force, shall be the rolls of electors for State elections until superseded by new rolls compiled under this Act,

(b)  for the purposes of such rolls or new rolls all officers prescribed may have and perform all the duties and functions of Commonwealth divisional returning officers under this Act.

s 21C: Ins 1928 No 55, sec 12. Am 1929 No 33, sec 7; 1977 No 133, Sch 1 (3); 1991 No 94, Sch 1.

21D Failure of registrar or Commonwealth divisional returning officer to prepare, alter or revise joint rolls for State elections

(1)  Where:

(a)  rolls of electors for the purpose of State elections and of Commonwealth elections are required to be prepared, altered or revised jointly under an arrangement referred to in section 21B, and

(b)  a registrar or Commonwealth divisional returning officer prepares, alters or revises any such roll for a subdivision for the purpose of Commonwealth elections but not for the purpose of State elections,

that roll shall, subject to any direction referred to in subsection (2):

(c)  be, for the purpose of State elections, the roll in force for the subdivision:

(i)  that has the same boundaries as the subdivision referred to in paragraph (b), or

(ii)  if there is no such subdivision, that has the same name as the subdivision so referred to, and

(d)  be deemed to have been duly prepared, altered or revised in accordance with this Act and the arrangement.

(2)  Where the Electoral Commissioner is satisfied that a roll in force pursuant to subsection (1) contains the names and descriptions of persons who are not entitled to be enrolled thereon as electors for State elections, the Electoral Commissioner shall, by a notice published in the Gazette, specify the names and descriptions of those persons and direct that:

(a)  an indication in the manner prescribed for the purposes of section 21B (2) (a) (i) shall be deemed to have been made on the roll in respect of the names and descriptions of those persons at the time they were enrolled, and

(b)  if those persons are entitled to be enrolled on another roll for the purpose only of elections for State elections, the names and descriptions of those persons and the distinguishing marks referred to in section 21B (2) (a) (ii) shall be deemed to have been added to that other roll at the time they were enrolled.

s 21D: Ins 1977 No 133, Sch 1 (4). Am 1991 No 94, Sch 1.

Part 4 Officers and enrolment

pt 4: Subst 1928 No 55, sec 13 (am 1928 No 55, sec 9 (2)). Am 1999 No 31, Sch 5.81 [1] (each heading that is not a sec heading omitted).

Division 1 Districts and subdivisions

pt 4, div 1, hdg: Ins 1999 No 31, Sch 5.81 [2].

22 (Repealed)

s 22: Am 1918 No 40, sec 8; 1928 No 55, sec 9 (1) (a) (c). Subst 1928 No 55, sec 13. Am 1978 No 75, Sch 2 (6). Rep 1987 No 132, Sch 1 (6).

23 Power of Governor as to subdivision of districts

(1)  The Governor may, by proclamation published in the Gazette:

(a)  divide any district into subdivisions,

(b)  specify the boundaries and names of subdivisions, and

(c)  alter the boundaries and name of any subdivision.

(2)  The subdivisions and the boundaries and names thereof shall be such as are specified in any such proclamation.

(3)  No subdivision shall be established, altered or abolished after the issue of the writ for an election, and before the time appointed for its return.

(4)    (Repealed)

s 23: Am 1918 No 40, sec 8; 1928 No 55, sec 9 (1) (a). Subst 1928 No 55, sec 13. Am 1987 No 132, Sch 1 (7); 1991 No 94, Sch 1.

24 Changes to be made in rolls on subdivision of districts or alteration of boundaries

Where:

(a)  a district is divided into subdivisions, or

(b)  the boundaries of a district or of a subdivision are altered,

such changes in rolls as are thereby rendered necessary for the transfer of names of electors from one roll to another shall be made in the prescribed manner.

s 24: Subst 1928 No 55, sec 13. Am 1978 No 75, Sch 2 (7).

Division 2 Officers

pt 4, div 2, hdg: Ins 1999 No 31, Sch 5.81 [3].

25 Appointment of officers

(1)  The Electoral Commissioner may appoint for any one or more subdivisions an electoral inspector and an electoral registrar.

(2)  The Electoral Commissioner may remove any such person from office.

(3)  Any person appointed under this section may resign office.

(4)  By arrangement with the Australian Electoral Officer for New South Wales the divisional returning officer may act as electoral registrar for any subdivision for which an electoral registrar is not appointed, and any Commonwealth officer may act as electoral inspector for any subdivision for which an electoral inspector is not appointed.

(5)  Electoral inspectors shall have such powers and perform such duties as are prescribed.

(6)  Every electoral registrar and every electoral inspector shall act under and be subject to the control of the Electoral Commissioner for New South Wales, who may inspect all books, rolls and documents kept by any electoral registrar for the purposes of this Act, and satisfy himself or herself that the duties imposed on electoral registrars by this Act have been carried out.

(7)  Every electoral registrar and every electoral inspector shall be paid such allowance as is fixed by the Governor.

s 25: Subst 1928 No 55, sec 13 (am 1928 No 55, sec 9 (2)). Am 1929 No 33, sec 6; 1977 No 133, Sch 1 (5).

Division 3 Rolls

pt 4, div 3, hdg: Ins 1999 No 31, Sch 5.81 [4].

26 Rolls for districts and subdivisions

(1)  There shall be a roll for each district.

(2)  There shall be a separate roll for each subdivision.

(3)  The rolls for all the subdivisions of a district shall together form the roll for the district.

(4)  The rolls:

(a)  may be in the prescribed form,

(b)  shall set out the surname, given name or names, residence, occupation (or other prescribed particulars) and sex of each elector,

(c)  shall contain such further particulars as are prescribed,

(d)  shall be arranged in alphabetical order of surnames, and where the surnames are identical then in alphabetical order of the given name or names.

(5)  Where the elector is an eligible overseas elector or an itinerant elector, the roll shall not set out the residence of the elector.

s 26: Am 1918 No 40, sec 8. Subst 1928 No 55, sec 13. Am 1975 No 108, sec 4 (f); 1987 No 132, Sch 1 (8).

27 New rolls

(1)  New rolls generally and new rolls for any district or subdivision shall be prepared whenever directed by the Governor by proclamation published in the Gazette.

(2)  The rolls shall be prepared under a system of compulsory enrolment.

(3)  The proclamation may specify the manner in which the rolls shall be prepared; and may require every person entitled to enrolment on any new roll, other than an eligible overseas elector or an itinerant elector, to sign and send to the proper officer in accordance with this Act or the regulations, a form of claim for enrolment, and otherwise to comply with the provisions of this Act or the regulations relating to compulsory enrolment:

Provided that where an elector is enrolled for the subdivision in which the elector lives in pursuance of a claim signed by the elector, he or she shall not be required to sign and send in any further claim for enrolment in connection with the preparation of a new roll for that subdivision.

s 27: Rep 1918 No 40, sec 8. Ins 1928 No 55, sec 13. Am 1987 No 132, Sch 1 (9).

28 Alterations which may be made in new roll by registrar

(1)  The registrar, upon the receipt of a new roll for a subdivision shall:

(a)  make additions, alterations and corrections therein, and

(b)  remove names therefrom,

pursuant to claims or notifications received by the registrar between the date of the proclamation directing the preparation of the new rolls and the date of the notification that such rolls have been prepared where such additions, alterations or corrections have not already been made in or such removals have not been made from such new roll.

(2)  Where objections have been lodged or notices of objection have been issued and action in respect of such objections or notices of objection has not been completed prior to the notification that new rolls have been prepared, such objections or notices of objection shall have effect in relation to the new rolls as if such rolls had been in existence at the time of the lodging of the objections or the issuing of the notices of objection.

s 28: Am 1918 No 40, sec 8; 1928 No 55, sec 9 (1) (a). Subst 1928 No 55, sec 13.

29 Printing of rolls

(1)  Rolls generally, or the roll for any district shall be printed whenever the Electoral Commissioner so directs.

(2)  Supplemental rolls setting out additions since the latest print of the rolls shall be prepared and printed:

(a)  immediately previous to an election, and

(b)  at such other times as the Electoral Commissioner directs.

(3)  Forthwith after the printing of rolls copies thereof shall be furnished to registrars.

s 29: Subst 1928 No 55, sec 13 (am 1928 No 55, sec 9 (2)). Am 1977 No 133, Sch 1 (6); 1978 No 75, Sch 2 (8); 1987 No 132, Sch 1 (10).

30 Inspection of rolls

Copies of the latest print of the roll for any district and of any supplemental roll shall:

(a)  be open for public inspection without fee at the office of the Electoral Commissioner and of the registrar at all convenient times during office hours, and at such other places as are prescribed, and

(b)  on payment of such amounts as the Electoral Commissioner determines to be appropriate in relation to prints of rolls of that kind be obtainable at such places as the Electoral Commissioner appoints.

s 30: Am 1926 No 12, sec 9 (3). Subst 1928 No 55, sec 13 (am 1928 No 55, sec 9 (2)). Am 1987 No 132, Sch 1 (11); 1991 No 94, Sch 1.

31 Persons who are to furnish information

All officers in the service of the Government of New South Wales, all members of the police force, all employees of any council within the meaning of the Local Government Act 1993, and all electors or persons qualified to be electors, shall upon application furnish to the Electoral Commissioner or to any officer acting under the direction of the Electoral Commissioner all such information as is required in connection with the preparation, maintenance or revision of the rolls.

s 31: Subst 1928 No 55, sec 13 (am 1928 No 55, sec 9 (2)). Am 1995 No 11, Sch 1.

Division 4 Enrolment

pt 4, div 4, hdg: Ins 1999 No 31, Sch 5.81 [5].

32 Addition of names to rolls

(1)  Names may be added to rolls pursuant to claims for enrolment or transfer of enrolment or claims for provisional enrolment.

(2)  A claim shall:

(a)  be in the prescribed form,

(b)  subject to subsection (3), be signed by the claimant, and

(c)  be attested by an elector or a person entitled to have the person’s name placed on a roll, who shall sign the claim as witness in the witness’s own handwriting.

(3)  If a person wishes to make a claim for enrolment, for transfer of enrolment or for provisional enrolment and a registered medical practitioner has certified, in writing, that the person is so physically incapacitated that the person cannot sign the claim, another person may, on behalf of the person, fill out and sign the claim in accordance with the directions of the first-mentioned person.

(4)  A claim shall be completed in accordance with the directions prescribed in the form.

(5)  A certificate referred to in subsection (3) shall be lodged with the claim to which it relates.

s 32: Subst 1928 No 55, sec 13. Am 1987 No 132, Sch 1 (12).

33 Claims for enrolment or transfer of enrolment

(1)  Any person qualified for enrolment, who lives in a subdivision, and has so lived for a period of one month last past, shall be entitled to have his or her name placed on the roll for that subdivision.

(2)  Any elector whose name is on the roll for any subdivision and who lives in any other subdivision, and has so lived for a period of one month last past, shall be entitled to have his or her name transferred to the roll for the subdivision in which the elector lives.

(3)  Subject to sections 20A–20C and Division 18 of Part 5, no person is entitled to have his or her name placed on more than one roll or upon any roll other than the roll for the subdivision in which the person lives, or to have his or her name placed on a roll in respect of any address other than the address at which the person is living at the date of lodgment of the claim.

s 33: Am 1918 No 40, sec 8. Subst 1928 No 55, sec 13. Am 1935 No 31, sec 2 (a); 1987 No 132, Sch 1 (13).

33A Claims for provisional enrolment

(1)  Any person who is 17 years of age and who, if the person were 18 years of age, would be entitled to have the person’s name placed on a roll for a subdivision may send or deliver a claim to have the person’s name placed on the roll for the subdivision to any registrar of a subdivision.

(2)  A claim made under subsection (1) shall be treated as a claim for enrolment for the subdivision to which the claim relates and the provisions of sections 35, 38 and 38A apply in relation to the claim as if the person making the claim were 18 years of age and the claim were made pursuant to section 34.

s 33A: Ins 1987 No 132, Sch 1 (14).

34 Compulsory enrolment and transfer

(1)  Every person who is entitled to have his or her name placed on the roll for any subdivision otherwise than by virtue of section 20A, 20B, 20C or 33A (whether by way of enrolment or transfer of enrolment) and whose name is not on the roll, shall forthwith fill in and sign a claim in the prescribed form and send or deliver the claim to the registrar for the subdivision.

(2)  Where a person sends or delivers a claim for enrolment, or for transfer of enrolment, to the registrar for a subdivision other than the subdivision (in this subsection referred to as the proper subdivision) on the roll for a subdivision of which the person is entitled to be enrolled, the registrar shall note on the claim the date of its receipt by the registrar and forthwith send the claim and any documents sent or delivered by the person with the claim to the registrar for the proper subdivision.

(3)  Every person who is entitled to have his or her name placed on the roll for any subdivision otherwise than by virtue of section 20A, 20B, 20C or 33A (whether by way of enrolment or transfer of enrolment) and whose name is not on the roll upon the expiration of 21 days from the date upon which becoming so entitled, or at any subsequent date while continuing to be so entitled, shall be guilty of an offence unless the person proves that the non-enrolment is not because of the person’s failure to send or deliver to the registrar a claim, duly filled in and signed in accordance with the directions printed on it.

(4)  If a person (including a person whose residence, in pursuance of a request made under section 38A, is not entered on a roll) changes residence from one address in the subdivision for which the person is enrolled to another address in that subdivision, the person shall, within 21 days after the date of making the change, give notice in writing of the new address to the registrar for the subdivision.

(5)  A person who is guilty of an offence against subsection (1) or (3) is liable to a penalty not exceeding 0.5 penalty unit.

(6)  When a person sends or delivers a claim for enrolment, or for transfer of enrolment, to a registrar, proceedings shall not be instituted against that person for any offence against subsection (1) or (3) committed before the person sent or delivered that claim.

s 34: Am 1918 No 40, sec 8; 1928 No 55, sec 9 (1) (a). Subst 1928 No 55, sec 13. Am 1969 No 43, sec 5 (a). Subst 1987 No 132, Sch 1 (15). Am 1992 No 112, Sch 1.

35 Registration of claims

(1)  Subject to subsection (4), when, pursuant to section 34, a registrar receives a claim for enrolment or transfer of enrolment for a subdivision, the registrar shall:

(a)  note on the claim the date of its receipt by the registrar,

(b)  if the claim is in order and the registrar is satisfied that the claimant is entitled to be enrolled for the subdivision, forthwith:

(i)  enter on the roll for the subdivision the name of the claimant and particulars relating to the claimant,

(ii)  notify the claimant in writing that he or she has been enrolled for that subdivision,

(iii)  in the case of a claim for a transfer of an enrolment from the roll for another subdivision in the same district—delete the name of the claimant from the roll for the last-mentioned subdivision,

(iv)  in the case of a claim for transfer of enrolment from a subdivision not included in the same district—give notice of the transfer to the registrar for that last-mentioned subdivision, and

(v)  in a case where the name of the claimant is entered on the roll for the subdivision for which the claimant is entitled to be enrolled—notify the claimant in writing that, in the registrar’s opinion, the claimant’s existing enrolment is correct, and

(c)  if the claim is not in order or the registrar is not satisfied that the claimant is entitled to be enrolled in a subdivision of that district—forthwith notify the claimant in writing that his or her claim has been rejected.

(2)  Where a registrar receives notice, pursuant to subsection (1) (b) (iv), of the transfer of a person’s enrolment from a subdivision, the registrar shall delete the name of, and particulars relating to, the person from the roll for the subdivision.

(3)  Notice of a decision given to a claimant by a registrar under subsection (1) (b) (v) or (1) (c) shall include:

(a)  a statement of the reasons for the decision, and

(b)  a statement advising the claimant that the claimant is entitled at any time within one month after the receipt of the notice to appeal to a Local Court for an order directing that the claimant’s name be enrolled.

(4)  If a claim under section 34 by a person to have the person’s name placed on the roll for a subdivision is received during the period commencing at 6 pm on the date of issue of the writ for the election and ending on the close of polling at the election, the claim is not to be considered until after the expiration of that period.

(5)  A name may, at any time, be removed from a roll pursuant to a notice of transfer of enrolment.

(6)  The regulations may make provision for or with respect to the giving of notice by the Electoral Commissioner to an elector of his or her enrolment and the signing of that notice by the elector.

s 35: Am 1918 No 40, sec 8. Subst 1928 No 55, sec 13. Am 1935 No 31, sec 2 (b) (i); 1977 No 133, Sch 1 (7); 1979 No 152, sec 3 (am 1981 No 28, Sch 2 (2)). Subst 1987 No 132, Sch 1 (16). Am 1990 No 111, Sch 1 (3).

36, 37 (Repealed)

s 36: Rep 1921 No 19, sec 2 (4). Ins 1928 No 55, sec 13. Rep 1987 No 132, Sch 1 (16).

s 37: Subst 1918 No 40, sec 8. Rep 1921 No 19, sec 2 (4). Ins 1928 No 55, sec 13. Rep 1987 No 132, Sch 1 (16).

38 Penalty on officer neglecting to enrol claimants

Any registrar who receives a claim for enrolment or transfer of enrolment, and who without just excuse fails to do everything necessary on his or her part to be done to secure the enrolment of the claimant in pursuance of the claim shall be liable to a penalty not exceeding 10 penalty units.

s 38: Rep 1921 No 19, sec 2 (4). Ins 1928 No 55, sec 13. Am 1969 No 43, sec 5 (b); 1987 No 132, Sch 2 (1); 1992 No 112, Sch 1.

38A Request for residence not to be shown on roll

(1)  If a person considers that having the person’s residence shown on the roll for the subdivision for which the person is claiming enrolment would place the personal safety of the person or of members of the person’s family at risk, the person may lodge with the claim for enrolment or transfer of enrolment a request, in the prescribed form, that the person’s residence not be entered on the roll for the subdivision for which the person is claiming enrolment.

(2)  Where:

(a)  the residence of a person is included in the particulars relating to the person that are entered on the roll for a subdivision, and

(b)  the person considers that having the residence so shown places the personal safety of the person or of members of the person’s family at risk,

the person may lodge with the registrar for the subdivision a request, in the prescribed form, that the person’s residence be deleted from the particulars relating to the person that are entered on that roll.

(3)  A request under subsection (1) or (2) shall give particulars of the relevant risk and shall be verified by statutory declaration by the person making the request or some other person.

(4)  If:

(a)  a request has been made under subsection (1) or (2), and

(b)  the registrar is satisfied that having the residence of the person making the request entered on the roll for the subdivision would place or places the personal safety of the person or of members of the person’s family at risk,

the registrar:

(c)  in a case where the request was lodged under subsection (1)—shall not include the residence of the person in the particulars relating to the person that are entered on the roll for the subdivision, and

(d)  in a case where the request is lodged under subsection (2)—shall delete the residence of the person from the particulars relating to the person that are entered on the roll for the subdivision.

(5)  When a registrar grants or refuses a request made by a person under subsection (1) or (2), the registrar shall notify the person in writing of the decision.

(6)  Notwithstanding anything contained in section 40, where an address is deleted from a roll in pursuance of subsection (4), the address so deleted shall be obliterated.

(7)  A registrar, when directed to do so by the Electoral Commissioner, shall:

(a)  conduct a review of the roll for the subdivision in relation to electors whose residences are not shown on the roll by virtue of this section, and

(b)  on completion of the review, make such alterations to the roll as the registrar thinks necessary to ensure that the only electors whose residences are not shown on the roll by virtue of this section are electors the personal safety of whom or of whose family, the registrar is satisfied, would be at risk if their residence were shown on the roll.

s 38A: Ins 1987 No 132, Sch 1 (17).

39 Alteration of rolls

(1)  In addition to other powers of alteration conferred by this Act, a registrar may alter any roll kept by the registrar by:

(a)  correcting any mistake or omission in the particulars of the enrolment of an elector,

(a1)  altering any particulars of the enrolment of an elector necessitated:

(i)  by the numbering or re-numbering or naming or re-naming of the elector’s place of residence,

(ii)  by the naming or re-naming of a street, public place or locality, or

(iii)  for any other like reason,

(b)  altering, on the written application of an elector, the original name, address, or occupation of the elector on the same subdivision roll,

(c)  removing the name of any deceased elector,

(d)  removing the name of an elector who has been convicted and sentenced to a term of imprisonment of one year or longer and is in prison pursuant to such sentence,

(e)  striking out the superfluous entry where the name of the same elector appears more than once on the same subdivision roll,

(f)  reinstating any name removed by mistake as the name of a deceased elector,

(g)  reinstating, by direction of the divisional returning officer, any name removed as the result of an objection:

Provided that the divisional returning officer shall not direct the reinstatement of any such name unless satisfied that the objection was based on a mistake as to fact and that the person objected to still retains and has continuously retained the right to the enrolment in respect of which the objection was made,

(h)  reinstating by direction of the divisional returning officer any other name removed by mistake or which has been accidentally omitted, and

(i)  removing a name from the roll by direction of the divisional returning officer upon the certificate of the Electoral Commissioner:

Provided that the Electoral Commissioner shall not issue such a certificate unless satisfied that the elector has ceased to be qualified for enrolment on that roll and has secured enrolment on another roll:

Provided further that where a registrar removes any such name the registrar must send by post to the elector whose name is so removed notice of the fact.

(2)  Where the name of an elector has, pursuant to a claim, been incorrectly placed on the roll for a subdivision other than the subdivision in which the elector was living at the date of the claim, and the elector was entitled on that date to have his or her name placed on the roll for the subdivision in which the elector was living:

(a)  if the two subdivisions are in the same district the divisional returning officer may direct the registrar keeping the roll on which the elector is enrolled to remove the name of the elector from that roll, and the registrar keeping the roll for the subdivision in which the elector is living to place the name of the elector on that roll and to notify the elector of the change of enrolment, and the respective registrars shall comply with those directions accordingly, and

(b)  if the two subdivisions are not in the same district the Electoral Commissioner shall forward a certificate setting forth the facts to the divisional returning officer for the district in which the elector is enrolled and to the divisional returning officer for the district in which the elector is living, and thereupon the divisional returning officer for the district for which the elector is enrolled shall direct the registrar keeping the roll on which the elector is enrolled to remove the name of the elector from that roll, and the divisional returning officer for the district in which the elector is living shall direct the registrar keeping the roll for the subdivision in which the elector is living to place the name of the elector on that roll and to notify the elector of the change of enrolment, and the respective registrars shall comply with those directions accordingly.

(3)  No alteration pursuant to this section shall, without the authority of the divisional returning officer, be made at any time after six o’clock in the afternoon of the day of the issue of the writ for an election and before the close of the polling at the election.

s 39: Rep 1918 No 40, sec 8. Ins 1928 No 55, sec 13 (am 1928 No 55, sec 9 (2)). Am 1935 No 31, sec 2 (c); 1969 No 43, sec 3 (b).

39A Incorrect enrolment

Where a person, whose name has been placed on the roll for a district, is not entitled to enrol for that district and that person secured enrolment pursuant to a claim in which the person made a false statement, the divisional returning officer for that district, upon receipt of a certificate from the Electoral Commissioner setting forth the facts, may, at any time between the date of the issue of the writ for an election, and before the close of the polling at that election, direct the registrar keeping that roll to remove the name of that person from that roll and the registrar shall comply with that direction accordingly.

s 39A: Ins 1935 No 31, sec 2 (e). Am 1978 No 75, Sch 2 (9).

40 Alterations to be initialled

Every alteration of a roll shall be made in such a manner that the original entry shall not be obliterated, and the reason for each alteration and the date thereof shall be set against the alteration, together with the initials of the registrar.

s 40: Rep 1918 No 40, sec 8. Ins 1928 No 55, sec 13.

41 Information as to deaths and convictions

(1)  The Registrar of Births, Deaths and Marriages shall cause to be forwarded, within three days after the end of each month or at such other times as are arranged, to the Electoral Commissioner a list setting out the surname and given name or names, and the occupation and age at the time of death, and the last known place of residence at the date of the death of every person of the age of 17 years or upwards whose death was registered during such month.

(2) 

(a)  The Corrective Services Commission of New South Wales shall, in respect of any person of the age of 17 years or upwards who is in prison pursuant to being sentenced to a term of imprisonment of one year or longer, as soon as possible after the end of each month in which any such person is sentenced, forward to the Electoral Commissioner a list setting forth the surname and given name or names, and the occupation and age, and the last known place of residence of every person so sentenced during such month, and the date of the sentence, the nature of the offence, the period of imprisonment, and the electoral roll (if any) in which such person’s name is included.

(b), (c)    (Repealed)

(3)  The Electoral Commissioner after receipt of any list referred to in subsection (1) or subsection (2), shall forthwith forward a copy of any particulars included in the list to the divisional returning officer for each district or subdivision to which such particulars relate.

(4)  Each divisional returning officer shall, upon receipt of information pursuant to this section, take action under this Part to effect such alterations of the rolls as are necessary.

s 41: Rep 1918 No 40, sec 8. Ins 1928 No 55, sec 13 (am 1928 No 55, sec 9 (2)). Am 1969 No 43, sec 3 (c); 1970 No 57, sec 2 (b); 1973 No 87, Sch 2; 1975 No 57, Sch 2; 1975 No 108, sec 4 (g), Sch 1; 1978 No 155, Sch 4; 1987 No 132, Sch 1 (18) (am 1988 No 20, Sch 20); 1995 No 62, Sch 2.

41A Computer records relating to roll

(1)  If but for this subsection a registrar is required or permitted under this Act or the regulations to record particulars (including make an annotation) in a written form on a roll, the registrar may do so by recording or storing those particulars, or causing those particulars to be recorded or stored, on a mechanical, electrical or other device approved by the Electoral Commissioner.

(2)  If a registrar is required or permitted under this Act or the regulations to vary or remove particulars which, but for this section, would be on a roll but which have been recorded or stored in accordance with this section, the registrar shall do so by varying or removing the particulars so recorded or stored, or causing the particulars so recorded or stored to be varied or removed, as the case may be.

(3)  If particulars are recorded or stored by virtue of this section, the registrar responsible for the roll on which, but for this section, those particulars would be recorded shall ensure that means are provided by which those particulars are available, without fee, for public inspection in a written form at the registrar’s office during ordinary office hours.

(4)  If a registrar who is required under this Act or the regulations to enter particulars on, vary particulars on, or remove particulars from, a roll complies with the requirement by taking action in accordance with this section, the registrar shall, for the purposes of this Act, including any provisions imposing obligations on the registrar, be taken to have entered those particulars on the roll, varied those particulars or removed those particulars, as the case may be.

(5)  Section 40 does not apply to alterations of a roll made in pursuance of this section.

s 41A: Ins 1987 No 132, Sch 1 (19).

Division 5 Objections

pt 4, div 5, hdg: Ins 1999 No 31, Sch 5.81 [6].

42 Name on roll may be objected to

Any name on a roll may be objected to by objection in writing lodged with or made by the divisional returning officer:

Provided that a sum of $2 shall be deposited in respect of each objection lodged by any person other than an officer, to be forfeited to the Crown if the objection is held by the divisional returning officer to have been made without a reasonable belief by the person that grounds for the objection existed.

s 42: Rep 1918 No 40, sec 8. Ins 1928 No 55, sec 13. Am 1987 No 132, Sch 1 (20).

43 Objection

The objection may be in the prescribed form, and shall be signed by an elector enrolled on the roll for the same subdivision as the person objected to, or by the divisional returning officer or registrar, or other prescribed officer.

s 43: Rep 1918 No 40, sec 8. Ins 1928 No 55, sec 13. Am 1987 No 132, Sch 1 (21).

44 Duty to object

It shall be the duty of each divisional returning officer and of each registrar or other prescribed officer to lodge or make an objection in writing, setting forth the grounds of such objection, in respect of any name which he or she has reason to believe ought not to be retained on the roll.

s 44: Rep 1918 No 40, sec 8. Ins 1928 No 55, sec 13. Am 1987 No 132, Sch 1 (21).

45 Notice of objection

(1)  Subject to subsection (3), if an objection is made by or lodged with a divisional returning officer, the divisional returning officer shall forthwith give notice of the objection to the person objected to.

(2)  Notice under subsection (1) shall be in the prescribed form, and may be given to the person objected to by being posted to:

(a)  in a case where the person objected to has notified, in writing, the divisional returning officer for the division in which the subdivision for which the person is enrolled is situate of an address to which notices may be given to the person—the address so notified,

(b)  in a case where paragraph (a) does not apply to the person objected to and the place of living of the person objected to is known to the person giving the notice—the place of living of the person objected to, or

(c)  in any other case—the place of living of the person objected to as appearing on the roll.

(3)  Where the divisional returning officer is satisfied that an objection is frivolous or vexatious, he or she may dismiss the objection without giving notice of objection to the person objected to.

(4)  An objection on the ground that a person does not live in the subdivision for which the person is enrolled shall be deemed not to be good unless it alleges that the person objected to does not live in the subdivision, and has not so lived for at least one month last past.

s 45: Am 1918 No 40, sec 8. Rep 1921 No 19, sec 2 (4). Ins 1928 No 55, sec 13. Am 1987 No 132, Sch 1 (21).

46 Answer to objection

The person objected to may, orally or in writing, in the prescribed manner, answer the objection.

s 46: Subst 1921 No 19, sec 2 (5). Am 1928 No 55, sec 9 (1) (a). Subst 1928 No 55, sec 13.

47 Determination of objection

(1)  The divisional returning officer shall determine the objection forthwith on receipt of the answer of the person objected to, or if no answer is received within a period of twenty days after the posting of the notice, then after the expiration of that period; and if it appears that the person objected to is not entitled to be enrolled on the roll in respect of which the objection has been made, the divisional returning officer shall direct the registrar to remove the name of such person from that roll:

Provided that no name shall be removed from a roll in pursuance of this section after the issue of the writ for an election and before the close of the polling at the election.

(2)  The divisional returning officer shall give notice in the prescribed form of his or her determination of an objection under subsection (1) to the objector and to the person objected to.

(3)  Notice under subsection (2) may be given to the person objected to by being posted to an address or place to which a notice of objection could be posted to the person objected to under section 45 (2).

s 47: Am 1921 No 19, sec 2 (6). Subst 1928 No 55, sec 13. Am 1987 No 132, Sch 1 (22).

47A Assistant divisional returning officers

Sections 42–45 and 47 apply in relation to a State subdivision corresponding to a Commonwealth subdivision for which an assistant divisional returning officer has been appointed as if references in those sections, in relation to a subdivision, to a divisional returning officer were references to an assistant divisional returning officer.

s 47A: Ins 1987 No 132, Sch 1 (23).

Division 6 Appeals

pt 4, div 6, hdg: Ins 1999 No 31, Sch 5.81 [7].

48 Appeal to Local Court

(1)  Any person:

(a)  who has sent or delivered to a registrar a claim for enrolment or transfer of enrolment or provisional claim for enrolment, and who has not been enrolled pursuant thereto, or

(b)  whose name has been removed from a roll by direction of the divisional returning officer pursuant to an objection,

may, at any time within one calendar month after the receipt of the notice of the rejection of the claim or of notice of the determination of the objection, as the case may be, in the prescribed manner make application to a Local Court for an order directing that the person’s name be enrolled or reinstated on the roll, as the case requires.

(2)  Where an objection has been determined by the divisional returning officer adversely to the person objecting, that person, if not an officer, may in the prescribed manner apply to a Local Court for an order sustaining the objection.

(3)  Where the application has reference to the decision of the divisional returning officer upon an objection, the applicant shall as prescribed serve the objector or the person objected to (as the case may be) with notice of the application, and the person so served may appear or may in writing authorise any person to appear on his or her behalf to resist the application.

s 48: Am 1918 No 40, sec 8; 1926 No 12, sec 9 (5) (a). Subst 1928 No 55, sec 13. Am GG No 172 of 31.10.1986, p 5321; 1987 No 132, Sch 1 (24).

49 Power of Local Court to hear and determine appeals etc

(1)  A local court presided over by a magistrate may hear and determine any appeal or application under this Part, and may make such order as it thinks fit as to costs, which costs may be recovered in the same manner as costs awarded in any other proceedings in a local court.

(2)  The clerk of the local court shall send by post to the divisional returning officer a certified copy of the order of the court, and it shall be the duty of the divisional returning officer to direct the registrar to make such entries (if any) upon the roll as are necessary to give effect to the order.

s 49: Am 1918 No 40, sec 8; 1926 No 12, sec 9 (5) (b). Subst 1928 No 55, sec 13. Am 1975 No 108, Sch 1; 1982 No 168, Sch 1.

Division 7 Copy of roll for election

pt 4, div 7, hdg: Ins 1999 No 31, Sch 5.81 [8].

50 Roll for purposes of election

(1)  The Australian Electoral Officer for New South Wales must, as soon as practicable after the issue of the writ for an election in any district, certify, sign and transmit to the State returning officer for the district a printed copy of the roll for each subdivision in the district as in force at 6 pm on the day of the issue of the writ.

(2)  A copy of the roll so transmitted to the State returning officer is the electoral roll for the subdivision.

(3)  The regulations may make provision for or with respect to the supply and certification of a composite roll for a district made up of all rolls for a subdivision.

(4)  A registrar must comply with any direction of the Australian Electoral Officer for New South Wales given to enable that Electoral Officer to comply with this section.

(5)  If the Electoral Commissioner is satisfied that the Australian Electoral Officer for New South Wales, or any other person, refuses or has failed to perform any duty under this section, the Electoral Commissioner (or a person authorised by the Electoral Commissioner) may perform that duty and, for that purpose, has all the powers, authorities, duties and functions of the Australian Electoral Officer for New South Wales or any registrar.

s 50: Rep 1921 No 19, sec 2 (7). Ins 1928 No 55, sec 13. Am 1977 No 133, Sch 1 (8); 1978 No 75, Sch 2 (10); 1987 No 132, Sch 1 (25). Subst 1990 No 111, Sch 1 (4). Am 1993 No 108, Sch 1.

Division 8 Miscellaneous

pt 4, div 8, hdg: Ins 1999 No 31, Sch 5.81 [9].

51 Witness to application must be satisfied of truth of statements

Any person who witnesses any claim for enrolment or transfer of enrolment or provisional claim for enrolment who signs the claim before being satisfied, by inquiry from the claimant or otherwise, that the statements contained in the claim are true, shall be liable to a penalty not exceeding 10 penalty units.

s 51: Am 1918 No 40, sec 8; 1926 No 12, sec 9 (4) (5) (c). Subst 1928 No 55, sec 13. Am 1969 No 43, sec 5 (c); 1987 No 132, Schs 1 (26), 2 (2); 1992 No 112, Sch 1.

52 Failure to transmit claim

Any person who accepts the custody of a claim for enrolment or transfer of enrolment or provisional claim for enrolment for transmission on behalf of any other person to a registrar, and does not transmit the claim forthwith to the registrar, shall be liable to a penalty not exceeding 10 penalty units.

s 52: Am 1918 No 40, sec 8; 1921 No 19, sec 2 (8). Subst 1928 No 55, sec 13. Am 1969 No 43, sec 5 (d); 1987 No 132, Schs 1 (27), 2 (3); 1992 No 112, Sch 1.

52A, 52B (Repealed)

s 52A: Ins 1921 No 19, sec 2 (9). Am 1926 No 12, sec 9 (6). Rep 1928 No 55, sec 13.

s 52B: Ins 1921 No 19, sec 2 (9). Am 1926 No 12, sec 9 (7). Rep 1928 No 55, sec 13.

53 Electoral papers may be sent by post

All electoral papers provided for by this Part may be sent through the post.

s 53: Subst 1928 No 55, sec 13.

54 Correction of errors

(1)  Where any accidental or unavoidable impediment, misfeasance or omission has happened in the preparation or transmission or printing of any roll under this Part, the Governor may by order:

(a)  take all such measures as may be necessary for removing such impediment or rectifying such misfeasance or omission, or

(b)  declare any such roll valid as to and notwithstanding such impediment, misfeasance or omission.

(2)  Every such order shall state specifically the nature of the impediment, misfeasance or omission and shall be forthwith published in the Gazette.

s 54: Rep 1918 No 40, sec 8. Ins 1928 No 55, sec 13.

55–66 (Repealed)

s 55: Am 1921 No 19, sec 2 (10); 1926 No 12, sec 9 (8). Subst 1928 No 55, sec 13. Am 1969 No 43, sec 5 (e); 1975 No 108, sec 4 (h); 1981 No 28, Sch 1 (5); 1987 No 48, Sch 32; 1987 No 132, Sch 2 (4). Rep 1990 No 111, Sch 1 (5).

s 56: Am 1921 No 19, sec 2 (11). Rep 1928 No 55, sec 13.

s 57: Rep 1928 No 55, sec 13.

s 58: Rep 1928 No 55, sec 13.

s 59: Am 1921 No 19, sec 2 (12). Rep 1928 No 55, sec 13.

s 60: Subst 1921 No 19, sec 2 (13). Rep 1928 No 55, sec 13.

s 61: Am 1926 No 12, sec 9 (9). Rep 1928 No 55, sec 13.

s 62: Rep 1928 No 55, sec 13.

s 63: Rep 1928 No 55, sec 13.

s 64: Subst 1921 No 19, sec 2 (14). Rep 1928 No 55, sec 13.

s 65: Rep 1928 No 55, sec 13.

s 66: Am 1921 No 19, sec 2 (15). Rep 1928 No 55, sec 13.

Part 4A Registration of parties

pt 4A, hdg: Ins 1990 No 111, Sch 1 (6).

66A Definitions and related provisions

(1)  In this Part:

address does not include a postal address that consists of a post office box number.

eligible party means (subject to subsection (2)) a party:

(a)  that has at least 750 members, and

(b)  that is established on the basis of a written constitution (however expressed) that sets out the platform or objectives of the party.

member of a party means a member of the party who is an elector.

Parliament means the Parliament of New South Wales.

secretary of a party means the person who holds the office (however expressed) the duties of which involve responsibility for the carrying out of the administration, and for the conduct of the correspondence, of the party.

(2)  Two or more parties cannot rely on the same member for the purpose of qualifying or continuing to qualify as an eligible party. The following provisions apply accordingly:

(a)  a member who is relied on by 2 or more parties may nominate the party entitled to rely on the member, but if a party is not nominated after the Electoral Commissioner has (in accordance with the regulations) given the member an opportunity to do so, the member is not entitled to be relied on by any of those parties,

(b)  the members on whom a registered party relies may be changed at any time by an amendment of the Register of Parties,

(c)  the registration of a party is not to be cancelled because of this subsection unless the party is given an opportunity by the Electoral Commissioner (in accordance with the regulations) to change the members on whom it relies.

s 66A: Ins 1921 No 19, sec 2 (16). Rep 1928 No 55, sec 13. Ins 1990 No 111, Sch 1 (6). Am 1999 No 70, Sch 2 [1] [2].

66B Registration of parties

Subject to this Part, an eligible party may be registered under this Part for the purposes of this Act and the Election Funding Act 1981.

s 66B: Ins 1990 No 111, Sch 1 (6).

66C Register of Parties

(1)  The Electoral Commissioner is required to keep a register, to be called the Register of Parties, containing the names of the parties registered under this Part and other particulars or documents required by this Part.

(2)  The Register of Parties is to be kept in such form and manner as the Electoral Commissioner thinks fit.

s 66C: Ins 1990 No 111, Sch 1 (6).

66D Application for registration

(1)  An application for the registration of a party may be made to the Electoral Commissioner (in the form and manner approved by the Electoral Commissioner) by the secretary of the party.

(2)  An application for the registration of a party must:

(a)  set out the name of the party, and

(b)  if the party wishes to be able to use an abbreviation of its name on ballot-papers or electoral material—set out that abbreviation, and

(c)  set out the name and address of the natural person who is to be the registered officer of the party for the purposes of this Act, and

(d)  set out the name and address of a natural person (if any) who is to be a deputy registered officer of the party for the purposes of this Act, and

(e)  set out the address of the party headquarters in New South Wales, and

(f)  be accompanied by a copy of the constitution of the party, and

(g)  set out the names and addresses (as enrolled) of 750 electors who are members of the party and on whom the party relies for the purpose of qualifying as an eligible party, and

(g1)  be accompanied by declarations of membership of the party (in the form prescribed by the regulations) completed and signed by the members on whom the party relies for the purpose of qualifying as an eligible party, and

(h)  state whether or not the party wishes to be registered for the purposes of the Election Funding Act 1981, and

(i)  set out such other particulars (or be accompanied by such other documents) as are required by the regulations or the approved form of application.

(3)  An application for the registration of a party must be accompanied by a fee of $2,000.

s 66D: Ins 1990 No 111, Sch 1 (6). Am 1999 No 70, Sch 2 [3]–[5].

66DA Notice of application for registration

(1)  On receipt of an application for the registration of a party, the Electoral Commissioner must cause a notice to be published in one or more newspapers circulating throughout New South Wales.

(2)  The notice must state that the application has been received and request that any objections to the application be lodged with the Electoral Commissioner within 14 days after the date of publication of the notice.

(3)  The notice must set out the particulars that are required by section 66D to be set out in the application and must state that the application can be inspected at a specified address.

(4)  However, subsection (3) does not require the following particulars to be set out in the notice: the names and addresses of 750 electors, and any other particulars prescribed by the regulations for the purposes of this subsection. Nor does it require documents accompanying the application to be set out in or to accompany the notice.

(5)  The Electoral Commissioner must consider all objections received during the period of 14 days, for the purpose of determining:

(a)  whether the party referred to in the application is an eligible party, and

(b)  whether the application was duly made, and

(c)  whether the Electoral Commissioner should refuse to register the party.

(6)  This section does not limit the matters that the Electoral Commissioner may take into consideration when determining the matters referred to in subsection (5).

(7)  The Electoral Commissioner must not register the party until the period of 14 days has expired and all the objections have been considered.

(8)  The decision of the Electoral Commissioner on any such objection is final.

(9)  This section extends to an amended application referred to in section 66G (4), unless the Electoral Commissioner is of the opinion that the amendment is of a minor nature only and does not warrant publication of a further notice under this section.

(10)  This section does not apply to applications received by the Electoral Commissioner before the commencement of this section, nor does it affect the registration of any party effected before that commencement.

s 66DA: Ins 1991 No 14, sec 3. Am 1999 No 70, Sch 2 [6].

66E Registration

(1)  If an application for the registration of an eligible party is duly made, the Electoral Commissioner must (subject to this Part) register the party by the insertion in the Register of Parties of the name of the party.

(2)  The particulars or documents with respect to a registered party that were set out in or accompanied the application for the registration of the party are to be included in or form part of the Register of Parties.

s 66E: Ins 1990 No 111, Sch 1 (6).

66F Party not to be registered during election

(1)  A party may not be registered under this Part in the period commencing on the day of the issue of the writ in an election and ending on and including the day fixed for the taking of the poll in the election.

(2)  No action is to be taken during that period in relation to an application for registration.

s 66F: Ins 1990 No 111, Sch 1 (6).

66FA Entitlements resulting from party registration not available until first anniversary of registration

(1)  A party that becomes registered under this Part is not a registered party until the first anniversary of its registration for the following purposes:

(a)  Division 6B of Part 5 (Party endorsement on ballot-papers),

(b)  section 79 (Nomination of Assembly candidates) and section 81B (Nomination of Council candidates),

(c)  section 151G (Registration of electoral matter).

(2)  A party that becomes registered under this Part is not, until the first anniversary of its registration:

(a)  a registered party for the purposes of the Election Funding Act 1981, or

(b)  a party for the purposes of sections 60 and 61 of that Act.

(3)  This section extends to a party whose registration was previously cancelled under this Part.

s 66FA: Ins 1999 No 70, Sch 2 [7].

66G Refusal to register

(1)  The Electoral Commissioner may refuse to register a party if it is not an eligible party or if its application for registration has not been duly made under this Part.

(2)  Without limiting subsection (1), the Electoral Commissioner may refuse to register a party if the Electoral Commissioner believes on reasonable grounds that particulars set out in or documents accompanying the application are incomplete or not correct, but may, if the Electoral Commissioner thinks fit, register the party despite any such defect.

(3)  The Electoral Commissioner is to refuse to register a party if, in the opinion of the Electoral Commissioner, the name of the party or the abbreviation of the name (if any) as set out in the application for registration of the party:

(a)  comprises more than 6 words, or

(b)  is obscene or offensive, or

(c)  is the name, is an abbreviation or acronym of the name, or is a derivative of the name, of a registered party or a party currently represented in Parliament, or

(d)  so nearly resembles the name, or an abbreviation or acronym of the name, of a registered party or a party currently represented in Parliament that it is likely to be confused with or mistaken for that name or that abbreviation or acronym, or

(e)  comprises the words “Independent Party” or comprises or contains the word “Independent” and:

(i)  the name, or an abbreviation or acronym of the name, of a registered party or a party currently represented in Parliament, or

(ii)  matter that so nearly resembles the name, or an abbreviation or acronym of the name, of a registered party or a party currently represented in Parliament that the matter is likely to be confused with or mistaken for that name or that abbreviation or acronym.

(3A)  A reference in subsection (3) (c)–(e) to a registered party includes a reference to any party that was registered under this Part at any time during the previous 4 years, except where the application for registration is made with the approval of a person who was the last registered officer or deputy registered officer of that previously registered party.

(4)  If the Electoral Commissioner refuses to register a party:

(a)  the Electoral Commissioner must forthwith notify the applicant of the refusal and of the reasons for the refusal, and

(b)  the applicant may, within 30 days after the date of the notification by the Electoral Commissioner, amend the application for registration and the Electoral Commissioner may deal with the amended application.

s 66G: Ins 1990 No 111, Sch 1 (6). Am 1999 No 70, Sch 2 [8].

66H Amendment of Register

(1)  An application may be made to the Electoral Commissioner (in the form and manner approved by the Electoral Commissioner) for the amendment of the particulars in the Register of Parties with respect to a registered party.

(2)  The application may be made:

(a)  by the registered officer of the party, or

(b)  if the application is to change the registered officer of the party—by the secretary of the party.

(3)  The provisions of this Part relating to an application for the registration of a party apply (subject to the regulations) to an application for the amendment of the Register of Parties. For that purpose, the application is to be regarded as an application for registration setting out particulars as proposed to be amended.

(3A)  Section 66D (3) does not apply to an application for the amendment of the particulars in the Register of Parties. The regulations may prescribe a fee to accompany any such application.

(3B)  Section 66DA does not apply to an application for the amendment of the particulars in the Register of Parties if the Electoral Commissioner is of the opinion that the amendment is of a minor nature only and does not warrant publication of a notice under that section.

(4)  If the application is approved, the Electoral Commissioner is to make the necessary changes in the Register of Parties.

(5)  A reference in this section to the amendment of the particulars included in the Register of Parties includes a reference to the replacement of documents forming part of the Register.

s 66H: Ins 1990 No 111, Sch 1 (6). Am 1999 No 70, Sch 2 [9] [10].

66HA Annual returns and other inquiries with respect to continued registration or applications for registration

(1)  The registered officer of a party must, by 30 June each year, furnish to the Electoral Commissioner a return as to its continued eligibility for registration under this Part in the form prescribed by the regulations. The form so prescribed may require the return to be accompanied by specified documents.

(2)  A return is not required to be furnished under subsection (1) if the party has been registered for less than 6 months before the return is due to be furnished.

(3)  The Electoral Commissioner may at any time, by notice in writing, require:

(a)  an applicant for registration, or

(b)  the registered officer of a party,

to provide such information as is specified in the notice for the purpose of dealing with the application or of determining whether the party is an eligible party.

(4)  If an applicant for registration fails to comply with a requirement made under this section, the Electoral Commissioner may decline to deal with the application.

(5)  If the registered officer of a party fails to comply with a requirement made under this section, the Electoral Commissioner may cancel the registration of the party.

s 66HA: Ins 1999 No 70, Sch 2 [11].

66I Cancellation of registration

(1)  The Electoral Commissioner may cancel the registration of a party at the written request of the registered officer of the party.

(2)  If the Electoral Commissioner is satisfied on reasonable grounds that:

(a)  a registered party has ceased to exist (whether by amalgamation with another party or otherwise), or

(b)  a registered party is no longer an eligible party, or

(c)  the candidates at a general election held after the registration of a party did not include at least one candidate endorsed by the party, or

(d)  the registration of a party was obtained by fraud or misrepresentation,

the Electoral Commissioner may, subject to and in accordance with the regulations, cancel the registration of the party.

(3)  If the registration of a party is cancelled, the Electoral Commissioner must:

(a)  give notice of the cancellation and the reasons for the cancellation to the person who was the registered officer of the party immediately before the cancellation and cause notice of the cancellation to be published in the Gazette, and

(b)  remove from the Register of Parties the name and other particulars or documents relating to the party.

s 66I: Ins 1990 No 111, Sch 1 (6). Am 1999 No 70, Sch 2 [12].

66J Public access to registers

(1)  The Register of Parties kept under this Part must be available for public inspection during ordinary office hours.

(2)  Applications for registration or for the amendment of the particulars in the Register of Parties must also be made available for public inspection during ordinary office hours.

s 66J: Ins 1990 No 111, Sch 1 (6). Am 1993 No 108, Sch 1; 1999 No 70, Sch 2 [13].

66JA Distribution of information to electors about registered parties

(1)  The Electoral Commissioner is required to prepare, for each periodic Council election, a registered party information sheet for each registered party.

(2)  Any such information sheet is to contain the following information:

(a)  the name of the registered party,

(b)  the name and address of the registered officer of the party,

(c)  a statement (not exceeding 500 words) setting out the platform or objectives of the party provided by the registered officer of the party (but only if such a statement is provided within the time requested by the Electoral Commissioner).

(3)  The Electoral Commissioner is required to publish a copy of each such information sheet on the world wide web at least 1 month before the date on which the Legislative Assembly is due to expire or, if it is dissolved earlier, as soon as practicable after its dissolution.

(4)  The Electoral Commissioner is to make any such information sheet available for public inspection, at any reasonable time before the periodic Council election concerned is held, at the office of the Electoral Commissioner and at any public library or other place determined by the Electoral Commissioner.

(5)  In complying with this section, the Electoral Commissioner:

(a)  may reduce the length of information supplied by a registered party officer if the Electoral Commissioner is satisfied that the information is longer than that permitted by this section, or

(b)  may omit information supplied by a registered party officer if the Electoral Commissioner is of the opinion that its publication might be unlawful or defamatory.

s 66JA: Ins 1999 No 70, Sch 2 [14].

66K Statutory declarations

(1)  A form that is prescribed or approved under this Part may require any information provided to be verified by statutory declaration.

(2)  The Electoral Commissioner may also require any information in an application or return under this Part, or any information provided pursuant to a requirement under this Part, to be verified by statutory declaration.

s 66K: Ins 1990 No 111, Sch 1 (6). Subst 1999 No 70, Sch 2 [15].

66L False statements

A person who, in any application made under this Part, makes a statement that the person knows to be false or misleading is guilty of an offence.

Maximum penalty: 100 penalty units.

s 66L: Ins 1990 No 111, Sch 1 (6).

66M Evidence

A certificate signed by the Electoral Commissioner certifying:

(a)  that a specified party was or was not registered under this Part at a specified time or during a specified period, or

(b)  that a specified person was or was not the registered officer or a deputy registered officer of a specified party at a specified time or during a specified period,

is admissible in any proceedings and is prima facie evidence of the matters so certified.

s 66M: Ins 1990 No 111, Sch 1 (6).

66N Transitional and other arrangements

(1)  In this section:

existing registered party means any party registered under this Part immediately before the commencement of the new registration requirements, and includes any party registered under this Part after that commencement and before the registration confirmation day in pursuance of an application for registration made before that commencement.

new registration requirements means the amendments to this Part made by Schedule 2 [1] and [2] to the Parliamentary Electorates and Elections Amendment Act 1999 relating to the membership requirements for the qualification of a party as an eligible party for the purposes of this Part.

registration confirmation day means 31 December next after the commencement of the new registration requirements.

(2)  The new registration requirements do not, until the registration confirmation day, apply to an existing registered party.

(3)  An existing registered party is not entitled to continue to be registered, on and after the registration confirmation day, unless:

(a)  the registered officer of the party has made an application for continued registration of the party in accordance with this section, and

(b)  the Electoral Commissioner is satisfied that the party is an eligible party under the new registration requirements and approves the application.

(4)  An application for continued registration of an existing registered party is to be made to the Electoral Commissioner (in the form and manner approved by the Electoral Commissioner) and must:

(a)  set out the particulars, and be accompanied by the documents, that are referred to in section 66D (2) (g) and (g1) and such additional particulars and documents as are required by the approved form, and

(b)  be accompanied by a fee of $2,000.

(5)  Sections 66DA, 66E (2), 66HA (2) and (3), 66J (2) and 66K apply (subject to the regulations) to an application for continued registration under this section in the same way as they apply to an application for registration.

(6)  The Electoral Commissioner is to cancel the registration of an existing registered party that is not entitled to continue to be registered by virtue of this section. Section 66I (3) applies to any such cancellation of registration.

(7)  Before the Electoral Commissioner cancels the registration of any such existing party, the Electoral Commissioner is required to give the registered officer of the party notice of the proposed cancellation and the date of and reasons for the proposed cancellation. The Electoral Commissioner may accept a late application for continued registration made before that date and defer a decision on the proposed cancellation until the application is dealt with.

(8)  If an existing registered party has made an application for continued registration in accordance with this section before the registration confirmation day, but the application has not been determined by the Electoral Commissioner before that day, the party is entitled to continue to be registered until the application is determined.

(9)  Section 66FA does not apply to an existing registered party while it remains a registered party.

(10)  In the case of an existing registered party, a return is not required to be furnished under section 66HA (1) if the return would otherwise be required to be furnished in the year in which the registration confirmation day occurs or in the following year.

(11)  If a form is not prescribed by the regulations for the purposes of section 66D (2) (g1) or 66HA (1), the relevant form is to be a form approved by the Electoral Commissioner.

(12)  An amendment of this Part made by the Parliamentary Electorates and Elections Amendment Act 1999 does not apply to the determination of an application for registration of a party that is made before the commencement of the amendment but not determined before that commencement. The amendment applies to the application if it is not determined before the registration confirmation day, but the applicant is to be given an opportunity to amend the application before it is determined.

s 66N: Ins 1990 No 111, Sch 1 (6). Subst 1999 No 70, Sch 2 [16].

67 (Repealed)

s 67: Rep 1928 No 55, sec 13.

Part 5 Conduct of elections

pt 5, hdg: Subst 1975 No 108, sec 5 (a).

Division 1 Application of Part

pt 5, div 1, hdg: Subst 1976 No 20, Sch 2 (2); 1978 No 75, Sch 2 (11).

67A Application of Part

Except where otherwise expressly provided, Divisions 2, 3, 6B, 7, 8, 9, 10, 11, 11A, 12, 13, 15, 16 and 17 apply to and in respect of all elections.

s 67A: Ins 1978 No 75, Sch 2 (12). Am 1981 No 28, Sch 1 (6); 1990 No 111, Sch 1 (7).

Division 1A Writs for Assembly elections

pt 5, div 1A, hdg: Ins 1978 No 75, Sch 2 (12).

68 Within what time writs for general elections to be issued and made returnable

All writs for Assembly general elections shall be issued within four clear days after the publication in the Gazette of the proclamation dissolving the Assembly, or after the Assembly has been allowed to expire by effluxion of time, and every such writ shall be made returnable on a day not later than the sixtieth clear day after the date of the issue thereof or on such later day as the Governor may by proclamation in the Gazette direct.

s 68: Am 1918 No 40, sec 8; 1978 No 75, Sch 2 (13).

69 Meeting of Assembly after return of writs

The day to be fixed for the meeting of the Assembly after the return of writs for an Assembly general election shall not be later than the seventh clear day after the date for the return of the writs for that election or the date for the return of the writ for the periodic Council election the day for the taking of the poll for which was the same day as the day for the taking of the poll for that Assembly general election, whichever date is the later.

s 69: Subst 1978 No 75, Sch 2 (14).

69A Governor to issue writ for vacancy occurring before Assembly meets after general election

Where a seat in the Assembly becomes vacant after an Assembly general election and before the first meeting of the Assembly after that general election, the writ for the election to fill the vacancy shall be issued by the Governor.

s 69A: Ins 1978 No 75, Sch 2 (15).

70 Speaker to issue writs to fill vacancies

When and so often as a vacancy occurs in the Assembly, the Speaker shall, upon a resolution by the Assembly declaring such vacancy, and the reason thereof, cause a writ to be issued for filling such vacancy; and on the death or resignation of any member of the Assembly, the Speaker shall, in like manner, upon a resolution of the Assembly, issue such writ, and in case the Assembly be not in session, or when such vacancy occurs during any adjournment for a longer period than seven days, the Speaker shall also issue the writ.

s 70: Am 1978 No 75, Sch 2 (16).

71 If no Speaker, Governor to issue writ

If at the time of the occurrence of any such vacancy, caused by death or resignation, there be no Speaker, and the Assembly be not in session, or if the Speaker be absent from New South Wales, the Governor shall, if satisfied of the existence of such vacancy, issue a writ for the election of a member to fill such vacancy.

Note—

Section 31A of the Constitution Act 1902 provides that, during the absence from New South Wales of the Speaker, the Deputy Speaker of the Legislative Assembly is to act in his or her place and has and may exercise and perform all the powers, authorities, duties and functions of the Speaker, including those functions conferred under this section.

s 71, note: Ins 1999 No 31, Sch 1.29 [2].

72 Writs directed to returning officer

(1)  Every writ for the election of a member to serve in the Assembly shall be directed to the returning officer of the district for which the election is to be held. And in every such writ shall be named the day on which all nominations of candidates at and for any election must be made (hereinafter called the day of nomination), the day for taking the poll at the several polling-places in the event of the election being contested, and the day on which the writ shall be returnable to the Governor or Speaker, as the case may be.

(2)  Subsection (1) has effect subject to section 22A (2) and (3) of the Constitution Act 1902 and to section 120I.

s 72: Am 1978 No 75, Sch 2 (17).

73 (Repealed)

s 73: Am 1921 No 19, sec 2 (18); 1978 No 75, Sch 2 (18). Rep 1995 No 1, sec 4.

74 Duties of returning officer on receipt of writ etc

(1)  Every returning officer shall, upon the receipt by that returning officer of any such writ as aforesaid, indorse thereon the day of such receipt, and shall forthwith give public notice of the purport of such writ, of the day of nomination, the day of polling, and the return day mentioned respectively in such writ; and also of some place within the district (to be appointed by such returning officer) at which the returning officer will receive the nomination papers hereinafter prescribed.

(2)  Public notice for the purpose of this section shall mean notice in any newspaper published in the district to which such writ relates, or if there be none such, then in any newspaper circulating in such district, or failing that, then by the exhibition of printed or written placards in such places as the returning officer may think most likely to attract notice.

(3)  The Electoral Commissioner may, by telegram inform a returning officer of the issue of a writ and of the particulars thereof, and upon receipt by the returning officer of any such telegram the returning officer may take the steps required by subsection (1) in all respects as if the writ had been received by that returning officer.

(4)  The returning officer shall attend at all reasonable hours in the daytime, in the interval between the receipt by that returning officer of a writ and noon on the day of nomination, at the place appointed by that returning officer for receiving nomination papers.

(5)  The returning officer shall, upon each day between the receipt by that returning officer of a writ and noon on the day of nomination for the election mentioned in the writ, exhibit and keep exhibited, outside the place appointed by that returning officer for receiving nomination papers, in some public and conspicuous position, the names and places of residence of all persons who have duly become candidates for the election.

s 74: Am 1921 No 19, sec 2 (19); 1941 No 6, sec 2 (1) (a); 1978 No 75, Sch 2 (19).

Division 1B Writs for periodic Council elections

pt 5, div 1B (ss 74A–74D): Ins 1978 No 75, Sch 2 (20).

74A Writs for periodic Council elections

A writ for a periodic Council election shall be issued within four clear days after the publication in the Gazette of the proclamation dissolving an Assembly, or after an Assembly has been allowed to expire by effluxion of time, and the writ shall be made returnable on a day not later than the sixtieth clear day after the date of the issue thereof or on such later day as the Governor may by proclamation in the Gazette direct.

pt 5, div 1B (ss 74A–74D): Ins 1978 No 75, Sch 2 (20).

74B Meeting of Council after return of writs

The day to be fixed for the meeting of the Council after the return of a writ for a periodic Council election shall not be later than the seventh clear day after the date for the return of the writ or the date for the return of the writs for the Assembly general election the day for the taking of the poll for which was the same day as the day for the taking of the poll for that periodic Council election, whichever date is the later.

pt 5, div 1B (ss 74A–74D): Ins 1978 No 75, Sch 2 (20).

74C Writ directed to Electoral Commissioner

(1)  Every writ for a periodic Council election shall be directed to the Electoral Commissioner.

(2)  In every such writ shall be named the day on which all nominations of candidates at and for any such election must be made (hereinafter called the day of nomination), the day for taking the poll at the several polling-places in the event of the election being contested, and the day on which the writ shall be returnable to the Governor.

(3)  Subsection (2) has effect subject to section 22A (2) and (3) of the Constitution Act 1902, and to section 120I.

pt 5, div 1B (ss 74A–74D): Ins 1978 No 75, Sch 2 (20).

74D Duties of Electoral Commissioner on receipt of writ etc

(1)  The Electoral Commissioner shall, upon the receipt of any writ directed to the Electoral Commissioner under section 74C (1), indorse thereon the day of the receipt of the writ, and shall forthwith give public notice of the purport of the writ, of the day of nomination, the day of polling, and the return day mentioned respectively in the writ, and also of some place within the State (to be appointed by the Electoral Commissioner) at which the Electoral Commissioner will receive the nomination papers for the election to which the writ applies.

(2)  Public notice for the purpose of this section shall mean notice in any newspaper circulating in the State, or failing that, then by the exhibition of printed or written placards in such places as the Electoral Commissioner may think most likely to attract notice.

(3)  The Electoral Commissioner shall attend at all reasonable hours in the daytime, in the interval between the receipt of a writ and noon on the day of nomination, at the place appointed by the Electoral Commissioner for receiving nomination papers.

(4)  The Electoral Commissioner shall, upon each day between the receipt of a writ and noon on the day of nomination for the election mentioned in the writ, exhibit and keep exhibited, outside the place appointed by the Electoral Commissioner for receiving nomination papers, in some public and conspicuous position, the names and places of residence of all persons who have duly become candidates for the election.

(5)  Where two or more candidates are included in a group, the names and places of residence required by subsection (4) to be exhibited in respect of them shall be exhibited in the order referred to in section 81C (2) in which they are included in that group.

pt 5, div 1B (ss 74A–74D): Ins 1978 No 75, Sch 2 (20).

Division 2 Returning officers for districts

pt 5, div 2, hdg: Subst 1976 No 20, Sch 2 (3). Am 1978 No 75, Sch 2 (21).

75 Returning officers for districts

The Governor upon the recommendation of the Electoral Commissioner shall appoint a returning officer for each district for the purposes of all elections. And, in case of the death of any returning officer, or in case of sickness or other cause disabling any returning officer from acting at any election, the Governor upon the recommendation of the Electoral Commissioner may appoint some person as returning officer in place of the original returning officer.

The returning officer for an electoral district shall conduct every election of a member of the Assembly to represent that district.

A returning officer shall not vote at any election of a member of the Assembly.

Any appointment made by the Governor under this section may be terminated by the Governor on the recommendation of the Electoral Commissioner.

Every appointment made by the Governor under this section and every termination of such an appointment shall be notified in the Gazette.

The returning officer for each district may, where necessary, appoint one or more persons to act as assistant returning officers for the purposes of any election or to act as clerical assistants to assist the returning officer in the performance of the returning officer’s duties.

s 75: Am 1918 No 40, sec 8; 1928 No 55, sec 35 (3) (a); 1973 No 44, sec 3 (a); 1978 No 75, Sch 2 (22); 1979 No 39, Sch 1 (13); 1987 No 132, Sch 1 (28).

75A Qualification of returning officers etc

(1)  A person shall not be qualified for appointment as a returning officer, assistant returning officer, deputy returning officer, substitute returning officer, poll clerk, clerical assistant or scrutineer unless the person is an elector.

(2)  A person shall not be ineligible for appointment as a returning officer, assistant returning officer, deputy returning officer, substitute returning officer, poll clerk, clerical assistant or scrutineer for any district merely for the reason that the person is not enrolled as an elector on the electoral roll for that district.

s 75A: Ins 1928 No 55, sec 35 (3) (b). Am 1941 No 6, sec 2 (1) (b); 1973 No 44, sec 3 (b).

76 (Repealed)

s 76: Rep 1978 No 75, Sch 2 (23).

77 Returning officer to appoint substitute

(1)  The returning officer shall forthwith, on the receipt of a writ, appoint, by writing under his or her hand, some fit person to be the returning officer’s substitute.

(2)  In the event of the death or during the absence or incapacity of a returning officer, the returning officer’s substitute shall have and may exercise or perform all the powers, authorities, duties and functions of the returning officer.

s 77: Am 1921 No 19, sec 2 (20). Subst 1978 No 75, Sch 2 (24).

78 (Repealed)

s 78: Am 1921 No 19, sec 2 (21). Rep 1978 No 75, Sch 2 (25).

Division 2A Returning officer for periodic Council elections

pt 5, div 2A (s 78AA): Ins 1978 No 75, Sch 2 (26).

78AA Electoral Commissioner to conduct periodic Council elections

(1)  The Electoral Commissioner shall conduct periodic Council elections.

(2)  In the event of the death or during the absence or incapacity of the Electoral Commissioner, the Principal Returning Officer shall have and may exercise or perform all the powers, authorities, duties and functions of the Electoral Commissioner, and shall be deemed to be the Electoral Commissioner, in relation to the conduct of periodic Council elections.

(3)  The Electoral Commissioner may, where necessary, appoint one or more persons who are electors to act as his or her assistants in the performance of his or her duties in relation to the conduct of periodic Council elections.

(4)  Section 88 applies to and in respect of an assistant appointed under subsection (3) and a declaration made by the assistant in the same way as it applies respectively to a poll clerk and a declaration made by a poll clerk under that section.

pt 5, div 2A (s 78AA): Ins 1978 No 75, Sch 2 (26).

Division 3 Postal voting officers

pt 5, div 3: Ins 1976 No 20, Sch 1 (3).

78A Appointment of postal voting officers

The Electoral Commissioner may, by instrument in writing, appoint one or more persons to be a postal voting officer, or postal voting officers, at a place outside New South Wales (whether overseas or in Australia), for the purposes of all elections.

s 78A: Ins 1976 No 20, Sch 1 (3). Am 1981 No 28, Sch 1 (7).

78B Deputy to postal voting officer

(1)  A postal voting officer shall, as soon as practicable after appointment, appoint, by instrument in writing, a person to be that officer’s deputy.

(2)  In the event of the absence or incapacity of a postal voting officer, that officer’s deputy shall have and may exercise or perform the powers, authorities, duties and functions of the postal voting officer during that absence or incapacity.

s 78B: Ins 1976 No 20, Sch 1 (3). Am 1981 No 28, Sch 1 (8).

78C (Repealed)

s 78C: Ins 1976 No 20, Sch 1 (3). Rep 1978 No 75, Sch 2 (27).

78D Vacation of office

(1)  A person ceases to hold office as a postal voting officer:

(a)  if the person dies,

(b)  if the person resigns office by writing under his or her hand addressed to the Electoral Commissioner, or

(c)  if the person is removed from office by the Electoral Commissioner.

(d)    (Repealed)

(2)  A person ceases to hold office as the deputy of a postal voting officer:

(a)  if the person dies,

(b)  if the person resigns office by writing under his or her hand addressed to the postal voting officer,

(c)  if the person is removed from office by the postal voting officer or the Electoral Commissioner, or

(d)  if the postal voting officer ceases to hold office as such.

(3)  The Electoral Commissioner may, for any cause that appears to be sufficient, remove any person from office as a postal voting officer or deputy of such an officer.

(4)  A postal voting officer may, for any cause that appears to be sufficient, remove any person from office as his or her deputy.

s 78D: Ins 1976 No 20, Sch 1 (3). Am 1981 No 28, Sch 1 (9).

78E Postal voting officer to make declaration

(1)  Every postal voting officer, deputy to a postal voting officer and clerical assistant appointed for the purposes of Division 11 shall, before entering upon any of the duties assigned by this Act with regard to any election, make and sign before a prescribed person or a person of a prescribed class or description, a declaration to the effect following:

I [A.B.]                 do solemnly declare that I will faithfully and impartially, according to the best of my skill and judgment, exercise and perform all the powers, authorities, and duties reposed in or required of me by the Parliamentary Electorates and Elections Act 1912 as Postal Voting Officer [or Deputy to a Postal Voting Officer, or a clerical assistant appointed for the purposes of Division 11, as the case may be] with regard to any election under that Act, and I do further solemnly promise and declare that I will not at any such election attempt to ascertain save in the cases in which I am expressly by law authorised so to do for what candidate any person shall vote or have voted at any such election; and that if in the discharge of my duties at or concerning any such election I shall have learned, or have the means of learning, for what candidate any person shall vote or have voted thereat, I will not by word or act, or by any other means whatsoever, directly or indirectly, divulge or disclose, or aid in divulging or disclosing the same, save in answer to any question which I am legally bound to answer.

(2)  Every declaration made under this section shall be transmitted by the postal voting officer or that officer’s deputy to the Electoral Commissioner.

(3)  Part 4 of the Oaths Act 1900 applies to a declaration made under this section as if it were made under that Act.

s 78E: Ins 1976 No 20, Sch 1 (3). Am 1978 No 75, Sch 2 (28).

Division 4 Nominations for the Assembly

pt 5, div 4, hdg: Subst 1976 No 20, Sch 2 (4). Am 1978 No 75, Sch 2 (29).

79 Nomination of Assembly candidates

(1)  Every person enrolled as an elector for any district shall be qualified to be nominated as a candidate to be elected for that or any other district, unless disqualified under the Constitution Act 1902 or this Act.

(2)  Before, and in order that, any person may be a candidate at any election for a district, the person must be nominated by:

(a)  the registered officer of a registered party which has endorsed the person for the election, or

(b)  not fewer than 15 persons each of whose names is on the roll for the district.

(3)  Every nomination of a candidate shall be made by delivering to the returning officer, or the person acting as that officer’s substitute (who, if required, shall give a receipt for the same), a nomination-paper at some time after the issue of the writ and before noon on the day of nomination.

(3A)  A nomination-paper in which the candidate is nominated by the registered officer is to be in the following form, namely:

I, the person whose name appears on this form as the registered officer of the registered party which has endorsed the candidate, do hereby nominate (here state name in full, occupation and place of residence as enrolled of the person nominated) for election as a member of the Legislative Assembly for the electoral district of                                                             

Dated this                 day of                 19  .

Name in full of registered officer	Name of party	Signature of registered officer

I, the abovenamed                , hereby consent to such nomination and certify that the place of residence stated above is my place of residence as enrolled.

(Signed)

(4)  A nomination-paper in which the candidate is nominated by electors is to be in the following form, namely:

We, the undersigned, electors of the electoral district of                 do hereby nominate (here state name in full, occupation, and place of residence being the place of residence as enrolled of the person nominated) for election as a member of the Legislative Assembly for the abovenamed district.

Dated this                 day of                 19  .

Signatures of nominators	Place of residence as enrolled	Occupation	District

I, the abovenamed                 hereby consent to such nomination and certify that the place of residence stated above is my place of residence as enrolled.

(Signed)

(4A)  No person, unless nominated in accordance with the requirements of this section, shall be deemed to be a candidate for election as a member of the Assembly.

(5)  No elector shall nominate more than one candidate for an electoral district.

(5A)  If at the close of nominations for a district a person is nominated for an election for any other district or for a periodic council election each of those nominations is void.

(6)  Where a candidate for an election for a district dies, after being nominated and before noon on the day of nomination for the election, the day named as the day of nomination for the election shall be taken to be the day next succeeding the day so named.

(7)  A member of the Parliament of the Commonwealth shall be incapable of being nominated as a candidate for, or elected as a member of, the Assembly.

(7A) 

(a)  The nomination of a candidate shall not be valid unless at the time of the delivery of the nomination paper the person nominated or some person on his or her behalf deposits with the returning officer or person acting as his or her substitute (as the case may be) the sum of $250 in money or in Australian notes or in a banker’s cheque.

(b)  The deposit shall be retained pending the election.

(c)  After the election the deposit shall be returned to the candidate (or to some person authorised by the candidate in writing to receive it) if the candidate is elected, or if the total number of votes polled in his or her favour as first preferences is at least 4 per cent of the total number of first preference votes polled in the district.

In the case of the death of the candidate before the date of the election, the deposit shall be returned to his or her personal representatives.

Where a candidate withdraws his or her name from nomination in pursuance of section 79A, the deposit shall be returned to the candidate (or to some person authorised by the candidate in writing to receive it).

In any other case the deposit shall be forfeited to His Majesty.

(8)  Notwithstanding anything to the contrary in this Act, whenever any vacancy occurs in the Assembly by reason of any member resigning his or her seat for the purpose of seeking election for the Parliament of the Commonwealth of Australia, if such member tenders his or her resignation prior to the date of the issue of the writ for the said election and notifies in writing to the Speaker his or her intention to seek such election, and his or her intention in the event of failing to secure such election to become again a candidate for the vacancy aforesaid, then the issue of the writ for the election of a Member to fill such vacancy shall be delayed until the result of such Commonwealth election shall have been first officially declared by the Returning Officer.

s 79: Am 1918 No 40, sec 8; 1919 No 39, sec 2 (2); 1921 No 19, sec 2 (22); 1928 No 55, secs 20 (a), 35 (3) (c); 1935 No 31, sec 2 (f); 1941 No 6, sec 2 (1) (c); 1965 No 15, sec 2 (a); 1975 No 108, sec 5 (b); 1978 No 75, Sch 2 (30); 1987 No 132, Sch 1 (29) (am 1988 No 20, Sch 20); 1990 No 111, Sch 1 (8).

79A Withdrawal of nomination for Assembly election

Any candidate for an election for an electoral district may withdraw his or her name from nomination by delivering a notice under his or her hand to the returning officer before noon on the day of nomination for that election.

s 79A: Ins 1978 No 75, Sch 2 (31).

80 Proceedings on nomination if one candidate only

s 80, hdg: Subst 1976 No 20, Sch 2 (5). Rep 1978 No 75, Sch 2 (32).

If at noon on the day of nomination there is only one candidate for election for a district, the returning officer shall at that time and at the place so named for the delivery of nomination papers, publicly declare that candidate to be duly elected, shall publish such declaration in some newspaper published or circulating in the district, and shall make his or her return accordingly.

s 80: Am 1918 No 40, secs 4 (i), 8. Subst 1926 No 12, sec 8 (6). Am 1978 No 75, Sch 2 (33).

81 When poll to be taken

If at noon on the day of nomination there are two or more candidates for election for a district, a poll shall take place on the day named in the writ for that purpose, and at the several polling-places for the district; and the returning officer shall, at noon on the day of nomination, and at the place named as aforesaid for the delivery of the nomination papers, publicly announce that a poll will be so taken and the names of the persons who have become candidates, and shall also forthwith publish in some newspaper published or circulating in the district a like announcement, together with a list of the polling-places and the date of the poll.

s 81: Am 1918 No 40, secs 4 (ii), 8. Subst 1926 No 12, sec 8 (7). Am 1978 No 75, Sch 2 (34).

81A Death of candidate

If after the nominations for an election for any district have been declared, and before polling day, any candidate dies, the election shall be deemed to have wholly failed, and a new writ shall forthwith be issued for an election for the district.

s 81A: Ins 1928 No 55, sec 35 (3) (d). Am 1978 No 75, Sch 2 (35).

Division 5 Nominations for the Council

pt 5, div 5: Ins 1978 No 75, Sch 2 (36).

81B Nomination of Council candidates

(1)  Every person enrolled as an elector for a district shall be qualified to be nominated as a candidate for a periodic Council election, unless disqualified under the Constitution Act 1902 or this Act.

(2)  Before, and in order that, any person may be a candidate at any periodic Council election, the person must be nominated by:

(a)  the registered officer of a registered party that has endorsed the person for the election, or

(b)  not fewer than 15 persons each of whose names is on a roll.

(3)  Every such nomination shall be made by delivering to the Electoral Commissioner a nomination-paper at some time after the issue of the writ and before noon on the day of nomination and the Electoral Commissioner shall, if required to do so, give a receipt for it.

(3A)  A nomination-paper in which the candidate is nominated by the registered officer is to be in the following form, namely:

I, the person whose name appears on this form as the registered officer of a registered party that has endorsed the candidate, do hereby nominate for election to the Legislative Council the following person:

*Name in full of person nominated	Occupation	Place of residence as enrolled	**Signature of person nominated

* Underline surname.
** The signature of the person nominated must appear opposite the person’s name to signify the person’s consent to nomination and to certify that the place of residence stated opposite the person’s name is the person’s place of residence as enrolled.

Dated this                 day of                 19  .

Name in full of registered officer	Name of party	Signature of Registered officer

(4)  A nomination-paper in which the candidate is nominated by electors is to be in the following form, namely:

We, the persons whose names appear on this form as nominators, being persons each of whose names is on a roll, do hereby nominate for election to the Legislative Council the following person:

*Name in full of person nominated	Occupation	Place of residence as enrolled	**Signature of person nominated

* Underline surname.
** The signature of the person nominated must appear opposite the person’s name to signify the person’s consent to nomination and to certify that the place of residence stated opposite the person’s name is the person’s place of residence as enrolled.

Dated this                 day of                 19  .

Name in full of each nominator (Not fewer than 15)	Place of residence as enrolled	Occupation	Electoral district	Signature of each nominator

(5)  No elector shall nominate more than one candidate.

(6)  No person, unless nominated in accordance with the requirements of this section, shall be deemed to be a candidate at a periodic Council election.

(7)  Where a candidate at a periodic Council election dies, after being nominated and before noon on the day of nomination for the election, the day named as the day of nomination for the election shall be taken to be the day next succeeding the day so named.

s 81B: Ins 1978 No 75, Sch 2 (36). Am 1987 No 132, Sch 1 (30); 1990 No 111, Sch 1 (9).

81C Grouping of candidates

(1)  Two or more candidates nominated for a periodic Council election may, in the prescribed form and before noon on the day of nomination for that election, claim:

(a)  to have their names included in a group in the ballot-papers to be used in that election, and

(b)  to have their names included in that group in the order specified in that claim.

(1A)  A claim under subsection (1) may also include a request for a group voting square for the group on the ballot-papers to be used in the election concerned, but only if there are at least 15 candidates in the group at the close of nominations for the election.

(2)  Subject to subsections (3), (4) and (5), candidates nominated for a periodic Council election who have under subsection (1) made a claim referred to in that subsection shall, for the purposes of that election, be included in a group in the order specified in the claim.

(3)  Two or more candidates who have made a claim under subsection (1) may, in the prescribed form and before noon on the day of nomination referred to in that subsection, withdraw that claim.

(4)  A claim under subsection (1) is of no force or effect if:

(a)  the name of any candidate included in the claim is included in any other claim under that subsection, or

(b)  the nomination of any candidate whose name is included in the claim is withdrawn under section 81G.

(5)  Where a claim is made under subsection (1) in respect of a periodic Council election and any of the persons who made the claim:

(a)  dies before the making of the declaration of the persons elected at that election,

(b)  is, before the making of that declaration, declared by any court to be incapable of being elected at that election, or

(c)  is a person whose nomination is void under section 81D,

then:

(d)  where there are 2 or more other persons who made that claim, the group shall thereafter consist of the remainder of those persons only, or

(e)  where there is only 1 other person who made that claim, the claim shall thereafter be of no force or effect.

(6)  The candidates who are included in a group for a periodic Council election and who have duly requested a group voting square for the election, are required to nominate, for the purposes of section 129EB, one other group of candidates in the election for whom a second preference vote is taken to be recorded on all ballot papers on which only a first preference vote is recorded for the first-mentioned group if that group ceases to have 15 candidates because of the operation of subsection (5).

(7)  The following provisions apply to nominations under subsection (6):

(a)  A nomination may be made at the time the candidates request a group voting square for the election or within 24 hours after the close of nominations for the election. However, the Electoral Commissioner may accept a late nomination so long as it is made before the day for the taking of the poll in the election.

(b)  A nomination may be made on behalf of the candidates in the group by the first candidate in the group or by the registered officer of a registered party that has endorsed all or any of the candidates for the election.

(c)  A group of candidates is not eligible to be nominated unless the candidates in that group have duly requested a group voting square for the election.

(d)  The Electoral Commissioner is to cause notice of the nominations to be published, at least one week before the day for the taking of the poll in the election, in one or more newspapers circulating throughout New South Wales.

(e)  Once a nomination has been lodged with the Electoral Commissioner in respect of the election, the nomination may not be changed, nor may a further nomination be made for the election by or on behalf of any of the candidates concerned.

s 81C: Ins 1978 No 75, Sch 2 (36). Am 1999 No 70, Sch 1 [3] [4].

81D Dual nominations

If at the close of nominations for a periodic Council election a person is nominated for that election more than once or for that election and for any election for a district each of those nominations is void.

s 81D: Ins 1978 No 75, Sch 2 (36). Subst 1987 No 132, Sch 1 (31).

81E Member of Commonwealth Parliament ineligible for Council

A member of the Parliament of the Commonwealth shall be incapable of being nominated as a candidate for, or elected as a member of, the Council.

s 81E: Ins 1978 No 75, Sch 2 (36).

81F Deposit for periodic Council election

(1)  A nomination shall not be valid unless at the time of the delivery of the nomination-paper the person nominated or some person on his or her behalf deposits with the Electoral Commissioner the sum of $500 in money or in a banker’s cheque.

(1A)  However, the amount of the deposit for a candidate included in a group comprising more than 10 candidates (but not more than 21 candidates) is $5,000 divided by the number of candidates in that group.

(2)  The deposit shall be retained pending the election.

(3)  After the election, the deposit shall be returned to the candidate (or some person authorised by the candidate in writing to receive it) if:

(a)  the candidate is elected, or

(b)  at least one of the candidates in the group in which the candidate is included is elected, or

(c)  the total number of votes polled as first preference votes in the candidate’s favour or in favour of the members of the group in which the candidate is included is at least 4 per cent of the total number of first preference votes polled in the election.

(4)  In the case of the death of the candidate before the date of the election, the deposit shall be returned to the candidate’s personal representatives.

(5)  Where a candidate withdraws his or her name from nomination in pursuance of section 81G, the deposit shall be returned to the candidate (or to some person authorised by the candidate in writing to receive it).

(6)  In any other case the deposit shall be forfeited to Her Majesty.

s 81F: Ins 1978 No 75, Sch 2 (36). Am 1987 No 132, Sch 1 (32); 1990 No 111, Sch 1 (10); 1999 No 70, Sch 1 [5].

81G Withdrawal of nomination for a periodic Council election

(1)  Subject to subsection (2), any candidate for a periodic Council election may withdraw his or her name from nomination by delivering a notice under his or her hand to the Electoral Commissioner before noon on the day of nomination for that election.

(2)  Where two or more candidates are included in a group, any of those candidates may not, under subsection (1), withdraw his or her name from nomination except with the consent of the others.

s 81G: Ins 1978 No 75, Sch 2 (36).

81H Proceedings after close of nominations

(1)  If at noon on the day of nomination there are not more than 21 candidates for election at a periodic Council election the Electoral Commissioner shall at that time and at the place appointed for the receipt of the nomination-papers publicly declare those candidates to be duly elected and shall publish the declaration in some newspaper circulating in the State and return the writ indorsed according to that declaration.

(2)  If after noon on the day of nomination and before the day for the taking of the poll for a periodic Council election any candidate dies and there are not more than 21 candidates remaining, the Electoral Commissioner shall forthwith publicly declare the remaining candidates to be duly elected and shall publish the declaration in some newspaper circulating in the State and return the writ indorsed according to that declaration.

(3)  Subject to subsection (2), if at noon on the day of nomination there are more than 21 candidates for election at a periodic Council election a poll shall take place on the day named in the writ for that election and the Electoral Commissioner shall, at noon on the day of nomination and at the place appointed for the receipt of the nomination-papers, publicly announce that a poll will be so taken and the names of the persons who have become candidates, that announcement specifying the names of any candidates who are included in a group, and shall also forthwith publish in some newspaper circulating in the State a like announcement, including a statement specifying the date of the poll.

(4)  As soon as practicable after making an announcement referred to in subsection (3), the Electoral Commissioner shall notify the returning officer for each electoral district:

(a)  that a poll for a periodic Council election shall take place on the day named in the writ for that election, and

(b)  of the particulars required by section 83B to be printed on the ballot-papers and of the manner in which those particulars are to be so printed.

s 81H: Ins 1978 No 75, Sch 2 (36). Am 1991 No 20, Sch 2 (1).

81I (Repealed)

s 81I: Ins 1978 No 75, Sch 2 (36). Rep 1991 No 20, Sch 2 (2).

Division 6 Ballot-papers for Assembly elections

pt 5, div 6, hdg: Subst 1976 No 20, Sch 2 (6). Am 1978 No 75, Sch 2 (37).

82 Ballot-papers to be provided

(1)  Ballot-papers to be used in an election for a district shall be provided by the returning officer after a poll has been appointed.

(2)  Such papers shall be in or to the effect of the form prescribed in Schedule 4.

s 82: Am 1918 No 40, sec 4 (iii); 1926 No 12, sec 8 (8); 1978 No 75, Sch 2 (38).

82A Returning officer to determine order in which candidates’ names are to be entered on ballot-paper

(1)  If after noon on the day of nomination there are two or more candidates for election for a district, the returning officer shall forthwith hold a ballot to determine the order in which the candidates’ names are to be entered on the ballot-papers.

(2)  Every such ballot shall be held in accordance with the procedure prescribed by regulations made under this Act.

s 82A: Ins 1975 No 108, sec 5 (c). Am 1978 No 75, Sch 2 (39).

83 Printing of ballot-papers

In printing the ballot-papers:

(a)  the names of all candidates duly nominated shall be entered on the ballot-papers in the order in which those names were drawn by a ballot held pursuant to section 82A,

(b)  the surname of each candidate shall be in more conspicuous type than that used for the candidate’s given name or names,

(c)  where similarity in the names of two or more candidates is likely to cause confusion, the Electoral Commissioner or the returning officer for the district may arrange the names with such description or addition as will distinguish them from one another,

(d)  a square shall be printed opposite the name of each candidate, and

(e)  if required by Division 6B, the names of registered parties or the word “Independent” shall be printed in accordance with that Division.

s 83: Rep 1918 No 40, sec 4 (iv). Ins 1926 No 12, sec 8 (9). Am 1928 No 55, sec 9 (1) (a); 1975 No 108, sec 5 (d); 1990 No 111, Sch 1 (11).

Division 6A Ballot-papers for periodic Council elections

pt 5, div 6A: Ins 1978 No 75, Sch 2 (40).

83A Ballot-papers to be provided

(1)  Ballot-papers to be used for a periodic Council election shall be provided by the Electoral Commissioner after a poll has been appointed.

(2)  The ballot-papers shall be in or to the effect of the form prescribed in Schedule 4A.

(3)  The Electoral Commissioner shall deliver or arrange to be delivered to the returning officer for each district such number of ballot-papers as is sufficient for the use of electors entitled to vote in the district.

s 83A: Ins 1978 No 75, Sch 2 (40).

83B Printing of ballot-papers

(1)  If after noon on the day of nomination for a periodic Council election there are:

(a)  two or more groups of candidates for that election, the Electoral Commissioner shall forthwith hold a ballot to determine the order in which those groups are to be entered on the ballot-papers, or

(b)  two or more candidates, not included in a group, for that election, the Electoral Commissioner shall forthwith hold a ballot to determine the order in which those candidates’ names are to be entered on the ballot-papers.

(2)  Every such ballot shall be held in accordance with the procedure prescribed by regulations made under this Act.

(3)  In printing the ballot-papers for a periodic Council election:

(a)  for which there is only one group, the names of candidates included in that group shall be printed in a group before the names of candidates, if any, not included in that group,

(b)  for which there are two or more groups, the names of candidates included in the groups shall be printed in groups across the ballot-papers in the order determined under subsection (1) (a), before the names of candidates, if any, not included in any such group,

(c)  the order, within a group, in which the names of candidates in that group shall be printed in the ballot-papers shall be the order specified in the claim made by them in accordance with section 81C (1), and

(d)  the names of candidates, if any, not included in any group shall be printed as a group, without any identification referred to in subsection (5) (a), in the ballot-papers in the order determined under subsection (1) (b).

(4)  In printing the ballot-papers for a periodic Council election for which there are no groups, the names of the candidates shall be printed in the order determined under subsection (1) (b).

(5)  In printing the ballot-papers:

(a)  each group (and any group voting square relating to the group) shall be identified by the word “Group” followed by a successive letter of the English alphabet, starting with the letter “A”, and if there are more than 26 groups each group (and any group voting square relating to the group) after the twenty-sixth shall be identified by such symbol as may be determined by the Electoral Commissioner,

(b)  the surname of each candidate shall be in conspicuous type,

(c)  each candidate shall also be identified, as may be determined by the Electoral Commissioner, by the candidate’s given name or names, by the initial letter of the candidate’s given name or names or by a combination of the candidate’s given name or one or more of the candidate’s given names and the initial letter of the candidate’s other given name or names, if any,

(d)  the given name or names or the initial letter or letters of the given name or names of each candidate shall be in less conspicuous type than the type in which the candidate’s surname is printed,

(e)  any given name or the initial of any given name of the candidate may be printed on a line after the line on which the candidate’s surname is printed,

(f)  where similarity in the names of two or more candidates is likely to cause confusion, the Electoral Commissioner may arrange the names with such description or addition as will distinguish them from one another,

(g)  a square shall be printed opposite the name of each candidate, and

(h)  if required by Division 6B, the names of registered parties or the word “Independent” shall be printed in accordance with that Division.

(5A)  If the candidates in a group have duly requested under section 81C (1A) a group voting square for a periodic Council election, an additional square shall be printed on the ballot-papers for the election above the names of the candidates included in the group.

(5B)    (Repealed)

(6)  Where, before the day for the taking of the poll at any periodic Council election:

(a)  any candidate has died, or

(b)  any candidate is declared by any court to be incapable of being elected at that election,

the Electoral Commissioner shall take such action with respect to the printing of the ballot-papers (including, if the Electoral Commissioner thinks fit, causing the ballot-papers to be reprinted, causing notations or marks to be made on them or causing further ballots of the kind referred to in subsection (1) to be held) as in the Electoral Commissioner’s opinion is necessary as a consequence of the circumstances referred to in paragraph (a) or (b).

s 83B: Ins 1978 No 75, Sch 2 (40). Am 1987 No 173, Sch 2 (2); 1990 No 111, Sch 1 (12); 1999 No 70, Sch 1 [6] [7].

83C (Repealed)

s 83C: Ins 1987 No 173, Sch 2 (3). Am 1990 No 111, Sch 1 (13); 1991 No 20, Sch 2 (3). Rep 1999 No 70, Sch 1 [8].

Division 6B Party endorsement on ballot-papers

pt 5, div 6B: Ins 1990 No 111, Sch 1 (13).

83D Notification of party endorsement

(1)  The registered officer of a registered party may request that either the registered name of that party or the registered abbreviation of the name of that party be printed on the ballot-papers for an election adjacent to the name of a candidate who has been endorsed by that party.

(2)  Any such request is to be in writing signed by the person making the request.

(3)  Any such request is to be given before noon on the day of nomination to:

(a)  in the case of a periodic Council election—the Electoral Commissioner, or

(b)  in the case of an election of a Member of the Assembly for an electoral district—the returning officer for the district or the Electoral Commissioner.

(4)  If:

(a)  any such request has been made in respect of candidates in a periodic Council election, and

(b)  the candidates have duly requested under section 81C (1A) a group voting square for the purposes of the election,

the request may include a further request that the name of the registered party that endorsed the candidates, or a composite name formed from the registered parties that endorsed the candidates, be printed on the ballot-papers adjacent to the candidates’ group voting square.

(5)  A reference in this section to a registered name or abbreviation is a reference to a name or abbreviation entered in the Register of Parties under Part 4A.

s 83D: Ins 1990 No 111, Sch 1 (13). Am 1999 No 70, Sch 1 [9] [10].

83E Notification of independent candidacy

(1)  A candidate in an election may request that the word “Independent” be printed adjacent to the candidate’s name on the ballot-papers for the election.

(2)  Any such request is to be in writing signed by the person making the request.

(3)  Any such request is to be given before noon on the day of nomination to:

(a)  in the case of a periodic Council election—the Electoral Commissioner, or

(b)  in the case of an election of a Member of the Assembly for an electoral district—the returning officer for the district or the Electoral Commissioner.

(4)  A candidate may not make both a request under this section and a claim under section 81C to have the candidate’s name included in a group on the ballot-paper.

ss 83E–83G: Ins 1990 No 111, Sch 1 (13).

83F Verification of party endorsement

(1)  For the purposes of this Act, a person is taken to have been endorsed by a registered party as a candidate in an election if:

(a)  the candidate is nominated by the registered officer of the party, or

(b)  the name of the candidate is included in a statement, signed by the registered officer of the party, setting out the names of the candidates endorsed by the party in the election and given to the Electoral Commissioner before noon on the day of nomination, or

(c)  the Electoral Commissioner is satisfied, after making such inquiries as the Commissioner thinks appropriate of the registered officer or otherwise, that the candidate is so endorsed.

(2)  If a person has been endorsed as a candidate in an election by 2 or more registered parties, the person is, for the purposes of this Division, taken to have been endorsed:

(a)  if the person is nominated by the registered officer of one of the parties—by that party, or

(b)  if a request has been made under this Division by the registered officer of one of the parties (and paragraph (a) does not apply)—by that party, or

(c)  if paragraphs (a) and (b) do not apply—by the party specified by the person in a written notice given to the Electoral Commissioner.

ss 83E–83G: Ins 1990 No 111, Sch 1 (13).

83G Combination of requests

A request under this Division:

(a)  may be written on the same paper as the nomination of the candidate to whom the request relates, and

(b)  if 2 or more requests are to be made by the same person—may be combined with the other requests.

ss 83E–83G: Ins 1990 No 111, Sch 1 (13).

83H Printing of party name etc on ballot-papers

(1)  If a person:

(a)  has been endorsed by a registered party as a candidate in an election, and

(b)  a request has been made in respect of the candidate under section 83D,

the name of that party is to be printed adjacent to the name of the candidate on the ballot-papers.

(2)  If 2 or more persons have been endorsed by a registered party as candidates in a periodic Council election and a claim has been made to include the names of those candidates in a group in the ballot-papers, the following requirements apply to the printing of the ballot-papers:

(a)  the name of the party by which each candidate was endorsed is to be printed adjacent to the name of that candidate on the ballot-papers,

(b)  if all the candidates were endorsed by the same party and a group voting square is printed on the ballot-papers in relation to the candidates—the name of the party is to be printed on the ballot-papers adjacent to that square,

(c)  if the request under section 83D included a request that a composite name be printed adjacent to the group voting square on the ballot-papers in relation to the candidates—the composite name is to be printed on the ballot-papers adjacent to that square.

(3)  If a candidate in an election has made a request under section 83E, the word “Independent” is to be printed adjacent to the name of the candidate on the ballot-papers.

s 83H: Ins 1990 No 111, Sch 1 (13). Am 1999 No 70, Sch 1 [11].

83I Form of party name on ballot-papers

(1)  Where a provision of this Act requires the name of the registered party to be printed on ballot-papers for use in an election:

(a)  the name to be so printed is the name of the party entered in the Register of Parties under Part 4A, or

(b)  if a request has been duly made under this Division for the abbreviation of the name of the party to be so printed—the abbreviation to be so printed is the abbreviation entered in the Register of Parties under Part 4A.

(2)  The names of registered parties, or the abbreviations of such names, printed adjacent to the names of candidates on ballot-papers are to be printed in capital letters in type that is uniform in size and style for all those names or abbreviations.

(3)  The names of registered parties, or the abbreviations of such names, printed adjacent to group voting squares on ballot-papers are to be printed in capital letters in type that is uniform in size and style for all those names or abbreviations.

s 83I: Ins 1990 No 111, Sch 1 (13).

Division 7 Polling-places, poll clerks etc

pt 5, div 7, hdg: Subst 1976 No 20, Sch 2 (7).

84 Polling-places

(1)  The Electoral Commissioner may, by notice in the Gazette:

(a)  appoint a chief polling-place for each district at which the returning officer may preside,

(b)  appoint such other polling-places for each district as the Electoral Commissioner thinks necessary,

(c)  abolish any polling-place,

(d)  declare polling-places to be the polling-places for any specified subdivision.

(e), (f)    (Repealed)

(2)  No polling-place shall be appointed or abolished after the issue of the writ for an election and before the time appointed for its return.

s 84: Am 1918 No 40, sec 8; 1921 No 19, sec 2 (23); 1928 No 55, secs 10 (2) (a), 19 (1).

85 Booths to be erected or rooms hired

(1)  The returning officer shall cause such booths to be erected, or rooms to be hired or otherwise provided, for taking the poll at any election at each polling-place, as the convenient conduct of the election may require.

(2)  If under this provision there is more than one booth at any polling-place, there shall be affixed over the entrance of each booth in succession so many letters of the alphabet in their alphabetical order as shall denote the booth at which each elector, according to the initial letter or letters of the elector’s surname, is to vote, and no elector shall be permitted to vote in any booth save that which is so denoted.

(3)  No polling-booth shall be in any house for or in respect of which any licence under the Liquor Act 1982 is held by any person, or upon the premises appertaining to such house.

s 85: Am 1926 No 12, sec 9 (10); 1961 No 48, sec 2; 1975 No 108, Sch 1; 1982 No 148, Sch 2.

86 Booths—arrangement, ballot-boxes etc

Every booth shall be so arranged as to have one or more inner compartments opening only into that part in which the ballot-box is kept; and the returning officer or the returning officer’s deputy shall provide in every such compartment pencils or other writing implements for the use of the voters, and shall also provide for each booth a ballot-box with a cleft or opening therein capable of receiving the ballot papers.

s 86: Am 1987 No 132, Sch 1 (33); 1990 No 111, Sch 1 (15).

86A (Repealed)

s 86A: Ins 1987 No 173, Sch 2 (4). Am 1990 No 111, Sch 1 (16). Rep 1999 No 70, Sch 1 [12].

87 Returning officer to preside at one booth and appoint deputies at others

The returning officer may preside and take the poll at some one booth of a polling-place within the district; and the returning officer shall, by writing under his or her hand, appoint one or more deputies to act for the returning officer and take the poll at each of the other booths of the several polling-places, and may also in like manner appoint one or more persons to be poll-clerks, and the returning officer and his or her deputies may assist in taking the poll as the returning officer may see fit.

s 87: Am 1921 No 19, sec 2 (24).

87A Mobile booths in hospitals etc

(1)  Where a polling place has been appointed in any convalescent home, hospital or similar institution, the returning officer shall provide such number of polling booths therein as the returning officer may determine.

(2)  Where one booth is so provided such booth shall in addition to being used as a stationary booth be used as a mobile booth, and where more than one booth is so provided one or more of such booths designated by the returning officer shall be used as a mobile booth or booths. A mobile booth shall be used for the purpose of affording an opportunity to vote to every elector who:

(a)  is for the time being resident in the home, hospital or institution in which the booth is situated, and

(b)  by reason of illness or infirmity, or, in the case of a woman, by reason of approaching maternity, is unable to attend at the polling place to record the elector’s vote, and

(c)  has, by message to the deputy returning officer in charge of the polling place, requested him or her to afford the elector an opportunity to record the elector’s vote at such mobile booth.

Every person to whom any such message is given for delivery to the deputy returning officer, shall, unless otherwise ordered, on medical grounds, by a legally qualified medical practitioner, deliver such message forthwith to the deputy returning officer in charge of the polling place.

Any person contravening this subsection shall be liable to a penalty not exceeding 0.5 penalty unit.

(3)  Where any such message has been received by the deputy returning officer in charge of the polling place he or she shall direct the deputy returning officer in charge of a mobile booth to afford the elector an opportunity to record the elector’s vote by visiting the elector at some time before the close of the poll. On any such visit the deputy returning officer shall take with him or her the ballot box provided for the booth and shall be accompanied by his or her poll clerk and such of the scrutineers appointed in respect of the booth as choose to accompany him or her.

On any such visit to an elector the elector’s vote shall so far as is reasonably practicable be taken in all respects as if the vote were recorded in a polling booth under usual conditions.

No visit shall be made under this section if such visit is forbidden, on medical grounds, by a legally qualified medical practitioner.

s 87A: Ins 1949 No 23, sec 6 (a). Am 1965 No 15, sec 2 (b); 1969 No 43, sec 5 (f); 1981 No 28, Sch 1 (10); 1991 No 94, Sch 1; 1992 No 112, Sch 1.

88 Returning officers etc to make declarations

(1)  Every returning officer, substitute of a returning officer, and every deputy returning officer and poll clerk and clerical assistant (except a clerical assistant appointed for the purposes of Division 11) shall, before he or she enters upon any of the duties hereby assigned to him or her with regard to any election, make and sign before some justice of the peace, clergyman, schoolteacher, or postmaster, a declaration to the effect following:

I [A.B.] do solemnly declare that I will faithfully and impartially, according to the best of my skill and judgment, exercise and perform all the powers, authorities, and duties reposed in or required of me by the Parliamentary Electorates and Elections Act 1912 as returning officer [or substitute of the returning officer, or deputy returning officer, or poll clerk, or clerical assistant, as the case may be] with regard to any election under that Act, and I do further solemnly promise and declare that I will not at any such election attempt to ascertain [save in the cases in which I am expressly by law authorised so to do] for what candidate any person shall vote or have voted at any such election; and that if in the discharge of my duties at or concerning any such election I shall have learned, or have the means of learning, for what candidate any person shall vote or have voted thereat, I will not by word or act, or by any other means whatsoever, directly or indirectly, divulge or disclose, or aid in divulging or disclosing the same, save in answer to any question which I am legally bound to answer, and I do further solemnly declare that I am an elector enrolled on the roll for the subdivision of                      in the electoral district of                     .

And every declaration made under this section shall be transmitted by the returning officer or his or her substitute to the Electoral Commissioner.

(2)  Any clergyman, school teacher, or postmaster is authorised to receive any such declaration. Part 4 of the Oaths Act 1900 shall apply to such declaration as if it were made under that Act.

s 88: Am 1918 No 40, sec 8; 1928 No 55, sec 10 (1) (c); 1941 No 6, sec 2 (1) (d); 1973 No 44, sec 3 (c); 1975 No 108, Sch 1; 1976 No 20, Sch 1 (4); 1978 No 75, Sch 2 (41).

89 Deputy returning officers to be furnished with copies of rolls and ballot-papers

(1)  Before the day of polling the returning officer shall:

(a)  provide for use at each polling-place sufficient copies certified under his or her hand of the printed rolls in force for the district in which the poll is to be taken, and

(b)  deliver to each deputy, and retain, such numbers, respectively, of the ballot-papers as are sufficient for the use of the electors entitled to vote at each booth at which the returning officer and deputies, respectively, are to take the poll,

and shall keep an exact count of all those ballot-papers.

(1A)  The returning officer shall retain for use at his or her office:

(a)  at least one copy of the printed rolls in force for his or her district, and

(b)  such number of ballot-papers as he or she considers will be required for the use of electors who are permitted to vote at his or her office before polling day,

and shall keep an exact count of those ballot-papers.

(1B)  The ballot-papers for a periodic Council election to be delivered or retained pursuant to subsection (1) or (1A) shall be taken from the ballot-papers delivered to the returning officer for the district pursuant to section 83A (3).

(2)  It shall be the duty of such returning officer or his or her deputy to sign or initial every ballot-paper when issued to each voter at the booth at which such returning officer or his or her deputy may be presiding, and also to write, or cause to be written, any additional ballot-papers that may be required, and such written ballot-papers shall also be signed or initialled as hereinbefore mentioned.

(3)  A certified copy of the roll referred to in subsection (1) shall be a copy of the roll of the electors (including persons whose names have been placed on the roll in pursuance of a claim made under section 33A and who will have attained the age of 18 years on polling-day) on the roll in force for the district for which the polling-place has been declared to be a polling-place.

s 89: Am 1929 No 33, sec 2 (1) (a); 1975 No 108, sec 5 (e); 1978 No 75, Sch 2 (42); 1987 No 132, Sch 1 (34).

90 How scrutineers to be appointed

(1)  Each candidate shall be entitled to appoint, by writing under his or her hand, scrutineers on his or her behalf at each polling-booth; save as is hereinafter provided such scrutineers shall be entitled to be present in that part of the booth in which the ballot-papers are received.

(2)  A scrutineer shall not:

(a)  interfere with or attempt to influence any elector within the polling-booth, or

(b)  communicate with any person in the polling-booth except so far as is necessary in the discharge of his or her functions.

(3)  A scrutineer shall not be prevented from entering or leaving a polling-booth during the polling, and, during his or her absence, a relieving scrutineer may act in his or her place; but only one scrutineer for each candidate shall be entitled to be present in a polling-booth at any one time.

(4)  A scrutineer who commits any breach of this section, or who misconducts himself or herself, or who fails to obey the lawful directions of the returning officer or deputy shall be liable to a penalty not exceeding 10 penalty units or to imprisonment for a period not exceeding 6 months, or both.

(5)  A reference in subsection (1) or (3) to a candidate shall, in relation to a candidate who is included in a group for the purpose of a periodic Council election, be construed as a reference only to the candidate first in the order, referred to in section 81C (2), in that group.

(6)  A scrutineer does not breach subsection (2) (a) only because the scrutineer wears or displays any badge or emblem of a candidate or political party.

(7)  Without limiting the generality of section 114, a scrutineer who, within a polling booth:

(a)  commits any breach of this section,

(b)  misconducts himself or herself, or

(c)  fails to obey the lawful directions of the returning officer or deputy,

may, on the request of the returning officer or deputy at the polling booth, be removed from the polling booth by a member of the police force.

s 90: Subst 1918 No 40, sec 8. Am 1969 No 43, sec 5 (g); 1975 No 108, sec 5 (f); 1978 No 75, Sch 2 (43); 1987 No 132, Schs 1 (35), 2 (5); 1992 No 112, Sch 1.

91 Scrutineer to make declaration

(1)  Every scrutineer, before acting as such at any polling-booth, shall make and sign before the returning officer or deputy (as the case may be) who takes the poll at such booth, a declaration to the effect following:

I [A.B.] (scrutineer for C.D., a candidate at the present election) do solemnly declare that I will faithfully observe all the provisions of the Parliamentary Electorates and Elections Act 1912 which relate to such my office of scrutineer; and I do further solemnly promise and declare that I will not, as such scrutineer at the said election, attempt to ascertain for what candidate any person shall vote or have voted at the said election, and that if, in the discharge of my duties at or concerning the said election, I shall have learned, or have the means of learning, for what candidate any person shall vote or have voted thereat, I will not by word or act, or by any other means whatsoever, directly or indirectly, divulge or disclose, or aid in divulging or disclosing the same, save in answer to some question which I am legally bound to answer, and I do further solemnly declare that I am an elector enrolled on the roll for the subdivision of                      in the electoral district of                     .

And every such declaration shall be transmitted to the Electoral Commissioner by the returning officer or his or her substitute.

(2)  Any returning officer or deputy returning officer is authorised to receive any such declaration. Part 4 of the Oaths Act 1900 shall apply to such declaration as if it were made under that Act.

s 91: Am 1928 No 55, sec 10 (1) (d); 1941 No 6, sec 2 (1) (e); 1975 No 108, Sch 1; 1978 No 75, Sch 2 (44).

Division 8 General provisions for the regulation of voting

pt 5, div 8, hdg: Subst 1976 No 20, Sch 2 (8).

92 Polling-day a public holiday

The day appointed for polling-day shall be a public holiday, as from twelve o’clock, noon, of such day.

93 Who may be present at polling-booth

(1)  There may, at any time during the taking of a poll, be present at the polling-booth:

(a)  the Electoral Commissioner or the returning officer or his or her deputy,

(b)  the poll clerks and scrutineers,

(c)  the registrar or deputy registrar,

(d)  any member of the police force designated by the returning officer or deputy,

(e)  voters, not more than six in number, actually engaged in voting, such voters to be designated, if thought necessary, by the returning officer or deputy:

Provided that a registrar, deputy-registrar, or such member of the police force shall, before entering the polling-booth, make and sign the prescribed declaration.

(2)  Any person who, without lawful authority, the proof of which shall be on him or her, enters any polling-booth or, being therein, refuses to quit such booth forthwith on being required by the returning officer or deputy, or by any member of the police force acting under the direction or authority of such returning officer or deputy, may be removed from the polling-booth, and shall be liable to a penalty not exceeding 5 penalty units.

s 93: Am 1926 No 12, sec 9 (11); 1928 No 55, sec 35 (3) (e); 1969 No 43, sec 5 (h); 1978 No 75, Sch 2 (45); 1987 No 132, Sch 2 (6); 1992 No 112, Sch 1.

94 Returning officer to exhibit ballot-box before taking poll

Immediately before proceeding to take the poll at any booth the returning officer or deputy (as the case may be) shall exhibit for the inspection of the candidates, scrutineers, and poll clerks present, the ballot-box open and empty, and shall immediately afterwards close and seal, and place the same empty and keep the same unopened upon the table at which he or she is to preside, and in full view of all persons present in the polling-booth.

s 94: Am 1990 No 111, Sch 1 (17).

95 Hours of polling

(1)  Subject to subsection (2), every polling shall commence at 8 am on the day appointed for the polling to take place, and shall, unless lawfully adjourned, close at 6 pm on that day.

(2)  Subject to sections 111 (d) and 114 (1) (b) (iii), if any elector is in a polling-booth at 6 pm on polling day and desires to vote, his or her vote shall be taken and the polling shall not close until he or she has voted.

s 95: Am 1921 No 19, sec 2 (25). Subst 1975 No 108, sec 5 (g).

96 Permission to be granted to employees to go to polling-booth

Every employer shall at the request of any elector employed by him or her allow such elector to go, at a reasonable time, to a polling-place and record his or her vote at any election.

If any person contravenes the above provision he or she shall be liable to a penalty not exceeding 3 penalty units:

Provided that the above provision shall not apply where the elector has a half-holiday on the day of the election.

s 96: Am 1969 No 43, sec 5 (i); 1992 No 112, Sch 1.

97 Where electors may vote

(1)  Any elector may vote at any polling-place which has been declared to be a polling-place for the district for which he or she is enrolled.

(2)  If the elector is of Jewish persuasion, and has made the declaration prescribed under section 109, the declaration under section 115, may be made orally, and the signature of the elector provided for in these declarations may be made by the returning officer or deputy.

s 97: Am 1918 No 40, sec 8; 1921 No 19, sec 2 (26); 1928 No 55, sec 20 (b); 1929 No 33, sec 2 (1) (b); 1975 No 108, sec 5 (h); 1987 No 132, Sch 1 (36).

98 Appointment of polling-places outside electoral district

(1)  The Governor, in any case in which he or she is satisfied that the convenience of a large number of electors of any district would be furthered by appointing polling-places outside such district, may, by notice in the Gazette, appoint such polling-places.

The Governor may by a like notice abolish any polling-place so appointed: Provided that no such polling-place shall be abolished after the issue of the writ and before the time appointed for its return.

(2)  Where an elector votes outside his or her district at a polling-place duly appointed under subsection (1), he or she shall deposit such ballot-paper in a ballot-box specially set apart for ballot-papers for the district in respect of which the voter claims to vote, and upon the close of the poll such ballot-papers, together with all documents received by the deputy returning officer in connection with the poll, shall be dealt with in accordance with the provisions of section 123 or 129C, as the case may require.

s 98: Am 1918 No 40, sec 4 (v); 1926 No 12, sec 9 (12); 1928 No 55, sec 35 (3) (f); 1978 No 75, Sch 2 (46).

99 Questions to be put to voter

(1)  The returning officer or deputy shall put the following questions to each person attending before him or her and claiming to vote in an election or elections:

(a)  What is your full name?

(b)  Where do you reside?

(c)  Have you voted before in this election? or Have you voted before in these elections? (as the case requires)

(2)  In addition to the questions put under subsection (1), the returning officer or deputy shall ask each person claiming to vote as an absent voter in an election to identify the electoral district for which the person is enrolled.

(3)  Where, in answer to the question specified in subsection (1) (b) put to the person by a returning officer or deputy, a person (other than an absent voter, an eligible overseas elector or an itinerant elector) gives a place of residence other than:

(a)  the person’s residence shown on the roll, or

(b)  another residence in the electoral district in respect of which the person claims to vote,

the returning officer or deputy shall ask the following question: At what other place or places have you lived during the last 3 months?

(4)  If the answers to the questions specified in subsection (1) (a) and (b) that are given by a person claiming to vote are not sufficient to distinguish that person from another person on the roll, the returning officer or deputy may, for the purpose of distinguishing the 2 persons, ask the person claiming to vote another question or other questions relating to matters shown on the roll in relation to those persons.

(5)  Subject to section 99A, if a person claiming to vote to whom questions are put under this section:

(a)  refuses to answer fully any question so put to the person,

(b)  so answers the question specified in subsection (1) (b) and the question specified in subsection (3) as to indicate that the person is not entitled to vote by virtue of section 20 (6), or

(c)  answers a question specified in subsection (1) (c) in the affirmative,

the person’s claim to vote shall be rejected.

s 99: Am 1918 No 40, sec 6; 1920 No 18, sec 10; 1928 No 55, sec 35 (2) (a). (See also 1926 No 12, secs 6 (2), 12 and Sch, 1927 No 30, sec 4 (2), and 1928 No 55, secs 6 (3), 35 (2) (b).) Subst 1975 No 108, sec 5 (i); 1987 No 132, Sch 1 (37).

99A Person whose residence is not on the roll

Where an elector for an electoral district whose name appears, but whose residence does not appear, on the roll for a subdivision claims to vote at an election and to be an elector to whom section 38A applies, the elector may, subject to this Act and the regulations, be permitted to vote if the elector makes a declaration of residence in the prescribed form on an envelope, or, if the elector is an absent voter, on the envelope bearing the declaration made by the voter under section 115 (1), before the returning officer or deputy at the polling place.

s 99A: Ins 1987 No 132, Sch 1 (37).

100 Questions to be put if voter challenged

(1)  The returning officer or deputy may, and at the request of any scrutineer shall, put to any person claiming to vote all or any of the following questions:

(a)  Are you the person whose name appears as [here state name under which the person claims to vote] on the roll for [the district of                ]?

(b)  Are you of or above the age of eighteen years?

(c)  Have you already voted, either here or elsewhere, at this election?

(d)  Are you disqualified from voting?

(e)  Is your place of living within the district [here state the name of the district in respect of which the elector claims to vote]?

(f)  (If the question set out in paragraph (e) is answered in the negative)—Was your place of living at any time within the last three months within the district of [here state the name of the district in respect of which the elector claims to vote]?

(2)  If any person refuses to answer fully any question put to him or her by the returning officer or deputy, or by his or her answer shows that he or she is not entitled to vote, his or her claim to vote shall be rejected.

(3)  The voter’s answer to the question shall be conclusive, and the matter shall not be further inquired into during the polling.

(4)    (Repealed)

s 100: Am 1918 No 40, sec 8; 1928 No 55, sec 21 (1); 1929 No 33, secs 2 (1) (c), 4 (1); 1970 No 57, sec 2 (c); 1975 No 108, sec 5 (j); 1987 No 132, Sch 1 (38).

101 Errors not to forfeit vote

No omission of any given name or names, or entry of a wrong given name or names, or address, or occupation, and no mistake in the spelling of any surname, shall warrant the rejection at any polling of any claim to vote if the voter is sufficiently identified in the opinion of the returning officer or deputy. No female elector shall be disqualified from voting under the name appearing on the roll because her surname has been changed by marriage, but in such case a note of the fact shall be made by the returning officer or deputy.

s 101: Am 1975 No 108, sec 5 (k).

101A (Repealed)

s 101A: Ins 1921 No 19, sec 2 (27). Rep 1928 No 55, sec 22 (1) (b).

102 Ballot-papers signed or initialled

No ballot-paper shall be delivered to any voter without being first signed or initialled by the returning officer or deputy, and an exact account shall be kept of all signed or initialled ballot-papers. The signature or initials of the returning officer or deputy shall be placed on the back of the ballot-paper in such a position as to be easily seen when the ballot-paper is folded so as to conceal the names of the candidates.

s 102: Am 1926 No 12, sec 9 (13); 1975 No 108, sec 5 (l).

103 Vote, how given

(1)  Upon receipt of a ballot-paper the voter shall, without delay:

(a)  retire alone to some unoccupied compartment of the booth, and there in private record his or her vote on the ballot-paper,

(b)  fold the ballot-paper so as to conceal the names of the candidates and to clearly show the signature or initials of the returning officer or deputy, and exhibit it so folded to the returning officer or deputy, and then forthwith openly, and without unfolding it, deposit it in the ballot-box,

(c)  quit the booth.

(2)  In the case of the election of a member of the Assembly, a voter shall record his or her vote for at least one candidate by placing the number “1” in the square opposite the name of the candidate for whom he or she desires to give his or her first preference vote and may, if he or she wishes, vote for additional candidates by placing consecutive numbers beginning with the number “2” in the squares opposite the names of those additional candidates in the order of his or her preferences for them.

(3)  In the case of a periodic Council election, a voter shall record his or her vote for at least 15 candidates by placing the numbers “1”, “2”, “3”, “4”, “5”, “6”, “7”, “8”, “9”, “10”, “11”, “12”, “13”, “14” and “15” in the squares opposite the names of 15 candidates in the order of his or her preferences for them and may, if he or she wishes, vote for additional candidates by placing consecutive numbers beginning with the number “16” in the squares opposite the names of those additional candidates in the order of his or her preferences for them.

(4)  If the ballot-paper in a periodic Council election contains one or more group voting squares, the voter may record a vote by placing the number “1” in any one of those squares instead of recording a vote in accordance with subsection (3) and may, if he or she wishes, vote for additional groups of candidates by placing consecutive numbers beginning with the number “2” in the group voting squares above the names of those additional groups of candidates in the order of his or her preferences for them.

s 103: Am 1918 No 40, sec 4 (vi); 1926 No 12, sec 8 (10); 1928 No 55, sec 28 (1); 1975 No 108, sec 5 (m); 1978 No 75, Sch 2 (47); 1979 No 39, Sch 1 (14); 1987 No 173, Sch 2 (5); 1991 No 20, Sch 2 (4); 1999 No 70, Sch 1 [13].

103A Vote of person whose residence is not shown on the roll

(1)  Notwithstanding section 103 (1), if an elector votes under the provisions of section 99A, the elector shall mark and fold the elector’s ballot-papers in the manner prescribed in this Act and return it so folded to the returning officer or deputy.

(2)  The returning officer or deputy shall thereupon, in the presence of the elector and of such scrutineers as are present, and without unfolding the ballot-paper, enclose it in an envelope bearing the declaration of the voter and addressed to the returning officer for the district for which the elector is enrolled and shall forthwith securely fasten the envelope and deposit it in the ballot-box.

(3)  The returning officer or the deputy shall, without opening the envelope, forthwith transmit it to the returning officer for the district for which the elector is enrolled.

(4)  The returning officer or the deputy, on receipt of the envelope containing the ballot-paper, shall, before opening the envelope or allowing any other person to do so, examine the declaration of the elector, and, if it is in order and he or she is satisfied that the residence specified in the declaration is the residence specified in a request under section 38A by the elector (as affected by any change of residence annotated on the request) shall deal with the ballot-paper in the manner prescribed in connection with the scrutiny of absent voters’ ballot-papers.

(5)  Subsections (1), (2), (3) and (4) do not apply in relation to a ballot-paper marked by an absent voter who makes a declaration of residence under section 99A, but, where a returning officer for a district receives an envelope bearing such a declaration in relation to the district, he or she shall examine the declaration and, if it is in order and he or she is satisfied that the residence specified in the declaration is the residence specified in a request under section 38A by the absent voter (as affected by any change of residence annotated on the request), shall deal with the ballot-paper in the scrutiny of absent votes.

s 103A: Ins 1987 No 132, Sch 1 (39).

104 Spoilt ballot-papers

If any voter satisfies the returning officer or deputy, before his or her ballot-paper is deposited in the ballot-box, that he or she has spoilt it by mistake or accident, he or she may, on giving it up, receive a new ballot-paper from the returning officer or deputy, who shall there and then cancel and preserve the spoilt ballot-paper.

s 104: Am 1975 No 108, sec 5 (n).

105 (Repealed)

s 105: Rep 1918 No 40, sec 4 (vii).

106 Disputed vote

(1)  If, at any election, any ballot-paper has been delivered to any person having tendered a vote, and if any other person subsequently tenders a vote at the election in the name of, or as purporting to be, such first-mentioned person, the returning officer or deputy shall put to the person so subsequently tendering a vote the prescribed questions. If the person answers the questions satisfactorily, and makes a declaration in the prescribed form, he or she may be permitted to vote.

(1A)  If a person whose name has been noted (on the certified copy of the roll used at the polling-place for the subdivision in which the elector is enrolled) as that of an elector to whom a postal ballot-paper or pre-poll vote has been issued claims to vote in the election at that polling-place, the returning officer or deputy shall put to the person the prescribed questions. If the person answers the questions satisfactorily, states that he or she has not applied for a postal ballot-paper or pre-poll vote and makes a declaration in the prescribed form, the person may be permitted to vote.

(2)  Notwithstanding anything contained in this Act, when any person who is entitled to be enrolled on the roll for a district claims to vote at an election at a polling-place prescribed for a subdivision of that district, and his or her name has been omitted from or struck out of the certified copy of the roll being used at such election owing to an error of an officer or a mistake of fact, or when any person who is enrolled on the roll for a district claims to vote at an election at a polling-place prescribed for a subdivision of that district and his or her name cannot be found by the deputy returning officer on the certified copy of the roll being used at such election, he or she may, subject to this Act and the regulations, be permitted to vote if:

(a)  in the case of a person whose name has been omitted from the roll:

(i)  he or she sent or delivered to the registrar for the subdivision a duly completed claim for enrolment or transfer of enrolment, as the case requires, in respect of the subdivision, and the claim was received by the registrar before the period commencing at 6 pm on the date of issue of the writ for the election and ending on the close of polling at the election, and

(ii)  he or she did not after sending or delivering the claim and before the period referred to in subparagraph (i) become qualified for transfer of enrolment to another subdivision, or

(b)  in the case of a person whose name has been struck out of the roll:

(i)  his or her name was not, to the best of his or her knowledge, removed from the roll for the district owing to objection, or transfer or duplication of enrolment, or disqualification, and

(ii)  he or she had, from the time of his or her enrolment for a subdivision of the district to the date of the issue of the writ for the election, continuously retained his or her right to enrolment for a subdivision of that district, or

(c)  in the case of a person whose name is on the roll for a district for which he or she claims to vote, but cannot be found by the deputy returning officer, he or she claims that his or her name appears or should appear on the roll,

and makes a declaration in the prescribed form.

(3)  For the purpose of giving effect to this section, the following provisions shall be observed:

(a)  

(i)  The form of declaration may be printed or written on an envelope addressed to the returning officer for the district and must, after being filled in, be signed by the voter in the presence of the returning officer or deputy, and completed and attested by him or her.

(ii)  After the declaration has been made, the returning officer or deputy shall hand to the voter a ballot-paper.

(iii)  The voter, after receiving the ballot-paper, shall without delay retire alone into an unoccupied compartment of the polling-booth and there in private mark his or her vote on the ballot-paper.

(iv)  The voter shall then fold and fasten the ballot-paper so that the vote cannot be seen without unfastening it, and at once return the ballot-paper so fastened to the returning officer or deputy before whom he or she made the declaration.

(v)  The returning officer or deputy shall then in the presence of the voter forthwith enclose the ballot-paper in the envelope bearing the declaration of the voter and securely fasten the envelope.

(b)  If any person makes any declaration under this section knowing that the same is untrue in any material particular he or she shall be liable to a penalty not exceeding 10 penalty units or to imprisonment for a period not exceeding 6 months, or both.

(c)  Every envelope containing a vote given under this section shall be promptly delivered by a person authorised in that behalf by the returning officer or forwarded under registered cover where practicable to the returning officer for the district.

(d)  A deputy returning officer who delivers or forwards any such envelopes to the returning officer shall, immediately after the close of the poll, send to the returning officer advice of the number of envelopes so forwarded.

(e)  The returning officer or the officer assisting him or her shall in the presence of the scrutineers examine the declaration on the envelope containing the ballot-paper; and, if after making such enquiries as he or she may deem necessary, it appears to him or her that the person whose name is signed to the declaration is entitled to vote, and that the declaration is duly attested, he or she shall accept the ballot-paper for further scrutiny, but otherwise he or she shall reject the ballot-paper without opening the envelope.

If he or she accepts the ballot-paper for further scrutiny, he or she shall open the envelope without destroying the declaration and extract the ballot-paper, and shall, without unfolding it, place the ballot-paper in the ballot-box.

(f)  The returning officer or the officer assisting him or her shall then proceed with the scrutiny of the ballot-papers which have been accepted for further scrutiny by removing them from the ballot-box in which they were placed in accordance with paragraph (e) and:

(i)  by opening any of those ballot-papers relating to an election for the Assembly and allowing and counting those which are formal and disallowing and rejecting those which, by virtue of section 122, are informal, and

(ii)  by opening any of those ballot-papers relating to a periodic Council election and counting the votes recorded for each candidate.

(g)    (Repealed)

(4)  Where the returning officer or the officer assisting him or her accepts the ballot-paper of a person voting in pursuance of subsection (2), he or she shall forthwith make the necessary correction in the roll used by him or her for the purpose of the election, and report the matter to the Electoral Commissioner who shall take such action as is necessary to secure the enrolment of the elector.

(5)  Where the claim of any person to vote under this section is refused the returning officer or deputy shall make a note in writing of the fact of the claim and the reasons for the refusal thereof.

The returning officer or deputy and a poll clerk shall sign the note in the presence of such scrutineers as are present.

Any of those scrutineers may also sign the note.

(6)    (Repealed)

s 106: Am 1926 No 12, sec 9 (14). Subst 1928 No 55, sec 22 (1) (a) (am 1928 No 55, sec 9 (2)). Am 1937 No 35, Second Sch; 1969 No 43, sec 4 (1) (a); 1978 No 75, Sch 2 (48); 1981 No 28, Sch 1 (11); 1987 No 132, Schs 1 (40) (am 1988 No 20, Sch 20), 2 (7); 1990 No 111, Sch 1 (18); 1992 No 112, Sch 1.

107 (Repealed)

s 107: Rep 1928 No 55, sec 22 (1) (b).

108 Assistance to certain electors

(1)  If an elector satisfies the returning officer or deputy that his or her sight is so impaired or that he or she is so physically incapacitated that he or she is unable to vote without assistance, the returning officer or deputy shall permit a person appointed by the elector to enter an unoccupied compartment of the booth with the elector and mark, fold and deposit the elector’s ballot-paper for him or her.

(2)  If any such elector fails to appoint a person in pursuance of subsection (1), or if any elector satisfies the returning officer or deputy that he or she is so illiterate that he or she is unable to vote without assistance, the returning officer or deputy, in the presence of such scrutineers as are present, or if there are no scrutineers present, then in the presence of:

(a)  the poll clerk, or

(b)  if the elector so desires, in the presence of a person appointed by such elector, instead of the poll clerk,

shall mark the ballot-paper according to the instruction of such elector, and shall fold and deposit the ballot-paper in the ballot-box.

s 108: Am 1918 No 40, sec 4 (viii); 1921 No 19, sec 2 (28); 1928 No 55, sec 22 (1) (d). Subst 1944 No 2, sec 2 (a).

108A Instructions

The instruction of a person under section 108, section 114H (1) (f), section 114T or section 114ZS may be given by handing to the returning officer or deputy or to the authorised witness, as the case may be, a “how to vote” card, or a printed or written statement indicating the candidate for whom the elector desires to vote or the candidates for whom the elector desires to vote and the order of his or her preferences for them.

s 108A: Ins 1926 No 12, sec 8 (11). Am 1975 No 108, sec 5 (o); 1978 No 75, Sch 2 (49); 1981 No 28, Sch 1 (12).

109 Provision when poll falls on Saturday

If, when the day appointed for taking any poll falls on a Saturday or on any day on which occurs a Jewish fast or festival, any person to whom a ballot-paper has been delivered, declares at the prescribed time and in prescribed form that he or she is of the Jewish persuasion, and objects on religious grounds to vote in the manner provided by this Act, the returning officer or deputy shall, at the request of such person, and in presence of such person, and for him or her, and in presence of the poll clerk and scrutineers (if any), mark the ballot-paper according to the instruction of such person, and deal with such ballot-paper in the manner provided by section 108.

s 109: Am 1918 No 40, sec 4 (ix); 1928 No 55, sec 35 (3) (g).

110 When votes to be rejected

If upon examination of the several rolls used at any election or of any other documents or writings in his or her possession, or if from evidence satisfactory to him or her (from whatever source derived) it appears to the returning officer or officers that any person has voted in more than one district at and for one and the same election, the vote given outside the proper district of such person shall, if ascertainable from any such evidence as aforesaid, be rejected.

111 Ballot-papers not to be removed from polling-booth etc

A person shall not, without lawful authority:

(a)  remove a ballot-paper from any polling-booth or, where the office of a returning officer is open to enable electors to vote before polling day, remove a ballot-paper from that office,

(b)  enter into a compartment of a polling-booth while any person is in the compartment,

(c)  remain in the compartment of a polling-booth, or, where he or she is voting at the office of a returning officer before polling day, remain at that office for a longer period than is necessary for the purpose of marking his or her ballot-paper, or

(d)  obstruct or unnecessarily delay the proceedings at a polling-booth or, where the office of a returning officer is open to enable electors to vote before polling day, the proceedings at that office.

Maximum penalty: 10 penalty units or imprisonment for 6 months, or both.

s 111: Am 1969 No 43, sec 5 (j). Subst 1975 No 108, sec 5 (p). Am 1987 No 132, Sch 2 (8); 1992 No 112, Sch 1.

112 False answer to questions etc or double voting

(1)  If any person:

(a)  to whom any of the prescribed questions is so put as aforesaid wilfully makes a false answer to the same or any part thereof, or

(b)  wilfully makes a false declaration in respect of any matter or thing for which a declaration is required by this Part, or

(c)  personates any elector for the purpose of voting at any election, or

(d)  votes twice at any election, or

(e)  knowingly deposits in the ballot-box at any polling-place more ballot-papers than one,

the person is guilty of an offence.

Maximum penalty: 100 penalty units or imprisonment for 3 years, or both.

(2)  A person does not commit an offence arising under subsection (1) (e) by reason only of his or her depositing in the ballot-box, used for elections referred to in section 120J, the ballot-papers used by him or her for voting in each of those elections.

s 112: Am 1944 No 10, sec 28 (2) (and see sec 29); 1978 No 75, Sch 2 (50); 1987 No 132, Sch 2 (9); 1990 No 111, Sch 1 (19).

113 Penalty for obstructing elector from access to polling-place

A person shall not, on polling day, or on any day to which polling is adjourned, or on any day on which the office of a returning officer is open to enable electors to vote before polling day, obstruct the access or approaches to the polling-booth or the office of the returning officer, as the case may be.

Maximum penalty: 0.5 penalty unit.

s 113: Am 1969 No 43, sec 5 (k). Subst 1975 No 108, sec 5 (q). Am 1992 No 112, Sch 1.

114 Returning officer etc may arrest offenders under this Act

(1)  Every returning officer and deputy returning officer, any assistant returning officer or clerical assistant acting under the authority of the returning officer or deputy, and every member of the police force shall have and may exercise such powers as may be necessary to maintain order and keep the peace at any election or polling under this Act, and for that purpose and without prejudice to any other powers conferred on him or her by law:

(a)  may:

(i)  without warrant, arrest or cause to be arrested any person who he or she has reasonable grounds to believe is committing or has committed or is attempting to commit an offence under this Act at or in the immediate vicinity of any polling-place or, where the office of the returning officer is open to enable electors to vote before polling day, at or in the vicinity of that office, or

(ii)  instead of arresting or causing the arrest of the person, remove or cause the removal of that person from the polling-place or immediate vicinity of that polling-place or, as the case may be, from the office of the returning officer or immediate vicinity of that office, and

(b)  may remove or cause to be removed from a polling-booth and from the immediate vicinity of the polling-booth, and, where the office of the returning officer is open to enable electors to vote before polling day, from that office and from the immediate vicinity of that office, any person:

(i)  who, having been given a lawful direction by or under the authority of the returning officer or deputy, fails to comply with that direction,

(ii)  who is obstructing the access or approaches to the polling-booth or, as the case may be, to that office,

(iii)  who is obstructing or unnecessarily delaying the proceedings at the polling-booth or, as the case may be, at that office, or

(iv)  who is behaving in a disorderly manner or is causing a disturbance.

(2)  Any person arrested under subsection (1) shall, as soon as practicable thereafter, be taken before a justice of the peace to be dealt with according to law for the offence for which he or she was arrested.

s 114: Am 1928 No 55, sec 35 (3) (h). Subst 1975 No 108, sec 5 (r).

Division 9 Voting by post (returning officers)

pt 5, div 9, hdg: Ins 1918 No 40, sec 5. Subst 1976 No 20, Sch 2 (9).

114A Application for a postal vote certificate and postal ballot-paper

(1)  An elector who:

(a)  will not throughout the hours of polling on polling day be within the State,

(b)  will not throughout the hours of polling on polling day be within eight kilometres by the nearest practicable route of any polling booth open for the purposes of an election,

(c)  will throughout the hours of polling on polling day be travelling under conditions which will preclude him or her from voting at any polling booth,

(d)  is seriously ill or infirm, and by reason of such illness or infirmity will be precluded from attending at any polling booth to vote, or, in the case of a woman, will, by approaching maternity, be precluded from attending at any polling booth to vote,

(d1)  is, at a place other than a hospital, caring for a person who is seriously ill or infirm or approaching maternity and by reason of caring for the person will be precluded from attending at any polling booth to vote,

(e)  is, by reason of his or her membership of a religious order or his or her religious beliefs:

(i)  precluded from attending at a polling booth, or

(ii)  precluded from voting throughout the hours of polling on polling day or throughout the greater part of those hours,

(f)  is, by reason of his or her being kept in a correctional centre (within the meaning of the Crimes (Administration of Sentences) Act 1999), precluded from attending at any polling booth to vote, or

(g)  will, by reason of being engaged for fee, gain or reward in any work throughout the hours of polling on polling day, be precluded from attending at any polling booth to vote,

may make an application for a postal vote certificate and a postal ballot-paper to the returning officer for the district for which the elector is enrolled or, if the elector has reason to believe that the application may not reach that returning officer so as to enable him or her to receive from that returning officer the postal vote certificate and the postal ballot-paper in time to permit him or her to vote at the election, to some other district returning officer.

(2)  An application under subsection (1) shall:

(a)  be in or to the effect of the prescribed form and specify the ground on which the elector is making the application,

(b)  be signed by the elector, and

(c)  be witnessed by an authorised witness.

(d)    (Repealed)

(2AA)  Nothing in subsection (1) entitles an elector who is an inpatient or inmate of a declared institution within the meaning of Division 11A and will be such an inpatient or inmate on the fifth, fourth and third days immediately preceding polling day to a postal ballot-paper and postal vote certificate.

(2A)  An elector who has made an application under subsection (1) shall, notwithstanding that the application complies with subsection (2), be entitled to a postal ballot-paper and postal vote certificate only if the application is received by the returning officer to whom it is addressed:

(a)  in the case of an application sent from within Australia, before 6 pm on the third day preceding polling day, or

(b)  in the case of an application sent from outside Australia, before 6 pm on the fifth day preceding polling day.

(2B)  A person shall not persuade or induce or associate with any person in persuading or inducing any person to make application for a postal vote certificate and postal ballot-paper.

Maximum penalty: 10 penalty units or imprisonment for 6 months, or both.

(3)  An elector shall not make, and a person shall not induce an elector to make, any false statement in an application for a postal vote certificate and postal ballot-paper, or in the declaration contained in such application.

Maximum penalty: 10 penalty units or imprisonment for 6 months, or both.

s 114A: Ins 1918 No 40, sec 5. Am 1926 No 12, secs 8 (12), 9 (15) (16); 1928 No 55, sec 35 (3) (i) (i); 1929 No 33, sec 5 (a); 1944 No 2, sec 2 (b); 1949 No 23, sec 4 (a); 1965 No 15, sec 2 (c); 1969 No 43, sec 4 (1) (b); 1975 No 108, sec 6 (a); 1977 No 91, sec 2; 1981 No 28, Sch 1 (13); 1987 No 132, Schs 1 (41), 2 (10); 1992 No 112, Sch 1; 1998 No 120, Sch 1.28 [1]–[3]; 1999 No 94, Sch 4.44.

114AA Registration of general postal voters

(1)  In this section:

prescribed elector means:

(a)  an elector whose real place of living is not within 20 kilometres, by the nearest practicable route, of a polling place,

(a1)  if the regulations so provide, an elector who will not be within the State during any particular period,

(b)  an elector who:

(i)  is a patient in a hospital (not being a hospital that is a polling place or a declared institution under section 114ZN), and

(ii)  by reason of being seriously ill or infirm, is unable to travel from the hospital,

(c)  an elector who:

(i)  is not a patient in a hospital, and

(ii)  by reason of being seriously ill or infirm, is unable to travel from the place where he or she resides,

(d)  an elector who is being kept in a correctional centre (within the meaning of the Crimes (Administration of Sentences) Act 1999),

(e)  an elector who is enrolled pursuant to a claim made under section 32 (3), or

(f)  an elector whom a registered medical practitioner has certified, in writing, to be so physically incapacitated that the elector cannot sign the elector’s name.

register means Register of General Postal Voters for a subdivision kept in accordance with subsection (11).

(2)  A prescribed elector may make application to the registrar for the subdivision of the district for which the elector is enrolled to be registered as a general postal voter for the subdivision.

(3)  An application under subsection (2) in relation to an elector to whom subsection (1) (e) or (f) applies may be made by another person acting on behalf of the elector.

(4)  The certificate referred to in subsection (1) (f) shall be lodged with the application under subsection (2) to which it relates.

(5)  An application under subsection (2) shall be in the prescribed form.

(6)  If a registrar is satisfied that an elector making an application under subsection (2) is:

(a)  enrolled in the subdivision for which he or she is a registrar, and

(b)  a prescribed elector,

the registrar shall register the elector as a general postal voter for the subdivision by entering the name of the elector in the register referred to in subsection (11).

(6A)  A registrar may register an elector to whom subsection (1) (a1) applies as a general postal voter only during the period that the elector has specified as the period during which he or she will not be within the State.

(7)  If a claim for enrolment or transfer of enrolment is made in respect of a person pursuant to section 32 (3) and the claim indicates that the person wishes to be a registered general postal voter, the registrar for the subdivision for which the person is claiming enrolment shall, forthwith upon enrolment, register the person as a general postal voter by entering the name of the person in the register.

(8)  If a registrar for a subdivision registers an elector as a general postal voter for the subdivision, the registrar shall advise the elector, in writing, of the registration.

(9)  If a registrar for a subdivision is not satisfied that an elector making an application under subsection (2) is enrolled for the subdivision, the registrar shall advise the elector, in writing, to that effect.

(10)  If a registrar for a subdivision is not satisfied that an elector who is enrolled for the subdivision and who makes an application under subsection (2) is a prescribed elector, the registrar shall advise the elector, in writing, to that effect.

(11)  A registrar for a subdivision shall cause a Register of General Postal Voters for the subdivision to be kept and shall cause to be entered in the register in relation to an elector who is registered as a general postal voter for the subdivision:

(a)  the name of the elector,

(a1)  in the case of an elector to whom subsection (1) (a1) applies, the period of registration, the fact that the elector is registered under subsection (1) (a1) and the address of the place outside New South Wales to which ballot-papers are to be sent,

(b)  the residence shown on the roll for the subdivision for which the elector is enrolled as the real place of living of the elector, and

(c)  such other particulars as the Electoral Commissioner determines.

(12)  A register shall be open for public inspection, without fee, during ordinary office hours at the office of the registrar.

(13)  A registrar for a subdivision may cancel the registration of an elector as a general postal voter for the subdivision in such circumstances as are prescribed.

(14)  A person shall not make, and a person shall not induce another person to make, any false statement in, or in connection with, an application under subsection (2) or in any declaration contained in, or made in connection with, such application.

Maximum penalty: 10 penalty units or imprisonment for 6 months, or both.

(15)    (Repealed)

(16)  Where an elector who is a registered general postal voter for a subdivision (in this subsection referred to as the original subdivision) makes a claim under Part 4 for transfer of enrolment to another subdivision (in this subsection referred to as the new subdivision):

(a)  the registrar for the original subdivision shall, upon receipt under section 35 (1) (b) (iv) of notice of the transfer of enrolment, give notice in writing to the registrar for the new subdivision that the elector was a registered general postal voter for the original subdivision and cancel the registration of the elector as a general postal voter for the original subdivision, and

(b)  the registrar for the new subdivision shall, upon receipt of notice under paragraph (a), register the elector as a general postal voter for the new subdivision unless the registrar is satisfied that the elector would not be entitled to be so registered if the elector made an application under subsection (2).

(17)  A registrar for a subdivision shall, when directed to do so by the Electoral Commissioner, conduct a review of the register for the subdivision and, upon completion of the review, shall make such alterations to the register as he or she thinks necessary to ensure that:

(a)  only electors entitled to be registered general postal voters for the subdivision are so registered, and

(b)  the details entered in the register in relation to registered general postal voters are accurate.

(18)  The regulations may provide that the functions of a registrar under this section in relation to the registration of an elector to whom subsection (1) (a1) applies are to be exercised by the Electoral Commissioner instead of the registrar. For that purpose, the regulations may provide for the Electoral Commissioner to keep a separate register and may make any other necessary modifications to the operation of this section.

s 114AA: Ins 1987 No 132, Sch 1 (42) (am 1987 No 209, Sch 44). Am 1990 No 111, Sch 1 (20); 1991 No 94, Sch 1; 1992 No 112, Sch 1; 1999 No 94, Sch 4.44.

114AB Dispatch of ballot-papers to registered postal voters

A returning officer for a district shall, as soon as practicable after the issue of the writ for an election to be held in the district, deliver or post to each elector who is, on that day, a registered general postal voter for a subdivision of the district:

(a)  a postal vote certificate printed on an envelope addressed to the returning officer, and

(b)  one postal ballot-paper for a periodic Council election, or one postal ballot-paper for an Assembly general election or by-election, or both, as the case requires.

s 114AB: Ins 1987 No 132, Sch 1 (42) (am 1987 No 209, Sch 44). Subst 1990 No 111, Sch 1 (21).

114B Authorised witnesses

(1)  Subject to subsection (2) an elector whose name appears on the roll for the State of New South Wales, on the Commonwealth roll for any other State, on the roll for the Australian Capital Territory or on the roll for the Northern Territory of Australia is an authorised witness for the purposes of this Act.

Outside Australia the following persons are also authorised witnesses for the purposes of this Act:

(a)  an officer of the naval, military or air forces of the Commonwealth or of some other part of the Queen’s dominions,

(b)  a person employed in the Public Service of the Commonwealth or of a Territory of the Commonwealth or of a part of the Queen’s dominions, and

(c)  a justice of the peace for or a minister of religion or medical practitioner resident in a territory of the Commonwealth or a part of the Queen’s dominions.

(1A)    (Repealed)

(2)  A person is not eligible to be an authorised witness at or in connection with an election if he or she:

(a)  is a candidate at the election, or

(b)  is the Electoral Commissioner, a person appointed under section 78AA (3) to assist the Electoral Commissioner, the Principal Returning Officer, a returning officer, a deputy returning officer, an assistant returning officer, a substitute returning officer, a postal voting officer, a deputy to a postal voting officer, a poll clerk or a clerical assistant appointed to assist a returning officer or postal voting officer in the performance of his or her duties.

s 114B: Ins 1918 No 40, sec 5. Am 1944 No 2, sec 2 (c); 1965 No 15, sec 2 (d); 1975 No 108, sec 6 (b); 1976 No 20, Sch 1 (5); 1978 No 75, Sch 2 (51).

114C Duty of witnesses

(1)  An authorised witness shall not witness the signature of any elector to an application for a postal vote certificate and postal ballot-paper unless:

(a)  he or she has satisfied himself or herself as to the identity of the applicant,

(b)  he or she has seen the applicant sign the application, and

(c)  he or she knows that the statements contained in the application are true, or has satisfied himself or herself by inquiry from the applicant or otherwise that the statements contained in the application are true.

Maximum penalty: 5 penalty units.

(2)  The authorised witness witnessing the signature of any elector to an application for a postal vote certificate and postal ballot-paper shall sign his or her name in his or her own handwriting on the application in the space provided for the purpose, and shall add his or her address and the date.

(3)    (Repealed)

s 114C: Ins 1918 No 40, sec 5. Am 1944 No 2, sec 2 (d); 1949 No 23, sec 4 (b); 1965 No 15, sec 2 (e); 1987 No 132, Schs 1 (43), 2 (11); 1992 No 112, Sch 1.

114D Issue of certificate and ballot-paper

(1)  Where a returning officer receives an application made in accordance with section 114A, he or she shall deliver or post to the elector who made the application:

(a)  a postal ballot-paper that is in or to the effect of the form prescribed in Schedule 15 or postal ballot-papers one of which is in or to the effect of the form prescribed in Schedule 15 and the other of which is in or to the effect of the form prescribed in Schedule 15A, as the case may require, and

(b)  an envelope bearing:

(i)  the address of the returning officer for the district for which the elector has declared that he or she is enrolled, and

(ii)  a postal vote certificate that is in or to the effect of the prescribed form.

(2)  Before delivering or posting a ballot-paper for an election for the Assembly under subsection (1), the returning officer shall, if the particulars of the candidates are not already printed thereon, enter on the ballot-paper:

(a)  the name of the electoral district for which the elector has declared that he or she is enrolled, and

(b)  the names of the candidates for that district in the order in which those names were drawn by ballot held pursuant to section 82A, and

(c)  if required by Division 6B, the names of registered parties or the word “Independent”.

(3)  The returning officer shall not, under subsection (1), deliver or post a ballot-paper for a periodic Council election on which particulars relating to the candidates are not already printed, until he or she has been notified of those particulars in accordance with section 81H (4) (b) and has entered those particulars on the ballot-paper in the manner specified in that notification.

s 114D: Ins 1918 No 40, sec 5. Am 1926 No 12, secs 8 (13), 9 (17); 1929 No 33, sec 5 (b); 1941 No 6, sec 2 (2) (a); 1944 No 2, sec 2 (e); 1949 No 23, sec 4 (c); 1965 No 15, sec 2 (f); 1969 No 43, sec 4 (1) (c). Subst 1975 No 108, sec 6 (c). Am 1978 No 75, Sch 2 (52); 1990 No 111, Sch 1 (22).

114E Inspection of applications

(1)  All applications for postal vote certificates and postal ballot-papers received by a returning officer shall, if they relate to applicants claiming to be enrolled for the district for which he or she is returning officer, be kept by him or her, or if they relate to applicants claiming to be enrolled for another district, after being endorsed by him or her with the date of the issue of the postal vote certificate and postal ballot-paper, forthwith be sent by him or her to the returning officer for that district, but any application which has not been received before the time specified in section 114A (2A) (a) or (b), whichever is applicable shall be kept by the returning officer to whom it was made.

(2)  All applications for postal vote certificates and postal ballot-papers shall be open to public inspection at all convenient times during office hours, from and including the third day after polling day until the election can be no longer questioned.

s 114E: Ins 1918 No 40, sec 5. Am 1926 No 12, sec 9 (18); 1929 No 33, sec 5 (c); 1944 No 2, sec 2 (f); 1949 No 23, sec 4 (d); 1965 No 15, sec 2 (g); 1975 No 108, sec 6 (d); 1978 No 75, Sch 2 (53).

114F Numbering of applications and certificates

(1)  The returning officer shall:

(a)  number all applications for postal vote certificates and postal ballot-papers received by him or her in consecutive order in respect of each electoral district in which the applicants to which they relate claim to be enrolled,

(b)  prefix each number given to an application under paragraph (a) with other numbers identifying the electoral district in which the applicant to which it relates claims to be enrolled, and

(c)  number each postal vote certificate issued pursuant to such an application with numbers corresponding to the numbers endorsed on the application pursuant to paragraphs (a) and (b).

(2)  The returning officer shall sign or initial on the back all postal ballot-papers issued. The signature or initials should be placed in such a position as to be easily seen when the ballot-paper is folded so as to conceal the vote.

s 114F: Ins 1918 No 40, sec 5. Am 1926 No 12, sec 9 (19); 1973 No 44, sec 3 (d); 1978 No 75, Sch 2 (54); 1987 No 132, Sch 1 (44).

114G Returning officer to notify issue of postal vote certificates and postal ballot-papers

(1)  The returning officer for the district in which the applicants for postal vote certificates and postal ballot-papers claim to be enrolled shall, if there is time conveniently to do so, note on the certified copies of the roll the names of all electors to whom postal vote certificates and postal ballot-papers have been issued.

(2)  If there is not time conveniently to note on the certified copies of the roll the issue of a postal vote certificate and postal ballot-paper, the returning officer shall immediately advise the deputy returning officer to whom the certified copies of the roll have been furnished of the issue of the postal vote certificate and postal ballot-paper.

(3)  An elector to whom a postal vote certificate has been issued shall not be entitled to vote at any polling booth unless he or she first delivers to the returning officer or deputy for cancellation his or her postal vote certificate and postal ballot-paper.

s 114G: Ins 1918 No 40, sec 5. Am 1926 No 12, sec 9 (20); 1975 No 108, sec 6 (e); 1978 No 75, Sch 2 (55).

114GA Person claiming to vote, whose name is noted under section 114G

(1)  Notwithstanding anything contained in section 114G, if a person whose name has been noted on a certified copy of the roll as an elector to whom a postal vote certificate and postal ballot-paper have been issued:

(a)  claims to vote in an election at a polling booth, and

(b)  states, when requested to deliver to the returning officer or deputy for cancellation of the person’s postal certificate and postal ballot-paper, that the person has not received, or has lost, a postal vote certificate or a postal ballot-paper,

the person may, subject to sections 20 and 99 and the regulations, be permitted to vote, if the person makes a declaration in the prescribed form before the returning officer or deputy at the polling-booth.

(2)  The ballot-paper of a voter voting under this section shall be dealt with in accordance with the provisions of section 106 (3).

s 114GA: Ins 1987 No 132, Sch 1 (45).

114H Directions for postal voting

(1)  The following directions for regulating voting by means of postal ballot-papers are to be substantially observed:

(a)  The elector shall exhibit his or her postal ballot-paper (in blank) and his or her postal vote certificate to an authorised witness.

(b)  The elector if he or she is not a registered general postal voter who became so registered in pursuance of a claim made under section 32 (3) or in pursuance of an application made under section 114AA (1) (e) or (f) shall then and there, in the presence of the authorised witness, sign his or her name on the postal vote certificate in the place provided for the signature of the voter.

(b1)  The elector is to insert the date on the postal vote certificate, in the place provided for the date.

(c)  The authorised witness shall then and there sign his or her name in his or her own handwriting on the postal vote certificate in the place provided for the signature of the authorised witness, and shall add the title under which he or she acts as an authorised witness and the date.

(d)    (Repealed)

(e)  The elector shall then and there in the presence of the authorised witness, but so that the authorised witness cannot see the vote:

(i)  mark his or her vote on the ballot-paper in the manner directed on the ballot-paper,

(ii)  fold the ballot-paper so that the vote cannot be seen,

(iii)  place the ballot-paper in the envelope addressed to the returning officer and fasten the envelope.

After the envelope has been fastened the elector shall forthwith post or deliver it or cause it to be posted or delivered to the returning officer.

(f)  If the elector’s sight is so impaired, or the elector is otherwise so physically incapacitated or so illiterate, that he or she cannot vote without assistance, a person appointed by the elector shall mark the elector’s vote on the ballot-paper in the presence of the authorised witness, and shall then and there fold the ballot-paper so that the vote cannot be seen, place it in the envelope addressed to the returning officer, fasten the envelope, and hand it to the voter who shall forthwith post or deliver it or cause it to be posted or delivered, to the returning officer:

Provided that if no person is appointed by the elector, the authorised witness, if so requested by the elector, shall take the action required by this paragraph to be taken by a person appointed by the elector, and in taking such action shall mark the ballot-paper according to the instructions of the elector.

(g)  The authorised witness shall not, otherwise than pursuant to a request made by the elector in accordance with paragraph (f), look at or make himself or herself acquainted with the vote given by the elector, and, except as provided in paragraph (f), shall not suffer or permit any person (other than the elector) to see or become acquainted with the elector’s vote or to assist the elector to vote or to interfere in any way with the elector in relation to his or her vote.

(1A)  Without limiting the generality of the proviso to subsection (1) (f), an elector to whom the proviso applies may indicate to the authorised witness the manner in which the elector wishes the authorised witness to mark the elector’s ballot-paper for the elector by presenting to the authorised witness a statement in writing (which may be, or include, a how-to-vote card) that specifies the manner in which the ballot-paper is to be marked.

(2)  Notwithstanding anything contained in this section, in any case in which a postal ballot-paper, if posted prior to the close of the poll, as provided in paragraph (e) or paragraph (f) of subsection (1), would not reach the returning officer for the district in respect of which the elector claims to be enrolled before the end of the period of 4 days immediately succeeding the close of the poll, or if delivered as provided in paragraph (e) or paragraph (f) of that subsection, would not reach that returning officer before the close of the poll, the envelope in which the ballot-paper is enclosed may be addressed to, and posted or delivered to, any other returning officer, or may be delivered on polling day to any deputy returning officer, and the returning officer or the deputy returning officer, as the case may be, shall deal with it in the prescribed manner.

s 114H: Ins 1918 No 40, sec 5. Am 1921 No 19, sec 2 (29); 1926 No 12, sec 8 (14); 1941 No 6, sec 2 (2) (b); 1944 No 2, sec 2 (g); 1949 No 23, sec 4 (e); 1965 No 15, sec 2 (h); 1975 No 108, sec 6 (f); 1978 No 75, Sch 2 (56); 1987 No 132, Sch 1 (46); 1990 No 111, Sch 1 (23); 1998 No 120, Sch 1.28 [4].

114I Duty of authorised witness

Every authorised witness shall:

(a)  comply with the preceding section in so far as it is to be complied with on his or her part,

(b)  see that the directions in the preceding section are complied with by every elector voting by post before him or her, and by every person present when the elector votes, and

(c)  refrain from disclosing any knowledge of the vote of any elector voting by post before him or her.

An authorised witness shall not influence or attempt to influence, in any way, the vote of an elector voting by post before him or her.

An authorised witness who has discharged the functions prescribed by section 114H in relation to an elector, shall not persuade or induce the elector to hand to him or her for posting or delivery the envelope containing the postal ballot-paper, but nothing contained in this paragraph shall be construed to prohibit an authorised witness from posting or delivering any such envelope at the request of the elector.

Any person contravening any of the provisions of this section shall be liable to a penalty not exceeding 10 penalty units.

s 114I: Ins 1918 No 40, sec 5. Am 1944 No 2, sec 2 (h); 1949 No 23, sec 4 (f); 1969 No 43, sec 5 (l); 1987 No 132, Sch 2 (12); 1992 No 112, Sch 1.

114J Penalty for unlawfully marking etc ballot-paper

(1)  No person other than:

(a)  the elector to whom the postal ballot-paper has been issued, or

(b)  a person appointed by the elector or an authorised witness acting in pursuance of paragraph (f) of subsection (1) of section 114H, assisting an elector whose sight is so impaired, or who is otherwise so physically incapacitated or so illiterate, that he or she cannot vote without assistance,

shall mark a vote upon the ballot-paper.

Any person contravening any of the provisions of this subsection shall be liable to a penalty not exceeding 5 penalty units or to imprisonment for a term not exceeding six months.

(2)  No person other than the returning officer for the district in which an applicant, to whom a postal ballot-paper has been issued, claimed to be enrolled or an officer acting under his or her directions shall open the envelope in which the postal ballot-paper has been placed and which has been fastened in accordance with section 114H.

Maximum penalty: 5 penalty units.

(3)  Any person to whom an application for a postal vote certificate and postal ballot-paper or an envelope containing or purporting to contain a postal ballot-paper is entrusted by an elector for the purpose of posting or delivery to a returning officer or delivery to a deputy returning officer and who fails to post or deliver forthwith the application or envelope, shall be guilty of an offence.

Maximum penalty: 10 penalty units.

s 114J: Ins 1918 No 40, sec 5. Subst 1944 No 2, sec 2 (i). Am 1949 No 23, sec 4 (g); 1969 No 43, sec 5 (m); 1978 No 75, Sch 2 (57); 1987 No 132, Schs 1 (47), 2 (13); 1992 No 112, Sch 1.

114K Duty of persons present when an elector votes by post

Any person present when an elector is before an authorised witness for the purpose of voting by post shall:

(a)  obey all directions of the authorised witness, and

(b)  except as provided in paragraph (f) of subsection (1) of section 114H:

(i)  refrain from making any communication whatever to the elector in relation to his or her vote,

(ii)  refrain from assisting the elector or in any manner interfering with him or her in relation to his or her vote, and

(iii)  refrain from looking at the elector’s vote or from doing anything whereby he or she may become acquainted with the elector’s vote.

(c), (d)    (Repealed)

Maximum penalty: 10 penalty units.

s 114K: Ins 1918 No 40, sec 5. Am 1921 No 19, sec 2 (30); 1944 No 2, sec 2 (j); 1969 No 43, sec 5 (n); 1987 No 132, Schs 1 (48), 2 (14); 1992 No 112, Sch 1.

114L Preliminary scrutiny of postal ballot-papers

At the scrutiny the returning officer or the officer assisting him or her shall produce all applications for postal vote certificates and postal ballot-papers, and shall produce unopened all envelopes containing postal votes received up to 6 pm on the fourth day immediately succeeding the close of the poll by him or her, or received up to the close of the poll by any other returning officer or any deputy returning officer in pursuance of section 114H (2), and shall:

(a)  compare the signature of the elector on each postal vote certificate with the signature of the same elector on the application for the certificate, and allow the scrutineers to inspect both signatures,

(b)  if he or she is satisfied that:

(i)  the signature on the certificate is that of the elector who signed the application for the certificate,

(ii)  the signature purports to have been witnessed by an authorised witness,

(iii)  in the case of a certificate that was delivered, the certificate was delivered before the close of the poll,

(iv)  in the case of a certificate that was posted, the certificate was completed before the close of the poll, and

(v)  the elector is enrolled for the district for which he or she claimed to be enrolled,

accept the ballot-paper for further scrutiny, but if he or she is not so satisfied, disallow the ballot-paper without opening the envelope,

(c)  withdraw from the envelopes bearing the postal vote certificates all postal ballot-papers accepted for further scrutiny, and, without inspecting or unfolding the ballot-papers or allowing any other person to do so, place them in a sealed ballot-box by themselves for further scrutiny, and

(d)  proceed with the scrutiny of the postal ballot-papers which have been accepted for further scrutiny by removing them from the ballot-box in which they were placed in accordance with paragraph (c) and:

(i)  by opening any of those ballot-papers relating to an election for the Assembly and allowing and counting those which are formal and disallowing and rejecting those which, by virtue of section 122, are informal, and

(ii)  by opening any of those ballot-papers relating to a periodic Council election and counting the votes recorded for each candidate.

(e)    (Repealed)

s 114L: Ins 1918 No 40, sec 5. Am 1921 No 19, sec 2 (31); 1944 No 2, sec 2 (k); 1965 No 15, sec 2 (i); 1969 No 43, sec 4 (1) (d); 1975 No 108, sec 6 (g), Sch 1; 1978 No 75, Sch 2 (58); 1990 No 111, Sch 1 (24); 1998 No 120, Sch 1.28 [5].

114M Postal and absent voters’ ballot-papers not to be informal because of certain omissions or mistakes

A postal ballot-paper or an absent voter’s ballot-paper shall not be informal because in the case of any candidate his or her surname only has been written thereon if no other candidate has the same surname, or by reason of any mistake in spelling, if the elector has made clear his or her intention.

s 114M: Ins 1918 No 40, sec 5. Am 1965 No 15, sec 2 (j).

114N Spoilt postal ballot-paper

If an elector to whom a postal ballot-paper has been issued, satisfies the returning officer who issued the same that he or she has spoilt his or her postal ballot-paper by mistake or accident, he or she may on giving it up, receive a new postal ballot-paper from the returning officer, who shall cancel and preserve the spoilt ballot-paper.

s 114N: Ins 1941 No 6, sec 2 (2) (c).

114NA Application of this Division

Nothing in this Division applies to or in respect of a postal vote certificate or a postal ballot-paper, or an application therefor, under Division 11.

s 114NA: Ins 1976 No 20, Sch 1 (6).

114O Reference to returning officer includes clerical assistant in certain cases

s 114O, hdg: Ins 1949 No 23, sec 5. Rep 1975 No 108, sec 6 (h).

Every reference in this Division (except section 114L) to a returning officer shall be deemed to include a reference to a clerical assistant appointed to assist the returning officer in the performance of the returning officer’s duties.

s 114O: Ins 1949 No 23, sec 5. Rep 1965 No 15, sec 2 (k). Ins 1990 No 111, Sch 1 (25).

Division 10 Pre-poll voting (offices of returning officers)

pt 5, div 10, hdg: Ins 1975 No 108, sec 7. Subst 1976 No 20, Sch 2 (10). Am 1981 No 28, Sch 1 (14).

114P Application for permission to vote before polling day

(1)  An elector who:

(a)  will not throughout the hours of polling on polling day be within New South Wales,

(b)  will not throughout the hours of polling on polling day be within eight kilometres by the nearest practicable route of any polling-booth open for the purposes of the election,

(c)  will throughout the hours of polling on polling day be travelling under conditions which will preclude him or her from voting at any polling-booth,

(d)  by reason of his or her membership of a religious order or his or her religious beliefs:

(i)  is precluded from attending at a polling-booth, or

(ii)  will be precluded from voting throughout the hours of polling on polling day or throughout the greater part of those hours,

(e)  will be, at a place other than a hospital, caring for a person who is seriously ill or infirm or approaching maternity and by reason of caring for the person will be precluded from attending at any polling booth to vote, or

(f)  will, by reason of being engaged for fee, gain or reward in any work throughout the hours of polling on polling day, be precluded from attending at any polling booth to vote,

may make an application to the returning officer for the district for which he or she is enrolled (or, if the elector so wishes, to some other district returning officer) for permission to vote before polling day.

(2)  An application under subsection (1) shall:

(a)  be in or to the effect of the prescribed form and specify the ground on which the elector is making the application,

(b)  be signed by the elector, and

(c)    (Repealed)

(d)  be made between noon on the day of nomination and 6 pm on the day preceding polling day:

(i)  to a returning officer during the ordinary business hours of that office, or

(ii)  to a deputy returning officer at an appointed place on a day that is, and during hours that are, declared by the Electoral Commissioner, by notice published in the Gazette, to be an appointed day and appointed hours for the purposes of this section.

(3)  An elector shall not in an application under subsection (1) make any statement which is, to his or her knowledge, false or misleading as to a material particular.

Maximum penalty: 10 penalty units or imprisonment for 6 months, or both.

(4)  A person shall not persuade or induce an elector to make any statement in an application under subsection (1) which is, to the knowledge of that person, false or misleading as to a material particular.

Maximum penalty: 10 penalty units or imprisonment for 6 months, or both.

(5)  A person shall not:

(a)  persuade or induce, or

(b)  associate with any other person in persuading or inducing,

an elector to make an application under subsection (1).

Maximum penalty: 10 penalty units or imprisonment for 6 months, or both.

(6)  The Electoral Commissioner may, by notice published in the Gazette, declare a place to be an appointed place for the purposes of this section.

(7)    (Repealed)

s 114P: Ins 1975 No 108, sec 7. Am 1987 No 132, Schs 1 (49), 2 (15); 1990 No 111, Sch 1 (26); 1992 No 112, Sch 1.

114Q Procedure for voting before polling day

(1)  Where a returning officer receives an application made in accordance with section 114P, he or she may, and, if requested to do so by any scrutineer, shall, put to the elector who made the application any of the questions prescribed by section 100 (1) which are applicable to the case, and, if the elector answers the questions satisfactorily or if no questions are put to the elector, the elector shall, after making a declaration in the prescribed form, be permitted to vote.

(2)  The form of declaration shall be either printed or written on an envelope and shall, after being filled in, be signed by the elector in the presence of the returning officer who shall then witness the elector’s signature.

(3)  Subject to subsection (4), the returning officer shall then hand to the elector a ballot-paper that is in or to the effect of the form prescribed in Schedule 4 or ballot-papers one of which is in or to the effect of the form prescribed in Schedule 4 and the other of which is in or to the effect of the form prescribed in Schedule 4A, as the case may require, and on receiving any such ballot-paper, the elector shall:

(a)  mark his or her vote on the ballot-paper in accordance with the directions thereon in the view of the returning officer but so that the returning officer is unable to see what marks he or she makes on the ballot-paper,

(b)  fold the ballot-paper so that the marks made by him or her cannot be seen, and

(c)  at once return the ballot-paper so folded to the returning officer.

(4)  Before handing a ballot-paper for an election for the Assembly to the elector under subsection (3), the returning officer shall:

(a)  if the particulars of the candidates are not already printed on it, enter on the ballot-paper:

(i)  the name of the electoral district for which the elector has declared that he or she is enrolled, and

(ii)  the names of the candidates for that district in the order in which those names were drawn by ballot held pursuant to section 82A, and

(iii)  if required by Division 6B, the names of registered parties or the word “Independent”, and

(b)  sign the back of the ballot-paper in his or her own handwriting in such a position as to be readily seen when the elector has folded the ballot-paper in accordance with subsection (3) (b).

(4A)  The returning officer shall not, for the purposes of subsection (3), hand an elector a ballot-paper for a periodic Council election on which particulars relating to the candidates are not already printed until the returning officer has been notified of those particulars in accordance with section 81H (4) (b) and has entered those particulars on the ballot-papers in the manner specified in that notification.

(5)  On any such ballot-paper being returned to him or her in accordance with subsection (3) (c), the returning officer shall:

(a)  in the presence of the elector, enclose it in the envelope bearing the elector’s declaration and securely fasten the envelope, and

(b)  subject to section 114QA, retain the envelope and ballot-paper until the close of the poll.

(6)  When an elector has voted under this section, the returning officer shall endorse on the application made by that elector under section 114P (1) the fact that the elector has voted and the date of the vote.

(7)  An authorised witness shall not, in any way, influence or attempt to influence the vote of an elector voting under this section.

Maximum penalty: 10 penalty units or imprisonment for 6 months, or both.

s 114Q: Ins 1975 No 108, sec 7. Am 1978 No 75, Sch 2 (59); 1987 No 132, Schs 1 (50), 2 (16); 1990 No 111, Sch 1 (27); 1992 No 112, Sch 1.

114QA Ballot-papers etc forwarded to district for which elector enrolled

If a ballot-paper returned to a returning officer for a district under section 114Q contains the vote of an elector enrolled for some other district, the returning officer must deal with the ballot-paper in the same manner as that in which the returning officer is required by section 116 to deal with an absent voter’s ballot-paper.

s 114QA: Ins 1990 No 111, Sch 1 (28).

114R Applications to be available for public inspection

The returning officer shall retain every application made to him or her under section 114P (1) until the election can no longer be questioned and shall, on being requested to do so by any person attending his or her office at any time during the ordinary business hours of that office from and including the third day after polling day until the election can no longer be questioned, make any such application available for inspection by that person.

s 114R: Ins 1975 No 108, sec 7.

114S Returning officer to notify deputy returning officer that elector has voted before polling day

When an elector has voted in accordance with section 114Q, the returning officer shall, if certified copies of the roll have been furnished to the deputy returning officers responsible for the subdivision for which the elector is enrolled, immediately notify those deputy returning officers that the elector has voted and, on being so notified, each such deputy returning officer shall enter a note of that fact on the certified copies of the roll furnished to him or her, but if certified copies of the roll have not been so furnished, the returning officer shall enter such a note on the certified copies of the roll in his or her possession.

s 114S: Ins 1975 No 108, sec 7.

114T Assistance to certain electors

(1)  If an elector permitted to vote under section 114Q satisfies the returning officer that the elector’s sight is so impaired or that the elector is otherwise so physically incapacitated or so illiterate that the elector is unable to vote without assistance, the returning officer shall permit a person appointed by the elector to assist the elector, and the person so appointed shall, in the same manner as would be required if he or she were the elector, mark a vote on the ballot-paper according to the instructions of the elector and then fold and return the ballot-paper to the returning officer.

(2)  If any such elector fails to appoint a person as provided by subsection (1), the returning officer, in the presence of such scrutineers as are present, or, if there are no scrutineers present, in the presence of any person employed in his or her office, shall, in the same manner as would be required if he or she were the elector, mark a vote on the ballot-paper according to the instructions of the elector and then fold the ballot-paper.

s 114T: Ins 1975 No 108, sec 7. Am 1987 No 132, Sch 1 (51).

114U Appointment of scrutineers

(1)  A candidate may, by writing under his or her hand, appoint one or more scrutineers in order to observe voting by electors under section 114Q.

(2)  Subject to subsection (3), a scrutineer so appointed is, during the ordinary business hours of the office of the returning officer between noon on the day of nomination and 6 pm on the day preceding polling day, entitled to be present in that part of the office of the returning officer in which voting under section 114Q takes place.

(3)  If a scrutineer so appointed leaves the office of the returning officer during the period that he or she is entitled to be present at that office, another scrutineer so appointed may act in his or her place, but only one scrutineer is entitled to be present at that office in respect of a candidate at any one time.

(4)  A scrutineer appointed under subsection (1) shall not:

(a)  fail or refuse to comply with any lawful direction given to him or her by the returning officer,

(b)  interfere with or attempt to influence an elector who is making an application under section 114P (1) or who is voting under section 114Q,

(c)  communicate with any such elector, except so far as it is necessary to do so in the discharge of his or her functions, or

(d)  misconduct himself or herself at the office of the returning officer when present at that office pursuant to subsection (2) or (3).

Maximum penalty: 10 penalty units or imprisonment for 6 months, or both.

(5)  A scrutineer shall, before acting as such at the office of the returning officer when open to enable electors to vote before polling day, make and sign before the returning officer a declaration in the same terms as are prescribed in section 91 (1).

(6)  Where a declaration is made and signed in accordance with subsection (5), the returning officer shall transmit the declaration to the Electoral Commissioner, and Part 4 of the Oaths Act 1900 shall apply to the declaration as if it had been made under that Act.

s 114U: Ins 1975 No 108, sec 7. Am 1987 No 132, Sch 2 (17); 1991 No 94, Sch 1; 1992 No 112, Sch 1.

114V Penalty for unlawfully marking ballot-paper

A person shall not mark or attempt or purport to mark a vote on a ballot-paper handed to an elector under section 114Q unless he or she:

(a)  is that elector, or

(b)  is a person appointed by that elector under section 114T (1) or is the returning officer acting in accordance with section 114T (2).

Maximum penalty: 10 penalty units.

s 114V: Ins 1975 No 108, sec 7. Am 1987 No 132, Sch 2 (18); 1992 No 112, Sch 1.

114W Duty of persons present when elector votes under section 114Q

A person who is present when an elector is attending the office of the returning officer for the purpose of voting under section 114Q shall not:

(a)  fail or refuse to comply with any lawful direction given to him or her by the returning officer, or

(b)  except as provided in section 114T:

(i)  communicate with the elector in relation to the marking of that elector’s vote,

(ii)  assist the elector or in any manner interfere with the elector in relation to the marking of that elector’s vote, or

(iii)  look at the elector’s vote or do anything which may result in his or her obtaining knowledge of the elector’s vote.

Maximum penalty: 10 penalty units.

s 114W: Ins 1975 No 108, sec 7. Am 1987 No 132, Sch 2 (19); 1992 No 112, Sch 1.

114X Preliminary scrutiny of ballot-papers of electors under section 114Q

(1)  At the scrutiny the returning officer shall produce unopened all envelopes containing ballot-papers marked by electors who have voted under section 114Q and shall also produce all applications made to him or her under section 114P (1).

(2)  The returning officer shall then compare the signature of the elector in the declaration on each of those envelopes with the signature in the application made by that elector under section 114P (1) and allow the scrutineers to examine both signatures; and if, after making that comparison, the returning officer is satisfied that the signature in the declaration is that of the elector who signed the application and if he or she is also satisfied that:

(a)  the signature purports to have been witnessed, and

(b)  the elector is enrolled for the district for which the returning officer is appointed,

he or she shall remove the ballot-paper from the envelope and, without unfolding the ballot-paper or allowing any other person to do so, place the ballot-paper in a locked and sealed ballot-box for further scrutiny, together with any other ballot-papers accepted for further scrutiny under this subsection, but if he or she is not so satisfied he or she shall disallow the ballot-paper without opening the envelope.

(3)  After dealing with all envelopes, ballot-papers and applications in the manner prescribed by subsection (2), the returning officer shall proceed with the scrutiny of the ballot-papers which have been accepted for further scrutiny by removing them from the ballot-box in which they were placed in accordance with subsection (2) and:

(a)  by opening any of those ballot-papers relating to an election for the Assembly and allowing and counting those which are formal and disallowing and rejecting those which, by virtue of section 122, are informal, and

(b)  by opening any of those ballot-papers relating to a periodic Council election and counting the votes recorded for each candidate.

(4)  This section is subject to section 114QA.

s 114X: Ins 1975 No 108, sec 7. Am 1978 No 75, Sch 2 (60); 1987 No 132, Sch 1 (52); 1990 No 111, Sch 1 (29).

114Y Spoilt ballot-papers

If any elector voting under section 114Q satisfies the returning officer that he or she has spoilt the ballot-paper handed to him or her under that section by reason of accident or mistake, and that ballot-paper has not been enclosed in an envelope in accordance with subsection (5) of that section, the returning officer, on receipt of the spoilt ballot-paper, shall:

(a)  hand to the elector a new ballot-paper, and

(b)  cancel and preserve the spoilt ballot-paper.

s 114Y: Ins 1975 No 108, sec 7.

114Z References to returning officer deemed to include clerical assistant in certain cases

Every reference in sections 114Q, 114QA, 114R, 114T, 114U, 114V, 114W (a) and 114Y to a returning officer shall be deemed to include a reference to a clerical assistant appointed to assist the returning officer in the performance of his or her duties.

s 114Z: Ins 1975 No 108, sec 7. Am 1990 No 111, Sch 1 (30).

Division 11 Voting by post (postal voting officers)

pt 5, div 11: Ins 1976 No 20, Sch 1 (7).

114ZA Application for a postal vote certificate and postal ballot-paper

(1)  An elector who will not throughout the hours of polling on polling day be within New South Wales may make an application to a postal voting officer for a postal vote certificate and a postal ballot-paper.

(2)  An application under subsection (1) shall:

(a)  be in or to the effect of the prescribed form,

(b)  be signed by the elector,

(c)  be witnessed by an authorised witness, and

(d)  subject to section 114ZB (3), be made before the close of business on:

(i)  in the case of an application made to a place within Australia—the day preceding polling day, or

(ii)  in the case of an application made to a place outside Australia—the second day preceding polling day.

(3)  An elector shall not in an application under subsection (1) make any statement which is, to his or her knowledge, false or misleading as to a material particular.

Maximum penalty: 10 penalty units or imprisonment for 6 months, or both.

(4)  A person shall not persuade or induce an elector to make any statement in an application under subsection (1) which is, to the knowledge of that person, false or misleading as to a material particular.

Maximum penalty: 10 penalty units or imprisonment for 6 months, or both.

(5)  A person shall not:

(a)  persuade or induce, or

(b)  associate with any other person in persuading or inducing,

an elector to make an application under subsection (1).

Maximum penalty: 10 penalty units or imprisonment for 6 months, or both.

(6)  An authorised witness shall not witness the signature of an elector to an application under subsection (1) unless:

(a)  he or she has satisfied himself or herself as to the identity of the elector,

(b)  he or she has seen the elector sign the application, and

(c)  he or she knows that the statements contained in the application are true, or has satisfied himself or herself by inquiring from the elector or otherwise that the statements contained in the application are true.

Maximum penalty: 10 penalty units or imprisonment for 6 months, or both.

(7)  An authorised witness witnessing the signature of an elector making an application under subsection (1) shall sign his or her name in his or her own handwriting on the application in the space provided for that purpose, and shall add his or her address and the date.

s 114ZA: Ins 1976 No 20, Sch 1 (7). Am 1987 No 132, Schs 1 (53), 2 (20); 1990 No 111, Sch 1 (31); 1992 No 112, Sch 1.

114ZB Procedure for voting before polling day

(1)  Where a postal voting officer receives an application made in accordance with section 114ZA, he or she shall deliver or post to the elector who made the application:

(a)  a postal ballot-paper that is in or to the effect of the form prescribed in Schedule 15 or postal ballot-papers one of which is in or to the effect of the form prescribed in Schedule 15 and the other of which is in or to the effect of the form prescribed in Schedule 15A, as the case may require, and

(b)  an envelope bearing:

(i)  the address of the postal voting officer, and

(ii)  a postal vote certificate that is in or to the effect of the prescribed form.

(2)  Before delivering or posting a ballot-paper for an election for the Assembly under subsection (1), the postal voting officer shall, if the particulars of the candidates are not already printed thereon, enter on the ballot-paper:

(a)  the name of the electoral district for which the elector has declared that he or she is enrolled, and

(b)  the names of the candidates for that district in the order in which those names were drawn by ballot held pursuant to section 82A, and

(c)  if required by Division 6B, the names of registered parties or the word “Independent”.

(2A)  The returning officer shall not, under subsection (1), deliver or post a ballot-paper for a periodic Council election on which particulars relating to the candidates are not already printed, until he or she has been notified of those particulars in accordance with section 81H (4) (b) and has entered those particulars on the ballot-paper in the manner specified in that notification.

(3)  Notwithstanding anything in this Division an elector who has made an application under section 114ZA (1) shall, notwithstanding that the application complies with section 114ZA (2), not be entitled to be sent by post a postal ballot-paper and postal vote certificate unless the postal voting officer received the application before the close of business on the same date as the third day preceding polling day.

(4)  Notwithstanding anything in this Division, an elector who has made an application under section 114ZA (1) to a postal voting officer at a place outside Australia shall, notwithstanding that the application complies with section 114ZA (2), not be entitled to be sent by post a postal ballot-paper and postal vote certificate if the address to which they are to be sent is within New South Wales.

s 114ZB: Ins 1976 No 20, Sch 1 (7). Am 1978 No 75, Sch 2 (61); 1990 No 111, Sch 1 (32) (am 1991 No 94, Sch 2).

114ZC Numbering of applications and certificates

(1)  The postal voting officer shall number all applications for postal ballot-papers and postal vote certificates issued by him or her in consecutive order, and shall number each postal vote certificate with a number corresponding with the number on the application.

(2)  The postal voting officer shall sign on the back all postal ballot-papers issued.

(3)  The signature shall be placed in such a position as to be easily seen when the ballot-paper is folded so as to conceal the vote.

s 114ZC: Ins 1976 No 20, Sch 1 (7).

114ZD Directions for postal voting

The following directions for regulating voting by means of postal ballot-papers are to be substantially observed:

(a)  The elector shall exhibit his or her postal ballot-paper (in blank) and his or her postal vote certificate to an authorised witness.

(b)  The elector shall then and there, in the presence of the authorised witness, sign his or her name on the postal vote certificate in the place provided for the signature of the voter and insert the date in the place provided for the date.

(c)  The authorised witness shall then and there sign his or her name in his or her own handwriting on the postal vote certificate in the place provided for the signature of the authorised witness, and shall add the title under which he or she acts as an authorised witness and the date.

(d)  The elector shall then and there in the presence of the authorised witness, but so that the authorised witness cannot see the vote:

(i)  mark his or her vote on the ballot-paper in the manner directed on the ballot-paper,

(ii)  fold the ballot-paper so that the vote cannot be seen, and

(iii)  place the ballot-paper in the envelope addressed to the postal voting officer and fasten the envelope.

(e)  After the envelope has been fastened, the elector shall forthwith post or deliver it or cause it to be posted or delivered to the postal voting officer.

(f)  If the elector’s sight is so impaired, or the elector is otherwise so physically incapacitated or so illiterate, that he or she cannot vote without assistance, a person appointed by the elector shall mark the elector’s vote on the ballot-paper in the presence of the authorised witness, and shall then and there fold the ballot-paper so that the vote cannot be seen, place it in the envelope addressed to the postal voting officer, fasten the envelope, and hand it to the elector who shall forthwith post or deliver it or cause it to be posted or delivered to the postal voting officer.

(g)  If the elector fails to appoint a person as provided by paragraph (f), the authorised witness, if so requested by the elector, shall take the action required by that paragraph, and in taking that action shall mark the ballot-paper according to the instructions of the elector.

s 114ZD: Ins 1976 No 20, Sch 1 (7). Am 1987 No 132, Sch 1 (54); 1998 No 120, Sch 1.28 [6].

114ZE Applications etc to be sent to Electoral Commissioner and returning officer

(1)  Each application for a postal ballot-paper and postal vote certificate received by a postal voting officer shall:

(a)  if a ballot-paper and certificate were issued in pursuance of the application—be endorsed by him or her with the date of issue thereof and sent by him or her to the Electoral Commissioner as soon as practicable but not later than polling day, or

(b)  if a ballot-paper and certificate were not so issued—be endorsed by him or her to that effect and sent by him or her to the Electoral Commissioner as soon as practicable.

(2)  The postal voting officer shall, forthwith after receiving a completed postal ballot-paper and postal vote certificate, send them to the Electoral Commissioner.

(3)  When an application and the corresponding ballot-paper and certificate are received by the Electoral Commissioner after being sent under this section, the Commissioner shall send them to the returning officer for the electoral district for which the elector has declared that he or she is enrolled, unless the Commissioner directs the Principal Returning Officer to deal with them under section 114ZG.

s 114ZE: Ins 1976 No 20, Sch 1 (7).

114ZF Returning officer to note issue of ballot-papers etc

(1)  The returning officer for the district in which the applicants for postal vote certificates and postal ballot-papers claim to be enrolled shall, if there is time conveniently to do so, note on the certified copies of the roll the names of all electors to whom postal ballot-papers and postal vote certificates have been issued.

(2)  An elector to whom a postal vote certificate has been issued shall not be entitled to vote at any polling booth unless he or she first delivers to the returning officer or deputy for cancellation his or her postal ballot-paper and postal vote certificate.

s 114ZF: Ins 1976 No 20, Sch 1 (7). Am 1978 No 75, Sch 2 (62).

114ZG Scrutiny of postal ballot-papers

(1)  At the scrutiny the returning officer or the officer assisting him or her shall produce all applications for postal vote certificates and postal ballot-papers received by him or her, and shall produce unopened all envelopes containing postal votes received by him or her up to 6 pm on the fourth day immediately succeeding the close of the poll, and shall:

(a)  compare the signature of the elector on each postal vote certificate with the signature of the same elector on the application for the certificate, and allow the scrutineers to inspect both signatures,

(b)  if he or she is satisfied that:

(i)  the signature on the certificate is that of the elector who signed the application for the certificate,

(ii)  the signature purports to have been witnessed by an authorised witness,

(iii)  in the case of a certificate that was delivered, the certificate was delivered before the close of the poll,

(iv)  in the case of a certificate that was posted, the certificate was completed before the close of the poll, and

(v)  the elector is enrolled for the district for which he or she claimed to be enrolled,

accept the ballot-paper for further scrutiny, but if he or she is not so satisfied, disallow the ballot-paper without opening the envelope,

(c)  withdraw from the envelopes bearing the postal vote certificates all postal ballot-papers accepted for further scrutiny, and, without inspecting or unfolding the ballot-papers or allowing any other person to do so, place them in a sealed ballot-box by themselves for further scrutiny, and

(d)  proceed with the scrutiny of the postal ballot-papers which have been accepted for further scrutiny by removing them from the ballot-box in which they were placed in accordance with paragraph (c) and:

(i)  by opening any of those ballot-papers relating to an election for the Assembly and allowing and counting those which are formal and disallowing and rejecting those which, by virtue of section 122, are informal, and

(ii)  by opening any of those ballot-papers relating to a periodic Council election and counting the votes recorded for each candidate.

(e)    (Repealed)

(2)  Where the Electoral Commissioner has directed the Principal Returning Officer to deal with any postal ballot-papers and postal vote certificates under this section, the Principal Returning Officer shall deal with those ballot-papers and certificates under this section as if references in subsection (1) to the returning officer were references to the Principal Returning Officer.

(3)  The Principal Returning Officer shall notify the returning officer of the results of his or her action under this section, and the returning officer shall proceed as if those results had been obtained by the returning officer.

(4)  The Principal Returning Officer shall, as soon as practicable after dealing with any ballot-papers and certificates under this section, send them to the returning officer, together with the corresponding applications for the ballot-papers and certificates.

s 114ZG: Ins 1976 No 20, Sch 1 (7). Am 1978 No 75, Sch 2 (63); 1990 No 111, Sch 1 (33); 1998 No 120, Sch 1.28 [7].

114ZH Postal ballot-paper not to be informal because of certain omissions or mistakes

A postal ballot-paper shall not be informal because in the case of any candidate his or her surname only has been written thereon if no other candidate has the same surname, or by reason of any mistake in spelling, if the elector has made clear his or her intention.

ss 114ZH–114ZL: Ins 1976 No 20, Sch 1 (7).

114ZI Spoilt postal ballot-paper

(1)  If an elector to whom a postal ballot-paper has been issued, satisfies the postal voting officer who issued it that he or she has spoilt his or her postal ballot-paper by mistake or accident, he or she may, on giving it up, receive a new postal ballot-paper from the postal voting officer, who shall cancel the spoilt ballot-paper.

(2)  The postal voting officer shall send the cancelled ballot-paper forthwith to the Electoral Commissioner, who shall send it to the returning officer.

ss 114ZH–114ZL: Ins 1976 No 20, Sch 1 (7).

114ZJ Applications to be available for public inspection

The returning officer shall retain every application sent to him or her under section 114ZE (3) or 114ZG (4) until the election can no longer be questioned and shall, on being requested to do so by any person attending his or her office at any time during the ordinary business hours of that office from and including the third day after polling day or after being received (whichever is the later) until the election can no longer be questioned, make any such application available for inspection by that person.

ss 114ZH–114ZL: Ins 1976 No 20, Sch 1 (7).

114ZK Reference to postal voting officer deemed to include clerical assistant

Every reference in this Division to a postal voting officer shall be deemed to include a reference to a clerical assistant appointed to assist the postal voting officer in the performance of his or her duties.

ss 114ZH–114ZL: Ins 1976 No 20, Sch 1 (7).

114ZL Application of this Division

Nothing in this Division applies to or in respect of a postal vote certificate or a postal ballot-paper, or an application therefor, under Division 9.

ss 114ZH–114ZL: Ins 1976 No 20, Sch 1 (7).

Division 11A Pre-poll voting (declared institutions)

pt 5, div 11A: Ins 1981 No 28, Sch 1 (15).

114ZM Definition

In this Division, except in so far as the context or subject-matter otherwise indicates or requires, declared institution means an institution for the time being declared under section 114ZN to be a declared institution for the purposes of this Division.

s 114ZM: Ins 1981 No 28, Sch 1 (15).

114ZN Declared institutions

The Electoral Commissioner may, by notice in the Gazette, declare an institution, being a convalescent home, hospital or similar institution in which a polling-place has not been appointed, to be a declared institution for the purposes of this Division.

s 114ZN: Ins 1981 No 28, Sch 1 (15).

114ZO Taking of poll at declared institutions

(1)  The returning officer for a district in which a declared institution is situated may preside and take the poll at the institution or, by writing under his or her hand, may appoint a deputy returning officer to act for him or her and take the poll at the institution, and may also, in like manner, appoint one or more poll clerks to assist in taking the poll at the institution.

(2)  The returning officer or deputy returning officer may, on any one or more of the fifth, fourth and third days preceding polling day, enter into and remain in a declared institution for the purpose of taking the poll at the institution.

(3)  A person shall not hinder or obstruct a returning officer, deputy returning officer, poll clerk or scrutineer in the exercise or performance of his or her powers, authorities, duties or functions in relation to voting under this Division.

Maximum penalty: 2 penalty units.

(4)  In any visit made by a returning officer or deputy returning officer to a declared institution, the returning officer or deputy, as the case may be, shall be accompanied by a poll clerk.

s 114ZO: Ins 1981 No 28, Sch 1 (15). Am 1992 No 112, Sch 1.

114ZP Entitlement to vote at declared institution

(1)  An elector who:

(a)  is, for the time being, an inpatient or inmate of a declared institution, and

(b)  has, by message to the returning officer for the district in which the institution is situated or the deputy returning officer appointed to take the poll at the institution, requested an opportunity to record his or her vote at the institution,

is entitled to vote under this Division while the returning officer or deputy returning officer is at the institution for the purpose of taking the poll.

(2)  An elector to whom a postal vote certificate and postal ballot-paper have been issued is not entitled to vote under this Division unless he or she first delivers, for cancellation, to the returning officer or deputy returning officer who takes the poll at the institution of which the elector is an inpatient or inmate, his or her postal vote certificate and postal ballot-paper.

s 114ZP: Ins 1981 No 28, Sch 1 (15).

114ZQ Duty to deliver request to vote

A person to whom any message referred to in section 114ZP (1) (b) is given for delivery to a returning officer or deputy returning officer shall, unless otherwise ordered, on medical grounds, by a legally qualified medical practitioner, deliver the message to the returning officer or deputy returning officer before, or forthwith after, the returning officer or deputy returning officer enters, for the purpose of taking the poll, the declared institution of which the person making the request is an inpatient or inmate.

Maximum penalty: 0.5 penalty unit.

s 114ZQ: Ins 1981 No 28, Sch 1 (15). Am 1992 No 112, Sch 1.

114ZR Procedure for voting at declared institutions

(1)  A returning officer or deputy returning officer shall afford an elector entitled to vote under this Division the opportunity to record his or her vote by visiting the elector at the declared institution of which the elector is, for the time being, an inpatient or inmate.

(2)  A visit to an elector shall not be made under this section if the returning officer or deputy returning officer is informed, by a legally qualified medical practitioner or member of the staff of the declared institution of which the elector is, for the time being, an inpatient or inmate, that the visit is forbidden, on medical grounds, by a legally qualified medical practitioner.

(3)  The returning officer or deputy returning officer may, and, if requested to do so by any scrutineer, shall, put to an elector visited by him or her under this Division any of the questions prescribed by section 100 (1) which are applicable to the case and, if the elector answers the questions satisfactorily or if no questions are put to the elector, the elector shall, after making a declaration in the prescribed form, be permitted to vote.

(4)  The form of the declaration referred to in subsection (3) shall be either printed or written on an envelope and shall, after being filled in, be signed by the elector in the presence of the returning officer or deputy returning officer who shall then witness the elector’s signature.

(5)  Subject to subsection (6), the returning officer or deputy returning officer shall, after a declaration has been made by an elector in the form prescribed for the purposes of subsection (3), hand to the elector a ballot-paper that is in or to the effect of the form prescribed in Schedule 4 or ballot-papers, one of which is in or to the effect of the form prescribed in Schedule 4 and the other of which is in or to the effect of the form prescribed in Schedule 4A, as the case may require, and on receiving any such ballot-paper, the elector shall:

(a)  mark his or her vote on the ballot-paper in accordance with the directions thereon in the view of the returning officer or deputy but so that the returning officer or deputy is unable to see what marks he or she makes on the ballot-paper,

(b)  fold the ballot-paper so that the marks made by him or her cannot be seen, and

(c)  at once return the ballot-paper so folded to the returning officer or deputy.

(6)  Before handing a ballot-paper for an election for the Assembly to the elector under subsection (5), the returning officer or deputy returning officer shall:

(a)  if the particulars of the candidates are not already printed on it, enter on the ballot-paper:

(i)  the name of the electoral district for which the elector has declared that he or she is enrolled, and

(ii)  the names of the candidates for that district in the order in which those names were drawn by ballot held pursuant to section 82A, and

(iii)  if required by Division 6B, the names of registered parties or the word “Independent”, and

(b)  initial the back of the ballot-paper in his or her own handwriting in such a position as to be readily seen when the elector has folded the ballot-paper in accordance with subsection (5) (b).

(7)  The returning officer or deputy returning officer shall not, for the purposes of subsection (5), hand an elector a ballot-paper for a periodic Council election on which particulars relating to the candidates are not already printed until the returning officer has been notified of those particulars in accordance with section 81H (4) and has entered those particulars on the ballot-paper in the manner specified in that notification.

(8)  On any such ballot-paper being returned to him or her in accordance with subsection (5) (c), the returning officer or deputy returning officer shall:

(a)  in the presence of the elector, enclose it in the envelope bearing the elector’s declaration and securely fasten the envelope, and

(b)  in the case of:

(i)  the returning officer—retain the envelope and ballot-paper until the close of the poll, or

(ii)  a deputy returning officer—as soon as practicable forward the ballot-paper to the returning officer who shall deal with it in the manner provided in subsection (10).

(9)  When an elector has voted under this section, the returning officer or deputy returning officer shall record the fact that the elector has voted and the date of the vote.

(10)  As soon as practicable after the receipt by a returning officer of a ballot-paper under subsection (5) or (8), the returning officer shall:

(a)  if the ballot-paper contains the vote of an elector enrolled for the district for which he or she is the returning officer and:

(i)  if certified copies of the roll have been furnished to the deputy returning officers responsible for the district for which the elector is enrolled, immediately notify those deputy returning officers that the elector has voted, or

(ii)  if certified copies of the roll have not been so furnished, enter a note of the fact that the elector has voted on the certified copies of the roll in his or her possession, or

(b)  if the ballot-paper contains the vote of an elector enrolled for a district not referred to in paragraph (a)—deal with the ballot-paper in the same manner as that in which he or she is required by section 116 to deal with an absent voter’s ballot-paper.

(11)  A deputy returning officer, on being notified, under subsection (10) (a) (i), that an elector has voted, shall enter a note of that fact on the certified copies of the roll furnished to him or her.

s 114ZR: Ins 1981 No 28, Sch 1 (15). Am 1987 No 132, Sch 1 (55); 1988 No 20, Sch 20; 1990 No 111, Sch 1 (34).

114ZS Assistance to certain electors

(1)  If an elector permitted to vote under section 114ZR satisfies the returning officer or deputy returning officer:

(a)  that his or her sight is so impaired or that he or she is so physically incapacitated that he or she is unable to vote without assistance, or

(b)  that:

(i)  the day upon which the returning officer or deputy visits the elector for the purpose of taking the poll at the declared institution of which the elector is an inpatient or inmate is a day on which occurs a Jewish fast or festival, and

(ii)  the elector is of Jewish persuasion,

the returning officer or deputy shall permit a person appointed by the elector to assist the elector and the person so appointed shall, in the same manner as would be required if he or she were the elector, after making a declaration referred to in section 114ZR (3), mark a vote on the ballot-paper according to the instructions of the elector and then fold and return the ballot-paper to the returning officer or deputy.

(2)  If any such elector fails to appoint a person as provided by subsection (1) or satisfies the returning officer that he or she is so illiterate that he or she is unable to vote without assistance, the returning officer or deputy returning officer, in the presence of such scrutineers as are present or, if there are no scrutineers present, in the presence of his or her poll clerk, shall, in the same manner as would be required if he or she were the elector, after making a declaration referred to in section 114ZR (3), mark a vote on the ballot-paper according to the instructions of the elector and then fold the ballot-paper.

(3)  The signature of an elector provided for in a declaration referred to in section 114ZR (3) may be made by a person who, pursuant to subsection (1) or (2), makes the declaration.

s 114ZS: Ins 1981 No 28, Sch 1 (15).

114ZT Appointment of scrutineers

(1)  A candidate may, by writing under his or her hand, appoint one or more scrutineers in order to observe voting by electors under this Division.

(2)  Subject to subsection (3), a scrutineer so appointed is entitled to accompany a returning officer or deputy returning officer while he or she is performing his or her duties at a declared institution.

(3)  If a scrutineer so appointed leaves the company of the returning officer or deputy returning officer while he or she is performing his or her duties at a declared institution, another scrutineer so appointed may act in his or her place, but only one scrutineer is entitled, at any one time in respect of any one candidate, to accompany the returning officer or deputy returning officer while he or she is performing his or her duties at a declared institution.

(4)  A scrutineer appointed under subsection (1) shall not:

(a)  fail or refuse to comply with any lawful direction given to him or her by the returning officer or deputy returning officer on a visit, under this Division, to an elector,

(b)  interfere with or attempt to influence an elector who is voting under this Division,

(c)  communicate with any such elector, except so far as it is necessary to do so in the discharge of his or her functions, or

(d)  misconduct himself or herself when accompanying the returning officer or deputy on a visit, under this Division, to an elector.

Maximum penalty: 10 penalty units or imprisonment for 6 months, or both.

(5)  A scrutineer shall, before acting as such in relation to the voting by electors under this Division at a declared institution, make and sign before the returning officer or deputy returning officer who takes the poll at the institution a declaration in the same terms as are prescribed in section 91 (1).

(6)  Where a declaration is made and signed in accordance with subsection (5) before a deputy returning officer, he or she shall transmit the declaration to the returning officer.

(7)  Where a declaration is made and signed in accordance with subsection (5) before a returning officer or transmitted to the returning officer pursuant to subsection (6), the returning officer shall transmit the declaration to the Electoral Commissioner, and Part 4 of the Oaths Act 1900 shall apply to the declaration as if it had been made under that Act.

s 114ZT: Ins 1981 No 28, Sch 1 (15). Am 1987 No 132, Sch 2 (21); 1992 No 112, Sch 1.

114ZU Penalty for unlawfully marking ballot-paper etc

A person shall not mark or attempt or purport to mark a vote on a ballot-paper handed to an elector under section 114ZR or 114ZX unless he or she:

(a)  is that elector, or

(b)  is a person appointed by that elector under section 114ZS (1) or is the returning officer or deputy returning officer acting in accordance with section 114ZS (2).

Maximum penalty: 10 penalty units.

s 114ZU: Ins 1981 No 28, Sch 1 (15). Am 1987 No 132, Sch 2 (22); 1992 No 112, Sch 1.

114ZV Duty of persons present when elector votes under this Division

A person who is present when an elector is visited by a returning officer or deputy returning officer for the purpose of voting under this Division shall not:

(a)  fail or refuse to comply with any lawful direction given to him or her by the returning officer or deputy, or

(b)  except as provided in section 114ZS:

(i)  communicate with the elector in relation to the marking of that elector’s vote,

(ii)  assist the elector or in any manner interfere with the elector in relation to the marking of that elector’s vote, or

(iii)  look at the elector’s vote or do anything which may result in his or her obtaining knowledge of the elector’s vote.

Maximum penalty: 10 penalty units.

s 114ZV: Ins 1981 No 28, Sch 1 (15). Am 1987 No 132, Sch 2 (23); 1992 No 112, Sch 1.

114ZW Preliminary scrutiny of ballot-papers of certain electors under this Division

(1)  At the scrutiny the returning officer shall produce unopened all envelopes containing ballot-papers marked by electors who have voted under this Division, being ballot-papers of persons claiming to be enrolled for a subdivision of the district for which he or she is the returning officer.

(2)  If the returning officer is satisfied that the elector is enrolled for the district for which the returning officer is appointed, he or she shall remove the ballot-paper from the envelope and, without unfolding the ballot-paper or allowing any other person to do so, place the ballot-paper in a sealed ballot-box for further scrutiny, together with any other ballot-papers accepted for further scrutiny under this subsection, but if he or she is not so satisfied he or she shall disallow the ballot-paper without opening the envelope.

(3)  After dealing with all envelopes and ballot-papers in the manner prescribed by subsection (2), the returning officer shall proceed with the scrutiny of the ballot-papers which have been accepted for further scrutiny by removing them from the ballot-box in which they were placed in accordance with subsection (2) and:

(a)  by opening any of those ballot-papers relating to an election for the Assembly and allowing and counting those which are formal and disallowing and rejecting those which, by virtue of section 122, are informal, and

(b)  by opening any of those ballot-papers relating to a periodic Council election and counting the votes recorded for each candidate.

s 114ZW: Ins 1981 No 28, Sch 1 (15). Am 1990 No 111, Sch 1 (35).

114ZX Spoilt ballot-papers

If any elector voting under this Division satisfies the returning officer or deputy returning officer who takes the poll at the institution in which the elector is resident that he or she has spoilt the ballot-paper handed to him or her under section 114ZR (5) by reason of accident or mistake, and that ballot-paper has not been enclosed in an envelope in accordance with section 114ZR (8), the returning officer or deputy on receipt of the spoilt ballot-paper, shall:

(a)  hand to the elector a new ballot-paper, and

(b)  cancel and preserve the spoilt ballot-paper.

s 114ZX: Ins 1981 No 28, Sch 1 (15).

114ZY Reference to returning officer or deputy deemed to include poll clerk in certain cases

Every reference in sections 114ZP, 114ZQ, 114ZR (subsections (10) and (11) excepted), 114ZS (1), 114ZT, 114ZU, 114ZV and 114ZX to a returning officer or deputy returning officer shall be deemed to include a reference to a poll clerk appointed to assist the returning officer or deputy in the performance of his or her duties.

s 114ZY: Ins 1981 No 28, Sch 1 (15).

Division 12 Absent voters

pt 5, div 12, hdg: Subst 1976 No 20, Sch 2 (11).

115 Voting outside electoral district

(1)  An elector who on polling-day is absent from the electoral district for which he or she is enrolled may, subject to the following provisions, vote at any polling-place in any other electoral district, being a polling-place open for polling on that day:

(a)  The elector must state his or her name, and place of residence in the electoral district in which he or she claims to be enrolled, together with his or her occupation therein.

(b)  The returning officer or deputy may, if he or she thinks fit, and at the request of any scrutineer shall put to the elector any of the questions prescribed by section 100 which are applicable to the case.

(c)  If the elector answers the questions satisfactorily, or if no questions are put to him or her, he or she may be allowed to vote as an absent voter upon making a declaration in the prescribed form.

(d)  The form of declaration may be printed or written on an envelope addressed to the returning officer for the district for which the elector is enrolled, and must, after being filled in, be signed by the elector in his or her own handwriting in the presence of the returning officer or deputy, who shall then attest the signature of the elector.

(e)  After the declaration has been made, the returning officer or deputy shall hand to the elector a ballot-paper which shall be in or to the effect of the form prescribed in Schedule 4 or ballot-papers one of which is in or to the effect of the form prescribed in Schedule 4 and the other of which is in or to the effect of the form prescribed in Schedule 4A, as the case may require. Before handing a ballot-paper to the elector the returning officer or deputy shall, if the particulars are not already printed thereon, insert on the ballot-paper, if it relates to an election for the Assembly, the name of the electoral district and the names of all the candidates for that district in the order in which those names were drawn by ballot held pursuant to section 82A or, if it relates to a periodic Council election, the particulars relating to the candidates for that election in the manner prescribed by section 83B. Each ballot-paper shall be signed or initialled on the back by the returning officer or deputy.

(f)    (Repealed)

(g)  The elector, after receiving a ballot-paper, shall without delay retire alone into an unoccupied compartment of the polling-booth, and there in private mark his or her vote on the ballot-paper in the manner directed on the ballot-paper and shall then fold the ballot-paper so that the vote cannot be seen, and at once return the ballot-paper so folded to the returning officer or deputy before whom he or she made the declaration, and shall again state his or her name if so required by the returning officer or deputy.

(h)  The returning officer or deputy shall then, in the presence of the elector, forthwith enclose the ballot-paper in the envelope bearing the declaration of the elector and securely fasten the envelope.

(2)  If the returning officer or deputy is unable to supply the elector with a printed or a partly printed and partly written ballot-paper in or to the effect of the prescribed form, he or she shall, after the declaration has been made by the elector pursuant to subsection (1) (d), supply to the elector a paper which is signed or initialled by the returning officer or deputy on the back and on which is written:

(a)  where the paper is supplied for the purpose of an election for the Assembly, the words “Legislative Assembly Election” and:

(i)  the name of the electoral district,

(ii)  the names of the candidates in the order in which those names were drawn by ballot held pursuant to section 82A, and

(iia)  if required by Division 6B, the names of registered parties or the word “Independent”, and

(iii)  the directions as to the method of voting set out in Schedule 4, and

(b)  where the paper is supplied for the purpose of a periodic Council election, the words “Legislative Council Election” and:

(i)  the name of the electoral district,

(ii)  particulars relating to the candidates for that election in the manner prescribed by section 83B, and

(iii)  the directions as to the method of voting set out in Schedule 4A.

(2A)  On receiving any such paper, the elector shall:

(a)  retire alone into an unoccupied compartment of the polling-booth and there in private record his or her vote in the manner directed on the paper,

(b)  fold the paper so that the vote so recorded cannot be seen, and

(c)  at once return the paper so folded to the returning officer or deputy.

(2B)  Any such paper shall, on being supplied to an elector, be deemed to be a ballot-paper.

(3)  If any person makes any such declaration knowing that the same is untrue in any material particular he or she shall be liable to a penalty not exceeding 10 penalty units or to imprisonment for a period not exceeding 6 months, or both.

s 115: Am 1918 No 40, secs 4 (x), 8; 1926 No 12, sec 8 (15); 1928 No 55, sec 35 (3) (j); 1929 No 33, sec 2 (1) (d); 1941 No 6, sec 2 (3) (a)–(c); 1975 No 108, sec 8 (a); 1978 No 75, Sch 2 (64); 1981 No 28, Sch 1 (16); 1987 No 132, Schs 1 (56), 2 (24); 1990 No 111, Sch 1 (36); 1992 No 112, Sch 1.

116 Forwarding of absent voters’ ballot-papers

Every absent voter’s ballot-paper containing a vote shall be promptly delivered by the returning officer or a person authorised in that behalf by him or her or forwarded under registered cover where practicable to the returning officer for the district for which the voter declares that he or she is enrolled.

Immediately after the close of the poll, the returning officer or deputy shall, by telegraph or other expeditious means, send to each returning officer to whom he or she has forwarded envelopes containing absent voters’ ballot-papers, advice of the number of envelopes so forwarded.

s 116: Am 1918 No 40, sec 8; 1969 No 43, sec 4 (1) (e).

117 Returning officer satisfied to accept ballot-paper for further scrutiny

(1)  The returning officer for the district for which the voter declares that the voter is enrolled or the officer assisting the returning officer shall, in the presence of the scrutineers, examine the declaration on the envelope containing the absent voter’s ballot-paper, and if it appears to the returning officer:

(a)  that a person of the same name and description as the person whose name is signed to the declaration is enrolled for the district and that the declaration is duly attested, shall accept the ballot-paper for further scrutiny, or

(b)  that the person whose name is signed to the declaration is enrolled for some other district than that for which the person declared he or she is enrolled, shall arrange for the envelope to be promptly delivered to the returning officer for the district for which the person is enrolled to be dealt with in the manner set out in subsection (4),

but otherwise shall reject the ballot-paper without opening the envelope.

(2)  Notwithstanding subsections (1) and (4), an absent voter’s ballot-paper shall not be rejected for further scrutiny only because the voter’s declaration is not attested if, before the declaration of the poll, the returning officer for the district in which the declaration was made certifies that the returning officer or deputy has forwarded an envelope containing the absent voter’s ballot-paper in accordance with section 116.

(3)  If the returning officer or the officer assisting him or her accepts the ballot-paper for further scrutiny, he or she shall open the envelope without destroying the declaration and extract the ballot-paper, and without unfolding it, place the ballot-paper in the ballot-box.

(4)  The returning officer for a district to whom an envelope is forwarded under subsection (1) (b) or officer assisting the returning officer shall, if the person whose name is signed to the declaration on the envelope is enrolled for the district and the declaration is duly attested, open the envelope and withdraw any ballot-paper contained in the envelope and, without, as far as practicable, inspecting or unfolding the ballot-paper or allowing any other person to do so:

(a)  in the case of any ballot-paper for a periodic Council election, shall accept the ballot-paper for further scrutiny and place it in the ballot-box, and

(b)  in the case of any ballot-paper for an Assembly election, shall disallow the ballot-paper,

but otherwise shall reject the ballot-paper without opening the envelope.

s 117: Am 1921 No 19, sec 2 (32). Subst 1987 No 132, Sch 1 (57).

118 Further scrutiny

(1)  When the absent voters’ ballot-papers have been dealt with as above directed, the returning officer or the officer assisting him or her shall open and proceed with the scrutiny of the absent voters’ ballot-papers which have been accepted for further scrutiny by removing them from the ballot-box in which they were placed in accordance with section 117 and:

(a)  by opening any of those ballot-papers relating to an election for the Assembly and allowing and counting those which are formal and disallowing and rejecting those which, by virtue of section 122, are informal, and

(b)  by opening any of those ballot-papers relating to a periodic Council election and counting the votes recorded for each candidate.

(2), (3)    (Repealed)

s 118: Am 1918 No 40, secs 4 (xi), 8; 1921 No 19, sec 2 (33); 1928 No 55, sec 28 (2); 1975 No 108, sec 8 (b), Sch 1; 1978 No 75, Sch 2 (65).

119 Decision of returning officer re validity of ballot-paper

In relation to an election for the Assembly, the decision of the returning officer as to the allowance or disallowance or the acceptance or rejection of:

(a)  the ballot-paper of an absent voter,

(b)  the ballot-paper of an elector who has voted by post,

(c)  the ballot-paper of an elector who has voted before polling day, or

(d)  any ballot-paper to which section 106 applies,

shall, subject to review by the Court of Disputed Returns when hearing a petition in accordance with Part 6, be final.

s 119: Am 1928 No 55, secs 22 (1) (e), 33 (b). Subst 1975 No 108, sec 8 (c). Am 1978 No 75, Sch 2 (66).

120 (Repealed)

s 120: Am 1928 No 55, sec 22 (1) (f). Subst 1975 No 108, sec 8 (d). Rep 1978 No 75, Sch 2 (67).

Division 13 Compulsory voting

pt 5, div 13, hdg: Ins 1928 No 55, sec 30 (a). Subst 1976 No 20, Sch 2 (12).

120A (Repealed)

s 120A: Ins 1928 No 55, sec 30 (a). Rep 1979 No 39, Sch 1 (15). Ins 1987 No 132, Sch 1 (58). Rep 1998 No 120, Sch 1.28 [8].

120B Returning officer to prepare list of electors failing to vote

(1)  After the close of the poll at every election, the returning officer is to prepare a list of the names of the electors enrolled for that district who, although entitled to vote at the election, appear to have failed to vote and do not appear to have a sufficient reason for the failure.

(2)  The returning officer is to certify that list by statutory declaration and send it to the Electoral Commissioner.

s 120B: Ins 1928 No 55, sec 30 (a) (am 1928 No 55, sec 9 (2)). Am 1941 No 6, sec 2 (5) (a); 1978 No 75, Sch 2 (68); 1987 No 132, Sch 1 (59). Subst 1998 No 120, Sch 1.28 [8].

120C Penalty notices for certain offences

(1)  If an elector is indicated on a list prepared under section 120B as not having sufficient reason for failing to vote at an election, the Electoral Commissioner shall, within 3 months after the close of the poll, serve a penalty notice on the elector by leaving it at, or sending it by post to, the residence of the elector set out on the roll used at the election.

(2)  A penalty notice is a notice in the prescribed form to the effect that, if the elector does not desire to have the failure to vote dealt with by a court, he or she may, within the prescribed time:

(a)  give the Electoral Commissioner a sufficient reason for the failure, or

(b)  pay to the Electoral Commissioner a penalty, specified in the notice, not exceeding $25.

(3)    (Repealed)

(4)  If, in response to a penalty notice and within the time prescribed for the response:

(a)  the Electoral Commissioner is given a sufficient reason for the failure to vote, or

(b)  the penalty specified in the notice is paid to the Electoral Commissioner,

proceedings against any person for the failure to vote are prohibited.

(5)  If, in response to a penalty notice, the Electoral Commissioner is given a reason for the failure to vote but the reason is not a sufficient reason, the Electoral Commissioner shall include a statement to that effect in any penalty reminder notice served under the Fines Act 1996.

(6)  For the purposes of this section, it is a sufficient reason for the failure of an elector to vote at an election if the Electoral Commissioner is satisfied that he or she:

(a)  is dead,

(b)  was absent from New South Wales on polling-day,

(c)  was ineligible to vote at the election,

(d)  had an honest belief that abstention from voting was part of his or her religious duty, or

(e)  was unable for any reason acceptable to the Electoral Commissioner to vote at the election,

or had voted in the election under an enrolment on a roll for a district other than the one in relation to which the elector’s name appears on a list prepared under section 120B.

(7)  In this section, a reference to the prescribed time for a response to a penalty notice is a reference to:

(a)  the time for response specified in the notice, or

(b)  if the Electoral Commissioner extends that time (whether before or after its expiration)—the extended time.

s 120C: Ins 1928 No 55, sec 30 (a) (am 1928 No 55, sec 9 (2)). Am 1941 No 6, sec 2 (5) (b); 1949 No 23, sec 6 (b); 1969 No 43, sec 4 (1) (f); 1975 No 108, sec 8 (e). Subst 1987 No 132, Sch 1 (60). Am 1992 No 34, Sch 1; 1998 No 120, Sch 1.28 [9]–[12].

120D Notation on list of non-voters of response to penalty notice

The Electoral Commissioner shall note on the list prepared under section 120B in relation to each elector on whom a penalty notice is served:

(a)  whether or not there has been a response to the notice, and

(b)  if there has been a response—whether or not a sufficient reason has been given or the penalty paid.

s 120D: Ins 1928 No 55, sec 30 (a) (am 1928 No 55, sec 9 (2)). Subst 1987 No 132, Sch 1 (60). Am 1998 No 120, Sch 1.28 [13].

120E Evidence in list of non-voters

(1)  An entry on the list prepared under section 120B to the effect:

(a)  that an elector was served with a penalty notice—is evidence of service of the notice,

(b)  that there was no response to a penalty notice served on an elector—is evidence that there was no such response within the prescribed time under section 120C, or

(c)  that a reason for an elector’s failure to vote was given in response to a penalty notice but was insufficient—is evidence that the reason given was not a sufficient reason under section 120C.

(2)  Subsection (1) applies in relation to a copy of, or an extract from, the list prepared under section 120B certified by the Electoral Commissioner to be such a copy or extract in the same way as it applies in relation to the list prepared and certified under section 120B.

s 120E: Ins 1928 No 55, sec 30 (a) (am 1928 No 55, sec 9 (2)). Am 1941 No 6, sec 2 (5) (c). Subst 1987 No 132, Sch 1 (60). Am 1998 No 120, Sch 1.28 [14]–[16].

120F Offences relating to failure to vote

(1)  An elector who fails to record his or her vote at an election when required to do so is guilty of an offence and liable to a penalty not exceeding 0.5 penalty unit.

(2)  A person (whether or not an elector) who, in response to a penalty notice, gives a false reason for the failure of an elector to vote is guilty of an offence and liable to a penalty not exceeding 0.5 penalty unit.

(3)  In this section, elector does not include:

(a)  an Antarctic elector,

(b)  an eligible overseas elector, or

(c)  an itinerant elector.

s 120F: Ins 1928 No 55, sec 30 (a) (am 1928 No 55, sec 9 (2)). Am 1941 No 6, sec 2 (5) (d); 1969 No 43, sec 5 (o); 1975 No 108, Sch 1; GG No 172 of 31.10.1986, p 5321. Subst 1987 No 132, Sch 1 (60). Am 1992 No 112, Sch 1.

120G Opening sealed parcels containing rolls and list used at election

For the purposes of this Act the returning officer at any election:

(a)  with such assistance as he or she may deem necessary shall open and if necessary break the seal of any parcel containing the rolls used at the election, and examine the same for the purpose of indicating on the list being prepared under section 120B the names of the electors who have not voted at the election, and

(b)  at the conclusion of the said examination shall replace such rolls in the parcels from which they were taken, and re-seal the same, and then comply with the provisions of section 127 or 129H, as the case may require.

s 120G: Ins 1928 No 55, sec 30 (a). Am 1978 No 75, Sch 2 (69); 1998 No 120, Sch 1.28 [17] [18].

120H (Repealed)

s 120H: Ins 1928 No 55, sec 30 (a). Subst 1969 No 43, sec 4 (1) (g). Am 1979 No 39, Sch 1 (16). Rep 1987 No 132, Sch 1 (61).

Division 13A Concurrent Assembly and periodic Council elections

pt 5, div 13A: Ins 1978 No 75, Sch 2 (70).

120I Issue of writs and nomination day for concurrent Assembly and periodic Council elections

Writs for elections that, by section 22A (2) or (3) of the Constitution Act 1902, are required to name the same day as the day for the taking of the poll at those elections shall be issued on the same day and shall name the same day as the day of nomination for each of those elections.

s 120I: Ins 1978 No 75, Sch 2 (70).

120J Additional provisions applicable where polling-day for Assembly and periodic Council elections is same day

Where:

(a)  a poll for an election for a district and a poll for a periodic Council election are required by law to take place on the same day, or

(b)  the day for the taking of the adjourned poll at any place for an election for a district and the day for the taking of the adjourned poll at that place for a periodic Council election are required by section 130 (4) to be the same day,

then:

(c)  an application for a postal vote certificate and postal ballot-paper or an application or request to vote before polling-day made in respect of one of the elections is a corresponding application or request, as the case may require, in respect of the other election,

(d)  a declaration or certificate which enables an elector to vote under any provision of this Act at one of the elections enables him or her to vote under the corresponding provision at the other election,

(e)  the answers by a person claiming to vote at either election, put to him or her pursuant to this Act, may be accepted as sufficient to enable him or her to vote at the other election if they are satisfactory as regards the election in respect of which they were put,

(f)  the ballot-papers used for one of the elections shall be of a different colour from those used for the other election,

(g)  where the name of any candidate for one of the elections is similar to the name of any candidate for the other election, the Electoral Commissioner may include on the ballot-papers for each of the elections such description or addition as will distinguish them from one another,

(h)  a ballot-paper shall not be issued to a person for one of the elections unless a ballot-paper is issued to that person for the other election,

(i)  where a ballot-paper used at one of the elections is required to be placed in an envelope by a voter, the ballot-paper used at the other election shall be placed in the same envelope,

(j)  the copy of the printed roll and the certified copies of rolls in force provided for the purposes of the election for the district shall be used for the purposes of the periodic Council election,

(k)  the same polling booths and ballot-boxes shall be used for the purposes of both elections,

(l)  a reference in this Act to a scrutineer shall be construed as a reference to a scrutineer appointed by a candidate for either election,

(m)  a person who is precluded by this or any other Act from voting at the periodic Council election shall not be entitled to vote at the election for the district, and

(n)  a reference in Division 13 of Part 5 to an election shall be construed as a reference to those elections and the Electoral Commissioner shall not under section 120C send more than one penalty notice to the same elector.

s 120J: Ins 1978 No 75, Sch 2 (70). Am 1981 No 28, Sch 1 (17); 1987 No 132, Sch 1 (62).

Division 14 Proceedings after close of poll at Assembly elections

pt 5, div 14, hdg: Subst 1976 No 20, Sch 2 (13). Am 1978 No 75, Sch 2 (71).

120K Application of Division

This Division applies only in relation to a poll for a district.

s 120K: Ins 1978 No 75, Sch 2 (72).

121 How and when number of votes to be ascertained

Immediately upon the close of the poll the returning officer and every deputy at the polling-place at which each presides shall, in the presence and subject to the inspection of such of the scrutineers as choose to be present, and the poll clerks (if any), but of no other persons, open the ballot-box, and proceed to count the number of first preference votes recorded for each candidate.

s 121: Rep 1918 No 40, sec 4 (xii). Ins 1926 No 12, sec 8 (16).

122 Informal ballot-papers

(1)  A ballot-paper shall be informal if:

(a)  it is not duly signed or initialled by the returning officer or deputy or duly signed by the postal voting officer, as the case may require,

(b)  the voter has failed to record his or her vote in the manner directed on the ballot-paper, or

(c)  it has upon it any mark or writing not authorised by this Act to be put upon it, which, in the opinion of the returning officer, will enable any person to identify the voter.

(2)  Informal ballot-papers shall be rejected at the scrutiny.

s 122: Am 1918 No 40, sec 4 (xiii); 1926 No 12, sec 9 (21); 1928 No 55, sec 28 (3); 1975 No 108, sec 8 (f); 1976 No 20, Sch 1 (8); 1979 No 39, Sch 1 (17).

122A Ballot-papers not to be informal in certain circumstances

(1)  Notwithstanding anything to the contrary in this Act, a ballot-paper shall not, by reason of any marking thereon that is not authorised or required by this Act, be treated as informal, or be rejected or disallowed at the scrutiny, if, in the opinion of the returning officer, the voter’s intention is clearly indicated on the ballot-paper.

(2)  Notwithstanding anything to the contrary in this Act, a ballot-paper on which the voter has recorded his or her vote by placing in one square the number “1” shall not be treated as informal by reason only that:

(a)  the same preference (other than his or her first preference) has been recorded on the ballot-paper for more than 1 candidate, or

(b)  there is a break in the order of preferences recorded on the ballot-paper.

(3)  Notwithstanding anything to the contrary in this Act, a ballot-paper shall not be informal by reason only of the fact that it is not duly signed or initialled by the returning officer or deputy, or it is not duly signed by the postal voting officer, if it bears such mark as is prescribed as an official mark.

(4)  Notwithstanding anything to the contrary in this Act, a ballot-paper shall not be informal by reason only that the voter has recorded a vote by placing a cross or a tick in a square and not placing any mark or writing in any other square, but the ballot-paper shall be treated as if the cross or tick were the number “1”.

(5)  Notwithstanding anything to the contrary in this Act, a ballot-paper shall not be informal by reason only that the voter has recorded a vote by placing the number “1” or a tick in a square and placing a cross in (or a line through) all or some of the other squares on the ballot-paper, but the ballot-paper shall be treated as if the marks in those other squares did not appear on the ballot-paper and any such tick were the number “1”.

(6)  Notwithstanding anything to the contrary in this Act, nothing in this section authorises any person to encourage a voter to place a cross or a tick in a square on a ballot-paper.

Maximum penalty:

(a)  if the person is a corporation—a penalty not exceeding 50 penalty units, or

(b)  in any other case—a penalty not exceeding 10 penalty units or to imprisonment for a period not exceeding 6 months, or both.

(7)  Any person who prints, publishes or distributes any “how to vote” card, electoral advertisement, notice, handbill, pamphlet or card which encourages any elector to place a cross or a tick in a square on a ballot-paper, will be liable:

(a)  if the person is a corporation—to a penalty not exceeding 50 penalty units, or

(b)  in any other case—to a penalty not exceeding 10 penalty units or to imprisonment for a period not exceeding 6 months, or both.

s 122A: Ins 1926 No 12, sec 9 (22). Am 1929 No 33, sec 3 (1); 1969 No 43, sec 4 (1) (h); 1973 No 44, sec 3 (e); 1975 No 108, sec 8 (g), Sch 1; 1976 No 20, Sch 1 (9); 1979 No 39, Sch 1 (18); 1982 No 47, sec 2; 1987 No 173, Sch 3 (1); 1990 No 111, Sch 1 (37); 1995 No 54, Sch 1 (1)–(4).

123 Sealing and transmission by deputies of separate parcels of ballot-papers etc

Immediately after ascertaining the total number of first preference votes recorded for each candidate, each deputy shall make up:

(a)  in one parcel the ballot-papers which have been used in voting at his or her polling-booth during the election,

(b)  in a second separate parcel, the ballot-papers which have remained unused thereat, and

(c)  in a third separate parcel, the certified copies of rolls supplied to the said deputy, signed by him or her, and all books, rolls, and papers kept or used by him or her during the polling,

and shall seal up the said several parcels; and shall permit any of the scrutineers who may desire to do so to affix his, her or their seals to such parcels; and shall indorse the same severally with a description of the contents thereof, and with the name of the district and polling-booth, and the date of the polling; and sign with his or her name the said indorsement; and shall transmit the said parcels to the returning officer.

s 123: Am 1918 No 40, sec 4 (xiv); 1921 No 19, sec 2 (34); 1926 No 12, sec 8 (17).

124 Account of ballot-papers and verification thereof and of list of votes

Each deputy shall, together with the parcels aforesaid, transmit to the returning officer a list of the total number of first preference votes recorded for each candidate and also an account in which such deputy shall charge himself or herself with the number of ballot-papers originally delivered to him or her, and the number (if any) written out by him or her, specifying therein the number thereof delivered to and used by voters, and the number not so delivered or left unused; and every such list and account respectively shall be verified as well by the signatures of the said deputy and the poll clerk (if any) as also by the signatures of such of the scrutineers as are present and consent to sign the same.

s 124: Am 1918 No 40, sec 4 (xv); 1921 No 19, sec 2 (35); 1926 No 12, sec 8 (18).

125 Returning officers’ parcels

The returning officer shall, in respect of the polling-booth at which the returning officer has presided, make up in separate parcels in like manner as is herein required of deputy returning officers, all ballot-papers used or unused, and all books, rolls and papers kept or used by him or her at such polling-booths; and shall seal up and also permit to be sealed up by the scrutineers, and shall indorse in like manner as aforesaid the several parcels and deal with the same as hereinafter provided; and shall also make out in respect of the said booth the like list as is herein required in the case of deputy returning officers, which said list shall be verified by the signature of the returning officer, the poll clerk (if any) and scrutineers in manner aforesaid.

s 125: Am 1918 No 40, sec 4 (xvi); 1921 No 19, sec 2 (36). Subst 1926 No 12, sec 8 (19).

125A Parcels of postal, pre-poll or absent ballot-papers etc

(1)  The returning officer for each electoral district shall, as soon as practicable after the close of the poll, make up and seal separate parcels, each of which contains only:

(a)  envelopes from which any ballot-papers of a single class have been taken,

(b)  unopened envelopes containing ballot-papers of that single class,

(c)  ballot-papers, referred to in paragraph (a), of a single class allowed as formal, and

(d)  ballot-papers, referred to in paragraph (a), of a single class disallowed or rejected as informal,

received by him or her in connection with the election conducted in the electoral district for which he or she is the returning officer.

(2)  A reference in subsection (1) to ballot-papers of a single class is, in relation to a poll for a district, a reference to ballot-papers used by electors voting in that district by virtue of section 106 or of Division 9, 10, 11, 11A or 12.

(3)  The provisions of sections 127, 128 and 129 apply to parcels referred to in subsection (1) as if they were parcels of used ballot-papers referred to in those provisions.

s 125A: Ins 1978 No 75, Sch 2 (73). Am 1981 No 28, Sch 1 (18).

126 Declaration of poll

(1)  The returning officer shall, as soon as practicable after the close of the poll, in the presence of such scrutineers as choose to be present, and with such assistance as he or she may deem necessary, ascertain the result of the election in accordance with the Seventh Schedule to the Constitution Act 1902.

(1A)    (Repealed)

(2)  If the returning officer is satisfied, after inquiry, that any ballot-papers have been lost, destroyed or mislaid and that those ballot-papers, if counted, could not alter the result of the poll he or she may complete the count without counting those ballot-papers.

(2A)  As soon as practicable after the count has been completed, the returning officer shall, by notice signed by him or her and inserted in some newspaper circulating in the State, announce the result of the election.

(3)  The name of the person so elected shall be endorsed on the writ by the returning officer, and the writ shall be by him or her returned to the Governor, or Speaker, as the case may be, within the time specified therein.

(4)  The writ for the electoral district which includes Lord Howe Island may be returned, notwithstanding that the result of the poll has not been received from Lord Howe Island, if the result of the election for the district cannot be affected thereby. It shall be permissible for the returning officer to accept information as to the votes polled at Lord Howe Island which is transmitted to him or her by cable or wireless, and which he or she is satisfied is authentic, in lieu of the list referred to in section 124.

(5)  At any time before the declaration that a candidate has been duly elected the returning officer may, if he or she thinks fit, on the request of any candidate setting forth the reasons for the request, or of his or her own motion, and shall, if so directed by the Electoral Commissioner, re-count the ballot-papers contained in any parcel.

s 126: Am 1918 No 40, sec 4 (xvii); 1921 No 19, sec 2 (37); 1926 No 12, secs 8 (20), 9 (23); 1928 No 55, secs 9 (1) (a), 22 (1) (g); 1975 No 108, sec 8 (h); 1979 No 39, Sch 1 (19).

126A Scrutiny for statistical information

(1)  After the declaration that a candidate has been duly elected, the Electoral Commissioner may, for the purpose of obtaining statistical information, give the returning officer directions for the examination of the second and later preferences of candidates and for the distribution of those preferences in the manner specified in the directions.

(2)  The returning officer shall comply with those directions.

(3)  An examination and distribution of preferences under this section may be carried out by an officer of the Public Service or other electoral official if the Electoral Commissioner so directs.

s 126A: Ins 1987 No 173, Sch 3 (2).

127 Separate parcels to be enclosed in packets, sealed etc

The returning officer shall, as soon as practicable after the day of polling, enclose in separate packets in manner hereinafter mentioned, the parcels so transmitted to him or her, and those made up and sealed by himself or herself in respect of the polling-booth at which he or she has presided, that is to say:—He or she shall enclose in one packet all parcels of used ballot-papers; in a second, all parcels of unused ballot-papers; and in a third, all parcels containing copies of rolls, books, or other papers as herein provided; and shall seal up the said several packets and indorse the same with a description of the contents thereof respectively, and the name of the district and the date of the polling, and sign with his or her name the said indorsement, and shall forthwith forward the said packets to the Clerk of the Assembly; and he or she shall also at the same time seal up and transmit to the said clerk a parcel containing all ballot-papers which have been printed or written for the said election and not used by the returning officer or distributed for use to his or her deputies; and the said clerk shall forthwith give or send to the returning officer a receipt under his or her hand for the said packets and parcels:

Provided that the returning officer may, for the purpose of ascertaining whether plural voting or personation has been practised, retain in his or her possession for a reasonable time, and after notice to the candidates and intimation that a scrutineer of each candidate shall be entitled to be present, break the seal of parcels containing copies of rolls, books, and other papers sealed up and transmitted to him or her in pursuance of this Act, and shall, after such investigation, re-seal the same, and forward them as hereinbefore in this section prescribed, and shall report to the Electoral Commissioner the result of such investigation.

Packets and parcels forwarded or transmitted under this section to the Clerk of the Assembly shall be by him or her safely kept until the period during which the validity of the said election may be disputed under the provisions of this Act has expired, or, where a petition has or petitions have been filed pursuant to section 155, the Court of Disputed Returns has determined the matters referred to in such petition or petitions, when such packets and parcels shall then be transmitted to the Electoral Commissioner.

s 127: Am 1928 No 55, sec 10 (1) (e); 1969 No 43, sec 4 (1) (i).

128 Ballot-papers etc copies of rolls and books to be evidence

Any ballot-paper, and any copy of a roll, and any book purporting to be taken from any such parcel as aforesaid, and having written thereon respectively under the hand of the Clerk of the Assembly a certificate of the several particulars hereby required to be indorsed upon such parcel, and that the same was so taken from such parcel, shall be evidence in any court or before the Court of Disputed Returns that the same was so taken; and that the same, if a ballot-paper, was deposited or transmitted pursuant to this Act, and, if a roll or book, was kept or used at the election and booth to which such indorsement and writing relate; and every such ballot-paper so certified shall be evidence of a vote given at such election.

s 128: Am 1928 No 55, sec 33 (c).

129 Penalty for breaking seal of or opening parcel or packet

Any person who wilfully breaks the seal of, or opens, any such sealed parcel or sealed packet as aforesaid, unless for the purposes of this Act or by direction of some competent court or other tribunal or person authorised in that behalf, or unless called upon to produce some portion of the contents of such parcel or packet to some such court or tribunal or person is guilty of an offence.

Maximum penalty: 10 penalty units or imprisonment for 6 months, or both.

s 129: Am 1918 No 40, sec 8; 1969 No 43, sec 5 (p); 1978 No 75, Sch 2 (74); 1987 No 132, Sch 2 (25); 1992 No 112, Sch 1.

Division 14A Proceedings after close of poll at periodic Council elections

pt 5, div 14A: Ins 1978 No 75, Sch 2 (75).

129A Application of Division

This Division applies only in relation to a poll for a periodic Council election.

s 129A: Ins 1978 No 75, Sch 2 (75).

129B Counting of votes

As soon as practicable after the close of the poll the returning officer for each district and every deputy at the polling-place at which each presides shall, in the presence and subject to the inspection of such of the scrutineers as choose to be present, and the poll clerks (if any), but of no other persons, having opened the ballot-box, proceed to count the number of votes recorded for each candidate.

s 129B: Ins 1978 No 75, Sch 2 (75).

129C Sealing and transmission of separate parcels of ballot-papers etc

(1)  Immediately after ascertaining the total number of votes recorded for each candidate, the returning officer for each district and every deputy at the polling-place at which each presides shall make up:

(a)  in one parcel the ballot-papers which have been used in voting at the polling place at which he or she presided during the polling,

(b)  in a second separate parcel, the ballot-papers which have remained unused thereat, and

(c)  in a third separate parcel, the certified copies of rolls used by him or her, signed by him or her, and all books, rolls, and papers kept or used by him or her, during the polling,

and shall:

(d)  seal up those parcels,

(e)  permit any of the scrutineers who may desire to do so to affix his, her or their seals to those parcels,

(f)  indorse each of those parcels with a description of its contents, with the name of the district and polling place and the date of the polling,

(g)  sign with his or her name that indorsement, and

(h)  in the case of the deputy, transmit those parcels to the returning officer.

(2)  Subsection (1) (c) does not apply where the election is an election referred to in section 120J.

(3)  Each deputy shall, together with the parcels transmitted by him or her pursuant to subsection (1), transmit to the returning officer, and each returning officer making up parcels in accordance with subsection (1) shall make out, a list of the total number of votes recorded for each candidate and also an account in which he or she shall charge himself or herself with the number of ballot-papers originally delivered to him or her, and the number (if any) written out by him or her, specifying therein the number delivered to and used by voters, and the number not so delivered or left unused; and every such list and account shall be respectively verified as well by the signatures of the returning officer or the deputy and any poll clerk as also by the signatures of such of the scrutineers as are present and consent to sign them.

s 129C: Ins 1978 No 75, Sch 2 (75). Am 1987 No 132, Sch 1 (63).

129D District returning officers’ parcels

(1)  The returning officer shall, as soon as practicable after the close of the poll:

(a)  make up and seal separate parcels, each of which contains only:

(i)  envelopes from which any ballot-papers of a single class have been taken,

(ii)  unopened envelopes containing ballot-papers of that single class, and

(iii)  ballot-papers, referred to in subparagraph (i), of that single class,

received by him or her in connection with the election conducted in the electoral district for which he or she is the returning officer,

(b)  make up and seal in a separate parcel all of the separate parcels transmitted to him or her or sealed by himself or herself under section 129C,

(c)  make up and seal in a separate parcel all other ballot-papers which have been printed or written for the election conducted in the electoral district for which he or she is the returning officer, and

(d)  make out a list of the total number of votes recorded for each candidate on the ballot-papers contained in each such parcel and identify in that list the parcel to which it relates,

and shall:

(e)  permit any of the scrutineers who may desire to do so to affix his, her or their seals to the parcels made up and sealed by the returning officer under this section,

(f)  indorse each parcel so made up and sealed with a description of its contents, with the name of the electoral district for which he or she is the returning officer and the date of the polling,

(g)  sign with his or her name that indorsement, and

(h)  transmit the parcels so made up, sealed and indorsed and the lists so made out to the Electoral Commissioner.

(2)  A reference in subsection (1) to ballot-papers of a single class is, in relation to a periodic Council election in an electoral district, a reference to ballot-papers used by electors voting in that electoral district by virtue of section 106 or of Division 9, 10, 11, 11A or 12.

(3)  Subsection (1) (a) (i) and (ii) do not apply where the election is an election referred to in section 120J.

(4)  Notwithstanding subsection (1), the returning officer may, for the purpose of ascertaining whether plural voting or personation has been practised, retain in his or her possession for a reasonable time, and, after notice to the candidates and intimation that a scrutineer for each candidate shall be entitled to be present, break the seal of parcels containing copies of rolls, books and other papers sealed up and transmitted to him or her in pursuance of section 129C (1), and shall, after that investigation, re-seal them and transmit them as provided by subsection (1), and shall report to the Electoral Commissioner the result of that investigation.

s 129D: Ins 1978 No 75, Sch 2 (75). Am 1981 No 28, Sch 1 (19).

129E Lists and accounts of ballot-papers

(1)  Each returning officer shall:

(a)  make out a final list of the total number of votes recorded for each candidate as ascertained by him or her from his or her scrutiny of the ballot-papers referred to in section 129D (1) (a) (iii), as shown in the notification given to him or her pursuant to section 114ZG (3) and in the lists transmitted to or made out by him or her pursuant to section 129C (3), and

(b)  make out an account in which he or she shall charge himself or herself with the number of ballot-papers originally delivered to him or her or written out by him or her or his or her deputies, specifying therein the number thereof delivered by him or her or his or her deputies to and used by voters and the number not so delivered or left unused, the particulars in that account in respect of ballot-papers delivered to his or her deputies being ascertained from the accounts transmitted to him or her pursuant to section 129C (3) and in respect of other ballot-papers being ascertained from his or her own records.

(2)  Every list and account made out by a returning officer pursuant to subsection (1) shall be verified by his or her signature and by the signatures of such scrutineers as are present and consent to sign them and shall be transmitted by him or her to the Electoral Commissioner.

s 129E: Ins 1978 No 75, Sch 2 (75).

129EA Formal votes where vote recorded in group voting square

(1)  If a voter records a vote on a ballot-paper by placing the number “1” in the group voting square for one of the groups, the ballot-paper is taken to have recorded on it a first preference vote for the first candidate included in the group and subsequent preferences for all other candidates included in the group in the order of the names of the candidates on the ballot-paper.

(2)  If the voter also records a vote on the ballot-paper by placing the number “2” in the group voting square for another group, the ballot-paper is taken to have recorded on it a preference (subsequent to those referred to in subsection (1)) for the first candidate included in that other group and subsequent preferences for all other candidates included in that other group in the order of the names of the candidates on the ballot-paper.

(3)  If the voter also records a vote on the ballot-paper by placing the number “3” or subsequent numbers in the group voting squares for other groups, the ballot-paper is taken to have recorded on it preferences (subsequent to those referred to in subsections (1) and (2)) for the first candidate included in those other groups and subsequent preferences for all other candidates included in those other groups in the order of the names of the candidates on the ballot-paper.

s 129EA: Ins 1987 No 173, Sch 2 (6). Subst 1990 No 111, Sch 1 (38); 1999 No 70, Sch 1 [14].

129EB Special provision where minimum size of group reduced by death of candidate etc

(1)  This section applies to ballot-papers in which the voter records a vote by placing the number “1” in the group voting square for one of the groups and does not record any other preference, where that group ceases to have 15 candidates because of the operation of section 81C (5).

(2)  The ballot-papers to which this section applies are taken to have recorded on them a second preference vote for the group nominated under section 81C (6).

s 129EB: Ins 1999 No 70, Sch 1 [14].

129F Informal ballot-papers

(1)  A ballot-paper shall be informal if:

(a)  it is not duly signed or initialled by the person required by this Act to sign or initial it or does not bear such mark as is prescribed for the purpose of section 122A (3) as an official mark,

(b)  subject to clause 2 (2) of the Sixth Schedule to the Constitution Act 1902, the voter has failed to record his or her vote in the manner directed on the ballot-paper, or

(c)  it has upon it any mark or writing not authorised or required by this Act to be put upon it, which, in the opinion of the Electoral Commissioner, will enable any person to identify the voter.

(2)  Notwithstanding anything to the contrary in this Act, a ballot-paper shall not, by reason of any mark or writing thereon that is not authorised or required by this Act, be rejected as informal if, in the opinion of the Electoral Commissioner, the voter has, by some mark or writing, clearly indicated his or her intention on the ballot-paper.

(2A)  Notwithstanding anything to the contrary in this Act, if a voter records a vote on a ballot-paper by placing a mark in a group voting square but also indicates preferences for individual candidates, the following provisions apply:

(a)  if the indication of preferences for individual candidates would, if it stood alone, constitute a formal vote, that indication of preferences shall be taken to be the vote of the voter and the mark in the group voting square shall be disregarded,

(b)  if the indication of preferences for individual candidates would not, if it stood alone, constitute a formal vote, it shall be disregarded and the vote of the voter shall be taken to have been expressed by the mark in the group voting square.

(2B)  Notwithstanding anything to the contrary in this Act, a ballot-paper shall not be informal by reason only that the voter has recorded a vote by placing a cross or a tick in a group voting square and not placing any mark or writing in any other group voting square, but the ballot-paper shall be treated as if the cross or tick were the number “1”.

(2C)  Notwithstanding anything to the contrary in this Act, a ballot-paper shall not be informal by reason only that the voter has recorded a vote by placing the number “1” or a tick in a group voting square and placing a cross in (or a line through) all or some of the other group voting squares on the ballot-paper, but the ballot-paper shall be treated as if the marks in those other squares did not appear on the ballot-paper and any such tick were the number “1”.

(2D)  Notwithstanding anything to the contrary in this Act, a ballot-paper on which the voter has recorded his or her vote by placing in one square the number “1” shall not be informal by reason only that:

(a)  the same preference (other than his or her first preference) has been recorded on the ballot-paper for more than one candidate or one group of candidates, but the ballot-paper shall be treated as if those preferences and any subsequent preferences had not been recorded on the ballot-paper, or

(b)  there is a break in the order of his or her preferences, but the ballot paper shall be treated as if any subsequent preference had not been recorded on the ballot-paper.

(3)  Notwithstanding anything to the contrary in this Act, the ballot-papers used for a periodic Council election shall not be informal by reason only that they contain the name of:

(a)  any candidate who has died, as referred to in section 83B (6) (a), or

(b)  any candidate who is the subject of a declaration referred to in section 83B (6) (b),

but a preference indicated on any such ballot-paper (or taken to be indicated on any such ballot-paper by a vote recorded in a group voting square) for any such candidate shall be disregarded and the numbers indicating any subsequent preference shall be reduced by the number of any such candidates.

(4)  Informal ballot-papers shall be rejected by the Electoral Commissioner at the scrutiny.

s 129F: Ins 1978 No 75, Sch 2 (75). Am 1987 No 173, Sch 2 (7); 1999 No 70, Sch 1 [15]–[17].

129G Declaration of poll

(1)  The Electoral Commissioner shall, as soon as practicable after the close of the poll, in the presence of such scrutineers as choose to be present, and with such assistance as he or she may deem necessary, ascertain the result of the election in accordance with the Sixth Schedule to the Constitution Act 1902.

(2)  If the Electoral Commissioner is satisfied, after inquiry, that any ballot-papers have been lost, destroyed or mislaid and that those ballot-papers, if counted, could not alter the result of the poll he or she may complete the count without counting those ballot-papers.

(3)  As soon as practicable after the count has been completed, the Electoral Commissioner shall, by notice signed by him or her and inserted in some newspaper circulating in the State, announce the result of the election.

(4)  The names of the candidates elected shall be indorsed on the writ by the Electoral Commissioner and the writ shall be by him or her returned to the Governor within the time specified therein.

(5)  At any time before the declaration that candidates have been duly elected the Electoral Commissioner may, if he or she thinks fit, on the request of any candidate setting forth the reasons for the request, or of his or her own motion, re-count the ballot-papers contained in any parcel.

ss 129G–129I: Ins 1978 No 75, Sch 2 (75).

129H Parcels to be forwarded to Clerk of Council

(1)  The Electoral Commissioner shall, as soon as practicable after the day of polling, enclose in a packet indorsed with the words “Legislative Council Election” and the date of the polling the parcels transmitted to him or her under section 129D (1) and forward that packet to the Clerk of the Council and at the same time seal up and transmit to that Clerk a parcel containing all ballot-papers which have been printed or written for the election and not used, other than any ballot-papers enclosed in any such parcels; and that Clerk shall forthwith give or send to the Electoral Commissioner a receipt under his or her hand for the packet and parcel.

(2)  Where the Electoral Commissioner receives any parcel transmitted to him or her under section 129D (4), he or she shall indorse on it the words “Legislative Council Election”, the name of the district to which the parcel relates and the date of the polling and forward it to the Clerk of the Council as provided by subsection (1).

(3)  Packets and parcels forwarded under this section to the Clerk of the Council shall be by him or her safely kept until the period during which the validity of the election may be disputed under the provisions of this Act has expired or, where a petition has or petitions have been filed pursuant to section 155, the Court of Disputed Returns has determined the matters referred to in that petition or those petitions, whereupon those packets and parcels shall be transmitted to the Electoral Commissioner.

ss 129G–129I: Ins 1978 No 75, Sch 2 (75).

129I Ballot-papers etc copies of rolls and books to be evidence

(1)  Any ballot-paper, and any copy of a roll, and any book purporting to be taken from any packet or parcel referred to in section 129H, and having written thereon respectively under the hand of the Clerk of the Council a certificate of the several particulars required by this Division to be indorsed upon the packet or parcel, and that it was taken from such a parcel, shall be evidence in any court or before the Court of Disputed Returns that it was so taken and that it, if a ballot-paper, was deposited or transmitted pursuant to this Act, and, if a roll or book, was kept or used at the election and booth to which the indorsement and writing relate.

(2)  Every such ballot-paper so certified shall be evidence of a vote given at the election.

ss 129G–129I: Ins 1978 No 75, Sch 2 (75).

129J Penalty for breaking seal of or opening packet or parcel

Any person who wilfully breaks the seal of, or opens, any packet or parcel referred to in section 129H, unless for the purposes of this Act or by direction of some competent court or other tribunal or person authorised in that behalf, or unless called upon to produce some portion of the contents of the packet or parcel to some such court or tribunal or person is guilty of an offence.

Maximum penalty: 10 penalty units or imprisonment for 6 months, or both.

s 129J: Ins 1978 No 75, Sch 2 (75). Am 1987 No 132, Sch 2 (26); 1992 No 112, Sch 1.

Division 15 Adjournment of poll

pt 5, div 15, hdg: Subst 1976 No 20, Sch 2 (14).

130 When polling may be adjourned etc

(1)  When the proceedings for taking the poll at any election are interrupted or obstructed at any place by any riot or open violence, the returning officer or deputy (as the case may be) shall not for such cause finally close the poll, but shall adjourn the taking of the poll at the polling-place at which such interruption or obstruction has happened to the following day; and, if necessary, such returning officer or deputy shall further adjourn such poll from day to day until such interruption or obstruction have ceased, when such returning officer or deputy shall again proceed with the taking of the poll at the place at which the same may have been so interrupted or obstructed.

(2)  If the returning officer or deputy (as the case may be) fails to open the polling at any booth of a polling-place for one half-hour after the time appointed for the same, or if he or she becomes incapable of performing his or her duties from any cause after polling has opened, and for a period of one half-hour, then in each and every such case the poll clerk (if one be present) or the senior poll clerk (if more than one be present) shall be and is hereby empowered to act as and for such returning officer or deputy in respect of all matters required to be done by such returning officer or deputy in respect of such polling. And such poll clerk so acting may forthwith appoint a poll clerk to assist him or her in the conduct of such polling.

(3)  If from any other cause than riot or open violence no polling has been opened at any booth of a polling-place for any district on the appointed day or where the polling has been opened but from the absence of necessary forms, documents, or materials the poll cannot be proceeded with, the polling at such booth shall be by the returning officer or deputy (as the case may be) adjourned to a day not later than twenty-one clear days following such appointed day; and the returning officer or deputy (as the case may be) shall forthwith cause public notice to be given thereof.

(4)  Where but for this section:

(a)  a poll for an election for a district and a poll for a periodic Council election would be required to take place on the same day, and

(b)  the taking of either poll at any place is adjourned,

the other poll is adjourned at that place, and the day for the taking of both adjourned polls at that place shall be the same day.

s 130: Am 1918 No 40, sec 8; 1973 No 44, sec 3 (f); 1978 No 75, Sch 2 (76).

131 On adjournment by deputy, notice to be given to returning officer

(1)  Where any poll has been so adjourned by any deputy, such deputy shall forthwith give notice thereof to the returning officer; and in every such case, and also where any polling stands adjourned as mentioned in section 130, the returning officer or Electoral Commissioner as the case may be shall not notify the total number of votes given or finally declare the result of the election until the poll so adjourned has been finally closed and the ballot-papers transmitted to the returning officer or Electoral Commissioner as the case may be.

(2)  Whenever a poll has been adjourned at any place within an electoral district, the returning officer for that district shall forthwith give notice of the adjournment to the Electoral Commissioner.

s 131: Am 1928 No 55, sec 35 (3) (k); 1978 No 75, Sch 2 (77).

131A Votes at adjourned poll

Where the poll has been adjourned at one or more booths within a subdivision or subdivisions within an electoral district, only those electors who are enrolled for the subdivision or subdivisions within which the booth or booths is or are situated shall be entitled to vote as provided in this Act at the adjourned poll.

s 131A: Ins 1926 No 12, sec 9 (24). Am 1928 No 55, sec 20 (c). Subst 1973 No 44, sec 3 (g).

132 Limits of adjournments

No adjournment of the proceedings at any election shall be made or extend to the day named as the return day in the writ for such election, and if the polling has not been completed before the day named, the returning officer or the Electoral Commissioner, as the case may require, shall forthwith indorse that fact upon the writ, and shall return the same.

s 132: Am 1978 No 75, Sch 2 (78).

Division 16 General provisions

pt 5, div 16, hdg: Subst 1976 No 20, Sch 2 (15).

133 Election not to be questioned for want of or defect of title of officers

No election shall be liable to be questioned by reason only of any defect in the title, or any want of title, of the person by or before whom such election, or any polling for the same, has been held, if such person has been actually appointed to preside, or has been acting in the office giving the right so to preside at such election.

134 Nor for omission etc of a formal nature

No election for a district shall be void in consequence only of there having been no returning officer at the time of the issue of the writ, or of any delay in the return of the writ; and no periodic Council election shall be void in consequence only of there having been no Electoral Commissioner at the time of the issue of the writ, or of any delay in the return of the writ; and where any accidental or unavoidable impediment, misfeasance, or omission has happened, the Governor may take all such measures as may be necessary for removing such impediment, or rectifying such misfeasance or omission; or may by proclamation declare any or all of the proceedings at or for any election valid as to and notwithstanding such impediment, misfeasance, or omission; and every such proclamation shall state specifically the nature of the impediment, misfeasance, or omission, and shall be forthwith published in the Gazette.

s 134: Am 1978 No 75, Sch 2 (79).

135 Violation of secrecy by officers

If any returning officer or the substitute of any returning officer, or any deputy returning officer, poll clerk, clerical assistant or scrutineer in the discharge of his or her duties under this Act at or concerning any election, learns, or has the means of learning, for what candidate any person votes or has voted at such election, he or she shall not by word or act, or any other means whatsoever, directly or indirectly divulge or disclose, or aid in divulging or disclosing the same, save in answer to some question which he or she is legally bound to answer, or in compliance with the express provisions of the law relating to elections; and every such returning officer, substitute, deputy, poll clerk, clerical assistant or scrutineer who wilfully violates the provisions of this section shall be guilty of an indictable offence, and be liable to be fined any sum not exceeding 5 penalty units, or to be imprisoned for any term not exceeding six months, or to be both fined and imprisoned within such limits.

s 135: Am 1969 No 43, sec 5 (q); 1973 No 44, sec 3 (h); 1978 No 75, Sch 2 (80); 1992 No 112, Sch 1; 1999 No 94, Sch 4.143.

135A Electoral official to vacate office upon becoming a candidate

(1)  In this section, electoral official means the Principal Returning Officer, a returning officer, a substitute of a returning officer, an assistant returning officer, a deputy returning officer, a poll clerk, a clerical assistant appointed by a returning officer, a postal voting officer, a deputy postal voting officer, a clerical assistant appointed for the purposes of Division 11 or an assistant to the Electoral Commissioner.

(2)  Upon any electoral official becoming a candidate for an election, he or she vacates his or her office as an electoral official.

s 135A: Ins 1978 No 75, Sch 2 (81).

136 Penalty for neglect etc by returning officer

If any returning officer, or any person appointed to act as such returning officer, or his or her substitute, or deputy returning officer, at any election, is guilty of any wilful misfeasance, or wilful or negligent act of commission or omission in violation of any of the provisions herein contained and not otherwise provided for, he or she shall, for every such offence, be liable to a penalty not exceeding 10 penalty units.

s 136: Am 1969 No 43, sec 5 (r); 1992 No 112, Sch 1.

137–146 (Repealed)

s 137 and hdg: Rep 1918 No 40, sec 8.

ss 138–146: Rep 1918 No 40, sec 8.

Division 17 Bribery, treating, intimidation etc

pt 5, div 17, hdg: Subst 1976 No 20, Sch 2 (16).

147 Bribery etc

Every person shall be guilty of bribery who:

(a)  directly or indirectly, by himself or herself or by any other person on his or her behalf, gives or lends, or agrees to give or lend, or offers, promises, or procures, or promises or endeavours to procure, any money or valuable consideration to or for any elector or any other person on behalf of any elector, in order to induce any elector to vote or refrain from voting, or knowingly does any such act as aforesaid on account of such elector having voted or refrained from voting at any election,

(b)  directly or indirectly, by himself or herself or by any other person on his or her behalf, gives or procures, or agrees to give or procure, offers, promises, or promises to procure, or to endeavour to procure any office, place, or employment to or for any elector or any other person, or who retains or dismisses any elector or other person in or from any office, place, or employment in order to induce such elector to vote or refrain from voting, or knowingly does any such act as aforesaid on account of any elector having voted or refrained from voting at any election,

(c)  directly or indirectly, by himself or herself or by any other person on his or her behalf, makes any such gift, loan, offer, promise, procurement, or agreement as aforesaid to or for any person in order to induce such person to procure or endeavour to procure the return of any person to serve as a member or the vote of any elector at any election,

(d)  upon or in consequence of any such gift, loan, offer, promise, procurement, or agreement procures or engages, promises, or endeavours to procure the return of any person to serve as a member or the vote of any elector at any election,

(e)  advances or pays, or causes to be advanced or paid, any money to or for the use of any other person with the intent that such money or any part thereof shall be expended in bribery at any election, or who knowingly pays or causes to be paid any money to any person in discharge or repayment of any money wholly or in part expended in bribery at an election,

(f)  before, during, or after any election, directly or indirectly, by himself or herself or by any other person on his or her behalf, receives any money or valuable consideration on account of any person having voted or refrained from voting, or having induced any other person to vote or refrain from voting at any election,

(g)  before or during any election, directly or indirectly, by himself or herself or by any other person on his or her behalf, receives, agrees, or contracts for any money or valuable consideration, office, place, or employment for himself or herself or for any other person for voting or agreeing to vote, or for refraining or agreeing to refrain from voting, or for inducing any other person to vote or to refrain from voting at any election,

and any person or elector so offending is guilty of an offence and also incapable of voting at the election.

Maximum penalty: 100 penalty units or imprisonment for 3 years, or both.

s 147: Am 1969 No 43, sec 5 (s); 1978 No 75, Sch 2 (82); 1987 No 132, Sch 2 (27); 1990 No 111, Sch 1 (39).

148 Extended meaning of term “candidate”

For the purposes of sections 147, 149, 150, and 151, the words candidate at an election and the words candidate at any election shall include all persons elected to serve in Parliament at such election, and all persons nominated as candidates at such election, or who on or after the day of issuing the writ for such election, or after the dissolution or vacancy in consequence of which such writ has been issued, have declared their intention of becoming candidates at such election or their consent so to do. And the words at an election, at any election, and during any election shall mean and include the whole period from the day of nomination up to the day on which the returning officer or the Electoral Commissioner, as the case may be, publishes and declares the result of such election, both days inclusive.

s 148: Am 1928 No 55, sec 35 (3) (l); 1978 No 75, Sch 2 (83).

149 Offence of “treating”

Every candidate at an election who corruptly, by himself or herself or by or with any person, or by any other ways or means on his or her behalf, at any time either before or during any election, directly or indirectly gives or provides, or causes to be given or provided, or is accessory to the giving or providing, or pays or allows any person to pay on his or her behalf wholly or in part any expenses incurred for any meat, drink, entertainment, or provisions to or for any person, or horse or carriage hire or conveyance for any voter whilst at such election or whilst engaged in coming to or returning from such election, in order to ensure or forward his or her election, or for the purpose of corruptly influencing such person or any other person to give or refrain from giving his or her vote at such election, or on account of such person having voted or refrained from voting, or being about to vote or refrain from voting at such election, shall be deemed guilty of the offence of treating; and every elector who corruptly accepts or takes any meat, drink, refreshment, or provisions, horse or carriage hire or conveyance, so paid for, given, or provided shall be incapable of voting at such election.

150 Penalty for “treating”

Any person who is guilty of the offence of treating as defined in section 149, or who gives or causes to be given to any elector during any election on account of such elector having voted or being about to vote, any meat, drink, or entertainment by way of refreshment, or any money or ticket to enable such elector to obtain refreshment, shall be liable to a fine not exceeding 100 penalty units, or to imprisonment for a term not exceeding 3 years, or to both such fine and imprisonment, and shall also be incapable of voting at such election.

s 150: Am 1928 No 55, sec 35 (3) (m); 1969 No 43, sec 5 (t); 1987 No 132, Sch 2 (28); 1990 No 111, Sch 1 (40).

151 Intimidation

Every person who directly or indirectly, by himself or herself or by any other person on his or her behalf, makes use of or threatens to make use of any force, violence, or restraint, or inflicts or threatens the infliction by himself or herself or by or through any other person of any injury, damage, harm, or loss, or in any other manner practises intimidation upon or against any person in order to induce or compel such person to vote or refrain from voting, or on account of such person having voted or refrained from voting at any election, or who by abduction, duress, or any fraudulent device or contrivance impedes, prevents, or otherwise interferes with the free exercise of the franchise by any elector, or thereby compels or induces or prevails upon any elector either to give or refrain from giving his or her vote at any election, is guilty of an offence.

Maximum penalty: 100 penalty units or imprisonment for 3 years, or both.

s 151: Am 1921 No 19, sec 2 (38); 1928 No 55, sec 35 (3) (n); 1987 No 132, Sch 2 (29); 1990 No 111, Sch 1 (41).

151A Printing etc false information

(1)  Any person who:

(a)  prints, publishes or distributes any “how to vote” card, electoral advertisement, notice, handbill, pamphlet or card containing any representation of a ballot-paper or any representation apparently intended to represent a ballot-paper, and having thereon any directions intended or likely to mislead or improperly interfere with any elector in or in relation to the casting of his or her vote,

(b)  prints, publishes or distributes any “how to vote” card, electoral advertisement, notice, handbill, pamphlet or card containing any untrue or incorrect statement intended or likely to mislead or improperly interfere with any elector in or in relation to the casting of his or her vote, or

(c)  prints, publishes or distributes any “how to vote” card, electoral advertisement, notice, handbill, pamphlet or card using:

(i)  the name, an abbreviation or acronym of the name or a derivative of the name of a party respectively included in the Register of Parties kept under Part 4A (or a name or abbreviation resembling such a name, abbreviation, acronym or derivative) in a way that is intended or likely to mislead any elector, or

(ii)  the word “Independent” and the name or an abbreviation or acronym of the name or a derivative of the name or a party respectively included in that Register in a way that suggests or indicates an affiliation with that party,

shall be liable:

(d)  if the person is a corporation—to a penalty not exceeding 50 penalty units, or

(e)  in any other case—to a penalty not exceeding 10 penalty units or to imprisonment for a period not exceeding 6 months, or both.

(2)  Subsection (1) shall not prevent the printing, publishing or distributing of any “how to vote” card, not otherwise illegal, which contains instructions how to vote for any particular candidate or candidates, so long as those instructions are not intended or likely to mislead any elector in or in relation to the casting of his or her vote.

(3)  Subsection (1) (c) (ii) does not apply in a case where the word “Independent” is included in the name of the party as registered in the Register of Parties.

s 151A: Ins 1928 No 55, sec 35 (3) (o). Am 1969 No 43, sec 5 (u); 1978 No 75, Sch 2 (84); 1987 No 132, Schs 1 (64), 2 (30); 1988 No 20, Sch 20; 1990 No 111, Sch 1 (42); 1992 No 112, Sch 1.

151B Exhibition of posters

(1)  Any person who posts up or exhibits or permits or causes to be posted up or exhibited, any poster of any size exceeding the prescribed size, shall be liable to a penalty not exceeding 3 penalty units.

(2)  For the purpose of subsection (1), a poster shall be deemed to be posted up or exhibited if it is posted up or exhibited in or on any building, vehicle, vessel, hoarding or fence, or in or on any movable or immovable object in any place (whether it is or is not a public place and whether on land or water or in the air).

(2A)  A person shall not post up, or permit or cause to be posted up, a poster:

(a)  on or within any premises occupied or used by, or under the control or management of:

(i)  the Crown, any instrumentality or agency of the Crown, or any statutory body representing the Crown or any other body prescribed by the regulations as a statutory body representing the Crown, or

(ii)  any local authority, or

(b)  in the case of premises which have no one in occupation, on or within those premises, unless that person has obtained:

(i)  in the case of premises owned by one person alone, the permission in writing of that person, or

(ii)  in the case of premises owned by two or more persons, whether as joint tenants or as tenants in common or otherwise, the permission in writing of at least one of those persons.

(3)  Nothing in this section shall prohibit:

(a)  the posting up, exhibiting, writing, drawing or depicting of a sign on or at the office or committee room of a candidate or political party indicating only that the office or room is the office or committee room of the candidate or party, and specifying the name of the candidate, or the names of the candidates, or the name of the party concerned,

(b)  the projection by means of any cinematograph or other similar apparatus of any electoral matter on to any screen in any theatre or public hall the subject of an approval in force under Part 1 of Chapter 7 of the Local Government Act 1993 in relation to its use as a place of public entertainment,

(c)  the posting up, exhibiting, writing, drawing or depicting of any poster within a hall or room that is being or is about to be used for a meeting held by or on behalf of a candidate in connection with an election, or

(d)  the posting up or exhibition of any poster on or at the electoral office of any member.

(4)    (Repealed)

(5)  Any person who writes, draws or depicts any electoral matter directly on any roadway, footpath, building, vehicle, vessel, hoarding or place (whether it is or is not a public place and whether on land or water) shall be liable to a penalty not exceeding 3 penalty units.

(6)  In this section:

electoral matter means any matter which is intended or calculated or likely to affect or is capable of affecting the result of any election held or to be held under this Act or of any referendum of the electors held or to be held in accordance with the provisions of any Act or which is intended or calculated or likely to influence or is capable of influencing an elector in relation to the casting of his or her vote at any such election or referendum.

Electoral matter also includes the name of a candidate at any election, the name of the party of any such candidate, the name or address of the committee rooms of any such candidate or party, the photograph of any such candidate, and any drawing or printed matter which purports to depict any such candidate or to be a likeness or representation of any such candidate.

local authority means a council or a county council within the meaning of the Local Government Act 1993.

poster means any electoral matter printed, drawn or depicted on any material whatsoever and where any electoral matter is printed, drawn or depicted in sections, such sections, both severally and collectively, shall be deemed to be a poster.

premises includes any structure, building, vehicle or vessel or any place, whether built on or not, and any part thereof.

the prescribed size means an area which is not more than 8000 square centimetres.

(7)  Where premises referred to in paragraph (b) of subsection (2A) are subject to a lease for a term of six months or more, the reference in that paragraph to the owner of the premises shall be read as a reference to the lessee of the premises.

s 151B: Ins 1946 No 54, sec 28. Am 1949 No 23, sec 6 (c); 1969 No 43, secs 4 (1) (j), 5 (v); 1975 No 108, sec 9 (a); 1987 No 132, Sch 1 (65); 1989 No 11, Sch 1; 1992 No 112, Sch 1; 1995 No 11, Sch 1.

151C (Repealed)

s 151C: Ins 1949 No 23, sec 6 (d). Rep 1950 No 25, sec 2 (a).

151D Removal of illegal posters

The returning officer, any deputy returning officer, any officer appointed by the returning officer for the purpose or any member of the police force may remove or cause to be removed any poster exhibited or posted up in contravention of this Act, and such poster when so removed shall be confiscated and shall be forthwith destroyed.

s 151D: Ins 1949 No 23, sec 6 (d). Am 1950 No 25, sec 2 (b); 1975 No 108, sec 9 (b).

151E Name and address of author and printer to be printed on advertisements etc

(1)  Any person who prints, publishes or distributes any matter, being an advertisement, “how to vote” card, handbill, pamphlet, poster, or notice, containing any electoral matter as defined in section 151B (other than the announcement in a newspaper of the holding of a meeting), without:

(a)  the name and address of the person on whose instructions the matter was printed, and

(b)  the name of the printer and address at which it was printed,

being printed in legible characters thereon, shall be guilty of an offence and liable to a penalty not exceeding 5 penalty units or to imprisonment for a term not exceeding six months.

(2)  Where a newspaper contains an advertisement referred to in subsection (1) and the name of the printer of the newspaper and the address at which it was printed appear on the newspaper in accordance with any Act, subsection (1) does not apply so as to require that name and address to be printed on the advertisement.

s 151E: Ins 1973 No 44, sec 3 (i). Am 1992 No 112, Sch 1.

151F Distribution of electoral matter on polling-day

(1)  A person shall not, in a public place, distribute any electoral material on the polling-day for an election unless the material has been registered under section 151G.

Maximum penalty: 10 penalty units or imprisonment for 6 months.

(2)  For the purposes of this section and without limiting its operation, material shall be taken to be distributed if it is left in such a position and in such circumstances as to indicate that it is intended to be available for collection by members of the public who are in a public place.

(3)  In this section, electoral material means any “how to vote” card, handbill, pamphlet or card:

(a)  containing any representation of a ballot-paper or portion of a ballot-paper,

(b)  containing any representation apparently intended to represent a ballot-paper or portion of a ballot-paper, or

(c)  having on it any directions or suggestions (whether express or implied) in relation to the casting of votes.

s 151F: Ins 1987 No 132, Sch 1 (66). Am 1992 No 112, Sch 1.

151G Registration of electoral matter

(1)  For the purposes of section 151F, an application may be made, in accordance with the regulations, to the Electoral Commissioner for the registration of electoral material for a particular election.

(2)  An application must be made during the period commencing on the day of nomination for the election and ending on the day that is 8 days before the polling day for the election, or during such other period as is fixed by the writ for the election.

(2A)  However, an application may be made to the Electoral Commissioner (after the issue of the writ and before the day of nomination) for preliminary advice on whether electoral material may be registered, even though the material is incomplete.

(3)  An application must contain a draft or sample of the electoral material.

(4)  The Electoral Commissioner may allow the draft or sample to be altered or replaced before agreeing to registration.

(5)  Registration of the electoral material is effected by the issue of a certificate of registration (in a form approved by the Electoral Commissioner) in respect of a draft or sample of the electoral material.

(6)  The Electoral Commissioner shall register the electoral material if satisfied that registration is not prohibited by this section.

(7)  The Electoral Commissioner may however refuse to register the electoral material if the application for registration was not made in accordance with this section.

(8)  The Electoral Commissioner shall not register the electoral material if it appears to the Commissioner:

(a)  in the case of material that contains directions or suggestions (whether express or implied) as to how to vote in accordance with the ticket of a political party, group of candidates or candidate, that:

(i)  the party is not registered under Part 4A or the group or candidate is not registered under the Election Funding Act 1981, or

(ii)  the application was not made by the registered officer, by the candidates in the group or their official agent or by the candidate or the candidate’s official agent (respectively),

(b)  in the case of material that contains any representation or indication (whether express or implied) that any candidate is a member of, or pursues or supports any or all of the objects or platform (whether with or without modification) of, a particular political party or group of candidates, that:

(i)  the party is not registered under Part 4A or the group is not registered under the Election Funding Act 1981,

(ii)  the candidate’s affiliation with the party or group is not included in the Register of Candidates under that Act, or

(iii)  the application was not endorsed in writing by the registered officer or by the other candidates in the group or their official agent,

(c)  in the case of material that contains directions or suggestions (whether express or implied) as to how to vote in accordance with the ticket of a political party or group of candidates in respect of an electoral district, that:

(i)  the party or group has not endorsed a candidate for the district, or

(ii)  the material directs or suggests that a candidate not endorsed by it should be given the first preference vote,

(d)  in the case of material that contains directions or suggestions (whether express or implied) as to how to vote in accordance with the ticket of a political party or group of candidates in respect of a periodic Council election, that:

(i)  the party or group has not endorsed a candidate for the election, or

(ii)  the material directs or suggests that a candidate or candidates not endorsed by it should be given the first or highest preference or preferences,

(e)  in the case of material that contains directions or suggestions (whether express or implied) as to how to vote in accordance with the ticket of a candidate in respect of an electoral district or periodic Council election, that:

(i)  the candidate is not a candidate for that district, or

(ii)  the candidate is not a candidate in that election,

(f)  that the material is intended or likely to mislead or improperly interfere with any elector in or in relation to the casting of his or her vote, because of the use, in the material, of any matter suggesting or indicating party or group affiliation (whether or not that matter is the same as or similar to matter included in a register under the Election Funding Act 1981), or

(g)  that the material contains words that are obscene or offensive.

(9)  Registration may be unconditional or subject to conditions specified in the certificate of registration.

(10)  A certificate signed by the Electoral Commissioner and certifying that specified material was or was not registered on a specified day or during a specified period is admissible in proceedings for an offence under section 151F and is prima facie evidence of the matters certified.

(11)  Electoral material shall be taken to be registered in accordance with this section even though the material contains some differences from the draft or sample in respect of which the certificate of registration was issued, so long as the material is substantially the same as the draft or sample.

(12)  Registration of electoral material is not a defence to a prosecution for an offence under section 151A.

(13)  In this section:

electoral material has the same meaning as in section 151F.

official agent has the same meaning as in the Election Funding Act 1981.

s 151G: Ins 1987 No 132, Sch 1 (66). Am 1990 No 111, Sch 1 (43) (am 1991 No 94, Sch 2).

152 Persons incurring electoral expense without authority

Any person incurring or authorising any electoral expense on behalf of a candidate without the written authority of the candidate shall be guilty of a contravention of this Act and shall be liable to a penalty not exceeding 1 penalty unit.

s 152: Subst 1926 No 12, sec 13. Am 1969 No 43, sec 5 (w); 1992 No 112, Sch 1.

153 (Repealed)

s 153: Rep 1928 No 55, sec 33 (d).

154 Wagers etc on result of elections prohibited

Any person who makes or is concerned in any wager, bet, or other risk of any nature whatsoever upon the result of any election, shall, for every such offence, be liable to a penalty not exceeding 3 penalty units; and every such wager, bet, or other risk shall be and is hereby declared an illegal act.

s 154: Am 1969 No 43, sec 5 (x); 1992 No 112, Sch 1.

Division 18 Special provisions relating to the polling in Antarctica

pt 5, div 18: Ins 1987 No 132, Sch 1 (67).

154AA Definitions

In this Division:

Antarctic elector means an elector who:

(a)  is, in the course of his or her employment, in Antarctica on the polling day for an election, and

(b)  has made a request under section 154AD that he or she be treated, while he or she is in Antarctica, as an Antarctic elector.

Antarctica means the Australian Antarctic Territory and includes:

(a)  the Territory of Heard Island and McDonald Islands, and

(b)  Macquarie Island.

station means a research station in Antarctica that is operated by the Commonwealth.

transmit includes transmit by radio-telephone or telex.

ss 154AA–154AD: Ins 1987 No 132, Sch 1 (67).

154AB Antarctic Returning Officers and Assistant Returning Officers

(1)  There shall be an Antarctic Returning Officer, and an Assistant Antarctic Returning Officer, for each station.

(2)  Antarctic Returning Officers and Assistant Antarctic Returning Officers shall be appointed by the Electoral Commissioner by instrument in writing.

(3)  The person in charge of a station shall not be appointed to be the Antarctic Returning Officer, or Assistant Antarctic Returning Officer, for that station.

(4)  The person in charge of a station may, by instrument in writing, appoint a person (including the Assistant Antarctic Returning Officer) to act as the Antarctic Returning Officer for the station during any period, or during all periods, when the Antarctic Returning Officer for the station is absent from duty at the station, is absent from Antarctica, or is for any other reason unable to perform the functions of his or her office.

(5)  The person in charge of a station may, by instrument in writing, appoint a person to act as the Assistant Antarctic Returning Officer for the station during any period, or during all periods, when the Assistant Antarctic Returning Officer for the station is acting as Antarctic Returning Officer for the station, is absent from duty at the station, is absent from Antarctica, or is for any other reason unable to perform the functions of his or her office.

(6)  While a person is acting as the Antarctic Returning Officer, or as the Assistant Antarctic Returning Officer, for a station, he or she has and may exercise all the powers and shall perform all the functions, of the Antarctic Returning Officer, or the Assistant Antarctic Returning Officer, for the station, as the case requires.

ss 154AA–154AD: Ins 1987 No 132, Sch 1 (67).

154AC Application of this Part to polling in Antarctica

(1)  Except as provided by this Division, the provisions of Divisions 2, 3, 7, 8 (other than sections 103 (2) and (3), 108, 109 and 110) and 10–12 do not apply to the taking of a poll in Antarctica.

(2)  In the application, by virtue of this Division, of a provision of this Part to the taking of a poll in Antarctica:

(a)  a reference in that provision to the returning officer in relation to a polling place shall be read as a reference to the Antarctic Returning Officer in relation to a station, and

(b)  a reference in that provision to the poll clerk in relation to a polling place shall be read as a reference to the Assistant Antarctic Returning Officer in relation to a station.

ss 154AA–154AD: Ins 1987 No 132, Sch 1 (67).

154AD Antarctic electors

(1)  An elector who is, or expects to be, in the course of the elector’s employment, in Antarctica may, by notice given to the registrar for the subdivision of the district for which the elector is enrolled, request to be treated, while the elector is in Antarctica, as an Antarctic elector in relation to any election the polling day of which occurs while the elector is in Antarctica.

(2)  A notice shall be given to the registrar by lodging it with or sending it by post to the registrar.

(3)  A notice is not effective, in relation to an election, unless it is received by a registrar before noon on the day of nomination for the election.

(4)  Upon the receipt of a request to be treated as an Antarctic elector made by an elector, the registrar shall:

(a)  annotate the roll for the subdivision for which the elector is enrolled so as to indicate that the elector is an Antarctic elector, and

(b)  notify the Electoral Commissioner that the roll has been so annotated.

(5)  Notwithstanding anything in section 33 (1) or (2), while a person is entitled to be treated as an Antarctic elector by virtue of an annotation to the roll for a subdivision, the person is entitled to:

(a)  have his or her name retained on the roll for the subdivision, and

(b)  vote as an elector of the subdivision.

(6)  A registrar shall delete an annotation made under subsection (4) in relation to an elector immediately after becoming aware that the elector has ceased to be in Antarctica and shall notify the Electoral Commissioner accordingly.

ss 154AA–154AD: Ins 1987 No 132, Sch 1 (67).

154AE Arrangements for polling in Antarctica

(1)  If, in the case of a periodic election for the Council, the proceedings stand adjourned to polling day, the Electoral Commissioner shall immediately cause to be transmitted to the Antarctic Returning Officer at whose station the elector is based:

(a)  directions for the preparation by the Antarctic Returning Officer of ballot-papers for use in relation to the election, and

(b)  the name of the elector and the particulars relating to the elector that are entered on the roll.

(2)  If, in the case of an election for the Assembly, the proceedings on the day of nomination stand adjourned to polling day, a returning officer on the roll for whose subdivision there is an Antarctic elector in relation to the election shall immediately cause to be transmitted to the Antarctic Returning Officer at whose station the elector is based:

(a)  directions for the preparation by the Antarctic Returning Officer of ballot-papers for use in relation to the election, and

(b)  the name of the elector and the particulars relating to the elector that are entered on the roll for the subdivision.

(3)  If information is transmitted by the Electoral Commissioner or a returning officer to an Antarctic Returning Officer in pursuance of this section, both the Electoral Commissioner or the returning officer, as the case may be, and the Antarctic Returning Officer shall, immediately after the transmission, cause a statement in writing of the information transmitted to be prepared.

(4)  Sections 82–83B and 83H apply in relation to ballot-papers prepared under this section as if a reference in sections 83 and 83B and 83H to the printing of ballot-papers were a reference to such preparation.

s 154AE: Ins 1987 No 132, Sch 1 (67). Am 1990 No 111, Sch 1 (44).

154AF Ballot-papers to be signed or initialled

Section 102 applies to the polling at a station in Antarctica as if the reference in that section to the returning officer or deputy were a reference to the Antarctic Returning Officer for that station.

ss 154AF–154AP: Ins 1987 No 132, Sch 1 (67).

154AG Candidates not to take part in polling

A candidate shall not take part in any way in the conduct of the polling in Antarctica.

ss 154AF–154AP: Ins 1987 No 132, Sch 1 (67).

154AH The polling in Antarctica

(1)  The polling at a station in Antarctica shall be conducted as follows:

(a)  before any vote is taken, the Antarctic Returning Officer for the station shall exhibit the ballot-box empty, and shall then securely fasten its cover,

(b)  the poll shall be open during such hours on such days as the Antarctic Returning Officer, subject to subsection (2), directs, and

(c)  the Antarctic Returning Officer or the Assistant Antarctic Returning Officer shall, at all times at which the poll is open, be present in that part of the station at which the polling is taking place.

(2)  The polling at a station in relation to an election shall not continue beyond 6 pm by standard time in New South Wales (other than in the County of Yancowinna and Lord Howe Island) on the day of polling in the election.

ss 154AF–154AP: Ins 1987 No 132, Sch 1 (67).

154AI Entitlement of Antarctic electors to vote

An Antarctic elector whose name has been transmitted to the Antarctic Returning Officer for a station in pursuance of section 154AE (1) (b) or (2) (b), as the case may be, is entitled to vote at the station during the period when the poll is open at that station.

ss 154AF–154AP: Ins 1987 No 132, Sch 1 (67).

154AJ Questions to be put to voter

(1)  The Antarctic Returning Officer for a station shall put the following questions to each person claiming to vote at the station in an election or elections:

(a)  What is your full name?

(b)  Have you voted before in this election? or Have you voted in these elections? (as the case requires)

(2)  If a person who claims to vote at a station and to whom questions are put under this section:

(a)  refuses to answer fully any question so put to the person, or

(b)  does not answer the question referred to in subsection (1) (b) absolutely in the negative, when put to the person,

the person’s claim to vote at the station shall be rejected.

ss 154AF–154AP: Ins 1987 No 132, Sch 1 (67).

154AK Right of Antarctic elector to receive ballot-paper

The Antarctic Returning Officer or the Assistant Antarctic Returning Officer for a station shall, at the polling, give to each person claiming to vote at the station a ballot-paper for the district for which the person is enrolled, duly initialled by the Antarctic Returning Officer, if the name under which the person claims to vote has been transmitted to the Antarctic Returning Officer in pursuance of section 154AE (1) (b) or (2) (b), as the case may be, and the person’s claim to vote is not rejected.

ss 154AF–154AP: Ins 1987 No 132, Sch 1 (67).

154AL List of Antarctic electors to be marked

Immediately upon giving a ballot-paper to a person claiming to vote, the Antarctic Returning Officer or the Assistant Antarctic Returning Officer shall record on the statement prepared by him or her under section 154AE (3) the fact that the ballot-paper has been given to that person.

ss 154AF–154AP: Ins 1987 No 132, Sch 1 (67).

154AM Application of sections 103 (1) and 108

Sections 103 (1) and 108 (1) apply to the polling at a station as if:

(a)  each reference in those subsections to an unoccupied compartment of the booth were a reference to an unoccupied part of the station, and

(b)  section 103 (1) (c) were omitted.

ss 154AF–154AP: Ins 1987 No 132, Sch 1 (67).

154AN Proceedings by Antarctic Returning Officer on close of poll

At the close of the poll, the Antarctic Returning Officer shall, in the presence of the Assistant Antarctic Returning Officer:

(a)  open the ballot-box,

(b)  transmit, or cause to be transmitted, to the Electoral Commissioner:

(i)  particulars of each elector who has voted,

(ii)  unless subparagraph (iii) applies—particulars of the marking of each ballot-paper, and

(iii)  if the Antarctic Returning Officer is unable clearly to read or understand the particulars referred to in subparagraph (ii)—a statement to that effect together with such information relating to those particulars as the Antarctic Returning Officer thinks sufficient to explain that inability, and

(c)  cause a statement in writing of the information transmitted to be prepared.

ss 154AF–154AP: Ins 1987 No 132, Sch 1 (67).

154AO Result of the polling in Antarctica

(1)  Upon receipt of the particulars referred to in section 154AN (b) (ii), the Electoral Commissioner shall forthwith:

(a)  initial the back of a postal ballot-paper appropriate for the district for which the vote was cast,

(b)  cause those particulars to be transcribed onto the postal ballot-paper,

(c)  seal the postal ballot-paper in an envelope,

(d)  indorse the envelope with his or her signature, and

(e)  cause to be sent to the returning officer for the district to which the ballot-paper relates the envelope containing the postal ballot-paper.

(2)  A returning officer or deputy shall not mark a postal ballot-paper referred to in this section in a manner that is likely to enable the ballot-paper to be identified as representing the vote of an Antarctic elector.

(3)  Upon receipt of information under subsection (1), the Electoral Commissioner shall forthwith:

(a)  cause a statement in writing of that information to be prepared, and

(b)  cause to be sent to each returning officer for the district to which a ballot-paper referred to in paragraph (1) (b) relates particulars of the Antarctic electors who have voted in the election in relation to the district.

(4)  A reference in this Part to scrutiny:

(a)  includes a reference to scrutiny of any act or thing done in pursuance of subsection (1) (a) to (d), and

(b)  does not include a reference to scrutiny of:

(i)  any act or thing done in Antarctica, or

(ii)  the transmission of any information to or from Antarctica.

(5)  For the purposes of section 114L, a ballot-paper marked in accordance with subsection (1) (b) shall be deemed to have been used for voting in pursuance of this Part.

ss 154AF–154AP: Ins 1987 No 132, Sch 1 (67).

154AP Preservation of ballot-papers etc

(1)  As soon as practicable after the close of the poll for an election, the Antarctic Returning Officer for each station shall forward to the Electoral Commissioner a copy of the statements prepared by him or her under sections 154AE (3) and 154AN (c) and the ballot-papers prepared by him or her and used for voting in Antarctica.

(2)  The documents to which this subsection applies that are used at or in connection with an election shall be preserved in accordance with directions of the Electoral Commissioner for the purposes of this subsection until:

(a)  the election can no longer be questioned, or

(b)  the expiration of the period of 6 months commencing on the date of the declaration of the poll,

whichever later occurs.

(3)  Subsection (2) applies to the following documents:

(a)  the statements referred to in sections 154AE (3), 154AN (c) and 154AO (3) (a),

(b)  the postal ballot-papers referred to in section 154AO (1) (b),

(c)  the ballot-papers prepared by an Antarctic Returning Officer and used for voting in Antarctica.

ss 154AF–154AP: Ins 1987 No 132, Sch 1 (67).

Part 6 Court of Disputed Returns

pt 6: Subst 1928 No 55, sec 32 (am 1928 No 55, sec 9 (2)).

Division 1 Disputed elections and returns

154A Application of Division

This Division does not, except as provided in Division 4, apply to or in respect of an election referred to in section 22C or 22D of the Constitution Act 1902 or in clause 4 or 5 of Schedule 4 to the Constitution and Parliamentary Electorates and Elections (Amendment) Act 1978.

s 154A: Ins 1978 No 75, Sch 2 (85).

155 Method of disputing elections or returns

The validity of any election or return may be disputed by petition addressed to the Court of Disputed Returns, and not otherwise.

ss 155–157: Subst 1928 No 55, sec 32.

156 The Court of Disputed Returns

(1)  The Supreme Court shall be the Court of Disputed Returns, and shall have jurisdiction to try the petition.

(2)  The jurisdiction of the Supreme Court sitting as a Court of Disputed Returns may be exercised by a single judge.

ss 155–157: Subst 1928 No 55, sec 32.

157 Requisites of petition

Every petition disputing an election or return in this Part called “the petition” shall:

(a)  set out the facts relied on to invalidate the election or return,

(b)  contain a prayer asking for the relief the petitioner claims to be entitled to,

(c)  be signed by a candidate at the election in dispute or by a person who was qualified to vote thereat,

(d)  be attested by two witnesses whose occupations and addresses are stated,

(e)  be filed with the Prothonotary of the Supreme Court within forty days of the return of the writ.

ss 155–157: Subst 1928 No 55, sec 32.

158 Deposits as security for costs

At the time of filing the petition the petitioner shall deposit with the Prothonotary the sum of two hundred and fifty dollars as security for costs.

s 158: Subst 1928 No 55, sec 32. Am 1969 No 43, sec 4 (1) (k).

159 No proceedings unless requisites complied with

No proceedings shall be had on the petition unless the requirements of sections 157 and 158 are complied with.

s 159: Subst 1928 No 55, sec 32.

160 Right of Electoral Commissioner to be represented

The Electoral Commissioner shall be entitled by leave of the Court of Disputed Returns to enter an appearance in any proceedings in which the validity of any election or return is disputed, and to be represented and heard thereon, and in such case shall be deemed to be a party respondent to the petition.

s 160: Subst 1928 No 55, sec 32 (am 1928 No 55, sec 9 (2)).

161 Powers of Court

(1)  The Court of Disputed Returns shall sit as an open court and its powers shall include the following:

(i)  To adjourn,

(ii)  To compel the attendance of witnesses and the production of documents,

(iii)  To grant to any party to a petition leave to inspect in the presence of a prescribed officer the rolls and other documents (except ballot-papers) used at or in connection with any election and to take, in the presence of the prescribed officer, extracts from those rolls and documents,

(iv)  To examine witnesses on oath,

(v)  To declare that any person who was returned as elected was not duly elected,

(vi)  To declare any candidate duly elected who was not returned as elected,

(vii)  To declare any election absolutely void,

(viii)  To dismiss or uphold the petition in whole or in part,

(ix)  To award costs,

(x)  To punish any contempt of its authority by fine or imprisonment.

(2)  The court may exercise all or any of its powers under this section on such grounds as the court in its discretion thinks just and sufficient.

(3)  Without limiting the powers conferred by this section, it is hereby declared that the power of the court to declare that any person who was returned as elected was not duly elected, or to declare an election absolutely void, may be exercised on the ground that illegal practices were committed in connection with the election.

s 161: Subst 1928 No 55, sec 32.

162 (Repealed)

s 162: Subst 1928 No 55, sec 32. Rep 1973 No 44, sec 3 (j).

163 Inquiries by Court

(1)  The court shall inquire whether or not the petition is duly signed, and so far as rolls and voting are concerned may inquire into the identity of persons, and whether their votes were improperly admitted or rejected, assuming the roll to be correct, but the court shall not inquire into the correctness of any roll.

(2)  Where the court makes inquiries in relation to ballot-papers marked in Antarctica pursuant to the provisions of Division 18 of Part 5, a statement of the particulars of the marking of the ballot-papers prepared by the Electoral Commissioner under section 154AO is, unless the court otherwise orders, conclusive evidence of the particulars stated.

s 163: Subst 1928 No 55, sec 32. Am 1987 No 132, Sch 1 (68).

164 Voiding election for illegal practices

(1)  If the Court of Disputed Returns finds that a candidate has committed or has attempted to commit the offence of bribery or treating or undue influence, his or her election, if he or she is a successful candidate, shall be declared void.

(2)  No finding by the Court of Disputed Returns shall bar or prejudice any prosecution for any illegal practice.

(3)  The Court of Disputed Returns shall not declare that any person returned as elected was not duly elected or declare any election void:

(a)  on the ground of any illegal practice committed by any person other than the candidate and without his or her knowledge or authority, or

(b)  on the ground of any illegal practice other than bribery, treating, or corruption or attempted bribery, treating, or corruption,

unless the court is satisfied that the result of the election was likely to be affected, and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void.

ss 164–167: Subst 1928 No 55, sec 32.

165 Court to report cases of illegal practices

When the Court of Disputed Returns finds that any person has committed an illegal practice, the Prothonotary shall forthwith report the finding to the Governor.

ss 164–167: Subst 1928 No 55, sec 32.

166 Real justice to be observed

The court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.

ss 164–167: Subst 1928 No 55, sec 32.

167 Immaterial errors not to vitiate election

No election shall be voided on account of any delay in the declaration of nominations, the polling, or the return of the writ, or on account of the absence or error of or omission by any officer which did not affect the result of the election:

Provided that where any elector was, on account of the absence or error of, or omission by, any officer, prevented from voting in any election, the court shall not, for the purpose of determining whether the absence or error of, or omission by, the officer did or did not affect the result of the election, admit any evidence of the way in which the elector intended to vote in the election.

ss 164–167: Subst 1928 No 55, sec 32.

168 Evidence that person not permitted to vote

On the trial of any petition the court shall not admit the evidence of any witness that he or she was not permitted to vote in any election unless the witness satisfies the court:

(a)  that he or she claimed to vote, in the election, pursuant to that provision of this Act under which he or she was entitled or might be permitted to vote, and

(b)  that he or she complied with the requirements of this Act and the regulations made thereunder relative to voting by electors in so far as he or she was permitted so to do.

s 168: Subst 1928 No 55, sec 32. Am 1981 No 28, Sch 1 (20).

169 Decisions to be final

(1)  All decisions of the court shall be final and conclusive and without appeal, and shall not be questioned in any way.

(2)  No appeal shall lie to the Court of Appeal from any decisions of the court.

(3)  Subsection (2) does not limit the generality of subsection (1).

s 169: Subst 1928 No 55, sec 32. Am 1970 No 52, Second Sch (am 1972 No 41, Second Sch).

170 Copies of petition and order of court to be sent to Clerk of Assembly

(1)  The Prothonotary shall forthwith after the filing of a petition disputing an election for or the return of a member of the Legislative Assembly forward to the Clerk of the Legislative Assembly a copy of the petition, and after the trial of the petition shall forthwith forward to such clerk a copy of the order of the court.

(2)  The Prothonotary shall forthwith after the filing of a petition disputing a periodic Council election or the return of a member of the Legislative Council forward to the Clerk of the Legislative Council a copy of the petition and, after the trial of the petition, shall forthwith forward to that clerk a copy of the order of the court.

s 170: Subst 1928 No 55, sec 32. Am 1978 No 75, Sch 2 (86).

171 Counsel or solicitor

(1)  No party to the petition shall, except by consent of all parties, or by leave of the court, be represented by counsel or solicitor.

(2)  In no case shall more than one counsel or one solicitor appear on behalf of any party.

ss 171–174: Subst 1928 No 55, sec 32.

172 Costs

The court may award costs against an unsuccessful party to the petition and may in its discretion recommend that costs be paid by the Crown.

ss 171–174: Subst 1928 No 55, sec 32.

173 Deposits applicable for costs

If costs are awarded to any party against the petitioner, the deposit shall be applicable in payment of the sum ordered, but otherwise the deposit shall be repaid to the petitioner.

ss 171–174: Subst 1928 No 55, sec 32.

174 Other costs

All other costs awarded by the court, including any balance above the deposit payable by the petitioner, shall be recoverable as if the order of the court were a judgment of the Supreme Court, and such order may be entered as a judgment of the Supreme Court, and enforced accordingly.

ss 171–174: Subst 1928 No 55, sec 32.

175 Effect of decisions

Effect shall be given to any decision of the court as follows:

(i)  If any person returned is declared not to have been duly elected, he or she shall cease to be a member of the Legislative Assembly or Legislative Council, as the case may be,

(ii)  If any person not returned is declared to have been duly elected, he or she may take his or her seat accordingly,

(iii)  If any election is declared absolutely void a new election shall be held.

Whenever a new election is to be held pursuant to paragraph (iii) to return a member of the Legislative Assembly the Speaker shall issue the writ for such election or if there is no Speaker or if the Speaker is absent from New South Wales or by reason of illness or other cause is unable to do so the Governor may issue the writ.

Whenever a new periodic Council election is to be held pursuant to paragraph (iii) the Governor may issue the writ for that election.

s 175: Rep 1918 No 40, sec 8. Ins 1928 No 55, sec 32. Am 1959 No 1, sec 2; 1978 No 75, Sch 2 (87).

175A Power to make Rules of Court

(1)  Rules not inconsistent with this Act may be made under the Supreme Court Act 1970 for carrying this Part into effect, and in particular for regulating the practice and procedure of the court, and the forms to be used.

(2)  Subsection (1) does not limit the rule-making powers conferred by the Supreme Court Act 1970.

(3)  Notwithstanding the Supreme Court Act 1970, any provision of that Act and any provision of any rule made by or pursuant to that Act which is inconsistent with this Act shall, to the extent of such inconsistency and while such inconsistency continues to exist, not apply to or in respect of any proceedings under this Part.

s 175A: Ins 1928 No 55, sec 32. Am 1970 No 52, Second Sch (am 1972 No 41, Second Sch).

175AA Regulations re court fees

The Governor may make regulations fixing or otherwise relating to fees to be paid by parties in respect of the business of the court.

s 175AA: Ins 1970 No 52, Second Sch (am 1972 No 41, Second Sch).

Division 2 Qualifications and vacancies

175B Reference of question as to qualification or vacancy

Any question respecting the qualification of a member of the Legislative Assembly, or respecting a vacancy in the Legislative Assembly, may be referred by resolution of the Legislative Assembly to the Court of Disputed Returns, and the Court of Disputed Returns shall thereupon have jurisdiction to hear and determine the question.

s 175B: Ins 1928 No 55, sec 32.

175C President or Speaker to state case

When any question is referred to the Court of Disputed Returns under this Division, the Speaker shall transmit to the Court of Disputed Returns a statement of the question upon which the determination of the court is desired, together with any proceedings, papers, reports or documents relating to the question in the possession of the Legislative Assembly.

ss 175C–175G: Ins 1928 No 55, sec 32. Am 1978 No 75, Sch 2 (88).

175D Parties to the reference

The Court of Disputed Returns may allow any person who in the opinion of the court is interested in the determination of any question referred to it under this Division to be heard on the hearing of the reference, or may direct notice of the reference to be served on any person, and any person so allowed to be heard or so directed to be served shall be deemed to be a party to the reference.

ss 175C–175G: Ins 1928 No 55, sec 32. Am 1978 No 75, Sch 2 (88).

175E Powers of Court

On the hearing of any reference under this Division the Court of Disputed Returns shall sit as an open court and shall have the powers conferred by section 161 so far as they are applicable, and in addition thereto shall have power:

(a)  to declare that any person was not qualified to be a member of the Legislative Assembly,

(b)  to declare that any person was not capable of sitting as a member of the Legislative Assembly, and

(c)  to declare that there is a vacancy in the Legislative Assembly.

ss 175C–175G: Ins 1928 No 55, sec 32. Am 1978 No 75, Sch 2 (88).

175F Order to be sent to House affected

After the hearing and determination of any reference under this Division the Prothonotary shall forthwith forward to the Clerk of the Legislative Assembly a copy of the order or declaration of the Court of Disputed Returns.

ss 175C–175G: Ins 1928 No 55, sec 32. Am 1978 No 75, Sch 2 (88).

175G Application of certain sections

The provisions of sections 166, 169, 171, 172, 174, 175, and 175A, shall apply so far as applicable to proceedings on a reference to the Court of Disputed Returns under this Division.

ss 175C–175G: Ins 1928 No 55, sec 32. Am 1978 No 75, Sch 2 (88).

Division 3 Application of Division 2 to Council

pt 6, div 3 (s 175H): Ins 1978 No 75, Sch 2 (89).

175H Application of Division 2 to Legislative Council

(1)  The provisions of Division 2 apply to the reference of any question (other than a matter referred to in section 175I) respecting:

(a)  the qualification of a member of the Legislative Council or respecting a vacancy in the Legislative Council, or

(b)  the eligibility of a person, as referred to in section 22C (2) of the Constitution Act 1902 or in clause 4 (5) of Schedule 4 to the Constitution and Parliamentary Electorates and Elections (Amendment) Act 1978,

to the Court of Disputed Returns in the same way as they apply to the reference of any question respecting the qualification of a member of the Legislative Assembly or respecting a vacancy in the Legislative Assembly to the Court of Disputed Returns.

(2)  For the purposes of subsection (1):

(a)  a reference in Division 2 to the Speaker shall:

(i)  in relation to a question referred to in subsection (1) (a), be construed as a reference to the President, and

(ii)  in relation to a question referred to in subsection (1) (b), be construed as a reference to the Minister,

(b)  a reference in Division 2 to the Legislative Assembly shall be construed as a reference to the Legislative Council,

(c)  a reference in Division 2 to the Clerk of the Legislative Assembly shall be construed as a reference to the Clerk of the Legislative Council,

(d)  a reference in Division 2 to Division 2 shall be construed as a reference to Division 2 as applied by subsection (1), and

(e)  section 161 (1) (vi) and (vii) shall be deemed to be omitted.

pt 6, div 3 (s 175H): Ins 1978 No 75, Sch 2 (89).

Division 4 Casual vacancies in Council

pt 6, div 4 (ss 175I, 175J): Ins 1978 No 75, Sch 2 (89).

175I Application of Division

This Division applies only to and in respect of an election referred to in section 22C or 22D of the Constitution Act 1902 or in clause 4 or 5 of Schedule 4 to the Constitution and Parliamentary Electorates and Elections (Amendment) Act 1978.

pt 6, div 4 (ss 175I, 175J): Ins 1978 No 75, Sch 2 (89).

175J Application of certain sections

The provisions of sections 155, 156, 157, 158, 159, 161, 166, 167, 169, 171, 172, 173, 174, 175, 175A and 175AA apply to and in respect of an election to which this Division applies in the same way as they apply to and in respect of an election to which Division 1 applies but subject to the following modifications:

(a)  section 157 (c) shall be deemed to be amended by inserting after the word “thereat” the words “or by any person whose name is on a roll”,

(b)  section 161 (1) (vi) and (vii) shall be deemed to be omitted,

(c)  section 167 shall be deemed to be omitted and the following section inserted in its stead:

  

167 No election shall be voided on account of any failure to comply with any provision of any Act relating to the conduct of the election if the failure did not affect the result of the election.

(d)  section 175 shall be deemed to be omitted and the following section inserted in its stead:

  

175 If any person returned is declared not to be duly elected, he or she shall cease to be a member of the Legislative Council.

pt 6, div 4 (ss 175I, 175J): Ins 1978 No 75, Sch 2 (89).

Part 7 Miscellaneous provisions, penalties etc

176 Regulations

(1)  The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.

(1A)    (Repealed)

(2)  The Governor may, in such regulations, provide for any proceeding, matter, or thing for which express provision has not been herein made in order to give due effect to the intent and meaning of the provisions of this Act.

(3)  Where any alteration of a form in the Schedules is found necessary, or where it is found that the time allowed to do any act is clearly insufficient, and an alteration or extension of such time and any alteration of dates consequent thereon is shown to be necessary, the Governor may, by regulation or notification in the Gazette, declare that such alteration shall be made, and thereupon the same shall be made and take effect accordingly.

(4)  A provision of a regulation may:

(a)  apply generally or be limited in its application by reference to specified exceptions or factors,

(b)  apply differently according to different factors of a specified kind, or

(c)  authorise any matter or thing to be from time to time determined, applied or regulated by any specified person or body,

or may do any combination of those things.

(5)  A provision of a regulation may (without limiting any power conferred by this section or the Interpretation Act 1987) adopt a form approved under the Commonwealth Electoral Act 1918 of the Commonwealth for the purposes of a provision of that Act as the prescribed form for the purposes of a corresponding provision of this Act.

(6)  A regulation may create an offence punishable by a penalty not exceeding 5 penalty units.

s 176: Am 1928 No 55, sec 35 (3) (p); 1975 No 108, sec 9 (c); 1981 No 28, Sch 1 (21); 1987 No 48, Sch 32; 1987 No 173, Sch 3 (3); 1990 No 111, Sch 1 (45).

176A (Repealed)

s 176A: Ins 1918 No 40, sec 8. Rep 1928 No 55, sec 23 (a).

176B Disorderly conduct at public political meetings

(1)  Any person who, at any public meeting to which this section applies, acts in a disorderly manner for the purpose of preventing the transaction of the business for which the meeting is held shall be guilty of an offence against this Act.

(2)  This section applies to any lawful public political meeting held in relation to any election between the date of the issue of the writ for the election and the date of the return of the writ.

Maximum penalty: 5 penalty units.

s 176B: Ins 1918 No 40, sec 8. Am 1969 No 43, sec 5 (y); 1978 No 75, Sch 2 (90); 1987 No 132, Sch 2 (31); 1992 No 112, Sch 1.

176C Signature to electoral paper

(1)  Every electoral paper which by this Act or any regulations made thereunder has to be signed by any person shall be signed by that person with his or her personal signature.

(2)  Where a person who is unable to sign his or her name in writing makes his or her mark as his or her signature to an electoral paper, the mark shall be deemed to be his or her personal signature, if it is identifiable as such, and is made in the presence of a witness who signs the electoral paper as such witness.

(3)  Nothing in this section shall authorise any person to sign any electoral paper by a mark or otherwise than in his or her own handwriting in cases where this Act or the regulations require him or her to sign the electoral paper in his or her own handwriting.

(4)  A person shall not make the signature of any other person on an electoral paper.

(5)  Any person who contravenes any of the provisions of this section shall be liable to a penalty not exceeding 10 penalty units.

(6)  Nothing in this section shall affect the liability of any person to be proceeded against for forgery, but so that he or she shall not be liable to be punished more than once in respect of the same offence.

s 176C: Ins 1928 No 55, sec 23 (b). Am 1969 No 43, sec 5 (z); 1987 No 132, Sch 2 (32); 1992 No 112, Sch 1.

176D Untrue statements in forms

(1)  Any person who knowingly makes any untrue statement in any electoral paper, or in any information supplied to any officer for the purposes of the preparation, maintenance, or revision of rolls, shall be liable to a penalty not exceeding 10 penalty units or to imprisonment for a period not exceeding 6 months, or both.

(2)  Nothing in this section shall affect the liability of any person to be proceeded against in respect of any other offence, whether against this Act or otherwise, but so that he or she shall not be liable to be punished more than once in respect of the same offence.

s 176D: Ins 1928 No 55, sec 23 (b). Am 1969 No 43, sec 5 (aa); 1987 No 132, Sch 2 (33); 1992 No 112, Sch 1.

176E Witnessing electoral papers

Any person who:

(a)  signs his or her name as witness on any blank electoral paper, or

(b)  signs his or her name as witness on any electoral paper which has been wholly or partly filled up unless it has been signed by the person intended to sign it, or

(c)  signs his or her name as witness on any electoral paper unless he or she has seen the person whose signature he or she purports to witness, sign it, or

(d)  writes on any electoral paper as his or her own name:

(i)  the name of another person, or

(ii)  any name not being his or her own name,

shall be liable to a penalty not exceeding 10 penalty units.

s 176E: Ins 1928 No 55, sec 23 (b). Am 1969 No 43, sec 5 (ab); 1987 No 132, Sch 2 (34); 1992 No 112, Sch 1.

176F Forging or uttering electoral papers

Any person who:

(a)  forges any electoral paper, or

(b)  utters any forged electoral paper, knowing it to be forged,

shall be guilty of an offence and shall be liable to a penalty not exceeding 10 penalty units or to imprisonment for a period not exceeding 6 months, or both.

s 176F: Ins 1928 No 55, sec 23 (b). Am 1987 No 132, Sch 2 (35); 1990 No 111, Sch 1 (46); 1992 No 112, Sch 1.

177 Offence of stuffing ballot-box

Every person who knowingly places, or is privy to the placing, in a ballot-box any ballot paper which has not been lawfully issued to an elector, and been marked, filled up, or otherwise dealt with by him or her as by this Act required, and any elector who places in the ballot-box any paper other than the ballot-paper issued to him or her for that purpose, shall be guilty of an offence, and be liable to a penalty not exceeding 10 penalty units or to imprisonment for a period not exceeding 6 months, or both.

s 177: Am 1987 No 132, Sch 2 (36); 1990 No 111, Sch 1 (47); 1992 No 112, Sch 1.

178 Penalty on members of police force influencing voters etc

If any person, being at the time a member of the police force takes any part in any election (except by recording his or her vote) or seeks to influence in any manner any elector in giving his or her vote for any candidate or candidates, such person shall incur a penalty not exceeding 5 penalty units.

s 178: Am 1969 No 43, sec 5 (ac); 1978 No 75, Sch 2 (91); 1992 No 112, Sch 1.

179 Payment of expenses

The Governor may, from time to time by warrant under his or her hand addressed to the Treasurer, authorise and direct that all such moneys as are from time to time required for paying any expenses lawfully incurred under and in the execution of the provisions of this Act be paid out of the Consolidated Fund, and the same shall be so paid accordingly.

s 179: Am 1975 No 108, Sch 1; GG No 172 of 31.10.1986, p 5321.

180 Summary penalties for neglect

If in the opinion of the Electoral Commissioner any registrar, or deputy registrar, or other officer, has been guilty of any negligent act of commission or omission, contrary to the provisions of this Act, the Electoral Commissioner may, by writing under his or her hand, after calling upon any such officer to furnish any explanation he or she may think fit, personally or in writing, and after considering such explanation, recommend that the whole or any portion of the salary payable to such officer under the authority of this Act during the year then current shall be forfeited.

s 180: Am 1928 No 55, sec 10 (1) (f).

181 Penalty for disobedience

If any registrar, or other officer or person, or any member of the police force, is guilty of any wilful misfeasance, or wilful or grossly negligent act of commission or omission in contravention of the provisions of this Act, he or she shall be liable to a penalty not exceeding 3 penalty units, or, at the discretion of the court, to be imprisoned for any period not exceeding three months.

s 181: Am 1969 No 43, sec 5 (ad); 1992 No 112, Sch 1.

182 Rolls—business hours for registrars and correction of errors etc

(1)  The Electoral Commissioner may make rules and regulations as to the days, hours, and places on and at which any registrar or deputy registrar shall attend at his or her office or offices for the purposes of this Act, and as to what shall be deemed a reasonable price or payment for any rolls or other matters regarding which it is hereinbefore provided that a reasonable price be paid for the same.

(2)  Where any accidental or unavoidable impediment, misfeasance, or omission has happened in the preparation or transmission or printing of any roll, of what kind soever, the Governor may take all such measures as may be necessary for removing such impediment or rectifying such misfeasance or omission.

s 182: Am 1928 No 55, sec 10 (3) (a).

183 Proceedings for offences

Proceedings for an offence against this Act or the regulations are to be dealt with in a summary manner before a Local Court constituted by a Magistrate sitting alone.

s 183: Am 1975 No 108, Sch 1; 1982 No 168, Sch 1; 1990 No 111, Sch 1 (48).

184 Limitation of time etc for recovery of penalties etc

No person shall be liable to any penalty, forfeiture, or punishment imposed under this Act, unless the prosecution for the offence committed is commenced against such person within the space of twelve months next after such offence has been committed. Any proceedings for or in respect of any offence under this Act may be taken by any member of the police force, or by any person whomsoever, save where by this Act in any particular case some other person is charged with the duty of taking such proceedings.

s 184: Am 1969 No 43, sec 4 (1) (l).

185 Appropriations of fees and penalties

All moneys received by any officer under the provisions of this Act shall be paid to the Treasurer, and shall be deemed to be received on account of the Consolidated Fund.

s 185: Am 1975 No 108, Sch 1; GG No 172 of 31.10.1986, p 5321.

186 Provision as to Sunday, Good Friday and Christmas Day

Whenever any day or date provided or appointed by or under this Act for any purpose falls on a Sunday, or Good Friday, or Christmas Day, then such provision and appointment shall take effect as for the day following; and all further changes of time rendered necessary by any such alteration may lawfully be made.

Part 8

187, 188   (Repealed)

pt 8: Rep 1978 No 75, Sch 2 (92).

s 187: Rep 1978 No 75, Sch 2 (92).

s 188: Rep 1975 No 25, Sch 2.

Schedule 1

Number of Act	Title of Act	Extent of repeal
No 73, 1900	Federal Elections Act 1900	The whole
No 33, 1902	Parliamentary Electorates and Elections Act 1902	The whole
No 54, 1902	Women’s Franchise Act 1902	The whole
No 1, 1903	Parliamentary Elections (Amendment) Act 1902	Repealed by No 41, 1906, sec 3
No 13, 1903	Reduction of Members Referendum Act 1903	The whole
No 1, 1904	Electorates Redistribution Act 1904	The whole
No 41, 1906	Parliamentary Elections Act 1906	The whole
No 18, 1910	Parliamentary Elections (Second Ballot) Act 1910	The whole
No 9, 1911	Parliamentary Elections (Amendment) Act 1911	The whole

Schedules 2, 3 (Repealed)

sch 2: Rep 1928 No 55, sec 24 (1).

sch 3: Rep 1928 No 55, sec 24 (1).

Schedule 4

(Sections 82 and 115)

Parliamentary Electorates and Elections Act 1912

Ballot-paper

Place the number “1” in the square opposite the name of the candidate for whom you desire to give your first preference vote.

* You may, if you wish, vote for additional candidates by placing consecutive numbers beginning with the number “2” in the squares opposite the names of those additional candidates in the order of your preferences for them.

New South Wales

Electoral District of [here insert name of district]

Election of Member of the Legislative Assembly

Candidates

□  FLOYD, Monica **

□  MAGEE, Michael **

□  KAZZI, Maha **

□  HALL, Lara **

□  PRELL, James **

□  NGUYEN, Thang **

*  These words may be excluded where there are only 2 candidates.

**  Here insert, if appropriate, the name of a registered party or the word “Independent”.

sch 4: Rep 1918 No 40, sec 4 (xviii). Ins 1926 No 12, sec 8 (21). Subst 1928 No 55, sec 28 (4). Am 1975 No 108, Sch 1; 1979 No 39, Sch 1 (20); 1990 No 111, Sch 1 (49).

Schedule 4A

sch 4A: Ins 1978 No 75, Sch 2 (93). Subst 1987 No 173, Sch 2 (8). Am 1990 No 111, Sch 1 (50); 1991 No 20, Sch 2 (5). Subst 1999 No 70, Sch 1 [18].

Schedules 5–14 (Repealed)

sch 5: Subst 1918 No 40, sec 8. Am 1926 No 12, sec 9 (5) (d). Rep 1928 No 55, sec 24 (1).

sch 6: Rep 1918 No 40, sec 8.

sch 7: Rep 1928 No 55, sec 24 (1).

sch 8: Rep 1918 No 40, sec 8.

sch 9: Rep 1918 No 40, sec 8. Ins 1921 No 19, sec 2 (39). Am 1928 No 55, sec 20 (d). Rep 1929 No 33, sec 2 (1) (e).

sch 10: Rep 1918 No 40, sec 8.

sch 11: Subst 1918 No 40, sec 8. Am 1926 No 12, sec 9 (25); 1928 No 55, secs 20 (d), 25 (c); 1975 No 108, sec 9 (d). Rep 1987 No 132, Sch 1 (69).

sch 12: Rep 1918 No 40, sec 4 (xix). Ins 1921 No 19, sec 2 (39). Rep 1928 No 55, sec 22 (1) (c).

sch 13: Ins 1921 No 19, sec 2 (39). Subst 1926 No 12, sec 8 (22). Am 1928 No 55, secs 20 (d), 35 (3) (i) (ii); 1929 No 33, sec 5 (d). Subst 1941 No 6, sec 2 (2) (d); 1944 No 2, sec 2 (l); 1949 No 23, sec 4 (h); 1965 No 15, sec 2 (l). Rep 1969 No 43, sec 4 (1) (m).

sch 14: Ins 1926 No 12, sec 8 (22). Subst 1944 No 2, sec 2 (1). Am 1965 No 15, sec 2 (m). Rep 1969 No 43, sec 4 (1) (m).

Schedule 15

(Parliamentary Electorates and Elections Act 1912)

The elector must not mark a vote on the ballot-paper until after the elector has first exhibited the ballot-paper (in blank) to the Authorised Witness.

Postal ballot-paper

Place the number “1” in the square opposite the name of the candidate for whom you desire to give your first preference vote.

* You may, if you wish, vote for additional candidates by placing consecutive numbers beginning with the number “2” in the square opposite the names of those additional candidates in the order of your preferences for them.

Fold the ballot-paper so that the vote cannot be seen and place it in the envelope provided and fasten the envelope.

New South Wales

Electoral District of (here insert name of district)

Election of Member of the Legislative Assembly

Candidates

□  ............................................................

□  ............................................................

□  ............................................................

□  ............................................................

□  ............................................................

□  ............................................................

*  These words may be excluded where there are only 2 candidates.

sch 15: Ins 1926 No 12, sec 8 (22). Am 1928 No 55, sec 28 (5); 1941 No 6, sec 2 (2) (e). Subst 1944 No 2, sec 2 (1). Am GG No 214 of 18.11.1949, p 3420. Subst 1965 No 15, sec 2 (n). Am 1975 No 108, Sch 1; 1976 No 20, Sch 1 (10); 1979 No 39, Sch 1 (21); 1987 No 173, Sch 3 (4).

Schedule 15A

sch 15A: Ins 1978 No 75, Sch 2 (94). Subst 1987 No 173, Sch 2 (8). Am 1991 No 20, Sch 2 (5). Subst 1999 No 70, Sch 1 [19].

Schedules 16–18 (Repealed)

sch 16: Ins 1926 No 12, sec 8 (22). Subst 1928 No 55, sec 28 (6). Rep 1941 No 6, sec 2 (3) (d).

sch 17: Ins 1926 No 12, sec 8 (22). Subst 1928 No 55, sec 28 (7). Rep 1941 No 6, sec 2 (2) (f).

sch 18: Ins 1926 No 12, sec 8 (22). Subst 1928 No 55, sec 28 (8). Am 1941 No 6, sec 2 (6); 1975 No 108, Sch 1; 1978 No 75, Sch 2 (95). Rep 1979 No 39, Sch 1 (22).

Schedule 19 Procedure in relation to enforcement of provisions of section 34

(Section 34)

1 Notification in respect of offence

Subject to such directions as are issued by the Electoral Commissioner, the Registrar shall, if satisfied that a person has failed to comply with the requirements of section 34, forthwith notify such person in the prescribed form of such failure, and inform the person that he or she may reply by Statutory Declaration, setting out any facts relevant to the matter, and that he or she has the option of having the matter dealt with either by the Electoral Commissioner or by a Local Court.

2 Consent to matter being dealt with by Electoral Commissioner

Any person so notified who desires the matter to be dealt with by the Electoral Commissioner may notify the Registrar accordingly.

3 Proceedings upon receipt of consent to matter being dealt with by Electoral Commissioner

Upon the receipt from a person so notified of a notification consenting to the matter being dealt with by the Electoral Commissioner, the Registrar shall consider the statements contained in the Statutory Declaration (if any) submitted by the person, make such further inquiry as he or she deems necessary, and, unless he or she decides not to proceed further, transmit the Statutory Declaration (if any) and notification, with a report as to the facts and his or her opinion thereon, to the Electoral Commissioner.

4 Action by Electoral Commissioner upon receipt of report from Registrar

The Electoral Commissioner shall consider all the facts, and if satisfied that the person concerned is in default or has contravened the provisions of section 34, may make an order imposing upon that person a penalty not exceeding 0.1 penalty unit for a first offence, and not exceeding 0.1 penalty unit for any subsequent offence, and notify the Registrar thereof and of the time allowed for payment.

5 Penalty to be a debt due to Crown

Any penalty so imposed by the Electoral Commissioner shall be a debt due to the Crown.

6 Notification of imposition of penalty

The Registrar, upon receipt of advice from the Electoral Commissioner that a penalty has been so imposed upon any person, shall notify the person in the prescribed form.

7 Enforcement of penalties

Any order so made by the Electoral Commissioner imposing a penalty may be filed in any Local Court, and thereupon the order shall have effect and be enforceable as if it were an order of that Court.

8 Proceedings where matter not dealt with by Electoral Commissioner

Where any person to whom a notification pursuant to paragraph 1 has been sent fails, within the time allowed, to reply thereto, or does not within that time consent to the matter being dealt with by the Electoral Commissioner, the Registrar shall, subject to such directions as are issued by the Electoral Commissioner, if he or she is satisfied that such person has contravened section 34 of the Act, cause proceedings to be instituted against him or her in the Court of the district in which such person resides.

9 Deputy-Registrar may institute proceedings

Where the Registrar so directs, the Deputy-Registrar for the subdivision in which the defendant resides may institute proceedings in his or her own name, and in any such proceedings the authority of the Deputy-Registrar shall not be questioned.

10 Statutory declaration to be brought to notice of Court

If, in any case in which proceedings are instituted in a Local Court, the Registrar has received from the person concerned a Statutory Declaration in pursuance of paragraph 1 he or she shall, as far as it is practicable and necessary for him or her to do so, inquire into the truth of the statements therein set out, and shall, unless he or she withdraws the prosecution, cause the declaration to be brought to the notice of the Court.

11 Court to consider statutory declaration

The Court shall at the hearing of the case consider the Statutory Declaration (whether the defendant is present or not) as if the matter therein set out had been given in evidence before it.

12 Declaration by prosecuting officer to be considered by Court

In any prosecution in respect of any contravention of section 34 the prosecuting officer may lodge with the Court a statutory declaration in support of the charge, and it shall not then be necessary for him or her to attend at the hearing, and the Court shall proceed with the hearing and determination of the case in his or her absence, and shall consider the statutory declaration as if the matter set out therein had been given in evidence before it.

13 Document purporting to be a statutory declaration

For the purpose of paragraphs 10 and 12 any document purporting to be a statutory declaration shall be accepted as such by the Court without proof of the signatures thereon or proof of the authority of the person before whom it purports to have been made to take statutory declarations.

sch 19: Ins 1926 No 12, sec 9 (26). Am 1928 No 55, secs 9 (1) (a), 20 (d), 25 (a) (b); GG No 172 of 31.10.1986, p 5321; 1992 No 112, Sch 1.

Schedules 20, 21 (Repealed)

sch 20: Ins 1928 No 55, sec 30 (b) (am 1928 No 55, sec 9 (2)). Am 1935 No 31, sec 2 (g); 1941 No 6, sec 2 (5) (e); 1969 No 43, sec 5 (ae); 1975 No 108, sec 9 (e), Sch 1; 1978 No 75, Sch 2 (96); 1981 No 28, Sch 1 (22); GG No 172 of 31.10.1986, p 5321. Rep 1987 No 132, Sch 1 (69).

sch 21: Ins 1928 No 55, sec 5 (1) (b). Am 1949 No 23, sec 2 (k); 1969 No 43, sec 2 (1) (f). Rep 1979 No 39, Sch 1 (23).