Chapter 10 How are people elected to civic office?
Introduction. This Chapter deals with the election of persons to civic office. Those qualified for civic office are elected for 4-year terms under a system which is preferential (wherever 1 position must be filled) and proportional (wherever 2 or more positions must be filled). Voting is compulsory for residents but optional for non-resident ratepayers, occupiers and ratepaying lessees. Elections are conducted under the supervision of the general manager of the council or the Electoral Commissioner.When an area is not divided into wards, councillors are elected by the area. When it is divided, councillors may be elected by wards (or, if so decided at a referendum, by wards and area).
The mayor may be popularly elected or elected by the councillors from among their number. The choice of method depends on a constitutional referendum as referred to in sections 228 and 229. A popularly-elected mayor holds office for 4 years and is a councillor by virtue of being mayor. A mayor elected by the councillors holds office for 1 year. In each case, the mayor votes as mayor, not as a councillor, at council meetings. (See Chapter 9.)
266 Who has the right to be enrolled as an elector?
(1) A person who is entitled to vote at an election of members of the Legislative Assembly or an election of members of the Commonwealth House of Representatives is entitled to be enrolled as an elector for a ward if:(a) he or she is a resident of the ward, or(b) he or she is not a resident of the ward but is an owner of rateable land in the ward, or(c) he or she is an occupier, or ratepaying lessee, of rateable land in a ward.(2) A person who is disqualified by section 25 of the Parliamentary Electorates and Elections Act 1912 from having his or her name placed or retained on a roll under that Act is subject to the same disqualification in relation to a roll under this Act.
267 Who has the right to vote?
(1) A person whose name is on the roll kept under Division 2 of Part 6 for a ward is entitled to vote:(a) at an election of councillors for the ward, and(b) at an election of the mayor by all the electors of the area.(2) A person who changes his or her name from that on the roll may, until the roll is corrected, vote under the enrolled name.(3) The right of an enrolled person to vote at an election is not affected by:(a) a change of residence within a ward or within an area that is not divided into wards, or(b) a change in the qualification that entitles an enrolled person to vote.(4) A person who:(a) is qualified in respect of more than one parcel of land to be enrolled for a ward, and(b) is enrolled in respect of only one of the parcels, and(c) ceases to be qualified in respect of that parcel,is not disqualified from voting at an election held while the person is enrolled in respect of that parcel if the returning officer is satisfied that the person is then qualified in respect of another of the parcels.(5) This section does not confer a right to vote at an election on a person who by or under this Act is disqualified from voting, or is not qualified to vote, at the election.
Nothing in this Chapter entitles a person to more than one vote in one area in an election.Note. A person may not exercise more than one vote in any one area even if:• the person is entitled to be enrolled as an elector for more than one ward in the area; or the person’s entitlement is based on more than one of the criteria in section 266 (1) (a), (b) and (c), or• the person’s entitlement is based on the ownership or occupation of more than one parcel of land in the area.
269 Who is a “resident” for the purposes of this Part?
(1) For the purposes of this Part, a person is a resident of a ward if:(a) the person is, within the meaning of the Parliamentary Electorates and Elections Act 1912, enrolled on the relevant date on the roll for an electoral district, and(b) the person’s place of living as described on that roll is in the ward or (in the case of a person whose place of living is not described on that roll) the person’s place of living is in the ward.(2) The relevant date for the purposes of this section is:(a) the date on which the claim for enrolment is made, if the claim is for inclusion in the roll of residents of the ward, or(b) the closing date for the election referred to in Part 4, if the claim is for the purpose of voting at the election.(3) In this section, place of living includes the place of residence to which a person temporarily residing elsewhere intends to return in order to continue living there.
270 Who is an “owner of rateable land” for the purposes of this Part?
(1) For the purposes of this Part, a person is the owner of rateable land if:(a) the person is not a corporation, is the sole owner of the rateable land and does not own it as trustee, or(b) the person is not a corporation, is a joint or several owner of the rateable land and is nominated in writing as an elector by the only other owner of the land, or by a majority of all the owners of the land, or(c) the person is not a corporation, is not a nominee under paragraph (b) and is nominated in writing as an elector by a corporation which is the owner, or by trustees who are the owners, of the land, or(d) the person is a lessee of the land from the Crown and the land is rateable Crown land.(2) Land is not rateable land for the purposes of this Part if it is a lot in a strata plan that is registered under the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986 and is provided only for the purpose of parking a motor vehicle.(3) If there is more than one person who (by virtue of subsection (1)) is the owner of the same parcel of rateable land, only one of the persons is entitled to be enrolled as an elector for a ward.(4) If a corporation or trustees own more than one parcel of land in an area, or if joint or several owners of one parcel of land in an area are also joint or several owners of any other parcel of land in the area, it or they can nominate a person as the owner of rateable land only in respect of one of those parcels.(5) A nomination under this section is to be lodged with the general manager.
271 Who is an “occupier” or “ratepaying lessee” for the purposes of this Part?
(1) For the purposes of this Part, a person is an occupier of rateable land if the person has a legally enforceable right to continuous occupation of rateable land (jointly or severally, but not as owner or ratepaying lessee) for not less than 3 years following the relevant date.(2) If there is more than one such occupier of the same parcel of rateable land, only one of them is entitled to be enrolled as an elector for a ward.(2A) If a corporation or trustees is or are occupiers of more than one parcel of land in an area, or if joint or several occupiers of one parcel of land in an area are also joint or several occupiers of any other parcel of land in the area, it or they can nominate a person as the occupier of rateable land only in respect of one of those parcels.(3) For the purposes of this Part, a person is a ratepaying lessee of rateable land if the person is jointly or severally liable, under a lease in writing or other document of title relating to the land, to pay to any person the whole or any part of any rates that may, during the 3 years following the relevant date, be made or levied in respect of the land.(4) If there is more than one such ratepaying lessee of the same parcel of rateable land, only one of them is entitled to be enrolled as an elector for a ward.(4A) If a corporation or trustees is or are ratepaying lessees of more than one parcel of land in an area, or if joint or several ratepaying lessees of one parcel of land in an area are also joint or several ratepaying lessees of any other parcel of land in the area, it or they can nominate a person as the ratepaying lessee of rateable land only in respect of one of those parcels.(5) The relevant date for the purposes of this section is:(a) the date on which the claim for enrolment is made, if the claim is for inclusion in the roll of occupiers and ratepaying lessees, or(b) the closing date for the election referred to in Part 4, if the claim is for the purpose of voting in the election.
(1) If two or more persons apply to be enrolled as an elector for a ward as owners of the same parcel of rateable land, and those persons do not nominate one of their number to be so enrolled, the general manager may do so instead.(2) Likewise, if two or more persons apply to be enrolled as an elector for a ward as occupiers, or as ratepaying lessees, or as occupier and ratepaying lessee, of the same parcel of land, and those persons do not nominate one of their number to be so enrolled, the general manager may do so instead.
273 Application of Part to area not divided into wards
If an area is not divided into wards, this Part applies to the area in the same way as it applies to a ward.
274 What are the qualifications for civic office?
A person is qualified to hold civic office if:(a) the person is entitled to be enrolled as an elector, and(b) the person is not disqualified from holding civic office by this Act, and(c) the person is not prevented from being elected to civic office by section 276 (2).
275 Who is disqualified from holding civic office?
(1) A person is disqualified from holding civic office:(a) while disqualified from being an elector, or(b) while a judge of any court of the State or the Commonwealth, or(c) while serving a sentence (including a sentence the subject of an intensive correction order) for a serious indictable offence or any other offence, except a sentence imposed for a failure to pay a fine, or(d) if he or she is while holding that office, or has been within 2 years before nomination for election, election or appointment to the office, convicted of an offence under the regulations made for the purposes of section 748 (3), or(e) if he or she is while holding that office, or has been within 5 years before nomination for election, election or appointment to the office, convicted of an offence referred to in Part 4 of the Crimes Act 1900 (Offences relating to property), or(f) while a surcharge, payable by the person under Part 5 of Chapter 13 and not paid within 6 months after it became payable, remains unpaid, or(g) while disqualified from holding a civic office under a provision of this Act or Part 4A of the Crimes Act 1900 (Corruptly receiving commissions and other corrupt practices), or(h) while disqualified from managing a corporation under Part 2D.6 of the Corporations Act 2001 of the Commonwealth.(2) A person is disqualified from holding civic office on a council if he or she is an employee of the council or holds an office or place of profit under the council.(3) A person is not disqualified from holding a civic office only because, while holding the civic office, the person ceases to be a resident in the area, to own property in the area or to be an occupier or ratepaying lessee of rateable land in the area.(4) A person is taken not to be disqualified from holding civic office if the Administrative Decisions Tribunal, in proceedings under section 329, has refused to order the dismissal of the person in circumstances to which subsection (4) of that section applies.Note. If a person while holding civic office becomes subject to disqualification under this section, the office becomes vacant under section 234.
276 What is the effect of disqualification?
(1) A person who is disqualified from holding civic office may not be elected or appointed to a civic office and may not hold, or act in, a civic office.(2) A person who vacates the office of councillor by resignation or disqualification may not be elected to a civic office in the same area (and may not hold, or act in, a civic office in the same area) until:(a) if the person is not disqualified—the first anniversary of the vacation of office, or the next ordinary election for the area (whichever occurs first), or(b) if the person is disqualified—the first ordinary election after the person ceases to be disqualified.(3) A person convicted of an offence under Part 6 of Chapter 16 for acting in a civic office while disqualified under section 275:(a) is disqualified from holding civic office for 7 years from the time of conviction, unless the court determines a shorter period, and(b) is not entitled to receive or recover from the council any money relating to the civic office in respect of the period in which the person is disqualified.(4) The council may, within 2 years after the person so convicted receives money from the council relating to the civic office in respect of the period in which the person is disqualified, recover the money from the person as a debt.
277 May the holder of a civic office be re-elected?
The holder of a civic office is eligible for re-election, subject to this Act.
Part 3 What is the system of election?
278 Election of councillors for an area not divided into wards
The councillors for an area that is not divided into wards are to be elected by an electorate comprising all the electors for the area.
279 Alternative methods for election of councillors for an area divided into wards
(1) The councillors for an area that is divided into wards are to be elected in accordance with either section 280 or 281.(2) The method of election under section 280 (method 1) is to apply unless a decision made at a constitutional referendum is in force which:(a) requires the method of election under section 281 (method 2) to apply, and(b) specifies the number of councillors each of whom is to be elected by an electorate comprising all the electors for a ward and the number of councillors (if any) each of whom is to be elected by an electorate comprising all the electors for the area.
280 Ward election of councillors—method 1
(1) Each councillor for an area that is divided into wards may be elected by an electorate comprising all the electors for a ward.(2) The same number of councillors is to be elected for each ward. The mayor is to be excluded when determining that number if the mayor is to be elected by all the electors for the area.(3) The same person is not to be a candidate for election as a councillor by the electors for more than one ward, unless the election is for the mayor as such.
281 Election of councillors partly by wards, partly by area—method 2
(1) The councillors for an area that is divided into wards may be elected:(a) as to some of them—each by an electorate comprising all the electors for a ward, and(b) as to the others—by an electorate comprising all the electors for the area.(2) The same number of councillors is to be elected for each ward. The mayor is to be excluded when determining that number if the mayor is to be elected by all the electors for the area.(3) If a person is a candidate for election as a councillor by the electors for a ward, the person must not at the same time be a candidate for election as a councillor by the electors for another ward or a candidate for election as a councillor by all the electors for the area, unless the election is for the mayor as such.
(1) The mayor of an area who is to be elected by the electors is to be elected by an electorate comprising all the electors for the area, even if the area is divided into wards.(2) The mayor of an area who is to be elected by the councillors for the area is to be elected by the councillors from among their number.(3) A mayor elected for an area is one of the councillors of the council for the area.
(1) A person may be a candidate for election as mayor and a candidate for election as a councillor at the same time.(2) If a person is elected by the electors as mayor and the person is also a candidate for election as a councillor, the votes cast for the person as a councillor are not to be counted for that person but are to be distributed as prescribed by the regulations.(3) (Repealed)
284 Voting system for election of the mayor by all the electors of the area
The voting system in a contested election of the mayor by all the electors of the area is to be optional preferential.
285 Voting system for election of councillors
The voting system in a contested election of a councillor or councillors is to be:(a) optional preferential, if only one councillor is to be elected, or(b) proportional, if 2 or more councillors are to be elected.
Whichever voting system applies, electors on the residential roll must vote at a contested election unless exempt from voting under this Act. Electors on the non-residential roll or the roll of occupiers and ratepaying lessees may vote, but are not required to vote.
Part 4 When are elections held?
287 When is an ordinary election of councillors held?
(1) An ordinary election of the councillors for an area is to be held on the second Saturday of September 2008 and on the second Saturday of September in every fourth year after 2008.(2) An election of the councillors for an area is to be held on a Saturday proclaimed for the purpose if:(a) the area is constituted after the commencement of this Part, or(b) all civic offices in relation to the council of the area are declared to be vacant under section 255, or(c) the council is declared to be non-functioning under section 257.
288 Delayed elections of councillors
(1) If the Minister is of the opinion that it would be impracticable or inconvenient to hold an election as provided by section 287, the Minister may, by order published in the Gazette, appoint a subsequent Saturday for the election.(2) The subsequent Saturday must not be more than 28 days later than the day when the election should have been held.(3) If a day is appointed under this section for an election, the retiring councillors continue in office until the election is held and, if a retiring councillor resigns in the meantime, his or her office is vacant until the election is held.
289 When is an election of a mayor by the electors to be held?
(1) The election of a mayor by the electors for an area is to be held (unless its purpose is the filling of a casual vacancy):(a) on the day on which the election of the councillors for the area is held, or(b) if the election of the councillors is uncontested, on the day on which the election of the councillors would have been held if it had been contested.(2) If a mayor of an area is to be elected by the electors on the day on which a contested election of councillors for the area is to be held and the election of the councillors is delayed for any reason, the election of the mayor is also delayed but must be held on the same day as the delayed election of the councillors.
290 When is an election of a mayor by the councillors to be held?
(1) The election of the mayor by the councillors is to be held:(a) if it is the first election after an ordinary election of councillors—within 3 weeks after the ordinary election, or(b) if it is not that first election or an election to fill a casual vacancy—during the month of September, or(c) if it is the first election after the constitution of an area—within 14 days after the appointment of a provisional council or the first election of the council if a provisional council is not appointed, or(d) if the relevant council is a non-functioning council, or a council of which all civic offices have been declared vacant, and the election is the first to be held after the appointment or election of the councillors—within 14 days after the appointment or election of the councillors.(2) If the councillors fail to elect a mayor as required by this section, the Governor may appoint one of the councillors as the mayor.Note. The filling of a casual vacancy in the office of a mayor elected by the councillors is dealt with in section 295.
Part 5 How are casual vacancies filled?
If a casual vacancy occurs in a civic office, the office is to be filled by a by-election, subject to this Part.Note. The circumstances in which casual vacancies occur are specified in Chapter 9.
292 When is a by-election to be held?
A by-election to fill a casual vacancy in the office of a councillor or a mayor elected by the electors of an area is to be held on a Saturday that:(a) falls not later than 3 months after the vacancy occurs, and(b) is fixed by the general manager (in relation to an election administered by the general manager) or the Electoral Commissioner (in relation to an election administered by the Electoral Commissioner).
(1) If the Minister is of the opinion that it would be impractical or inconvenient to hold a by-election as provided by section 292, the Minister may, by order published in the Gazette, appoint a subsequent Saturday for the by-election.(2) The subsequent Saturday must not be more than 28 days later than the day when the by-election should have been held.
294 Dispensing with by-elections
(1) This section applies if a casual vacancy occurs in the office of a councillor, including a mayor elected by the electors of an area, within 18 months before the date specified for the next ordinary election of the councillors for the area.(2) If such a casual vacancy occurs in the office of a councillor (but not the office of a mayor elected by the electors), the Minister may, on the application of the council:(a) order that the vacancy not be filled, or(b) order the holding on a stated day of a by-election to fill the vacancy and revoke any earlier order made under paragraph (a).(3) If such a casual vacancy occurs in the office of a mayor elected by the electors, the casual vacancy is to be filled by the Governor appointing to the vacant office a councillor nominated by the council.(4) If the council does not nominate a councillor for the purposes of subsection (3), the Governor may appoint one of the councillors to the vacant office.
294A Casual vacancy not to be filled where councillor numbers reduced
(1) A casual vacancy in the office of a councillor (but not a mayor elected by the electors) is not to be filled if the Minister has approved an application under section 224A to reduce the number of councillors but the reduction has not yet taken effect.(2) However, subsection (1) does not authorise a vacancy to remain unfilled if the vacancy will result in the council having less councillors than the reduced number approved by the Minister under section 224A.(3) Subsection (1) applies to a casual vacancy whether occurring before or after the commencement of this section or before or after the approval of the relevant application under section 224A.
294B Casual vacancy not to be filled where councillor numbers reduced—approved by constitutional referendum
(1) Despite section 17 (2), a casual vacancy in the office of a councillor (but not a mayor elected by the electors) is not to be filled if a constitutional referendum has approved a reduction in the number of councillors but the reduction has not yet taken effect.(2) However, subsection (1) does not authorise a vacancy to remain unfilled if the vacancy will result in the council having less councillors than the reduced number approved by the constitutional referendum.(3) Subsection (1) applies to a casual vacancy whether occurring before or after the commencement of this section or before or after the constitutional referendum.
295 Casual vacancy in office of mayor elected by the councillors
(1) If a casual vacancy occurs in the office of a mayor elected by the councillors, the vacancy is to be filled at a meeting of the council to be held within 14 days after the occurrence of the vacancy.(2) If the councillors fail to elect a mayor as required by this section, the Governor may appoint one of the councillors as the mayor.
Part 6 How are elections conducted?
Division 1 Administration of elections
296 Elections to be administered by general manager of council or Electoral Commissioner
(1) Elections for the purposes of this Chapter are to be administered by the general manager of the council concerned.Note. Section 18 provides that certain provisions of this Act (relating to the conduct of elections) apply to council polls and constitutional referendums, with such modifications as may be necessary, in the same way as they apply to elections.(2) Despite subsection (1), a council may resolve that the council is to enter into a contract or make arrangements with the Electoral Commissioner for the Electoral Commissioner to administer all elections for the council for the purposes of this Chapter.(3) Such a resolution may only be made within 12 months after an ordinary election of councillors for the council’s area.(4) If such a contract is entered into or such arrangements made, the Electoral Commissioner is to administer all the elections of the council until the conclusion of the following ordinary election for councillors.(5) In this section, election does not include an election of the mayor or a deputy mayor by the councillors.
296A Elections administered by a general manager
(1) This section applies to an election administered by the general manager of a council.(2) The general manager is to appoint a returning officer and a substitute returning officer for the election. In the absence of the returning officer, the substitute returning officer is to exercise the functions of the returning officer.(3) The returning officer is to appoint one or more electoral officials.(4) An employee of a council for an area cannot be appointed as a returning officer or substitute returning officer for that area. However, an electoral official may be an employee of the council.(5) A general manager cannot be appointed as a returning officer, substitute returning officer or electoral official for any area.(6) For the purpose of conducting an election, the returning officer and substitute returning officer for an area are entitled to access to any relevant records of the council for the area.(7) For the purpose of administering an election, the general manager is to:(a) appoint the polling places, and(b) determine the fees payable to the returning officer, substitute returning officer and electoral officials.(8) For the purpose of conducting an election, the returning officer is to determine any matter not provided for by this Act or the regulations.(9) Expenses incurred by the returning officer, substitute returning officer and electoral officials in connection with an election are to be met by the council.(10) The returning officer and the substitute returning officer must not vote at any election that they are conducting.
296B Elections administered by the Electoral Commissioner
(1) This section applies to an election administered by the Electoral Commissioner.(2) The Electoral Commissioner is to appoint a returning officer and a substitute returning officer for each area. The returning officer is to conduct elections on behalf of, and under the direction of, the Electoral Commissioner. In the absence of the returning officer, the substitute returning officer is to exercise the functions of the returning officer.(3) The returning officer is to appoint one or more electoral officials.(4) An employee of a council for an area cannot be appointed as a returning officer or substitute returning officer for that area. However, an electoral official may be an employee of the council.(5) For the purpose of conducting an election, the returning officer and substitute returning officer for an area are entitled to access to any relevant records of the council for the area.(6) For the purpose of conducting an election, the Electoral Commissioner is to:(a) appoint the polling places, and(b) determine the fees payable to the returning officer, substitute returning officer and electoral officials, and(c) determine any matter not provided for by this Act or the regulations.(7) The Electoral Commissioner, the returning officer and the substitute returning officer must not vote at any election that they are conducting.
297 Delegation of functions by the Electoral Commissioner
The Electoral Commissioner may delegate to a person any of the Electoral Commissioner’s functions under this Act, other than this power of delegation.
(1) The Electoral Commissioner is to keep a roll for each area of persons who, in the opinion of the Electoral Commissioner, are entitled, in accordance with Part 1, to be enrolled as electors because they are residents of the area.(2) The Electoral Commissioner may use the roll used for elections of the Legislative Assembly or for Commonwealth elections as a basis for the residential roll.(3) The Electoral Commissioner is to confirm as the residential roll for an election the roll referred to in subsection (1) if, in the Commissioner’s opinion, the roll contains the names of the persons who on the closing date are qualified for inclusion in the residential roll as electors.
(1) Not later than the closing date for an election, the general manager is to prepare a roll of non-resident owners of rateable land for confirmation as the roll of non-resident owners of rateable land within the area.(2) The roll of non-resident owners of rateable land lapses after the election for which it is prepared, and it consists only of the names of those non-resident owners of rateable land who have applied for the inclusion of their names for the purposes of the election for which it is being prepared.(3) The general manager (in relation to an election administered by the general manager) is to confirm as the roll of non-resident owners of rateable land for the election the roll referred to in subsection (1) if, in the general manager’s opinion, the roll contains the names of the persons who on the closing date are qualified for inclusion in the roll of non-resident owners of rateable land.(4) The Electoral Commissioner (in relation to an election administered by the Electoral Commissioner) is to confirm as the roll of non-resident owners of rateable land for the election a roll certified by the general manager as being, in the general manager’s opinion, a roll of the persons who on the closing date are qualified for inclusion in the roll of non-resident owners of rateable land.
300 Roll of occupiers and ratepaying lessees
(1) Not later than the closing date for an election, the general manager is to prepare the roll of occupiers and ratepaying lessees for confirmation as the roll of occupiers (of land within the area) and ratepaying lessees (of rateable land within the area) for the election.(2) The roll of occupiers and ratepaying lessees lapses after the election for which it is prepared, and it consists only of the names of those occupiers and ratepaying lessees who have applied for the inclusion of their names for the purpose of the election for which it is being prepared.(3) The general manager (in relation to an election administered by the general manager) is to confirm as the roll of occupiers and ratepaying lessees for the election the roll referred to in subsection (1) if, in the general manager’s opinion, the roll contains the names of the persons who on the closing date are qualified for inclusion in the roll of occupiers and ratepaying lessees.(4) The Electoral Commissioner (in relation to an election administered by the Electoral Commissioner) is to confirm as the roll of occupiers and ratepaying lessees for the election a roll certified by the general manager as being, in the general manager’s opinion, a roll of the persons who on the closing date are qualified for inclusion in the roll of occupiers and ratepaying lessees.
(1) The roll of electors for an area is a composite roll, consisting of the residential roll kept and confirmed under section 298 for the area, the non-residential roll prepared and confirmed under section 299 for the area, and the roll of occupiers and ratepaying lessees prepared and confirmed under section 300 for the area.(2) For each election, the roll of electors is to be compiled in accordance with this Division and printed in the form prescribed by the regulations.(3) If an area is divided into wards, the roll of electors is to be prepared separately for each ward or, if the roll is for a by-election to fill a casual vacancy, only for the ward in which the by-election is to be held.
302 Public inspection of roll of electors
(1) The Electoral Commissioner is to make the latest copy of the residential roll available for public inspection at any reasonable time during office hours at the office of the Electoral Commissioner and at any other place determined by the Electoral Commissioner.(2) The general manager is to make the latest copy of the non-residential roll and of the roll of occupiers and ratepaying lessees (once it is prepared) available for public inspection at any reasonable time during office hours at the office of the council.
303 Making of claims for inclusion in the roll
(1) A person may lodge with the Electoral Commissioner (in the case of the residential roll) or the general manager (in the case of another roll):(a) a claim for the inclusion of his or her name in the roll or for the amendment of any particulars entered in the roll against the name, or(b) an objection to the inclusion in the roll of his or her name or the name of another person, or(c) an objection to the inclusion in the roll of specified particulars entered against his or her name or the name of another person.(2) Within 7 days after the lodging of a claim for inclusion in, or of an objection to an entry in, a roll, the Electoral Commissioner or general manager:(a) is to decide whether the claim or objection is to be allowed or disallowed, and(b) as soon as practicable, is to make such entries in, or alterations to, the roll as give effect to the decision, and(c) is to serve notice of the decision on the claimant or objector and, in the case of an objection, on any other person to whom the objection relates.(3) A person dissatisfied with the decision of the Electoral Commissioner or general manager may apply to the Administrative Decisions Tribunal for a review of the decision.(4) The Electoral Commissioner or general manager is to make as soon as practicable such entries in the appropriate roll as are necessary to give effect to the decision on an application to the Administrative Decisions Tribunal.(5) Despite this section, the roll of electors is not to be altered between the closing date for an election and the end of polling day.
304 Enrolment if qualified in more than one respect
(1) A person may not, in respect of the same ward, be enrolled more than once in a roll of electors.(2) A person who is qualified for enrolment in respect of more than one ward of an area may be enrolled only in respect of the ward for which the person is qualified as a resident or, if the person is not so qualified:(a) the ward specified in a notice given by the person to the general manager before the closing date for the election, or(b) if no such notice is given, a ward chosen by the general manager.
305 Can an elector vote if his or her name is not on the roll of electors?
An elector for an area:(a) whose name is not on the roll of electors for an election, and(b) who claims to be entitled to vote at the election, and(c) who makes a declaration in the form prescribed by the regulations that is written or printed on an envelope that is addressed to the returning officer,is to be given a ballot-paper by the returning officer or electoral official in charge of a polling place and permitted to vote in accordance with this Act.Note. A person may apply under section 739 for the omission of the person’s place of living from a roll.
Division 3 Nominations and election
(1) A person who is not duly nominated is not eligible for election as a councillor, or for election by the electors of an area as mayor.(2) To be duly nominated for election as a councillor for an area, or for election as mayor of an area by the electors of an area, a person must be enrolled as an elector for the area, and must be qualified to hold that civic office, at the closing date for the election.(3) A person may not be nominated for election as a councillor for more than one ward.(4) A nomination is to be proposed to and made by the returning officer as prescribed by the regulations and may be withdrawn by the nominee as prescribed by the regulations.(5) A nomination is to be rejected if the returning officer has not been paid the deposit prescribed by the regulations for the nomination or (if none is prescribed) a deposit of 50 per cent of the deposit required to be deposited under the Parliamentary Electorates and Elections Act 1912 for the nomination of a candidate for election to the Legislative Assembly.(5A) However, if a group that comprises more than 5 candidates:(a) proposes the nomination of all members of the group, and pays the deposit for the nomination of all members of the group, at the same time, and(b) has lodged a claim under section 308A (2),the amount of the deposit for each candidate included in the group is 5 times the deposit for one candidate divided by the number of candidates in that group.(6) If a returning officer rejects a proposed nomination and the nominated person applies in writing for an explanation of the rejection, the returning officer must provide the nominated person with a written explanation within 7 days.(7) A deposit may be refunded in accordance with the regulations.
307 Nomination where name omitted from roll
Despite section 306, a person whose nomination for election to a civic office would, but for this section, be rejected on the ground only that he or she is not enrolled as an elector for the area may be nominated if:(a) the name of the person has been omitted from the roll of electors mistakenly or accidentally, and(b) but for that omission the nomination would not have been rejected.
308 Candidate information sheets
(1) A nomination of a candidate for election to a civic office is to be accompanied by a candidate information sheet in the form of a statutory declaration made by the candidate.(2) The regulations may make provision for the matters that are to be included in, or that may or may not be included in, a candidate information sheet. The regulations may not prohibit the inclusion in a candidate information sheet of matter relating to a candidate’s policies.(3) The returning officer is to make each candidate information sheet available for public inspection at any reasonable time during office hours at the office of the returning officer and at any other place determined by the returning officer.(4) An electoral official at each polling place is to ensure that a copy of each candidate information sheet is displayed at the polling place.
(1) This section applies to an election in which there are 2 or more councillors to be elected.(2) Two or more candidates duly proposed for nomination for election may, before noon on the nomination day prescribed by the regulations, claim to have their names included in a group on the ballot-papers and in the order specified in the claim. The claim is to be lodged with the returning officer.(3) A claim under subsection (2) may also include a request for a group voting square for the group to appear on the ballot-papers to be used in the election concerned, but only if:(a) in the case of an area not divided into wards—the number of candidates in the group on the nomination day prescribed by the regulations is at least half the number of candidates to be elected, or(b) in the case of an area divided into wards—there are at least as many candidates in the group on the nomination day prescribed by the regulations as there are candidates to be elected.(4) A group voting square is to be printed on the ballot-papers above the names of the candidates in each group that has duly requested a group voting square under subsection (3), but only if more than one group has duly requested a group voting square.(5) An application under Part 7 for the name of a political party to be printed adjacent to the name of a candidate on the ballot-papers may include a further request for that name or a composite name to be printed on the ballot-papers adjacent to the candidates’ group voting square.
308B Group voting—recording of votes
(1) This section applies if a ballot-paper has group voting squares.(2) Instead of marking the separate voting squares for the candidates, the voter may record a vote:(a) by placing the number “1” in any one of the group voting squares, and(b) (if he or she wishes) by placing consecutive numbers (beginning with the number “2”) in any other of those group voting squares, in the order of his or her preference for the various groups of candidates.(3) The number “1” appearing in a group voting square for a group indicates:(a) that the voter’s first preference vote is for the first candidate in the group, and(b) that the voter’s subsequent preference votes are for the other candidates in the group in the order in which their names appear on the ballot-paper.(4) Subsequent numbers appearing in group voting squares for other groups indicate that the voter’s preferences (subsequent to those referred to in subsection (3)) are for the candidates in those groups:(a) in the order in which those groups are numbered by the voter, and(b) within each group, in the order in which the names of the candidates in that group appear on the ballot-paper.
308C Group voting—marking of ballot-papers
(1) 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 is taken to be the vote of the voter and the mark in the group voting square is to be disregarded,(b) if the indication of preferences for individual candidates would not, if it stood alone, constitute a formal vote, it is to be disregarded and the vote of the voter is to be taken to have been expressed by the mark in the group voting square.(2) A ballot-paper is not 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 is to be treated as if the cross or tick were the number “1”.(3) A ballot-paper is not 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 is to 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”.(4) A ballot-paper on which the voter has recorded a vote by placing in one group voting square the number “1” is not informal by reason only that:(a) the same preference (other than the first preference) is recorded on the ballot-paper for more than one group, but in that event the ballot-paper is to be treated as if those and any subsequent preferences had not been recorded, or(b) there is a break in the order of preferences for groups, but in that event the ballot-paper is to be treated as if any preference after the break had not been recorded, or(c) fewer preferences are recorded than there are candidates to be elected.(5) The ballot-papers for an election are not informal by reason only that they contain the name of a candidate whom a court has declared to be incapable of being elected at that election, but a preference for such a candidate (whether individually or as a member of a group) is to be disregarded, and (if necessary) subsequent preferences are to be renumbered accordingly.Note. The regulations make further provision regarding the formality of ballot-papers.
The regulations may make provision for or with respect to the grouping of candidates, group voting squares and the matter to be printed on ballot-papers.
(1) If the number of candidates nominated for election as councillors for a ward or an area is greater than the number required to be elected for the ward or area, the election is to be a contested election.(2) If there are two or more candidates for election by the electors of an area as mayor of the area, there is to be a contested election for the office.(3) If a candidate who is nominated for election to a civic office in respect of a ward or area dies before the day when the poll at a contested election closes, the election fails in respect of that civic office for the ward or area.
310 Conduct of contested elections
A contested election for a civic office is to be conducted as prescribed by the regulations.
At any election, any postal vote must be accepted for further scrutiny if:(a) the postal vote is received by the returning officer before 6 pm on the first business day immediately following the close of the poll, and(b) the returning officer is satisfied that the voter has indicated, in accordance with the regulations, that the postal vote was completed before the close of the poll.
(1) A candidate nominated for election as a councillor for a ward or area is, without a poll being held, taken to have been elected if the number of candidates nominated for election as councillors for the ward or area is no greater than the number of councillors required to be elected for the ward or area.(2) A candidate nominated for election by the electors of the area as the mayor of the area is, without a poll being held, taken to have been elected if he or she is the only nominee for election as the mayor.(3) A person holding civic office under this section without a poll being held is taken to have been elected:(a) on the day on which the poll would have been held, if the election were an ordinary election, or(b) on the day of nomination, if paragraph (a) does not apply.(4) If a candidate who is nominated for election to a civic office in respect of a ward or area dies before the day referred to in subsection (3), the election in respect of that civic office for that ward or area is taken to have failed and no candidate in that election can be taken to have been elected in respect of that civic office for that ward or area.
Division 4 Where residents fail to vote
A person whose name is on the residential roll in respect of a ward or area must vote at any contested election in the ward or area (other than an election of the mayor by the councillors) unless the person has a sufficient reason not to vote.Maximum penalty: 1 penalty unit.
313 List of residents failing to vote
(1) After the close of the poll at a contested election, the general manager (in relation to an election administered by the general manager) or the Electoral Commissioner (in relation to an election administered by the Electoral Commissioner) is to prepare a list of the names of the persons on the residential roll for the election 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 general manager (in relation to an election administered by the general manager) must forward that list to the Electoral Commissioner within 14 days (or within such longer period as may be prescribed by the regulations) after the close of the poll at the election.
314 Penalty notice to be issued for failure to vote
(1) The Electoral Commissioner is to serve a penalty notice on each resident who is indicated on the list prepared under section 313 as appearing not to have a sufficient reason for failing to vote at an election.(2) A penalty notice is to be served within 3 months after the close of the poll at the election to which it relates and, if not served personally, is to be served by post at the address of the resident last known to the Electoral Commissioner.(3) A penalty notice is a notice in the form prescribed by the regulations to the effect that, if the resident does not desire to have the failure to vote dealt with by a court:(a) the Electoral Commissioner must be given, within a time stated in the notice, a sufficient reason for the failure to vote, or(b) a penalty of 0.5 penalty unit must be paid to the Electoral Commissioner.(4) If, within 28 days after service of the penalty notice, the Electoral Commissioner is given a sufficient reason for the failure to vote or the penalty is paid, the resident is not liable to any further proceedings for the offence to which the penalty notice relates.(5) If an insufficient reason for a failure to vote is given in response to a penalty notice, the Electoral Commissioner is to include a statement to that effect in any penalty reminder notice served under the Fines Act 1996 in relation to the penalty notice.(6) For the purposes of this section, it is a sufficient reason for a failure by a resident to vote if the Electoral Commissioner is satisfied that the resident:(a) is dead, or(b) was absent from the area on polling day, or(c) was ineligible to vote, or(d) had an honest belief that he or she had a religious duty to abstain from voting, or(e) (Repealed)(f) was unable to vote for any other reason acceptable to the Electoral Commissioner.(7) If a penalty notice is served, the Electoral Commissioner is to note on the list prepared under section 313, or on a separate list of the residents on whom penalty notices have been served, whether or not there has been a response to the penalty notice and, if there has been a response, whether a sufficient reason has been given, or a penalty paid, for the failure to vote.
315 Evidence in list of non-voters
(1) It is evidence:(a) of service of a penalty notice on a resident, or(b) of a lack of response to a penalty notice served on a resident, or(c) that a reason was given for a failure by a resident to vote at an election, but the reason was insufficient,if there is on a certified list a notation to that effect in relation to the resident.(2) For the purposes of this section, a certified list is a list that is certified by the Electoral Commissioner as (or as a copy of or extract from) the list prepared under section 313 or the separate list prepared under section 314 (7).
The order of candidates’ names on ballot-papers is to be determined by a ballot conducted as prescribed by the regulations.
(1) An election is not invalid just because:(a) there was a formal defect or error in or relating to the election, if the election was held substantially in accordance with this Act, or(b) there was a defect in the appointment of the returning officer, or(c) the time for closing the poll for postal voting was extended with the approval of the Electoral Commissioner or returning officer (in relation to an election administered by the Electoral Commissioner) or the general manager or returning officer (in relation to an election administered by the general manager) conducting the election, or(d) on polling day the name of a political party, or the abbreviation of that name, as registered in the Local Government Register of Political Parties appears printed adjacent to the name of a candidate on the ballot-papers for the election, but between the time the candidate was endorsed by the party and the polling day the candidate has ceased to be so endorsed.(2) A proclamation of the Governor to the effect that a specified irregularity does not invalidate an election is conclusive as to the matter stated in the proclamation.
(1) If an election for a civic office is not held when it is due, fails or is later declared void:(a) the holder of the civic office at the time when the election should have been held or when the election failed (or, in the case of a void election, if there is no such holder, the candidate purporting to have been elected at the void election), holds the office as if duly elected until an election is held under paragraph (b), and(b) the returning officer is to hold another election as if a casual vacancy had occurred in the civic office.(2) An election held for the purposes of this section is as valid as it would have been if it had been held at the time originally appointed for the purpose.
Part 6A Postponement of elections
In this Part:election requirements of this Act means the requirements of Parts 4 and 5 with respect to the holding of an ordinary election referred to in section 287 or a by-election referred to in section 292.
318B Postponement of elections
(1) The Minister may, by order published in the Gazette, postpone the election requirements of this Act in relation to a specified council if:(a) the council is the subject of:(i) an investigation under section 430 or any other provision of this Act, or(ii) a public inquiry, or(iii) an investigation by an authority (as defined in the Dictionary at the end of this Act) under any Act, or(b) without limiting anything else in this subsection, a matter affecting the boundaries of the council’s area is under consideration by the Boundaries Commission (whether or not involving an inquiry by the Commission).(2) The latest date to which the election requirements of this Act may be postponed by an order under this section is:(a) the date occurring 12 months after the order is made, or(b) if the postponement is extended by a further order under this section, 31 December in the calendar year following that in which the first such order was made.(3) An order may be made under this section even though the election requirements of this Act are in operation with respect to an election for the council.(4) On the making of an order under this section:(a) the election requirements of this Act are suspended in relation to the council for the period specified in the order, including with respect to an election for which the election requirements of this Act were in operation when the order was made, but not with respect to an election held on or before the day on which the order is published, and(b) the retiring councillors continue in office (subject to this Act) until an election is held, and(c) anything already done, under or for the purposes of those requirements in relation to the council for an election that would (but for the making of the order) have been held during the suspension period, has no effect or operation, and(d) a person who is taken to have been elected under section 311 at an election that would (but for the making of the order) be held during the suspension period is taken not to have been elected.(5) The suspension ceases to have effect if the order is revoked under section 318C.(6) If the suspension ceases to have effect through the passage of time and not through revocation of the order, the provisions of section 318C (other than subsections (1) (a) and (3) (a)) apply as if the order had been revoked.(7) If while an order under this section is in force a casual vacancy occurs in the office of mayor elected by the electors, the casual vacancy is to be filled in accordance with the provisions of section 295 as if it were a casual vacancy in the office of mayor elected by the councillors.
318C Revocation of postponement
(1) The Minister may, by order published in the Gazette:(a) revoke a former order that has been made in relation to a council, and(b) if:(i) the day on which an election would (but for the former order) have been required to be held has passed, or(ii) the day on which an election is required to be held will occur within 3 months after the day on which the order is made,appoint a day as the day on which the election is to be held.(2) The day appointed by the order as the day on which an election is to be held is to be a Saturday occurring not less than 3 months, and not more than 6 months, after the day on which the order is made.(3) On the making of an order under this section:(a) the suspension by the former order of the election requirements of this Act is terminated, and(b) an election is to be held in accordance with the election requirements of this Act:(i) on the day ascertained in accordance with those requirements, or(ii) if the order appoints a different day, on the day so appointed.(4) In this section, former order means an order under section 318B.
319 Local Government Register of Political Parties
(1) The Electoral Commissioner is to keep a register containing the names of the parties registered under this Part and other particulars or documents required by this Part.(2) The register is to be called the Local Government Register of Political Parties.(3) The register is to be kept in the form and manner decided by the Electoral Commissioner.
320 Registration of political parties
(1) The political parties registered under this Part are:(a) the political parties registered for the time being under Part 4A of the Parliamentary Electorates and Elections Act 1912, and(b) any other political parties registered for the time being for the purposes of this Act.(2) A party may be registered for the purposes of this Act in accordance with the procedure applicable under Part 4A of the Parliamentary Electorates and Elections Act 1912, subject to the following modifications of that Part:(a) references to an eligible party are to be read as references to an eligible local government party (as defined in subsection (3)),(b) references to Parliament are to be read as references to a council,(c) references to the names and addresses of 750 electors are to be read as references to the names, addresses and signatures of 100 electors,(d) references to the Register of Parties are to be read as references to the Local Government Register of Political Parties,(e) references to the issue of a writ for an election are to be read as references to the closing date for an election,(f) sections 66C, 66D (3), 66FA (2), 66H (3A), 66JA and 66N of that Act are to be disregarded,(g) the reference in section 66FA (1) (a) of that Act to Division 6B of Part 5 of that Act is a reference to section 321 of this Act,(g1) the reference in section 66FA (1) (b) of that Act to sections 79 and 81B of that Act is a reference to any regulations under this Act regarding a political party proposing a candidate for nomination,(g2) the reference in section 66FA (1) (c) of that Act to section 151G of that Act is a reference to any regulations under this Act regarding registration of electoral material,(h) such other modifications as are prescribed by the regulations.(3) For the purposes of subsection (2), an eligible local government party is a party:(a) that has at least 100 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.
321 Party endorsement on ballot-papers
(1) The registered officer for a political party may apply to the returning officer to arrange for the name of the party as registered in the Local Government Register of Political Parties, or the abbreviation of the name as so registered, to be printed adjacent to the name of a candidate on the ballot-papers for an election to civic office, but only if the candidate has been endorsed for that election by the party.(2) A candidate at an election is taken to have been endorsed for the election by a political party registered in the Local Government Register of Political Parties only if:(a) the candidate is stated by the registered officer for the party to be so endorsed, or(b) the name of the candidate is included in a statement that is signed by the registered officer for the party, sets out the names of the candidates endorsed by the party for the election and is given to the returning officer before noon on the day for the nomination of candidates at the election, or(c) the returning officer is satisfied, after making such inquiries as the returning officer thinks appropriate, that the candidate is so endorsed.(3) A candidate for an election who has been endorsed by two or more political parties is taken to have been endorsed:(a) by the political party whose registered officer nominated the candidate, if the candidate was nominated by the registered officer, or(b) by the political party whose registered officer applied for the endorsement, if paragraph (a) does not apply, or(c) in any other case, by the political party specified by the candidate in a notice given to the returning officer.(4) An application under this section must be in writing signed by the applicant and delivered to the returning officer before noon on the day for the nomination of candidates at the election.(5) An application under this section may be withdrawn by the candidate by written notice to the returning officer before noon on the day for nomination.
322 Independent candidate on ballot-papers
(1) A candidate for election to civic office may apply to the returning officer to arrange for the word “Independent” to be printed adjacent to the name of the candidate on the ballot-papers for the election.(2) The application is to be in writing signed by the applicant and given to the returning officer before noon on the day for the nomination of candidates at the election.(3) If an application is made under both this section and section 321 in relation to the same candidate, the application under section 321 is void and is to be disregarded.(4) An application under this section may be withdrawn by the candidate by written notice to the returning officer before noon on the day for nomination.
323 Printing of political party name on ballot-papers
(1) The name of a political party is to be printed adjacent to the name of a candidate on the ballot-papers for an election to civic office if:(a) the candidate has been endorsed by the party as a candidate at the election, and(b) an application for the name of the party to be printed on the ballot-papers adjacent to the name of the candidate has been accepted by the returning officer.(2) The word “Independent” is to be printed adjacent to the name of a candidate for election to civic office if an application made by the candidate to have the word so printed has been accepted by the returning officer.
324 Form of political party name on ballot-papers
(1) The name of a political party to be printed on ballot-papers under this Part is the name entered for the party in the Local Government Register of Political Parties or the abbreviated name so entered for the party if application was made for the printing of the abbreviated name.(2) The names, or abbreviated names, of political parties printed on ballot-papers adjacent to the names of candidates are to be in capital letters in type that is uniform in size and style for all of the political parties’ names or abbreviated names.
325–328(Repealed)
328A General manager to keep register of political donation disclosures
(1) The general manager is required to keep a register of copies of current declarations of disclosures of political donations lodged with the Election Funding Authority by or on behalf of councillors of the council concerned (including in their capacity as candidates for election as councillors).(2) For the purposes of this section, current declarations of disclosures of political donations are declarations lodged under Part 6 of the Election Funding and Disclosures Act 1981 in respect of the relevant disclosure period that includes the date of the last election (other than a by-election) and all subsequent relevant disclosure periods.Note. Part 6 of the Election Funding and Disclosures Act 1981 makes provision for disclosure by councillors and candidates for civic office (and parties registered in connection with local government elections) of political donations and electoral expenditure.
328B Reference by general manager to Director-General of political donation matters
(1) If the general manager reasonably suspects that a councillor has not complied with the provisions of the code of conduct under section 440 relating to the disclosure of political donations or the manner of dealing with any perceived conflict of interest in relation to political donations, the general manager is to refer the matter to the Director-General.(2) Any such matter may be referred by the Director-General to the Pecuniary Interest and Disciplinary Tribunal.(3) Any such matter is taken (for the purposes of this Act) to be referred to the Tribunal under section 440N (but a referral under this section may be made without the councillor concerned having previously been suspended for misbehaviour).
Part 9 Dismissal from civic office
329 Can the holder of a civic office be dismissed?
(1) Any person may apply to the Administrative Decisions Tribunal for an order that a person be dismissed from civic office.(2) On any such application, the Tribunal may order the dismissal of a person from civic office:(a) if there has been any irregularity in the manner in which the person has been elected or appointed to that office, or(b) if the person is disqualified from holding civic office.(3) Proceedings based on the ground that there has been an irregularity in the manner in which a person has been elected or appointed to civic office may not be commenced more than 3 months after the date of the person’s election or appointment to that office.(4) If the proceedings are based on the ground that a person is disqualified from holding civic office, the Tribunal may refuse to order the dismissal of the person from that office if it is satisfied:(a) that the facts and circumstances giving rise to the disqualification are of a trifling character, and(b) that the acts which gave rise to that disqualification were done in good faith and without knowledge that the person would incur disqualification by doing those acts.(5) Subsection (4) does not apply to a person who is disqualified from holding civic office by a decision of the Pecuniary Interest and Disciplinary Tribunal under section 482 or by a decision of the Governor under section 440B.(6) The Tribunal may award costs under section 88 of the Administrative Decisions Tribunal Act 1997 in respect of proceedings commenced by an application made under this Part.
330 Appeals to Supreme Court against dismissal order
(1) A person against whom an order of dismissal is made by the Tribunal may appeal against the order, on a question of law, to the Supreme Court.(2) Such an appeal may not be made more than 28 days after the date on which the order of dismissal is made.
331 When does an order of dismissal take effect?
An order of dismissal made by the Tribunal takes effect:(a) if no appeal to the Supreme Court is made against the order, at the end of the period during which such an appeal may be made, or(b) if such an appeal is made within that period and the order is confirmed on appeal, when the order is confirmed, or(c) if, within that period, the person against whom the order is made serves on the general manager of the council concerned written notice of intention not to appeal against the order, when the notice is lodged.