Division 9Division 9 Scrutiny and counting
(1) A ballot-paper of an elector at an election is informal if:(a) the elector has failed to record a vote on it in the manner directed on it, or(b) it has not been initialled on the back by the returning officer or an electoral official, or(c) it contains a mark or writing that, in the returning officer’s opinion, would enable the elector to be identified.(2) Despite subclause (1), a ballot-paper of an elector at an election in which only one candidate is to be elected is not informal merely because a tick or a cross has been placed in one square and the other square or squares have been left blank. In such a case the tick or the cross is to be treated as a first preference.(3) Despite subclause (1), a ballot-paper of an elector at an election is not informal merely because it does not show the minimum number of preferences required by the directions so long as it shows at least half of the minimum number of preferences required by the directions.(4) Despite subclause (1), a ballot-paper of an elector at an election is not informal merely because a preference (other than a first preference) has been repeated or omitted so long as the ballot-paper shows at least half of the minimum number of preferences required by the directions.(5) Despite subclause (1), a ballot-paper of an elector at an election is not informal merely because it has not been initialled on the back by the returning officer or an electoral official, so long as it bears the mark referred to in clause 305 (2).(6) Despite subclause (1), a ballot-paper of an elector at an election is not informal by virtue of the existence of an unnecessary mark on the ballot-paper if, in the opinion of the returning officer, the elector’s intention is clearly indicated on the ballot-paper.(7) Nothing in subclause (2) authorises any person to encourage a voter to place a tick or a cross in a square on a ballot-paper.Note. Section 308C of the Act makes provision concerning the formality of ballot-papers where the voter marks, crosses or ticks a group voting square, or where the ballot papers contain the name of a candidate whom a court has declared to be incapable of being elected.
346 Persons present at scrutiny and count
The Electoral Commissioner or persons authorised by the Electoral Commissioner, the returning officer, electoral officials, scrutineers and police officers on duty are entitled to be present at each place at which polling is carried out, ballot-papers are scrutinised or votes are counted.
347 Postal, pre-poll and declared institution votes
The returning officer may, at any time after 8 am on the day of the poll and in the presence of any scrutineers lawfully present:(a) produce all applications for postal votes and the list and signature indications of general postal voters, open the ballot-box containing postal votes received from postal voters by the returning officer and take out all the envelopes, and follow the procedure set out with respect to postal votes in clause 350 (3) (a)–(d), and(b) open the ballot-boxes in the returning officer’s possession at that time containing pre-poll votes and any ballot-box containing declared institution votes, take out all the envelopes, count the sealed envelopes unopened and record the count, and check the names on the envelopes against the roll of electors and mark each elector’s name in the manner determined by the Electoral Commissioner on a copy of the roll.
348 Initial scrutiny and count
(1) On the close of the poll at an election each senior deputy returning officer must, in the presence of the electoral officials and scrutineers and any police officers on duty at the polling place, open the ballot-box, and have the ballot-papers scrutinised in his or her presence and under his or her supervision and must reject the informal ballot-papers.(2) Each senior deputy returning officer is to have the envelopes containing postal votes and tendered votes placed on one side as they are taken from the ballot-box.(3) After the scrutiny each senior deputy returning officer must have counted, in that officer’s presence and subject to that officer’s supervision, the first preferences recorded for each candidate, the number of informal, postal and tendered votes, and the number of votes shown on the list of section 305 votes (required under clause 343) as being delivered or sent to the returning officer.(4) Then the senior deputy returning officer is to send to the returning officer returns, verified by the signatures of the senior deputy returning officer, another electoral official and any scrutineer who desires to sign the returns, stating:(a) the number of first preferences recorded for each candidate, the number of informal, postal and tendered votes and the number of votes shown on the list of section 305 votes as being delivered or sent to the returning officer, and(b) details of the numbers of ballot-papers in Form 14.
349 Sending ballot-papers to returning officer
(1) The senior deputy returning officer must then, in the presence of the witnesses referred to in clause 348 (1), make up:(a) in one parcel the ballot-papers classed as formal and the ballot-papers classed as informal, and(b) in a second parcel the ballot-papers that have not been used, the cancelled postal ballot-papers and forms of declaration, the spoilt ballot-papers, the list of section 305 votes, the envelopes containing postal votes and the envelopes containing tendered votes, and the list of tendered votes, and(c) in a third parcel the certified copies of the rolls supplied to the senior deputy returning officer, signed by the senior deputy returning officer, and all books, rolls and papers (except the ballot-papers and the lists of ballot-papers) kept, used, and received by the senior deputy returning officer in connection with polling.(2) The senior deputy returning officer is to do the following:(a) seal the parcels,(b) permit any of the scrutineers who wish to do so to affix their seals to the parcels,(c) endorse the parcels with descriptions of their contents and with the name of the ward and area, the name of the polling place, and the date of the polling,(d) sign with his or her name the endorsement on each parcel,(e) deliver or send the parcels to the returning officer (except if the senior deputy returning officer’s functions are being exercised by the returning officer).(3) The returning officer may (and must if so required by a scrutineer) have the parcels opened, and have the ballot-papers scrutinised and counted in the presence of the electoral officials, scrutineers and police officers on duty at the principal polling place.(4) During such scrutiny, the returning officer must:(a) reject any ballot-paper classed as formal by the senior deputy returning officer if, in the returning officer’s opinion, it is informal, and(b) accept any ballot-paper classed as informal by the senior deputy returning officer if, in the returning officer’s opinion, it is formal.
350 Checking of ballot-papers in sealed envelopes
(1) The returning officer must on the close of the poll produce the applications for postal votes, produce the list and signature indications of general postal voters forwarded to the returning officer, and open the ballot-box containing postal votes received by the returning officer and take all the envelopes from it.(2) Postal votes received after the close of the poll but before 6 pm on the first business day following election day are to be dealt with in the same way as postal votes received before the close of the poll.(3) The returning officer is then to do the following or have the following done:(a) count the sealed ballot-paper envelopes unopened and record the count,(b) check the names on the envelopes against the roll of electors and, if an elector’s name is on the roll and the Form 8 declaration on the envelope has been duly signed and witnessed, mark the roll in the manner determined by the Electoral Commissioner,(c) compare the signature of the elector on each postal vote declaration with the signature of the applicant on the correspondingly numbered application for a postal vote (or the signature of the applicant for registration as a general postal voter), allow the scrutineers to inspect both signatures, and examine each declaration as to its formality or informality,(d) if the returning officer is not satisfied that the signature of the elector on the declaration is that of the applicant who signed the application or that the declaration is formal—mark, initial and keep apart unopened the sealed ballot-paper envelope on which the declaration appears,(e) if the returning officer is satisfied that the signature of the elector on the declaration is that of the applicant who signed the application and that the declaration is formal—turn the sealed ballot-paper envelope so that the declaration is face downwards, then open the envelope (without damaging the writing on it) and take out the ballot-paper and, without inspecting or unfolding it or allowing any other person to do so, place it in a securely fastened ballot-box for further scrutiny,(f) after dealing with all the envelopes and ballot-papers in accordance with paragraphs (d) and (e), open the ballot-box, take out the ballot-papers, unfold and scrutinise them and reject the informal ones.(4) The returning officer must on the close of the poll open the ballot-boxes containing pre-poll votes and declared institution votes, take all the envelopes from them and do the following or have the following done:(a) count the sealed ballot-paper envelopes unopened and record the count,(b) check the names on the envelopes against the roll of electors and, if an elector’s name is on the roll, mark the roll in the manner determined by the Electoral Commissioner,(c) turn each sealed ballot-paper envelope face downwards, then open the envelope (without damaging the writing on it) and take out the ballot-paper and, without inspecting or unfolding it or allowing any other person to do so, place it in a securely fastened ballot-box for further scrutiny,(d) after dealing with all the envelopes and ballot-papers in accordance with paragraph (c), open the ballot-box, take out the ballot-papers, unfold and scrutinise them and reject the informal ones.(5) The returning officer must on the close of the poll produce all envelopes containing tendered votes and do the following or have the following done:(a) count the number of envelopes containing tendered votes for each polling place,(b) in the presence of the scrutineers examine the declarations on the envelopes and make such inquiries as the returning officer considers necessary as to whether the persons who signed the declarations are entitled to vote,(c) if the returning officer is not satisfied that the person who signed the declaration is entitled to vote or that the declaration is duly witnessed, keep apart and unopened the envelope on which the declaration appears,(d) if the returning officer is satisfied that the person who signed the declaration is entitled to vote and that the declaration is duly witnessed, turn the envelope so that the declaration is face downwards, then open the envelope (without damaging the writing on it) and take out the ballot-paper and, without inspecting or unfolding it or allowing any other person to do so, place it in a securely fastened ballot-box for further scrutiny,(e) after dealing with all the envelopes and ballot-papers in accordance with paragraphs (c) and (d), open the ballot-box, take out the ballot-papers, unfold and scrutinise them and reject the informal ones.
(1) The returning officer must then do the following or have the following done:(a) complete the count by including the postal, pre-poll, declared institution and tendered votes and section 305 votes,(b) ascertain the result of the count in accordance with Schedule 4 or 5, depending on the system of election,Note. Section 285 of the Act specifies the circumstances in which the optional preferential (Schedule 4) and the proportional (Schedule 5) systems of election are to be used.(c) inform the persons present of the result of the count,(d) immediately notify the Electoral Commissioner of the result of the count,(e) deliver or send written notification to the candidates of the result of the count as soon as practicable after the result is ascertained.(2) For the purpose of ascertaining the result of the count, the returning officer may cause some or all of the ballot-papers to be sent to a central counting office administered by the Electoral Commissioner to be counted in accordance with arrangements approved by the Electoral Commissioner.
352 Double candidature: candidate elected as mayor
(1) If, in any election, one or more of the candidates for election as councillor for a ward in an area (or for an area) are also candidates for election as mayor of the area, the counting of votes in the election of the mayor is to be completed, and the result obtained, before any distribution of preferences in the election of councillors.(2) Then the count in the election of councillors is to continue, treating the person who has already been elected as mayor as not being a candidate for election as councillor.(3) Each preference indicated on ballot-papers in the election of councillors for the person elected as mayor is disregarded and any subsequent preferences are treated as if the numbers representing them had been reduced by one.
(1) At any time before the declaration of the poll:(a) a candidate may request a recount of the ballot-papers used in the ward or area for which the candidate was nominated, and(b) the Electoral Commissioner may direct the returning officer to recount any ballot-papers used in the election.(2) A request under subclause (1) (a) must:(a) be in writing, and(b) be signed by the candidate, and(c) set out the reasons for the request, and(d) be lodged with the returning officer within 24 hours after written notification of the result of the count has been delivered or sent to the candidates.(3) The returning officer must again have the ballot-papers scrutinised and counted and, if necessary, have any other papers used at the election inspected, if:(a) a request is received under subclause (1) (a) and the candidate has paid to the returning officer, on behalf of the council, a deposit to cover the cost of the recount and the ballot-papers referred to in the request have not already been recounted, or(b) a direction is received in accordance with subclause (1) (b), or(c) the returning officer in any case believes it necessary.(4) The deposit is to be determined by reference to a scale of charges fixed by the Electoral Commissioner before election day.
(1) If a recount of ballot-papers is conducted under clause 353 (3) (b) or (c), the council is to pay for the recount.(2) If a recount of ballot-papers is conducted under clause 353 (3) (a) and the recount results in an alteration in the candidates who are elected, the deposit referred to in that paragraph is to be refunded to the candidate.(3) If a recount of ballot-papers is conducted under clause 353 (3) (a) and the recount does not result in an alteration in the candidates who are elected, the expense of the recount is to be paid out of the deposit and any remainder is to be refunded to the candidate, and any shortfall paid by the council.
Immediately after the completion of a recount of ballot-papers, the returning officer must notify the Electoral Commissioner of the result of the recount.
(1) The Electoral Commissioner is to approve of the returning officer’s declaring the election in writing as soon as practicable after the notification of the result of any recount or it becomes clear that no recount will be required.(2) The declaration is to be signed by the returning officer and is to state the number of votes recorded for each candidate, the names of the candidates declared elected (being the names under which those candidates were nominated by the returning officer) and the ward or area for which they have been elected.(3) After declaring the election, the returning officer must:(a) display the written declaration in a conspicuous position at the principal polling place and at the office of the relevant council, and(b) deliver or send a copy of the written declaration to the Electoral Commissioner, the Director-General, the Secretary of the Local Government and Shires Associations of New South Wales, and the relevant general manager, and(c) insert in a newspaper circulating in the relevant area a copy of a notice signed by the returning officer and containing the names of the candidates declared elected (being the names under which those candidates were nominated by the returning officer) and the ward or area for which they have been elected.(4) The general manager of a council must, on application to the council by any person, deliver or send to the person a copy of the written declaration.