Commonwealth Electoral Act 1918

This section applies if, in relation to an election, an officer becomes aware that a ballot‑box containing ballot papers for the election (including ballot papers enclosed in envelopes) has been opened before the close of the poll other than in accordance with this Act.

An officer (the reporting officer) must:

place the ballot papers, or envelopes containing the ballot papers, in a parcel; and

seal the parcel; and

write on the parcel an indication of the type of ballot papers enclosed and that the ballot‑box has been prematurely opened; and

sign the parcel.

The reporting officer must prepare a report about the circumstances in which the ballot‑box was opened before the close of the poll other than in accordance with this Act (including details of any witnesses).

The reporting officer must give the report, parcel, ballot‑box and any other thing the reporting officer considers appropriate to the DRO for the Division as soon as practicable.

The DRO for the Division must examine the report, parcel, ballot‑box and any other thing given to the DRO under subsection (4) and then give them to the Australian Electoral Officer (the AEO) for the State or Territory concerned.

The AEO must:

open the parcel and examine the ballot papers not enclosed in envelopes, the envelopes, the report, the ballot‑box and any other thing given to the AEO under subsection (5); and

for each ballot paper not enclosed in an envelope—decide whether the ballot paper is to be included in the scrutiny under Part XVIII (see subsections (7) and (8)); and

for each envelope—decide whether the envelope is to be included in the preliminary scrutiny conducted in accordance with Schedule 3 (see subsections (9) and (10)).

The AEO must decide that a ballot paper is to be included in the scrutiny under Part XVIII unless the AEO is satisfied that the ballot paper has been fraudulently altered or otherwise interfered with so as not to reflect the voter’s intention.

If the AEO decides that a ballot paper is not to be included in the scrutiny under Part XVIII, the ballot paper is to be excluded from that scrutiny.

The AEO must decide that an envelope is to be included in the preliminary scrutiny conducted in accordance with Schedule 3 unless the AEO is satisfied that the envelope has been fraudulently altered.

If the AEO decides that an envelope is not to be included in the preliminary scrutiny conducted in accordance with Schedule 3, the envelope is to be excluded from that scrutiny.

The AEO must, after examining all the ballot papers and envelopes:

place in a parcel the ballot papers that are to be included in the scrutiny under Part XVIII; and

place in another parcel the ballot papers that are to be excluded from the scrutiny under Part XVIII; and

place in another parcel the envelopes that are to be included in the preliminary scrutiny conducted in accordance with Schedule 3; and

place in another parcel the envelopes that are to be excluded from the preliminary scrutiny conducted in accordance with Schedule 3; and

seal each parcel; and

write on each parcel an indication of the type of ballot papers or envelopes enclosed and that the ballot‑box has been prematurely opened; and

sign each parcel.

The AEO must give the parcels referred to in paragraphs (11)(a) and (c) to the DRO for the Division, and the ballot papers or envelopes in the parcels are to be included in the scrutiny under Part XVIII or in the preliminary scrutiny conducted in accordance with Schedule 3, as the case requires.

Before the declaration of the poll in the election, the AEO must advise the Electoral Commissioner and the candidates concerned of the following:

a ballot‑box was opened before the close of the poll other than in accordance with this Act;

the number of ballot papers the AEO examined;

the number of ballot papers that were excluded from the scrutiny under Part XVIII because the AEO was satisfied that they had been fraudulently altered or otherwise interfered with so as not to reflect the voter’s intention;

the number of envelopes the AEO examined;

the number of envelopes that were excluded from the preliminary scrutiny conducted in accordance with Schedule 3 because the AEO was satisfied that they had been fraudulently altered.

The AEO is responsible for the safe custody, in accordance with the directions of the Electoral Commissioner, of the parcels referred to in paragraphs (11)(b) and (d), the ballot‑box and the report and any other thing given to the AEO under subsection (5) until they are destroyed.

Subject to Part XXII, the Electoral Commissioner may direct that the things referred to in subsection (14) be destroyed if:

not less than 6 months have elapsed since the declaration of the poll in the election in which the things were used; and

the things are no longer required by the Electoral Commission for the performance of its functions.