Electoral Act 1992

As soon as practicable after polling day, the returning officer for each electoral district must ensure that the commission’s staff follow the procedures set out in this section and made under section 130A.

Firstly, the staff must—

open all ballot boxes in relation to the electoral district that have not previously been opened; and

identify and keep in separate parcels for each different electoral district—

all formal ballot papers (including ballot papers printed for electronically assisted votes) that are not in a declaration envelope; and

all declaration envelopes; and

all informal ballot papers (including ballot papers printed for electronically assisted votes) that are not in a declaration envelope; and

for each parcel for an electoral district other than the returning officer’s electoral district—

seal the parcel; and

write on the parcel a description of its contents, including the number of ballot papers or declaration envelopes in the parcel; and

sign the description; and

if a scrutineer wishes to countersign the description—allow the scrutineer to do so; and

send the parcels to the returning officer for the appropriate electoral district.

Secondly, the staff must—

open—

the parcels mentioned in subsection (2)(b) for the returning officer’s electoral district; and

all sealed parcels of ballot papers and declaration envelopes sent to the returning officer under section 127; and

follow the procedures set out in section 125 for all declaration envelopes; and

arrange all formal ballot papers under the names of the candidates for the election by placing in a separate parcel all those on which a first preference vote is indicated for the same candidate; and

count the first preference votes for each candidate on all of the formal ballot papers.

Thirdly, the staff must—

open all ballot boxes on hand in which ballot papers from declaration envelopes have been placed under section 125(3); and

arrange all formal ballot papers under the names of the candidates for the election by placing in a separate parcel all those on which a first preference vote is indicated for the same candidate; and

count the first preference votes for each candidate on all of the formal ballot papers and add the number to that obtained under subsection (3)(d); and

reapply paragraphs (a) to (c) as more envelopes are placed in ballot boxes under section 125(3), until there are no more envelopes required to be placed in ballot boxes under that section.

If, because of final counting under subsection (4), a majority of the first preference votes is for 1 candidate, that candidate is elected.

If not, then a second count must take place.

On the second count—

the candidate who has the fewest first preference votes must be excluded; and

each ballot paper recording a first preference vote for that candidate must be transferred to the candidate next in the order of the voter’s preference; and

that ballot paper must be counted as a vote for that candidate.

If, on the second count, a candidate has a majority of the votes remaining in the count, the candidate is elected.

If not, the process of—

excluding the candidate who has the fewest votes; and

transferring each ballot paper of that candidate to the continuing candidate next in the order of the voter’s preference; and

counting it to that candidate as a vote;

The candidate who, under subsection (9), has a majority of the votes remaining in the count is elected.

Despite subsections (7) and (9), the process of transferring a ballot paper to a continuing candidate and counting it to the candidate as a vote must not be repeated if there is only 1 continuing candidate, but that candidate is elected.

If, on any count at which the candidate with the fewest number of votes must be excluded, 2 or more candidates have an equal number of votes and that number is fewer than the number of votes of any other candidate—

the candidate who had the fewest number of votes at the last count at which the candidates did not have an equal number of votes must be excluded; or

if the candidates had an equal number of votes at all earlier counts—the candidate whose name is on a slip chosen under subsection (13) must be excluded.

For the purposes of subsection (12)(b), the returning officer must—

write the names of the candidates who have an equal number of votes on similar slips of paper; and

fold the slips to prevent the names being seen; and

place the slips in an opaque container; and

mix the slips; and

raise the container so that its contents are not visible and choose a slip at random.

If, on any count at which the candidate with the fewest number of votes must be excluded, 2 or more candidates have an equal number of votes and the candidates are the only continuing candidates—

the returning officer must refer the matter to the commission, which must refer it to the Court of Disputed Returns; and

the court must determine the validity of any disputed ballot papers and recount all of the ballot papers by applying subsection (3)(b) and (c) and subsections (5) to (12); and

if the determination and recount results in a candidate being elected—the court must declare the candidate elected; and

if not—the court must order that a fresh election be held.

Subsection (14) does not affect the jurisdiction of the court under part 8 in relation to the disputing of an election.