Local Government (Elections) Act 1999

This

Act may be cited as the Local

Government (Elections) Act 1999.

The objects of this Act are—

to provide for periodic and other local government elections; and

to provide for the qualifications of voters for the purposes of local government elections and for the preparation and maintenance of voters rolls; and

to provide for the qualifications and duties of candidates in local government elections; and

to provide for a system of voting, and for the counting of votes, at local government elections; and

to provide for local government polls; and

to provide for the administrative framework for local government elections and polls; and

to regulate various practices associated with local government elections and polls.

In this Act, unless the contrary intention appears—

conclusion of council elections—see

Local

Government Act 1999 (section 4(2));

the

Court means the Court of Disputed Returns constituted under this Act;

designated person, in respect of a body corporate or group entitled to be enrolled on the voters roll for an area or ward, means a natural person, of or above the age of majority, who is a State elector and—

in the case of a body corporate—an officer of the body corporate who is authorised to act on behalf of the body corporate for the purposes of voting; or

in the case of a group—a member of the group, or an officer of a body corporate that is a member of the group, who is authorised to act on behalf of the group for the purposes of voting;

disposition of property means a conveyance, transfer, assignment, settlement, delivery, payment or other alienation of property, and includes—

the allotment of shares in a company; and

the creation of a trust in property; and

the grant or creation of a lease, mortgage, charge, servitude, licence, power or partnership or any interest in property; and

the release, discharge, surrender, forfeiture or abandonment, at law or in equity, of a debt, contract or chose in action or any interest in property; and

the exercise by a person of a general power of appointment of property in favour of another person; and

a transaction entered into by a person with intent thereby to diminish, directly or indirectly, the value of the person's own property and to increase the value of the property of another person;

District

Court means the District Court of South Australia;

elector means a person, body corporate or group of persons enrolled on the voters roll for a council;

electoral material means an advertisement, notice, statement or representation calculated to affect the result of an election or poll;

electoral officer means a person appointed as an electoral officer under this Act and includes the returning officer and deputy returning officer;

general election—see

Local

Government Act 1999 (section 4);

gift means a disposition of property made by a person to another person, otherwise than by will, being a disposition made without consideration in money or money's worth or with inadequate consideration, and includes the provision of a service (other than volunteer labour) for no consideration or for inadequate consideration;

illegal practice means the commission of an offence against this Act;

name, of a candidate for election, includes a name by which the candidate is generally known;

officer of a body corporate means a director, manager, secretary or public officer of the body corporate and includes any other person who takes part in the management of the affairs of the body corporate;

periodic election means an election to fill offices of a council held pursuant to section 5;

polling day—see subsection (2);

property includes money;

public notice means notice in the Gazette and in a newspaper circulating in the area;

returning officer—see section 10;

State elector means a person who is enrolled as an elector for the House of

Assembly on a roll for a subdivision under the Electoral

Act 1985;

voting material means—

ballot papers and other forms of voting papers; and

applications for voting papers; and

records relating to the issue of voting papers; and

declarations made by persons voting or claiming to vote; and

voters rolls.

A reference in this Act to polling day for an election or poll means—

for a periodic election—the day on which voting at the election closes under section 5;

for a general election (not being a periodic election) to be held pursuant to a proclamation or notice under the Local

Government Act 1999—the day fixed as polling day by the proclamation or notice (being the day on which voting at the election closes);

for a supplementary election—the day fixed as polling day for the election under section 6;

for a poll—the day fixed by the council as polling day for the poll.

For the purposes of this Act, the year in which polling day for an election occurs will be taken to be the year in which the election is held.

An election for mayor, an election for a councillor or councillors who are to be representatives for the area as a whole, and an election for a councillor or councillors who are to be representatives of a ward, are each separate and distinct elections.

This

Act is to be read with the Local

Government Act 1999 as if the two Acts together formed a single Act.

The next elections to determine the membership of each council must be held in accordance with this Act on the basis that voting at the elections will close at 5 pm on the third to last business day before the second Saturday of April in 2027.

Elections to determine the membership of each council must then be held in accordance with this Act on the basis that voting at the elections will close at 5 pm on the third to last business day before the second Saturday of November in 2031, and then such elections will be held at intervals of 4 years on the basis that voting at the subsequent elections will close at 5 pm on the third to last business day before the second Saturday of November in 2035, at 5 pm on the third to last business day before the second Saturday of

November in 2039, and so on.

Subject to this section, if—

an election (other than a supplementary election) wholly or partially fails or is declared void; or

a casual vacancy occurs in the office of a member of a council, a supplementary election will be held to fill the office or offices not filled by the election, or the office that has become vacant.

A supplementary election will not be held to fill a casual vacancy if—

the vacancy occurs within 12 months before polling day for—

a periodic election; or

a general election (other than a periodic election) if the date of that polling day is known at the time of the occurrence of the vacancy; or

—

paragraph (c) does not apply; and

the vacancy is for an office other than mayor; and

the area of the council is not divided into wards; and

—

if the council has 9 or more offices (excluding the office of mayor)—there is no more than 1 other vacancy in the office of a member of the council; or

in any other case—there is no other vacancy in the office of a member of the council; and

it is a policy of the council at the time the vacancy occurs that it will not fill such a casual vacancy or vacancies until the next general election; or

the vacancy—

is for an office of a member of the council, other than—

mayor;

or

a member who was declared elected under section 25(1);

and

occurs—

within

12 months after polling day for a periodic election or a designated supplementary election; or

after the close of nominations for a designated supplementary election and before polling day for that election, (and can be filled in accordance with section 6A) (the subsequent vacancy).

However, if—

1 or more vacancies have not been filled due to the operation of subsection (2)(b);

and

another vacancy occurs in the office of a member; and

the other vacancy has not occurred within 12 months before polling day for—

a periodic election; or

a general election (other than a periodic election) if the date of that polling day is known at the time of the occurrence of the vacancy, then a supplementary election must be held to fill the vacant offices.

If—

a casual vacancy has occurred; and

a supplementary election is not to be held by virtue of the operation of subsection (2)(b), any subsequent revocation or alteration of a policy of the council in force for the purposes of subsection (2)(b) cannot have effect so as to require the casual vacancy to be filled before the next general election.

If, before the close of nominations for a designated supplementary election, another vacancy (the subsequent vacancy) occurs in the office of a member of the council (other than in the office of mayor), the subsequent vacancy may be filled by the designated supplementary election.

If the subsequent vacancy is to be filled by the designated supplementary election—

the returning officer must give public notice that the vacancy will be filled by that election; and

the material accompanying the voting papers to be issued under section 39 for the designated supplementary election must advise voters that the vacancy will be filled by that election.

Subject to this Act, a supplementary election must be held as soon as practicable after the occasion for the election arises.

The returning officer must, by public notice, fix a day as polling day for the supplementary election.

A notice under subsection (6) must also fix—

a day for the close of the voters roll for the purposes of the election (the closing date);

and

the time at which voting at the election will close on polling day.

In this section—

designated supplementary election means—

if the area of the council is not divided into wards—a supplementary election held to fill an office or offices of the council; or

if the area of the council is divided into wards—a supplementary election held to fill an office or offices of the ward in which the subsequent vacancy has occurred.

If—

a casual vacancy has occurred; and

a supplementary election is not to be held by virtue of the operation of section 6(2)(c), the vacancy will be filled in accordance with this section.

For the purposes of subsection (1)—

the returning officer must, in accordance with the regulations, determine the candidate—

in the most recent election for the relevant office; or

if a supplementary election is not to be held by virtue of the operation of section 6(2)(c)(ii)(B)—in the designated supplementary election referred to in that subsubparagraph, to fill the vacancy (a successful candidate);

and

the returning officer must ascertain (in such manner as the returning officer thinks fit) whether the candidate who becomes a successful candidate—

is still willing to be elected to the relevant office; and

is still eligible to be elected to the relevant office; and

—

if the person then indicates to the returning officer (within 1 month) that they are so willing and eligible, the returning officer will declare the person elected; or

if the person then indicates to the returning officer (within 1 month) that they are not willing or eligible, or the person does not respond to the returning officer within 1 month, the returning officer must determine the next successful candidate in accordance with the regulations and so on until the vacancy is filled or there are no candidates still willing and eligible to be elected to the relevant office.

If, after nominations have closed for an election, it appears that the number of candidates nominated to contest the election is less than the number of persons required to be elected, the election will be taken to have partially failed (in respect of the office or offices not filled under section 25).

If—

between the close of nominations and the close of voting—

a nominated candidate dies; or

a nominated candidate becomes ineligible to be a candidate for election as a member of a council in accordance with section 17;

and

the election is to fill one vacancy, the election will be taken to have wholly failed.

If between the close of nominations and the close of voting two or more candidates die or become ineligible to be candidates for election as members of a council in accordance with section 17, the election will be taken to have wholly failed.

If a supplementary election wholly or partially fails or is declared void, the council must appoint a person or persons (being an elector or electors for the area) to the office or offices not filled by the supplementary election.

If the returning officer declares the nominated candidate or candidates elected under section 25(1a) but not all vacancies are filled, the council must appoint a person or persons (being an elector or electors for the area) to the office or offices that remain unfilled.

A council must not appoint a person to an office in pursuance of subsection (1) or (1a) unless the person—

would, if an election were held to fill the office, be eligible to stand as a candidate for election to the office; and

has made a declaration of eligibility in the prescribed form.

A council may hold a poll whenever the council considers that it is necessary, expedient or appropriate for a poll to be held.

A poll may be held on any matter within the ambit of the council's responsibilities, or as contemplated by the Local

Government Act 1999.

The council must fix a day as polling day for the poll by notice published on the council website.

A notice under subsection (3) must also fix a day for the close of the voters roll for the purposes of the poll (the closing date).

The returning officer of a council will conduct all polls of the council.

Voting at a poll will close at the time determined by the returning officer.

The

Electoral Commissioner will be the returning officer for each area.

The

Electoral Commissioner may appoint one or more deputy returning officers for an area.

No member of a council is eligible for appointment as a deputy returning officer for that council and no deputy returning officer for a council is eligible to stand for election as a member of that council.

The returning officer will be taken to have delegated to a deputy returning officer all of the returning officer's powers and functions under this Act in respect of the area for which the deputy returning officer has been appointed.

A delegation under subsection (5)—

is subject to the condition that the deputy returning officer will act in accordance with the directions of the returning officer, and to other conditions and limitations determined by the returning officer; and

subject to a direction of the returning officer—may be the subject of one or more subdelegations; and

does not prevent the returning officer from acting in a matter.

The

Electoral Commissioner may establish or specify courses of training to be undertaken by persons nominated or appointed as deputy returning officers under this section.

The

Electoral Commissioner may remove a person from the position of deputy returning officer for any reasonable cause.

The returning officer may engage electoral officers to assist in the conduct of an election or poll.

A deputy returning officer may, with the approval of the returning officer, engage electoral officers to assist in the conduct of an election or poll.

No member of a council, or candidate for election as a member of a council, may be engaged as an electoral officer for that council.

The returning officer or a deputy returning officer may, by instrument in writing, delegate to an electoral officer powers or functions under this Act.

A delegation under subsection (4)—

is subject to conditions and limitations specified in the instrument of delegation; and

does not prevent the returning officer or a deputy returning officer from acting in a matter; and

is revocable at will.

In any legal proceedings, an apparently genuine document purporting to be a certificate signed by the returning officer or a deputy returning officer containing particulars of a delegation under this section will, in the absence of proof to the contrary, be accepted as proof of those particulars.

For the purposes of this Act (but subject to any appointments under this

Part and the operation of the Local

Government Act 1999)—

the returning officer is responsible for the conduct of elections and polls; and

a council is responsible for the provision of information, education and publicity designed to promote public participation in the electoral processes for its area, to inform potential voters about the candidates who are standing for election in its area, and to advise its local community about the outcome of elections and polls conducted in its area.