Electoral Act 1907

The procedure at the count of the votes by the returning officer for each district is, if there are only 2 candidates, as follows:

The returning officer must —

open all ballot boxes not opened by assistant returning officers; and

count all the votes on the ballot papers found in such ballot boxes, rejecting all informal ballot papers, and ascertain the number of votes given for each candidate; and

make and keep a record of the number of votes counted from each ballot box.

The returning officer must then —

ascertain from the communications received from officers the number of votes given for each candidate at polling places where the ballot boxes have been opened by assistant returning officers, by persons voting as absent voters and provisional voters under Division 3A Subdivision 3 and by persons who vote by postal voting; and

ascertain and keep a record of the number of votes given for each candidate under Division 3A Subdivision 7; and

add the votes so given for each candidate to the votes counted by the returning officer in favour of each such candidate, so as to ascertain, for the whole district, the number of votes given for each candidate respectively.

The candidate who has received the largest number of votes must be declared by the returning officer duly elected.

If the candidates have an equal number of votes section 145 applies.

The procedure at the count of the votes by the returning officer for each district, if there are more candidates than 2, is as follows:

The returning officer must —

open all ballot boxes not opened by assistant returning officers; and

arrange the ballot papers under the names of the respective candidates and place in a separate parcel all those on which a first preference is indicated for the same candidate, rejecting informal ballot papers; and

count all the first preference votes given for each candidate respectively; and

make and keep a record of the number of votes counted by the returning officer from each ballot box.

The returning officer must then —

ascertain from the communications received from officers the number of first preference votes given for each candidate at polling places where the ballot boxes have been opened by such assistant returning officers by persons voting as absent voters and provisional voters under Division 3A Subdivision 3 and persons who vote by postal voting; and

ascertain and keep a record of the number of first preference votes given for each candidate under Division 3A Subdivision 7; and

add the first preference votes so given for each candidate to the votes counted by the returning officer in favour of each such candidate, so as to ascertain, for the whole district, the number of first preference votes polled by each candidate respectively.

The candidate who has received the largest number of first preference votes must, if such number constitutes an absolute majority of votes, be declared by the returning officer duly elected.

If no candidate has an absolute majority of votes the returning officer —

must open the packets of ballot papers received from the officers, including absent voters’ ballot papers and ballot papers used for provisional voting under Division 3A Subdivision 3 and postal ballot papers, and deal with the ballot papers contained therein as prescribed by paragraph (a)(ii), adding such ballot papers to those previously counted by the returning officer for each candidate; and

must ascertain and keep a record of the number of first preference votes given for each candidate under Division 3A Subdivision 7, adding the votes to those previously counted by the returning officer for each candidate; and

must then declare the candidate who has obtained the fewest first preference votes to be a defeated candidate, and each ballot paper or vote record counted to the defeated candidate must be distributed among the non‑defeated candidates next in order of the elector’s preference.

After such distribution the number of votes given to each non‑defeated candidate must again be ascertained.

The candidate who then has obtained the largest number of votes must, if such number constitutes an absolute majority of votes, be declared duly elected.

If no candidate then has an absolute majority of votes the process of declaring the candidate who has the fewest votes to be defeated, and distributing each of that candidate’s ballot papers and vote records amongst the non‑defeated candidates next in order of the elector’s preference must be repeated, and the votes re‑counted after every such redistribution until 1 candidate has obtained an absolute majority of votes, and such candidate must then be declared duly elected.

A ballot paper or vote record must be set aside as exhausted where on a count it is found that the ballot paper or vote record expresses no preference for any non‑defeated candidate.

If, after any count, the candidate with the fewest votes has to be declared to be defeated under paragraph (d) or (f), and 2 or more candidates (in this paragraph called the tied candidates) have an equal number of votes (each other candidate having a larger number of votes) —

the returning officer must make out in respect of each of the tied candidates a slip bearing the name of the candidate, and deal with the slips in accordance with Schedule 2; and

the candidate whose name is on the slip obtained by the returning officer in accordance with clause 5 of Schedule 2 must be declared to be defeated.

If after any count 2 or more candidates have an equal number of votes and they are the only candidates, or the only non‑defeated candidates, section 145 applies.

Where there are more candidates than 2 then, notwithstanding that a candidate has been declared duly elected, the process of excluding the candidate who has the fewest votes and distributing that candidate’s preferences to the candidate next in order of the elector’s preference must be continued until there are only 2 unexcluded candidates.

At any time before a candidate has been declared duly elected the returning officer may, if the returning officer thinks fit, make a fresh scrutiny of all the ballot papers and vote records or any parcel of them and for that purpose has the same power in relation to the counting of the votes as on the first scrutiny and may reverse any decision given by an officer on the original scrutiny and if after such scrutiny 1 of the candidates is found to have obtained an absolute majority of votes must declare that candidate duly elected.

In this section absolute majority of votes means a greater number than one‑half of the whole number of ballot papers and vote records other than informal ballot papers and vote records.

For the purposes of subsection (3), if at any stage of the count, ballot papers or vote records have been set aside under subsection (2)(fa), the whole number of ballot papers and vote records, at that stage, are to be taken to be reduced by the number of those ballot papers and vote records set aside.

Where the returning officer is satisfied that the votes —

on any ballot papers issued at a mobile voting place in connection with the election that have not been received by the returning officer; and

on absent voters’ ballot papers or ballot papers used for provisional voting under Division 3A Subdivision 3 or postal ballot papers used for voting that have not been received by the returning officer,

cannot, having regard to the number of those ballot papers, possibly affect the result of the election, the returning officer may, subject to the concurrence of the Electoral Commissioner —

if there are only 2 candidates, declare the candidate who has received the largest number of votes on the ballot papers then received and counted to be duly elected; or

if there are more than 2 candidates and 1 candidate has received an absolute majority of the votes on the ballot papers then received and counted, declare such candidate duly elected; or

if no candidate has an absolute majority of the votes, then received and counted, proceed with the scrutiny;

without awaiting the receipt of the ballot papers which have not been received by the returning officer.

[Section 144 amended: No. 59 of 1919 s. 5; No. 63 of 1948 s. 22; No. 57 of 1952 s. 12; No. 40 of 1987 s. 71 and 84; No. 79 of 1987 s. 64; No. 43 of 1996 s. 19; No. 36 of 2000 s. 48(8) and (9), 53, 69 and 82; No. 14 of 2016 s. 20; No. 30 of 2023 s. 90.]

145. Equal votes, procedure in case of etc.

If after any count 2 or more candidates have an equal number of votes and they are the only candidates, or the only non‑defeated candidates, the returning officer shall re‑count the votes and, where appropriate, declare one of the candidates duly elected under section 144(1)(c), (2)(ea) or (2)(f).

The returning officer conducting the re‑count shall have the same powers as if the re‑­count were the scrutiny, and may reverse any decision in relation to the scrutiny as to the allowance or admission or disallowance or rejection of any ballot paper.

If after the re‑count 2 or more candidates (in this section called the tied candidates) have an equal number of votes and they are the only candidates, or the only non‑defeated candidates, the returning officer shall notify the Electoral Commissioner of the result of the re­‑count.

On receipt of notification under subsection (3) the Electoral Commissioner shall file a petition addressed to the Court of Disputed Returns constituted under Part V —

setting out the results of the scrutiny and count and the re‑count; and

requesting the Court to determine whether any of the candidates was duly elected and, if so, to declare that candidate duly elected.

Part V applies in respect of the petition as if it were a petition duly filed under sections 158 to 160 and, for the purposes of that application, the tied candidates shall be regarded as parties to the petition.

The Court shall endeavour to make its determination as soon as practicable after the petition is filed.

The Court may order that a new election be held in place of the election to which the petition relates if —

the tied candidates both or all jointly request the Court to do so; or

the Court is unable to declare any of the candidates duly elected,

and, notwithstanding anything in this Act, except where the Court otherwise orders, the same roll as was used for that election shall be used for the new election.

[Section 145 inserted: No. 40 of 1987 s. 72; amended: No. 14 of 2016 s. 21.]