Electoral Amendment Act 2002

61 New heading and new sections 151A, 152 to 152C, and 153 to 153H substituted
  • The principal Act is amended by repealing the heading immediately before section 152 and sections 152 and 153, and substituting the following heading and sections:

    Death or incapacity of candidate

    151A Interpretation
    • For the purposes of sections 152A to 153H, a candidate is incapacitated if the Returning Officer or, as the case requires, the Chief Electoral Officer is satisfied that, because the candidate is suffering from a serious illness or has sustained a serious injury,—

      • (a) if section 152A applies, the candidate is unable to personally withdraw his or her nomination; and

      • (b) in any case, the candidate, if elected, would be unlikely to be capable of taking the Oath of Allegiance as a member of Parliament on the 51st day after writ day.

    152 Death before close of nominations
    • (1) If a constituency candidate who has been nominated and has not withdrawn his or her nomination dies before the close of nominations,—

      • (a) his or her nomination is to be treated in all respects as if it had not been made; and

      • (b) his or her deposit must be returned to his or her personal representatives or, as the case may be, to the person who paid it.

      (2) Subsection (3) applies if the candidate dies on nomination day before noon, or on any of the 3 days immediately before nomination day.

      (3) If this subsection applies, then, once the Returning Officer is satisfied of the fact of death,—

      • (a) the time for the close of nominations in that district is postponed until noon on the fourth day after the date of the candidate's death; and

      • (b) the Returning Officer must immediately give public notice of the fact that the close of nominations in that district has been postponed and of the new time for the close of nominations.

      (4) If subsection (3) applies, but the candidate was nominated in a bulk nomination schedule or in accordance with section 146K, the references to Returning Officer in subsection (3) are to be read as references to the Chief Electoral Officer.

    152A Incapacity of candidate before close of nominations
    • (1) If a constituency candidate who has been nominated and has not withdrawn his or her nomination becomes incapacitated before the close of nominations, an application may be made for the cancellation of the nomination.

      (2) Section 152B sets out how an application under subsection (1) must be made, and section 152C sets out how it is to be dealt with.

      (3) If the Returning Officer or, as the case requires, the Chief Electoral Officer cancels the nomination in accordance with section 152C(3),—

      • (a) the candidate's nomination is to be treated in all respects as if it had not been made; and

      • (b) the candidate's deposit must be returned to the candidate or, as the case may be, to the person who paid it.

      (4) If the candidate's nomination is cancelled on nomination day, or on any of the 3 days immediately before nomination day, then—

      • (a) the time for the close of nominations in the district is postponed until noon on the fourth day after the date on which the candidate's nomination is cancelled; and

      • (b) the Returning Officer or, as the case requires, the Chief Electoral Officer must immediately give public notice of the fact that the close of nominations in the district has been postponed and of the new time for the close of nominations.

    152B Procedural provisions relating to making of application under section 152A(1)
    • (1) An application under section 152A(1) must be made as follows:

      • (a) if the candidate was nominated under section 143,—

        • (i) the application must be made by the 2 registered electors who nominated the candidate, or, if either or both of them are unavailable or unable to act for any reason, then by the candidate's agent:

        • (ii) the application must be made to the Returning Officer for the district:

      • (b) if the candidate was nominated in a bulk nomination schedule or in accordance with section 146K,—

        • (i) the application must be made by the secretary of the party:

        • (ii) the application must be made to the Chief Electoral Officer.

      (2) The application must be made on a form provided by the Chief Electoral Officer, and must be witnessed by a Justice of the Peace or a solicitor.

      (3) The application must be accompanied by a certificate signed by a registered medical practitioner that certifies—

      • (a) as to the candidate's condition; and

      • (b) that, in the practitioner's opinion, the candidate is incapacitated within the meaning of section 151A.

      (4) The application—

      • (a) must be submitted to the Returning Officer or, as the case requires, the Chief Electoral Officer not later than 4.00 pm on nomination day; and

      • (b) may be submitted by hand, post, or facsimile transmission.

    152C How application under section 152A to be dealt with
    • (1) On receiving an application made under section 152A(1), the Returning Officer or, as the case requires, the Chief Electoral Officer must, without delay, determine whether or not the candidate became incapacitated before the close of nominations.

      (2) For the purpose of making a determination under subsection (1), the Returning Officer or Chief Electoral Officer may make any inquiries, and seek any assistance (including, without limitation, expert medical assistance), that he or she considers necessary.

      (3) If, before midnight on nomination day, the Returning Officer or Chief Electoral Officer determines that the candidate became incapacitated before the close of nominations, the Returning Officer or Chief Electoral Officer must cancel the candidate's nomination.

      (4) If the Returning Officer or Chief Electoral Officer has not made a determination under subsection (1) before midnight on nomination day, then—

      • (a) section 152A does not apply; and

      • (b) the application is to be treated as if it were an application under section 153G(1), and is to be determined accordingly.

      (5) As soon as practicable after making a determination under subsection (1), the Returning Officer or Chief Electoral Officer must inform the applicant or applicants of that determination.

    153 Death or incapacity of list candidate after submission of list
    • (1) This section applies if a candidate whose name is included on a list submitted under section 127 dies, or his or her nomination is cancelled on the grounds of incapacity, after the submission of the list and before the declaration required by section 193(5).

      (2) If this section applies,—

      • (a) the poll must proceed; and

      • (b) the list must be treated subsequently as if the candidate's name had never been included on that list.

    153A Death or incapacity of constituency candidate after close of nominations and before polling day
    • (1) This section applies if a constituency candidate dies, or his or her nomination is cancelled on the grounds of incapacity, after the close of nominations and before polling day.

      (2) If this section applies, then once the Returning Officer is satisfied that the candidate has died or, as the case requires, that the candidate's nomination has been cancelled, the Returning Officer must,—

      • (a) in the case of a general election,—

        • (i) issue a notice cancelling the poll for the election of a member of Parliament for the district; and

        • (ii) proceed to conduct the poll on the part of the ballot paper that relates to the party vote, which for these purposes is to be treated as if it were the only part of the ballot paper; and this Part applies with any necessary modifications; and

      • (b) in the case of a by-election, issue a notice cancelling the poll; and

      • (c) report to the Chief Electoral Officer—

        • (i) the issue and the date of the notice, under paragraph (a) or paragraph (b), cancelling the poll; and

        • (ii) whether the poll was cancelled because of the candidate's death or because of the candidate's incapacity; and

        • (iii) the date of the candidate's death, if applicable; and

        • (iv) if the candidate's incapacity was determined, under section 153H, by the Returning Officer, the date of the determination.

      (3) Immediately after receiving the Returning Officer's report under subsection (2)(c), the Chief Electoral Officer must endorse on the writ—

      • (a) the name of the candidate whose death or whose incapacity resulted in the cancellation of the poll for the election of a member of Parliament for the district concerned; and

      • (b) the date of the notice by which the poll was cancelled; and

      • (c) the date on which the candidate died or, as the case requires, the date on which the candidate's incapacity was determined.

    153B Death or incapacity of constituency candidate on polling day
    • (1) This section applies if a constituency candidate dies, or his or her nomination is cancelled on the grounds of incapacity, on polling day before the close of the poll.

      (2) If this section applies, then once the Returning Officer is satisfied that the candidate has died or, as the case requires, that the candidate's nomination has been cancelled, the Returning Officer must,—

      • (a) in the case of a general election,—

        • (i) immediately close the part of the poll that is based on electorate votes and declare that part of the poll to be of no effect; and

        • (ii) proceed to conduct the poll on the part of the ballot paper that relates to the party vote, which for these purposes is to be treated as if it were the only part of the ballot paper; and this Part applies with any necessary modifications; and

      • (b) in the case of a by-election, immediately close the poll; and

      • (c) report to the Chief Electoral Officer—

        • (i) the closure of the poll or part of the poll and the time of the closure; and

        • (ii) whether the poll or part of the poll was closed because of the candidate's death or because of the candidate's incapacity; and

        • (iii) if the candidate's incapacity was determined, under section 153H, by the Returning Officer, the date of the determination.

      (3) Immediately after receiving the Returning Officer's report under subsection (2)(c), the Chief Electoral Officer must endorse on the writ—

      • (a) the name of the candidate whose death or whose incapacity resulted in the closure of the poll for the election of a member of Parliament for the district concerned; and

      • (b) the time of that closure; and

      • (c) the date on which the candidate died or, as the case requires, the date on which the candidate's incapacity was determined.

    153C Death or incapacity of successful constituency candidate after close of poll and before declaration of result
    • (1) This section applies if—

      • (a) a constituency candidate dies, or his or her nomination is cancelled on the grounds of incapacity, after the close of the poll and before the declaration of the result of the poll; and

      • (b) it is found on the completion of the count of votes or on a recount that the candidate, if still living or if not incapacitated, would have been elected.

      (2) If this section applies, then once the Returning Officer is satisfied that the candidate has died or, as the case requires, that the candidate's nomination has been cancelled, the Returning Officer must report to the Chief Electoral Officer—

      • (a) the death or incapacity of the candidate; and

      • (b) the date of the candidate's death, if applicable; and

      • (c) if the candidate's incapacity was determined, under section 153H, by the Returning Officer, the date of the determination.

      (3) The Chief Electoral Officer must, immediately on being satisfied of the Returning Officer's report under subsection (2), endorse on the writ—

      • (a) the name of the candidate; and

      • (b) that the candidate would, if still living or if not incapacitated, have been elected as the member of Parliament for the district concerned; and

      • (c) the date on which the candidate died or, as the case requires, the date on which the candidate's incapacity was determined.

    153D Application of equality of votes provisions if constituency candidate dies or becomes incapacitated after close of poll
    • The provisions of this Act as to an equality of votes between constituency candidates apply even though, after the close of the poll, 1 of those candidates dies or the nomination of 1 of those candidates is cancelled on the grounds of incapacity.

    153E New election to be held if writ vacated
    • (1) Immediately after endorsing the writ in accordance with section 153A or section 153B or section 153C, the Chief Electoral Officer must notify the Governor-General of the need for a fresh election because of the death or the incapacity of the candidate concerned.

      (2) On receiving notification under subsection (1), the Governor-General must, without delay, issue a writ for a fresh election in that district, and that election must be conducted as if it were a by-election unless this Act provides otherwise.

      (3) The main roll and supplementary rolls which were to be used at the election which has failed must be used at the new election without any amendment or addition.

      (4) Any candidate who, at the time of the cancellation or closure of the poll, was a duly nominated candidate does not need to be nominated again, but the candidate may withdraw his or her nomination before the time appointed for the close of nominations for the new election.

      (5) All appointments of polling places made in respect of the election that has failed continue in respect of the new election.

    153F Destruction of ballot papers if by-election interrupted
    • (1) This section applies if, in the case of a by-election, the poll is interrupted as a result of the death of a constituency candidate or the cancellation of the nomination of a constituency candidate on the grounds of incapacity.

      (2) If this section applies,—

      • (a) all ballot papers that have been placed in ballot boxes must be taken out by the managers of polling places and made up into secured packages; and

      • (b) those packages must be sent, unopened, to the Returning Officer; and

      • (c) the Returning Officer must immediately destroy those packages in the presence of a District Court Judge or a Justice of the Peace.

    153G Application for cancellation of nomination if candidate incapacitated after close of nominations
    • (1) An application may be made for the cancellation of the nomination of a candidate if,—

      • (a) in the case of a candidate whose name is included on a list submitted under section 127, the candidate becomes incapacitated after the submission of the list and before the declaration required by section 193(5):

      • (b) in the case of a constituency candidate, the candidate becomes incapacitated after the close of nominations and before the declaration of the result of the poll.

      (2) An application under subsection (1) must be made as follows:

      • (a) if the candidate was nominated under section 143,—

        • (i) the application must be made by the 2 registered electors who nominated the candidate or, if either or both of them are unavailable or unable to act for any reason, then by the candidate's agent:

        • (ii) the application must be made to the Returning Officer for the district:

      • (b) if the candidate was nominated in a bulk nomination schedule or in accordance with section 146K, or is a candidate whose name is included on a list submitted under section 127,—

        • (i) the application must be made by the secretary of the party:

        • (ii) the application must be made to the Chief Electoral Officer.

      (3) The application must be made on a form provided by the Chief Electoral Officer, and must be witnessed by a Justice of the Peace or a solicitor.

      (4) The application must be accompanied by a certificate signed by a registered medical practitioner that certifies—

      • (a) as to the candidate's condition; and

      • (b) that, in the practitioner's opinion, the candidate is incapacitated within the meaning of section 151A.

      (5) The application—

      • (a) must be submitted to the Returning Officer or, as the case requires, the Chief Electoral Officer—

        • (i) as soon as practicable after the candidate becomes incapacitated; and

        • (ii) before the declaration of the result of the poll; and

      • (b) may be submitted by hand, post, or facsimile transmission.

    153H How application under section 153G to be dealt with
    • (1) On receiving an application made under subsection (1) of section 153G, the Returning Officer or, as the case requires, the Chief Electoral Officer must, without delay, determine whether or not the candidate became incapacitated in the circumstances set out in that subsection.

      (2) For the purpose of making a determination under subsection (1), the Returning Officer or Chief Electoral Officer may make any inquiries, and seek any assistance (including, without limitation, expert medical assistance), that he or she considers necessary.

      (3) If, before the declaration of the result of the poll, the Returning Officer or Chief Electoral Officer determines that the candidate became incapacitated in the circumstances set out in section 153G(1), the Returning Officer or Chief Electoral Officer must cancel the candidate's nomination.

      (4) If the Returning Officer or Chief Electoral Officer has not made a determination under subsection (1) before the declaration of the result of the poll, the application is to be treated as having been declined.

      (5) As soon as practicable after making a determination under subsection (1), the Returning Officer or Chief Electoral Officer must inform the applicant or applicants of that determination.