Electoral system for national legislature

Commonwealth Electoral Act 1918

274 Scrutiny of votes in House of Representatives elections 

(1) In a House of Representatives election the scrutiny shall, subject to section 266, be conducted in the manner set out in this section. 

(2) Each Assistant Returning Officer shall, in the presence of a polling official, and of such authorized scrutineers as may attend: 

(a) exhibit for the inspection of the scrutineers: (i) each ballot-box received from a presiding officer or mobile polling team leader; and (ii) each pre-poll ordinary ballot-box (within the meaning of Division 3 of Part XVA) received from a voting officer (within the meaning of that Division); 

(aa) record the condition of the ballot-box when it was received; 

(ab) check the accuracy of the statement of the presiding officer, mobile polling team leader or voting officer by: (i) removing the ballot papers from the box;(ii) counting, but not inspecting, them; and (iii) recording the number of ballot papers removed from the box; 

(b) reject all informal ballot papers, and arrange the unrejected ballot papers under the names of the respective candidates by placing in a separate parcel all those on which a first preference is indicated for the same candidate; 

(c) count the first preference votes given for each candidate on all unrejected ballot papers; 

(d) make out and sign a statement (which may be countersigned by a polling official, and, if they so desire, by such scrutineers as are present) setting out the number of first preference votes given for each candidate, and the number of informal ballot papers; 

(e) place in a separate parcel all the ballot papers which have been rejected as informal; 

(f) transmit the following information, in an expeditious manner, to the Divisional Returning Officer: (i) the number of first preference votes given for each candidate; and (ii) the total number of ballot papers rejected as informal; 

(g) seal up the parcels and indorse on each parcel a description of the contents thereof, and permit any scrutineers present, if they so desire, to countersign the indorsement; and 

(h) transmit the parcels to the Divisional Returning Officer with the least possible delay, together with the statement specified in paragraph (d). 

(2A) If, in a House of Representatives election, there are more than 2 candidates for a Division, the Australian Electoral Officer for the State or Territory that includes the Division must, in writing, direct each Assistant Returning Officer for the Division, and the Divisional Returning Officer for the Division, to conduct a count of preference votes (other than first preference votes) on the ballot papers that, in the opinion of the Australian Electoral Officer, will best provide an indication of the candidate most likely to be elected for the Division. 

(2B) An Assistant Returning Officer to whom a direction is given under subsection (2A) must: (a) count the preference votes in accordance with the direction; and (b) transmit to the Divisional Returning Officer any information required by the direction; in the manner specified in the direction. 

(2C) A Divisional Returning Officer to whom a direction is given under subsection (2A) must count the preference votes in accordance with the direction: (a) at the time of the fresh scrutiny under subsection (7); and (b) at the time at which the Divisional Returning Officer examines and counts ballot papers recording declaration votes other than ballot papers recording declaration votes that were examined and counted at the time of the fresh scrutiny. 

(3) The Divisional Returning Officer shall open all ballot-boxes not opened by an Assistant Returning Officer, and shall conduct the scrutiny of the ballot papers contained therein in the manner aforesaid as far as applicable. 

(4) The Divisional Returning Officer shall, in the manner prescribed by this Act or the Regulations, examine, count, and deal with all ballot papers used for casting declaration votes. 

(7) The Divisional Returning Officer: (a) shall open the sealed parcels of ballot papers received from the Assistant Returning Officers in or for the Division; (b) shall make a fresh scrutiny of the ballot papers contained in the parcels, and, for the purpose of that scrutiny, shall have the same powers as if it were the original scrutiny, and may reverse any decision given by an Assistant Returning Officer in relation to the original scrutiny; (c) from the result of the scrutiny of the votes counted under the provisions of subsections (3) and (4), and the fresh scrutiny conducted under the provisions of this subsection, shall ascertain the total number of first preference votes given for each candidate and the number of informal ballot papers; and (ca) must then proceed with the scrutiny and the counting of the votes as follows: (i) if, after ascertaining the first preference votes given for each candidate, no candidate has an absolute majority of votes, the Divisional Returning Officer must apply subsection (7AA); (ii) if, after ascertaining the first preference votes given for each candidate, a candidate has an absolute majority of votes, that candidate is elected; and (d) if, after applying subsection (7AA), subparagraph (7AA)(b)(i) applies, shall proceed with the scrutiny and the counting of the votes as follows: (i) the candidate who has received the fewest first preference votes shall be excluded, and each ballot paper counted to the candidate shall be counted to the candidate next in the order of the voter?s preference; (ii) the process of excluding the candidate who has the fewest votes, and counting each of his or her ballot papers to the unexcluded candidate next in the order of the voter?s preference, shall be repeated until only 2 candidates remain in the count; and (iii) if, following the exclusion of candidates under this paragraph, a candidate has an absolute majority of votes, that candidate shall be elected. 

(7AA) If, after ascertaining the total number of first preference votes for each candidate under paragraph (7)(ca), no candidate has an absolute majority of votes, the Divisional Returning Officer must take the following steps: (a) rank the candidates consecutively in order of their standing in the poll as set out in subsection (7AB); (b) then: (i) if the total number of first preference votes for all the candidates, other than the first and second ranked candidates, is equal to or more than the number of first preference votes for the second ranked candidate?proceed with the scrutiny as set out in paragraph (7)(d); or 

(ii) if the total number of first preference votes for all the candidates, other than the first and second ranked candidates, is less than the number of first preference votes for the second ranked candidate?exclude all the candidates other than the first and second ranked candidates; (c) if subparagraph (b)(ii) applies?count each ballot paper of an excluded candidate to whichever of the first or second ranked candidates is earlier in the order of preference expressed on the ballot paper. 

(7AB) The ranking of candidates under paragraph (7AA)(a) is to be done as follows: (a) the candidate with the highest number of first preference votes is to be the first ranked candidate, the candidate with the second-highest number of votes is to be the second ranked candidate, and so on; (b) if 2 or more candidates have an equal number of first preference votes, the ranking as between those candidates is to be decided, by lot, by the Divisional Returning Officer.(7AC) If, following the exclusion of candidates under subparagraph (7AA)(b)(ii) and the count of ballot papers under paragraph (7AA)(c), a candidate has an absolute majority of votes, that candidate is elected. 

(7A) The fresh scrutiny referred to in paragraph (7)(b) shall, if the Australian Electoral Officer for the State or Territory that includes the relevant Division so directs in writing, include a scrutiny of such preferences (other than first preferences), on such of the ballot papers, as are required by the direction, and shall be conducted in the manner specified in the direction.(9) If, on any count other than the final count: (a) 2 or more candidates (lowest ranking candidates) have an equal number of votes; and (b) one of them has to be excluded; the candidate to be excluded is the candidate with less votes than any of the other lowest ranking candidates at the last count at which one of those candidates had less votes than any of the others, but, if there has been no such count, the Divisional Returning Officer must decide by lot which of them is to be excluded. 

(9A) If, in the final count, 2 or more candidates have an equal number of votes, the Divisional Returning Officer shall make a fresh scrutiny of the votes scrutinised under subsection (7) and a fresh scrutiny of all declaration ballot papers rejected at the preliminary scrutiny. 

(9B) If, after the fresh scrutinies referred to in subsection (9A), a candidate has received an absolute majority of votes, that candidate shall be elected. 

(9C) If, after the fresh scrutinies referred to in subsection (9A), 2 or more candidates have an equal number of votes, the Divisional Returning Officer shall give to the Electoral Commissioner written notice that the election cannot be decided.(10) In this section an absolute majority of votes means a greater number than one-half of the whole number of ballot papers other than informal ballot papers. 

(12) The Divisional Returning Officer shall: (a) place in a separate parcel all the ballot papers which have been rejected as informal; (b) place in a separate parcel all the unrejected ballot papers; and (c) seal up the parcels and indorse on each parcel a description of the contents thereof, and permit any scrutineers present, if they so desire, to countersign the indorsement.