PART V. DECLARATION OF THE RESULTS AND THE RETURN OF WRITS OF ELECTION. Declaration of poll. Late votes of 82. The returning officer, as soon as possible after he has examined and counted all the ballot-papers taken at the different polling-places and ascertained the gross number of votes received for each candidate, shall then at the place of nomination openly declare the general state of the poll so ascertained, and shall at the same time and place declare the name or names of the person or persons elected. * Provided that when the returning officer has ascertained upon an examination and count of all the ballot-papers taken at the different polling-places, and of such fabsent voters' ballot-papers as have then been received, examined, and counted by him, that the result of the election cannot be affected by any votes given by any tabsent voters' ballotpapers still to be received from distant places, he may at once declare the name or names of the person or persons elected. But he shall nevertheless, in manner herein before prescribed, examine and count all votes contained in such tabsent voters' ballot-papers received thereafter until the second day preceding the day named in the writ for the return thereof. * Save as hereinafter provided, no envelope purporting to contain an absent voters.] tabsent voter's ballot-paper received by him on the second day preceding or on the day preceding the day named in the writ for the return thereof, or on or after such day, shall be opened or examined by him, and no vote given thereby shall be counted; and he shall, in manner hereinafter directed, transmit all such envelopes, unopened, to the Clerk of the Assembly: Ballot-papers to be transmitted to the Clerk of Assembly. *Provided that when by reason of some impediment the receipt of certain fabsent voters' ballot-papers has been delayed, and the returning officer has reason to believe that votes given by such ballot-papers, when received, examined, and counted, may affect the result of the election, he may certify accordingly to the Governor or Speaker, as the case may be, and the Governor or Speaker may thereupon extend the time for the return of the writ, so as to permit such votes to be received, and such votes shall, when received, be examined and counted, and the state of the poll shall be then declared accordingly. In the event of the number of votes for any two or more candidates being found to be equal, he shall decide by his casting vote which shall be elected. No returning officer shall vote at any election for the electoral district of which he is the returning officer except in the case of an equality of votes. 83. The returning officer shall, as soon as practicable after the declaration of the poll at any election, enclose in one packet the several sealed parcels so made up and sealed by him, and shall seal up such packet and endorse the same with a description of the several contents thereof, and the name of the electoral district and the date of polling, and sign such endorsement with his name, and shall forthwith transmit such sealed packet to the Clerk of the Legislative Assembly, who shall safely keep the same for two years after the receipt thereof. In case any question shall at any time arise touching the votes alleged to have been given at any election, the ballot-papers, and declarations contained in any such sealed packet shall be received in evidence as proof of such votes in any court of justice or by the Elections Paragripas inserted by section 11 (3) of the Act of 1905. Reference to absent voters' ballot-papers substituted for reference to postal ballotpapers by section 10 (1) of the Act of 1908. Words" and declarations" substituted by section 10 (2) of the Act of 1908 for "certificates and applications" which had been inserted by section 11 (4) of the Act of 1905. Tribunal upon production thereof, and of a certificate under the hand of the Clerk of the Assembly that the same were transmitted to him in due course by the returning officer of the electoral district to which the same relate. The Return. PART V.- WRITS OF person 84. The name of every person elected and the date of his election Name of shall be endorsed on the writ by the returning officer, and the writ elected to be shall be by him returned to the Governor or Speaker, as the case may endorsed on be, within the time specified therein. writ. questioned. 85. No election under this Act shall be liable to be questioned by Election not reason of any defect in the title, or any want of title, of any person by tobe or before whom such election is held, if such person really acted at such election, nor by reason of any formal error or defect in any declaration or other instrument, or in any publication made under this Act or intended to be so made, nor by reason of any such publication being out of time. in election 86. No election for any electoral district shall be void in consequence Remedy for solely of any delay in holding the election at the time appointed, or in informalities taking the poll, or in the return of the writ, or in consequence of any proceedings. impediment of a merely formal nature. And the Governor in Council may adopt such measures as may be necessary for removing any obstacle of a merely formal nature by which the due course of any election might be impeded. Provided that the validity of the election and the measures so taken shall be forthwith declared by the Governor in Council by proclamation. 87. All expenses which a returning officer necessarily incurs in and Expenses. about an election under the provisions of this Act, *and also such reasonable remuneration as may be fixed by way of payment for services rendered by a returning officer, shall be defrayed out of such moneys as shall be appropriated by Parliament for that purpose. of candidate 92. If upon the trial of an election petition the Elections Tribunal Punishment reports that any corrupt practice other than treating or undue influence found, on has been proved to have been committed in reference to such election, election petition, by or with the knowledge and consent of any candidate at such election, guilty or that the offence of treating or undue influence has been proved to personally of have been committed in reference to such election by any candidate at practices. such election, that candidate shall not be capable of being elected to or sitting in the Legislative Assembly for the period of three years, and if he has been elected his election shall be void. corrupt of candidate 93. If upon the trial of an election petition in which a charge is Punishment made of any corrupt practice having been committed in reference to an found, on election, the Elections Tribunal reports that a candidate at such election election petition, guilty has been guilty by his agents of any corrupt practice in reference to such by agents of • Words from and" to "returning officer" inserted by section 22 of the Act of 1897. + Proviso (inserted by section 8 of the Act of 1898) repealed by section 8 of the Act of 1905. # Sections 88 to 91 (treating, undue influence, bribery, personation) repealed by "The Criminal Code Act, 1899" (63 Vic. No. 9), s. 3, title Criminal Law. See now sections 98 et seq. of the Code. corrupt practices. PART VI. CORRUPT AND ILLEGAL PRACTICES. Penalty for connivance of candidate at illegal practice. Actions for liquor or refreshment supplied at elections not to be maintainable. Report exonerating candidate in certain cases of corrupt and illegal practice by agents. + Semble his." Power of election, that candidate shall not be capable of being elected to or sitting in the Legislative Assembly for such electorate, during the Parliament for which the election was held, and if he has been elected his election shall be void. 94 to 96.* 97. If upon the trial of an election petition the Elections Tribunal reports that any illegal practice is proved to have been committed in reference to such an election by or with the knowledge and consent of any candidate at such election, that candidate shall not be capable of being elected to or sitting in the Legislative Assembly for that electorate for three years next after the date of the report, and if he has been elected his election shall be void. He shall further be subject to the same incapacities as if at the date of the report he had been convicted of such illegal practice. 98 to 102.† 103. No action or suit shall be maintainable by any licensed publican or any owner or keeper of any shop, booth, tent, or other place of entertainment against any candidate or any agent of any such candidate, for any liquor, food, or refreshment of any kind, whether for man or beast, supplied upon the credit of any such candidate or agent during the progress of any election under this Act. Excuse and Exception for Corrupt or Illegal Practice, or Illegal Payment or Hiring. 104. When, upon the trial of an election petition, the Elections Tribunal reports that a candidate at such election has been guilty by his agents of the offence of treating and undue influence, and illegal practice, or of any of such offences, in reference to such election, and further reports that the candidate has proved (a) That no corrupt or illegal practice was committed at such election by the candidate himself and the offences mentioned in the said report were committed contrary to the orders and without his sanction or connivance; (b) That such candidate took all reasonable means for preventing the commission of corrupt and illegal practice at such election; (c) That the offences mentioned in the report were of a trivial, unimportant, and limited character; and (d) That in all other respects the election was free from any corrupt or illegal practice on the part of the candidate, then the election of such candidate shall not, by reason of the offences mentioned in the report, be void, nor shall the candidate be subject to any incapacity under this Act. 105. When it appears to the Elections Tribunal that any act or omission of a candidate at any election, or of his agent or of any other except innocent person, which would, by reason of being a payment, engagement, or illegal practice, contract in contravention of this Act, or of otherwise being in contravention of any of the provisions of this Act, be but for this section an illegal practice, payment, or hiring, arose from inadvertence or from act from being &c. Sections 94 to 96 (corrupt and illegal practices) repealed by "The Criminal Code Act, 1899" (63 Vic. No. 9), s. 3, title Criminal Law. See now sections 98 et seq. of the Code. + Sections 98 to 102 (illegal payments, corrupt withdrawal, printing placards, illegal hiring) repealed by "The Criminal Code Act, 1899" (63 Vic. No. 9), s. 3, title Criminal Law. See now sections 98 et seq. of the Code. accidental miscalculation or from some other reasonable cause of a like nature, and in any case did not arise from any want of good faith, and under the circumstances it seems to the Elections Tribunal to be just that the candidate and the agent and other person, or any of them, should not be subject to any of the consequences under this Act of such act or omission, the Elections Tribunal may make an order allowing such act or omission to be an exception from the provisions of this Act which would otherwise make the same an illegal practice, payment, or hiring, and thereupon such candidate, agent, or person shall not be subject to any of the consequences under this Act of the said act or omission. Disqualification of Electors. PART VI.CORRUPT AND ILLEGAL PRACTICES. 106. Every person guilty of a corrupt or illegal practice, or of illegal Prohibition of payment or hiring at an election, is prohibited from voting at such persons guilty election, and if any such person votes his vote shall be void. of corrupt or illegal practices, &c., from voting. persons from 107. Every person who, in consequence of conviction or of the report Prohibition of of the Elections Tribunal, has become, under this Act or under any other disqualified Act for the time being in force relating to corrupt or illegal practices, voting. incapable of voting at any election, is prohibited from voting at such election, and his vote shall be void, if any such person vote. 108 to 110.* PART VII.-SUPPLEMENTAL PROVISIONS. Evidence. PART VII.SUPPLEMENTAL PROVISIONS. 111. In any prosecution under this Act, whether on indictment or Defendant summarily, the person prosecuted, and the husband or wife of such and his wife person, shall be a competent witness for the defence. competent to give evidence. facilitated. 112. In any prosecution under this Act, and in all proceedings in Proof of writ which it is material to prove any writ of election, it shall be sufficient of election to produce a copy thereof certified by the Governor or Speaker, and a copy shall be made and so certified simultaneously with or immediately after the issue of any writ of election and shall be transmitted to the returning officer with the writ directed to him. election. 113. The certificate of the returning officer at an election that the Evidence of election mentioned in the certificate was duly held, and that any person named in the certificate was a candidate at such election, shall, in any judicial proceeding, be sufficient evidence of the facts therein stated. Indemnities. 114. (1.) A person who is called as a witness respecting an election before the Elections Tribunal shall not be excused from answering any question relating to any offence at or connected with such election on the ground that the answer thereto may criminate or tend to criminate himself or on the ground of privilege. Provided that (a) A witness who answers truly all questions which he is required Sections 108 and 109 (procedure on prosecutions) repealed by "The Criminal Code Act, 1899" (63 Vic. No. 9), s. 3, title Criminal Law. See now sections 107, 586, 587 of the Code. Section 110 (suspensory provision) repealed by section 2 of the Act of 1897. obligation of witness to answer, and certificate of indemnity. PART VII. SUPPLEMENTAL PROVISIONS. Consolidated Act. 49 Vic. No. 13, 1885. Submission of Penalty for neglect of electoral registrar. (b) An answer by a person to a question put by or before the Elections Tribunal shall not, except in the case of any criminal proceedings for perjury in respect of such evidence, be in any proceeding, civil or criminal, admissible in evidence against him. (2.) When a person has received such a certificate of indemnity in relation to an election, and any legal proceeding is at any time instituted against him for any offence under this Act committed by him, previously to the date of the certificate, at or in relation to the same election, the Court having cognisance of the case shall, on proof of the certificate, stay the proceeding, and may in their discretion award to such person such costs as he may have been put to in the proceeding. (3.) Nothing in this section shall be taken to relieve a person receiving a certificate of indemnity from any incapacity under this Act or from any proceeding to enforce such incapacity other than a criminal prosecution. (4.) When a solicitor or other person lawfully acting as agent for any party to an election petition respecting any election has not taken any part or been concerned in such election, the Elections Tribunal shall not be entitled to examine such solicitor or agent respecting matters which came to his knowledge by reason only of his being concerned as solicitor or agent for a party to such petition. 115. The Elections Tribunal, when reporting that certain persons have been guilty of any corrupt or illegal practice, shall report whether those persons have or have not been furnished with certificates of indemuity; and such report shall be laid before the Attorney-General, together with the evidence on which such report was based, with a view to his instituting or directing a prosecution against such persons as have not received certificates of indemnity, if the evidence is, in his opinion, sufficient to support a prosecution. 116 and 117.* [Offences.] 118. The Principal Electoral Registrar and every electoral registrar who is guilty of any wilful misfeasance or wilful or negligent act of commission or omission contrary to any of the provisions of this Act, shall for every such offence be liable to a penalty not exceeding fifty pounds, to be recovered on summary conviction. Penalty for 119. Every police magistrate, clerk of petty sessions, or officer or undue member of the police force, who, during the time he continues in such influence by public officers. office, by word, message, writing, or in any other manner endeavours to persuade any elector to give, or dissuade any elector from giving, his vote for any candidate, or endeavours to persuade or induce any elector to refrain from voting at any election, shall forfeit the sum of one hundred pounds, to be recovered by any person who shall sue for the same without collusion within six months after the commission of the offence. Penalty for neglect by returning officer, &c. 120. (1.) Every returning officer for assistant returning officer who after having accepted office as such wilfully neglects or refuses to perform any of the duties which by the provisions of this Act he is required to * Sections 116 and 117 (intrusion into booth, obstructing election) repealed by "The Criminal Code Act, 1899" (63 Vic. No. 9), s. 3, title Criminal Law. See now section 108 of the Code. + Words from "The" to "and" inserted by section 10 of the Act of 1898. Words or assistant returning officer" inserted by section 14 of the Act of 1909. |