Electoral Act 2017 (NSW)

Electoral Act 2017 No 66 An Act to make provision with respect to the election of members of Parliament; and for other purposes. Part 1 Preliminary 1 Name of Act This Act is the Electoral Act 2017. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Objects of Act The objects of this Act are as follows— (a) to constitute an independent Electoral Commission for New South Wales and to provide for the appointment of an independent Electoral Commissioner for New South Wales, (b) to promote and maintain an electoral system characterised by accessibility, integrity and fairness that provides for the election of members of Parliament of New South Wales in accordance with the Constitution Act 1902, (c) to provide for a fair and transparent process for the distribution of New South Wales into electoral districts for elections for the Legislative Assembly, (d) to facilitate and protect the integrity of representative government in New South Wales, (e) to enable the citizens of New South Wales to participate freely in fair and transparent electoral processes, (f) to facilitate the fair and transparent conduct of elections in New South Wales, (g) to provide guidance to members of Parliament, parties, groups and candidates in relation to their rights, responsibilities and obligations in relation to the conduct of elections under this Act. 4 Definitions (1) In this Act— abbreviation, in relation to the name of a party, includes an alternative name of the party. address, of an individual—see subsection (3). approved means approved by the Electoral Commissioner. Assembly means the Legislative Assembly of New South Wales. Assembly general election means the election held for members of the Assembly next following the dissolution or expiry of the Assembly. authorised roll, for an election, means the roll prepared for the election under Division 6 of Part 5. ballot counting place means a place appointed by the Electoral Commissioner for the counting of ballot papers under section 163. by-election means an election held for the return of a member of the Assembly other than in connection with an Assembly general election. child protection declaration means a child protection declaration made under Division 4 of Part 7. close of voting means 6 pm on election day (or on any day to which the conduct of an election has been adjourned). Commonwealth Act means the Commonwealth Electoral Act 1918 of the Commonwealth. Council means the Legislative Council of New South Wales. declaration vote means a vote cast in accordance with Division 9 of Part 7. declared facility—see section 117. display a poster or electoral material includes exhibit or post up the poster or electoral material, and publicly display means display, as so defined, within or within view of a public place. driver licence means a driver licence issued under the Road Transport Act 2013. early voting centre means a voting centre designated by the Electoral Commissioner under section 108 (4) (a) to be an early voting centre for the purpose of an election. election means an election of any member or members of the Assembly or a periodic Council election. election day, in relation to an election, means the day specified in the writ for the election as the day for the taking of the poll for the election. election manager means a person appointed as an election manager under section 81 (3). election official means a person appointed as an election official under section 81 (1). elector means any person entitled to vote at an election under Part 4. Electoral Commission means the New South Wales Electoral Commission constituted by section 8. Electoral Commissioner means the Electoral Commissioner appointed under section 11. electoral district or district means a district for the election of a member to serve in the Assembly. Electoral Information Register means the register kept and maintained by the Electoral Commissioner under Division 4 of Part 5. electoral material means any thing, including without limitation a how-to-vote card, poster or advertisement, containing electoral matter (whether in a tangible or an electronic form). electoral matter means— (a) any matter that is intended or calculated or likely to affect or is capable of affecting the result of any election held or to be held or that is intended or calculated or likely to influence or is capable of influencing an elector in relation to the casting of his or her vote at any election, or (b) the name of a candidate at any election, the name of the party of any such candidate, the name or address of the headquarters or campaign office of any such candidate or party, the photograph of any such candidate, and any drawing or printed matter that purports to depict any such candidate or to be a likeness or representation of any such candidate. electoral paper includes any written claim or application, any approved form and any prescribed form under this Act. eligible overseas elector means an elector under this Act who is also enrolled under section 94, 94A or 95 of the Commonwealth Act. enrolled means enrolled by the Electoral Commissioner under Part 5. Note— Under this Act there is no permanent roll of electors. However— (a) the person's name and enrolment details will be recorded in the Electoral Information Register maintained under this Act—see Division 4 (Electoral Information Register) of Part 5 (Enrolment procedures and information), and (b) the person's name will appear on an authorised roll prepared for a particular election and on other lists of electors prepared under this Act—see Division 6 (Authorised rolls) of Part 5 (Enrolment procedures and information). enrolled address means the address for which an elector is enrolled. enrolment details, in relation to an elector, means the particulars included in the Electoral Information Register in relation to the elector. function includes a power, authority or duty, and exercise a function includes perform a duty. general election means an Assembly general election and a periodic Council election held or to be held concurrently. group means a group of candidates constituted in accordance with clause 3 of the Sixth Schedule to the Constitution Act 1902 for a periodic Council election. group voting square means a square printed on a ballot paper for a periodic Council election above the names of the candidates included in a group who have requested under section 86 (2) a group voting square for the purposes of the election. hospital includes a convalescent home and any facility similar to a hospital or convalescent home. how-to-vote card means any card, handbill, pamphlet or notice having any voting directions within it, whether or not it contains— (a) any representation or partial representation of a ballot paper or portion of a ballot paper, or (b) any representation or partial representation apparently intended to represent a ballot paper or portion of a ballot paper. itinerant elector means an elector under this Act who is also enrolled under section 96 of the Commonwealth Act. joint owner of premises or property means one of 2 or more persons who own the premises or property jointly, whether as joint tenants or tenants in common or otherwise. legislature means the Parliament of the Commonwealth or a State or the Legislative Assembly of a Territory. local government election means an election under the Local Government Act 1993 for the office of councillor or mayor under that Act (other than an election of mayor by councillors). member means a member of the Assembly or member of the Council. nomination day, in relation to an election, means the day specified in the writ for the election as the nomination day. party means a body or organisation, incorporated or unincorporated, having as one of its objects or activities the promotion of the election to the Assembly or the Council of a candidate or candidates endorsed by it or by a body or organisation of which it forms a part. periodic Council election has the same meaning as it has in section 3 of the Constitution Act 1902. Photo Card means a New South Wales Photo Card issued by Transport for NSW under the Photo Card Act 2005. poster means any electoral matter printed, drawn or depicted on any material and if any electoral matter is printed, drawn or depicted in sections, those sections, severally and collectively, are taken to be a poster. premises includes any structure, building, vehicle or vessel or any place, whether built on or not, and any part of it. President means the President of the Council. Redistribution Panel means the Electoral Districts Redistribution Panel established under Division 1 of Part 3. Register of Parties—see section 58. registered abbreviation, of the name of a party, means the abbreviation of the name of the party included in the Register of Parties. registered early voter means an elector who— (a) has been granted registered early voter status under section 37, or (b) is taken to be a registered early voter under that section. registered early voter (postal) means a registered early voter belonging to the registered early voter (postal) class under section 37. registered early voter (technology assisted voting) means a registered early voter belonging to the registered early voter (technology assisted voting) class under section 37. registered logo, of a party, means the logo of the party included in the Register of Parties. registered name, of a party, means the name of the party included in the Register of Parties. registered officer of a registered party means the person shown in the Register of Parties under Part 6 as the registered officer of the party, and (except in Part 6) includes a person shown in that Register as a deputy registered officer of the party. registered party means a party registered in accordance with Part 6. regulated period for an election— (a) means the period starting on the date of the issue of the writ for the election and ending at 6 pm on election day, and (b) in the case where an election is adjourned, includes the period starting on the original election day and ending at 6 pm on the day to which voting for the election is adjourned. residence—see section 5. silent elector means an elector— (a) whose address is required by operation of section 36 to be omitted from any authorised roll or list of electors, or (b) is taken to be a silent elector under that section. Speaker means the Speaker of the Assembly. State election means an Assembly general election, a periodic Council election or a by-election for the Assembly. Surveyor-General means the person employed in the Public Service as the Surveyor-General. voting centre means a place appointed by the Electoral Commissioner under section 108 to be a voting centre for the purpose of taking the poll at an election (and includes an early voting centre). voting centre manager means a person appointed as a voting centre manager under section 81 (4). voting directions means directions or suggestions (whether express or implied) in relation to the casting of votes. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) Meaning of "enrolled for the district" For the purposes of this Act, an elector is enrolled for the district that contains the enrolled address of the elector. However, if the elector is an eligible overseas elector or itinerant elector, an elector is enrolled for the district that contains the Subdivision for which the elector is enrolled under the Commonwealth Act. (3) Address of an individual The address of an individual means— (a) for the purposes of sections 186–188 and 200, an address, including a full street address and suburb or locality, that is located in Australia and at which the individual can usually be contacted during the day, but does not include a post office box, and (b) in any other case, the residential address of the individual. 5 Determination of a person's residence (1) In determining the residence of a person for the purposes of this Act, the Electoral Commissioner may have regard to the purpose and other circumstances, as well as to the fact, of the person's presence at, or absence from, the place concerned. (2) Without limiting subsection (1), if at a particular time a person is staying at any place otherwise than on a permanent basis, the person may be taken to be at that time— (a) residing at the place if the person has no residence elsewhere, or (b) not residing at the place if the person does have a residence elsewhere. (3) A person's residence includes the place to which a person, when temporarily residing elsewhere, has a fixed intention of returning for the purpose of continuing to reside at that place. 6 Circumstances in which elector deemed to be "unable to attend at a voting centre on election day" For the purposes of this Act, and without limitation, an elector is unable to attend at a voting centre on election day if the person— (a) is not throughout the hours of voting on election day within New South Wales, or (b) is not throughout the hours of voting on election day within 8 kilometres by the nearest practicable route of any voting centre open for the purposes of an election, or (c) is throughout the hours of voting on election day travelling under conditions that will preclude the person from voting at any voting centre, or (d) is seriously ill or infirm, and by reason of such illness or infirmity will be precluded from attending at any voting centre to vote, or (e) in the case of a woman, will, by approaching maternity, be precluded from attending at any voting centre to vote, or (f) is, at a place other than a hospital, caring for a person who is seriously ill or infirm or approaching maternity and by reason of caring for the person will be precluded from attending at any voting centre to vote, or (g) is, by reason of the person's membership of a religious order or his or her religious beliefs— (i) precluded from attending at a voting centre, or (ii) precluded from voting throughout the hours of voting on election day or throughout the greater part of those hours, or (h) is, by reason of his or her being kept in a correctional centre (within the meaning of the Crimes (Administration of Sentences) Act 1999), precluded from attending at any voting centre to vote, or (i) will, by reason of being engaged for fee, gain or reward in any work throughout the hours of voting on election day, be precluded from attending at any voting centre to vote, or (j) is a silent elector, or (k) is a person with a disability (within the meaning of the Anti-Discrimination Act 1977), or (l) believes that attending a voting centre on election day will place the personal safety of the person or of members of the person's family at risk. 7 Notes Notes included in this Act do not form part of this Act. Part 2 Electoral administration Division 1 New South Wales Electoral Commission 8 Constitution of Electoral Commission (1) There is constituted by this Act a corporation with the corporate name of the New South Wales Electoral Commission. (2) The Electoral Commission is a statutory body representing the Crown. Note— Section 13A of the Interpretation Act 1987 provides that a statutory body representing the Crown has the status, privileges and immunities of the Crown. 9 Members of Electoral Commission (1) The Electoral Commission consists of the following members— (a) a former Judge appointed by the Governor as the Chairperson of the Commission, (b) the Electoral Commissioner, (c) a person appointed by the Governor who has financial or audit skills and qualifications relevant to the functions of the Commission. (2) In this section, former Judge means— (a) a former Judge of the Supreme Court of New South Wales or of any other State or Territory, or (b) a former Judge of the Federal Court of Australia, or (c) a former Justice of the High Court of Australia. (3) Schedule 1 contains provisions relating to the Electoral Commission. 10 Functions of Electoral Commission (1) The Electoral Commission has the functions conferred or imposed on it by or under the following— (a) this Act, (b) the Electoral Funding Act 2018, (c) the Lobbying of Government Officials Act 2011, (d) the Local Government Act 1993, (e) any other Act. Note— Under the Electoral Funding Act 2018, the Electoral Commission has the function of administering the election funding, expenditure and disclosure scheme under that Act and registering electoral participants for the purposes of that scheme. Under the Lobbying of Government Officials Act 2011, the Electoral Commission has the function of maintaining the Register of Third-Party Lobbyists and Lobbyists Watch List, and of the enforcement of obligations relating to lobbying. (2) The Electoral Commission may— (a) provide assistance for the conduct of elections by the Electoral Commissioner under this or any other Act, and (b) institute proceedings for offences under the following Acts— (i) this Act, (ii) the Electoral Funding Act 2018, (iii) the Lobbying of Government Officials Act 2011, (iv) the Local Government Act 1993 (but only in connection with the conduct of a local government election), and (c) make applications to the Supreme Court for injunctions, declarations or other orders within the jurisdiction of the Court for the purpose of ensuring compliance with the following— (i) this Act, (ii) the Electoral Funding Act 2018, (iii) the Lobbying of Government Officials Act 2011, (iv) the Local Government Act 1993 (but only in connection with the conduct of a local government election), and (d) conduct and promote research into electoral matters and other matters that relate to its functions, and publish the results of any such research, and (e) promote public awareness of electoral matters that are in the general public interest by means of education and information programs. (3) It is the duty of the Electoral Commission to exercise its functions under this or any other Act in a manner that is not unfairly biased against or in favour of any particular parties, groups, candidates or other persons, bodies or organisations. (4) The Electoral Commission is not subject to the control or direction of the Minister in the exercise of its functions. Division 2 Electoral Commissioner 11 Electoral Commissioner (1) The Governor may appoint an Electoral Commissioner for New South Wales. (2) Schedule 2 contains provisions relating to the Electoral Commissioner. 12 Functions of Electoral Commissioner (1) The Electoral Commissioner has the following functions— (a) the general administration of the provisions of this Act relating to the conduct of elections, (b) any other functions conferred or imposed on the Commissioner by or under this or any other Act. (2) Without limiting subsection (1), the Electoral Commissioner has the function of dealing with the following matters— (a) the enrolment of electors, (b) the maintenance of the Electoral Information Register, (c) the preparation of authorised rolls for elections and other lists of electors under this Act. (3) It is the duty of the Electoral Commissioner to exercise his or her functions under this or any other Act in a manner that is not unfairly biased against or in favour of any particular parties, groups, candidates or other persons, bodies or organisations. (4) The Electoral Commissioner is not subject to the control or direction of the Minister or the Electoral Commission in the exercise of his or her functions under this or any other Act (other than functions of the Electoral Commission that are delegated to the Electoral Commissioner). 13 Conducting elections for other organisations (1) The Electoral Commissioner may conduct an election for a person, body or an organisation, whether inside New South Wales or otherwise, on the payment of a fee or charge to be determined by the Electoral Commissioner. (2) Without limiting subsection (1), goods and services may be provided in the course of conducting such an election. (3) A summary of the elections conducted and any such goods or services provided under this section during a year must be included in the annual report of the Electoral Commission relating to that year. Note— Under the Local Government Act 1993, a local council can enter into an arrangement with the Electoral Commissioner for the Electoral Commissioner to administer the local council's elections. 14 Electoral Commissioner not required to vote The Electoral Commissioner is not required to vote at any State election or at any local government election. Division 3 Staff of Electoral Commission and delegations 15 Staff of Electoral Commission (1) Persons may be employed in the Public Service to enable the Electoral Commission and the Electoral Commissioner to exercise their functions. The persons so employed are to be employed in a separate Public Service agency and may be referred to as members of staff of the Electoral Commission. (2) Any conditions of employment (within the meaning of the Industrial Relations Act 1996) determined by the Electoral Commissioner under the Government Sector Employment Act 2013 with respect to any such persons who are employed in casual employment in connection with an election have effect despite any State industrial instrument that applies to Public Service casual employees generally, unless the instrument expressly applies to those casual employees. 16 Delegation (1) The Electoral Commission may delegate any of the Electoral Commission's functions (other than this power of delegation) to— (a) the Electoral Commissioner, or (b) a member of staff of the Electoral Commission, or (c) an officer or member of staff of an electoral commission or electoral office of the Commonwealth or of a State or Territory, or (d) any person, or any class of persons, authorised for the purposes of this subsection by the regulations. (2) The Electoral Commissioner may delegate any of the Electoral Commissioner's functions (other than this power of delegation) to— (a) a member of staff of the Electoral Commission, or (b) an officer or member of staff of an electoral commission or electoral office of the Commonwealth or of a State or Territory, or (c) any person, or any class of persons, authorised for the purposes of this subsection by the regulations. (3) Without limiting subsection (2), the Electoral Commissioner may delegate any of the Electoral Commissioner's functions as a returning officer for an Assembly election or a periodic Council election (other than this power of delegation) to an election official. (4) A delegation under this section may be to a particular person, the holder of a particular position or a class of persons or holders of positions. Part 3 Redistribution of electoral districts Division 1 Electoral Districts Redistribution Panel 17 Establishment of Electoral Districts Redistribution Panel (1) There is established by this Act an Electoral Districts Redistribution Panel (the Redistribution Panel) consisting of the following 3 members— (a) a current or former Judge appointed by the Governor as the Chairperson of the Redistribution Panel, (b) the Electoral Commissioner, (c) the Surveyor-General. (2) In this section, Judge means— (a) a Judge of the Supreme Court of New South Wales or of any other State or Territory, or (b) a Judge of the Federal Court of Australia, or (c) a Justice of the High Court of Australia. 18 Provisions relating to Redistribution Panel (1) Schedule 3 contains provisions relating to the Redistribution Panel. (2) For the purposes of carrying out its functions, the Redistribution Panel may make use of the services of any of the members of staff of the Electoral Commission. 19 Application of Royal Commissions Act 1923 to Redistribution Panel (1) In relation to the exercise of their functions under this Part, the members of the Redistribution Panel have the powers and immunities of a commissioner, and the Chairperson of the Panel has the powers of a chairperson, within the meaning of Division 1 of Part 2 of the Royal Commissions Act 1923. (2) The provisions of that Act (other than section 13 and Division 2 of Part 2) apply, with all necessary changes, to any witness or person summoned by or appearing before the Panel. Division 2 Redistribution of electoral districts 20 Governor to advise Redistribution Panel that redistribution is required If a distribution of electoral districts is required by the Constitution Act 1902, the Governor is to advise the Redistribution Panel of that fact. 21 Criteria for distributions (1) In carrying out its functions, the Redistribution Panel, subject to complying with sections 28 and 28A of the Constitution Act 1902, is— (a) to have regard to demographic trends within New South Wales and, as far as practicable, endeavour to ensure on the basis of those trends that, at the relevant future time, the number of electors enrolled in each electoral district will be equal (within a margin of allowance of 10 per cent more or less of the average enrolment in electoral districts at that future time), and (b) subject to paragraph (a), to give due consideration, in relation to each electoral district, to— (i) community of interests within the electoral district, including economic, social and regional interests, and (ii) means of communication and travel within the electoral district, and (iii) the physical features and area of the electoral district, and (iv) mountain and other natural boundaries, and (v) the boundaries of the existing electoral districts. (2) For the purposes of subsection (1) (a), the relevant future time is 4 years from the day of the return of the writs for choosing the Assembly that exists at the time the distribution is carried out. 22 Public notice of redistribution (1) As soon as practicable after the Redistribution Panel has been advised that a distribution is required, the Panel is to give public notice of the redistribution— (a) in the Gazette, and (b) on the Electoral Commission's website, and (c) in a newspaper published or circulating in New South Wales. (2) The public notice must— (a) invite suggestions in writing, to be lodged with the Redistribution Panel within 30 days after the date the public notice was given (the suggestion period), relating to the distribution of New South Wales into electoral districts, and (b) invite comments in writing, to be lodged with the Panel within 14 days after the expiry of the suggestion period (the comments period), relating to any suggestions received by the Panel under this section, and (c) notify the public that any suggestions and comments lodged with the Panel will be made available for public inspection on the Electoral Commission's website as soon as is reasonably practicable after the expiry of the suggestion period or comments period, as the case requires. (3) The Redistribution Panel is to make a copy of any suggestion or comment lodged with the Panel under this section available for public inspection on the Electoral Commission's website as soon as is reasonably practicable after the expiry of the suggestion period or comments period, as the case requires. 23 Preparation of draft redistribution determination (1) The Redistribution Panel is to prepare a draft determination of the names and boundaries of electoral districts. (2) Before preparing the draft determination under this section, the Redistribution Panel is— (a) to obtain, and consider, the advice of a recognised demographer, and (b) to consider any suggestions or comments lodged with it under section 22. 24 Manner of identifying boundaries of electoral districts (1) The Redistribution Panel may determine the boundaries of electoral districts by reference to such matters (including cadastral, topographical, administrative and other spatial information) as the Panel thinks fit. (2) The Redistribution Panel is required to cause its determinations of the boundaries of electoral districts to be recorded in such a way as is readily accessible by members of the public. 25 Public notice of draft redistribution determination (1) The Redistribution Panel is to give public notice of its draft determination of the names and boundaries of electoral districts— (a) in the Gazette, and (b) on the Electoral Commission's website, and (c) in a newspaper published or circulating in New South Wales. (2) The public notice must— (a) include a written statement that the following are available for inspection on the Electoral Commission's website— (i) a map setting out the Redistribution Panel's proposed names and boundaries of electoral districts, (ii) the Panel's reasons for making the draft determination, and (b) invite submissions in writing, to be lodged with the Panel within 30 days after the date the public notice was given (the submission period), relating to the draft determination, and (c) invite comments in writing, to be lodged with the Panel within 14 days after the expiry of the submission period (the comments period), relating to any submissions received by the Panel under this section, and (d) notify the public that any submissions and comments lodged with the Panel will be made available for public inspection on the Electoral Commission's website as soon as is reasonably practicable after the expiry of the submission period or comments period, as the case requires. (3) The Redistribution Panel is to make a copy of any submission or comment lodged with the Panel under this section available for public inspection on the Electoral Commission's website as soon as is reasonably practicable after the expiry of the submission period or comments period, as the case requires. (4) The Redistribution Panel is to consider any submission and comment lodged with the Panel under this section before making a final determination of the names and boundaries of electoral districts. 26 Public hearing (1) The Redistribution Panel must hold a public hearing into any submission or comment made under section 25 unless the Redistribution Panel is of the opinion that— (a) the matters raised in the submission or comment were raised, or are substantially the same as matters that were raised, in suggestions or comments lodged under section 22, or (b) the submission or comment is frivolous or vexatious. (2) Without limiting subsection (1), the Redi