A History of the Australian Ballot System in the United States/Appendix A
APPENDIX A
THE TEXT OF THE ORIGINAL AUSTRALIAN BALLOT ACT
Province of South Australia—Acts of Council, 1857-1860
No. 12
An Act to repeal certain Acts relating to the election of Members to serve in the Parliament of South Australia, and to provide for the election of such Members, (Assented to, 27th January, 1858.)
Preamble
Whereas it is expedient to repeal the Act No. 10 of 1855-6, "To provide for the Election of Members to serve in the Parliament of South Australia," and the Act No. 8 of 1856, "To amend an Act to provide for the election of Members to serve in the Parliament of South Australia," also the Act No. 32 of 1855-6, "To make further provision for the election of Members to serve in the Parliament of South Australia": Be it therefore Enacted, by the Governor-in-Chief of the Province of South Australia, with the advice and consent of the Legislative Council and House of Assembly of the said Province, in this present Parliament assembled, as follows —
Nos, 10 and 32, 1855- and No. 8, 1856, repealed
1. From and after the passing of this Act the three before-mentioned Acts, shall be and the same are hereby repealed, except in so far as the same may repeal any Act or part of any Act.
Province to form one electoral district for Legislative Council, and seventeen for House of Assembly
2. For the purpose of electing Members of the Legislative Council, the said Province shall form one electoral district; and the several electoral districts specified in Schedule A, to this Act annexed, shall form electoral divisions of such district; and for the purpose of electing Members of the House of Assembly, the said Province shall be divided into seventeen electoral districts, which shall have the names and boundaries, and shall return the number of Members specified in the said Schedule.
Appointment of Returning Officer
3. The Governor shall, from among the persons resident in the district, appoint a proper person to be the Returning Officer of each electoral district; and in case of absence from the Province, death, sickness, or other cause disabling any Returning Officer from acting, the Governor may at any time appoint some other person to act in the stead of such Returning Officer; and every such appointment shall be valid, until such appointment shall be cancelled, and some other person appointed to be Returning Officer; and every Returning Officer may appoint such clerks, deputies, and other subordinate officers as may be necessary to carry this Act into execution.
Proviso in case the Returning Officers being candidaies, or other deficiency of officers
4. No candidate for election, in any electoral district, shall be competent to act as a Returning Officer at such election: and in the event of any inability or incompetency of any person appointed to act as Returning Officer, or to perform any office or duty in execution of this Act, the Governor may appoint such other persons as he may deem fit, to perform such office or duty.
Returning Officer for House of Assembly to he Deputy Returning Officer for Legislative Council
5. The Returning Officer for each electoral district shall be a Deputy Returning Officer for the same, as an electoral division, for the election of Members to serve in the Legislative Council; and shall, within such division, have and exercise all the powers and perform the duties of a Returning Officer, with regard to the formation and revision of lists of voters, and claimants and of the electoral roll, and of all matters relating or incident thereto, and the appointment of clerks and deputies, and other officers.
Voting places
6. For each of the electoral districts and divisions, there shall be, within such district or division, such voting places as mentioned in Schedule B, to this Act annexed, and no other.
Forms of notices of claim to he left with electors
7. Between the first day of March and the thirty-first day of March in every year the Town Clerks of Corporations, and Clerks appointed by the District Councils under Ordinance No. 16, 1852, in such part of any electoral district or division within the respective limits of any Corporation and District Council, and in such part of any such district or division without such limits, then the police shall cause to be left at the residence of every person within the district, a notice according to the form of Schedule C, to this Act annexed, requiring all persons entitled to vote in the election of Members of the Legislative Council and House of Assembly, to fill in and sign the notice of their claim to be placed on the electoral roll for either or both Houses of Parliament, as they may be entitled; and the occupier is hereby required to give notice to all male persons, of the age of twenty-one years or upwards, resident at such dwelling-house, of the receipt by him of such form of claim, and that they are required to fill up and sign the same; and every such clerk shall receive for such service the sum mentioned in Schedule I to this Act annexed. Notice to voters to be given by Returning Officer of the Province of time of sending in notice of claim
8. Between the first day of March, and the seventh day of March in every year, the Returning Officer for the Province shall cause to be published a notice, in the South Australian Government Gazette, and in two newspapers published in Adelaide, notifying to all persons, entitled to vote in the election of Members to serve in the Legislative Council and House of Assembly respectively, that the notice aforesaid is about forthwith to be delivered to the occupier of every dwelling-house, and that all persons claiming to be inserted in any electoral list, must insert their names in the Schedules of such notices as thereby and therein required, or they will not be entitled to vote at any election during the ensuing year; and every person to whom the said notice shall be addressed shall forward the same, within seven days from the receipt thereof, either personally or through the Post Office, as stated in the said notice, under a penalty of not more than Twenty Shillings, to be recovered in a smnmary way before two Justices of the Peace of the Province.
Lists to be made out and left at certain places for inspection
9. The Returning Officer of every electoral district or division shall, on or before the first day of May in every year, make out a list to be called the electoral list, having the names in such list arranged in alphabetical order, under the headings of the subdivisions of the district into voting places, according to the form of the Schedule hereto annexed, marked D, of all persons resident within his division who may have forwarded their claims to him in manner aforesaid, as claiming to be entitled to vote in elections for Members of the Legislative Council, and a like list of all persons claiming to be entitled to vote in elections for Members of the House of Assembly for such district; and shall sign, date, and certify such list to be correct, and shall cause the same to be either printed or fairly and legibly transcribed and forwarded (by post) to the place of meeting of every Corporation or District Council within the electoral district to which the said list refers, and also to any police station in any such district beyond the limits of a Corporation or District Council; and the said lists shall be kept open to public inspection at all reasonable hours at such places respectively until the twenty-first day of the same month of May.
Claim of persons to have their names inserted on electoral lists
List of claimants
List of persons objected to
10. Any person, having made such claim as aforesaid, whose name shall not have been inserted in any such electoral list, and who shall claim to have his name inserted therein, shall, on or before the twenty-first day of May, give notice thereof to the Returning Officer, in the form of the Schedule to this Act annexed, marked E, or to the like effect; and any person whose name shall have been inserted, or who shall claim to have his name inserted, in any such electoral list may object to any other person as not entitled to have his name retained therein; and any person so objecting shall, on or before the twenty-fifth day of May, give, or cause to be given, to the Returning Officer, and also the person objected to, or leave at his place of abode notice thereof, in writing, according to the form in the Schedule to this Act annexed, marked F, or to the like effect; and the said Returning Officer shall include the names of all persons so claiming to be inserted on each electoral list, in separate lists, according to the form of the Schedule to the Act annexed, marked G; and the names of all persons objected to in separate lists, according to the form of the Schedule to this Act marked H; within four days from the receipt of such last-mentioned claims; and shall cause copies of such several lists to be forwarded to the places aforesaid four days prior to the holding of the Annual Court of Revision, as herein-after provided; and the said Returning Officer shall likewise keep separate lists of the names of all persons so claiming as aforesaid, and also separate lists of the names of all persons so objected to as aforesaid, to be perused by any person without payment of any fee, at all reasonable hours during such four days (Sundays excepted), and shall allow any person desiring the same to take a copy of each of such lists, on payment of a sum of One Shilling for each copy so taken.
Returning Officer may object
11. The Returning Officer of every electoral district or division may object to any person as not entitled to have his name retained on any electoral list, giving, or causing to be given, such notice of objection as aforesaid; and he is hereby required to object, in the case of all persons whom he shall have reason to believe are not entitled to be retained on the said lists.
Notice of objection may be sent through the post.
12. It shall be sufficient, in every case of notice to any person objected to in any electoral list, if the notice, so required to be given as aforesaid, shall be sent by post, the sum chargeable as postage for the same being first paid, directed to the person to whom the same shall be sent, at his place of abode as described in the said list; and when any person shall be desirous of sending any such notice of objection by the post he shall deliver the same, duly directed, open, and in duplicate, to the postmaster of any post office within such hours as shall have been previously given notice of at such post office, and under such regulations with respect to the registration of such letters, and the fee to be paid for such registration (which fee shall, in no case exceed Twopence over and above the ordinary rate of postage) as shall from time to time be made by the Postmaster-General in that behalf; and in all cases in which such fee shall have been duly paid, the postmaster shall compare the said notice and duplicate, and, on being satisfied that they are alike in their address and their contents, shall forward one of them to its address by the post, and shall return the other to the party bringing the same, duly stamped with the stamp of the said post office; and the production by the party who posted such notice, of such stamped duplicate shall be evidence of the notice having been given to the person, at the place mentioned in such duplicate, on the day which such notice would, in the ordinary course of post, have been delivered.
Courts of Revision
13. On some day between the first day of June and the thirtieth day of June in every year a Revising Officer to be appointed for that purpose by the Governor, at such reasonable remuneration as he may deem fit, shall, at such place within each electoral district as may be for that purpose appointed by Proclamation published in the South Australian Government Gazette, hold an open Court for the revision of such electoral lists, and may continue such Court by adjournment; and the Returning Officer shall, at the opening of the Court, produce the electoral rolls existing for the Legislative Council and House of Assembly respectively, and a copy of the lists of the persons so claiming, and of the persons so objected to, made out in the manner aforesaid; and all collectors of rates and other persons shall, on being thereto summoned, attend the Court, and shall answer upon oath all such questions as the Court may put to them, or any of them touching any matter necessary for revising such electoral lists; and the said Court shall insert in such lists respectively, the name of every person who, having claimed, shall make proof to the satisfaction of the Court that he is entitled to be inserted therein, and shall retain on the said lists the names of persons to whom no objection shall have been duly made, and shall also retain on the said lists the name of every person who shall have been objected to by any person, unless the party so objecting shall appear by himself, or by some one on his behalf, in support of such objection; and shall have power to change the voting place of any elector on his application in person, or by some one duly authorized on his behalf, and shall assign to every elector (who shall have failed himself to elect) a voting place; and when the name of any person inserted in any electoral list shall have been duly objected to, and the person objecting shall appear by himself, or by some one on his behalf, in support of such objection, the Court shall require proof of the qualification of the person so objected to, and in case the qualification of such person shall not be proved to the satisfaction of the Court, the said Court shall expunge the name of every such person from the said list, and also expunge therefrom the name of every person who shall be proved to the Court to be dead, and shall have power, on the personal application of any elector, to change the description of the qualification of the elector, as appearing on the electoral list, without altering the date of registration, provided that the elector shall satisfy the Court, on oath, that the qualification proposed to be substituted is sufficient in law to entitle such person to vote, and shall correct any mistake, or supply any omission which shall be proved to the Court to have been made in any such list, in respect of the name or place of abode of any person who shall be included therein, or in respect of the local description of his property; and the Revising Officer shall, in open Court, write his initials against the names struck out or inserted, and against any part of any list in which any mistake shall have been corrected, and shall sign his name to every page of the list so settled.
Persons making frivolous claims or objections to pay costs
14. If in any case it shall appear to the Court that any person shall have made or attempted to sustain any frivolous and vexatious claim, or objection, to have any name inserted or retained in any roll of persons entitled to vote, it shall be lawful for such Court, in its discretion to make such order as may be fit, for the payment by such person of the costs, or any part of the costs of any person, in resisting such claim, or objection, such order being in writing, and specifying the sum (such sum not to exceed Ten Pounds) and by and to whom, and when and where to be paid.
Provisions in certain cases of change of abode
15. Where any person whose name appears on any electoral list for any district shall be objected to on the ground of having changed his place of abode, the Court may retain the name of such person on the electoral list, provided that such person or some one on his behalf shall prove that he is possessed of the same qualification in respect of which his name has been inserted on such electoral list, and shall also supply his true place of abode which the said Court shall insert in such list.
The electoral roll
16. The Returning Officers of electoral districts or divisions shall keep the electoral lists so revised and signed as aforesaid, and shall cause each of the same to be fairly and truly copied into an alphabetical list in a separate book, to be called the electoral roll, under the several headings of the subdivisions of such district and division into polling places, and shall insert opposite to every name in the column showing the date of registration, the true date of the holding of the Court of Revision at which the claim was allowed, and shall cause each of such books, together with the electoral lists to be preserved among the records of his office, and shall from time to time produce such book and every future book into which the said electoral roll may be transcribed, and shall transmit a copy of such book, containing the names of persons entitled to vote at elections of Members to serve in the Legislative Council, within fourteen days after each Court of Revision, to the Returning Officer of the Province, forming one electoral district.
Electoral roll to be register of voters
17. The electoral roll shall be the register of persons entitled to vote at any election of a Member or Members to serve in the said Legislative Council or House of Assembly respectively, which shall take place between the last day of December, in the year wherein such register shall have been made, and the last day of December in the succeeding year: Provided always, that the electoral roll in force for any electoral district, at the time of the last general election of the Province, so far as the same can be ascertained, with any additions subsequently made thereto, and before the passing of this Act, shall be the electoral roll in force until the first day of January, one thousand eight hundred and fifty-nine; and provided further, that the persons whose names were on the said electoral roll have not claimed to have their names inserted thereon.
Power of Courts of Revision
18. Every Court of Revision, shall have power to require any person having the custody of any book containing any rate made within any such electoral district or division, or any part thereof, during that or the preceding year, to produce the said book and allow the same to be inspected at any such Court, and shall have power to administer oaths or affirmations as the case may be to all persons who may be required or tendered to be examined, and any person who shall answer falsely to any lawful question put to him at such examination shall be liable to be prosecuted for perjury.
The Returning Officer to furnish copies of roll
19. The Returning Officer or his Clerk shall furnish copies of any electoral roll to all persons applying for the same on payment of a reasonable price not exceeding Sixpence for every folio of seventy-two words.
Personal attendance of electors not necessary to prove qualification to vote, unless required by the Court
20. No elector claiming to register his vote in any electoral district or division shall be obliged to appear in person to make proof of the nature and sufficiency of his qualification, unless required by the Court at which he shall apply to be registered to attend in person: Provided, that if such personal attendance be rendered requisite on the application of any party objecting as aforesaid, such party, if his objection be disallowed, shall defray such expenses as the Court shall award for claimants' attendance, which expenses so awarded, shall be recoverable in any Court of competent jurisdiction in which the party entitled thereto shall sue for the same.
Writs to be issued by the Governor, and to be returnable to him
21. Writs for the election of members to serve in the said Legislative Council and House of Assembly respectively, shall be issued by the Governor, directed to the Returning Officer of each electoral district, in which writs shall be named the day of nomination for such elections, and in the event of any such elections being contested, the day for taking the votes at the different voting places, and also the day on which such writs shall be made returnable to the said Governor. Writs issued to supply vacancies only on warrant of the President and Speaker
22. All writs directed to be caused to be issued by the President or Speaker, for the purpose of electing a Member to fill any seat in the Legislative Council or House of Assembly, vacant by the death, resignation, acceptance of office, or other incapacity of any Member, shall be issued by the Governor only, upon the receipt from the President or Speaker of the said Legislative Council or House of Assembly respectively, of a notification of such vacancy.
Form of writs
23. All writs to be issued for the election of Members of the said Parliament under this Act shall be framed in any manner and form which may be necessary and sufficient for carrying the provisions hereof into effect.
Returning Officer and Deputy Returning Officer for Legislative Council, to give notice of writs, &c.
24. Upon the receipt of any writ for the election of Members to serve in the said Legislative Council, the Returning Officer shall endorse thereon the day of receiving the same, and shall, within two days from the receipt thereof, forward a copy thereof to the Deputy Returning Officer for each division of his district; and every Deputy Returning Officer shall, upon the receipt of such copy, endorse thereon the day of receiving the same, and shall, within seven days from the receipt of such copy, give the like notices, and forward the same by post, together with a copy of the electoral roll for the said division to the same places as are hereinafter directed and prescribed with regard to writs for the election of Members to serve in the House of Assembly.
Returning Officer for House of Assembly to give notice of day of nomination and of election
25. Upon the receipt of any writ for the election of Members to serve in the House of Assembly, the Returning Officer shall endorse thereon the day of receiving the same, and shall, within seven days from the receipt thereof, give notice thereof and of the day of nomination and of taking votes fixed therein, and of the chief voting place and other voting places, if any, for taking the votes at such elections, and shall forward such notice by post, together with a copy of the electoral roll, to the places of meeting of every Corporation or District Council within the electoral district, and also to every Police Station in any such district beyond the limits of the Corporations or District Councils.
Booths may be erected or hired for taking votes
26. At every election the Returning Officer, if it shall appear to him expedient for taking votes at such election, may cause booths to be erected, or rooms to be hired and used as such booths, at the several polling places of his district or division mentioned in Schedule B, hereto annexed, and the same shall be so divided and allotted into compartments as to the Returning Officer shall seem most convenient, and shall, before the day fixed for taking of votes, if there be a contest, cause to be furnished, for the use of each booth, a copy of that portion of the electoral roll containing the names of persons entitled to vote at such voting place of the district or division, and shall under his hand certify such copy to be a true copy.
Returning Officer to preside and appoint deputies to preside at the voting places
27. The Returning Officer of each electoral district shall preside at the election within his district or division, and may appoint a deputy to act for him and take the votes at each voting place: Provided that such deputy be appointed by writing under the hand of the said Returning Officer.
Adjournment of nomination or of voting in case of riot
28. Where the proceedings at any election shall be interrupted or obstructed by any riot or open violence, whether such proceedings shall consist of the nomination of candidates or of the taking the votes, the Returning Officer, or the deputy of any Returning Officer, shall not for such cause terminate the business of such nomination, nor finally close the voting, but shall adjourn the nomination or the taking the votes at the particular voting place at which such interruption or obstruction shall have happened, until the following day, and if necessary shall further adjourn, such nomination or voting, as the case may be, until such interruption or obstruction shall have ceased, when the Returning Officer or his deputy shall again proceed with the business of the nomination or with the taking the votes, as the case may be, at the place at which the same respectively may have been interrupted or obstructed; and the day on which the business of the nomination shall have been concluded shall be deemed to have been the day fixed for the election, and the commencement of the voting shall be regulated accordingly; and any day whereon the voting shall have been so adjourned, shall not as to such place be reckoned the day of taking of votes at such election, within the meaning hereof: and whenever the voting shall have been so adjourned by any deputy of any Returning Officer, such deputy shall forthwith give notice of such adjournment to the Returning Officer, who shall not finally declare the state of the voting, or make Proclamation of the Member chosen, until the voting so adjourned at such place shall have been finally closed, and the boxes containing the votes delivered or transmitted to such Returning Officer.
Candidates not to canvass personally or attend election meetings
29. It shall not be lawful for any candidate for election as a Member of the said Legislative Council or House of Assembly to solicit personally the vote of any elector, or to attend any meeting of electors convened or held for electoral purposes, if such meeting be held within three days of the day appointed for the nomination of candidates for any electoral district, nor until after the poll is taken for the said district; and the attendance of any candidate at any such meeting, or his personal solicitation of the vote of any elector, shall have the same effect as the acts of bribery and corruption hereinafter mentioned.
Mode of nomination
30. Any two electors of any electoral district, may, before the day fixed for nomination, address and forward, or deliver to the Returning Officer of such district, a letter, signed by such two electors, as proposer and seconder of a person to be therein named as a candidate to represent the district; the person, also, proposed as a candidate, signifying his assent, in writing, to act if elected; and on the day of nomination named in writ, the Returning Officer shall attend at noon, at the chief voting place of the electoral district, and shall there read the letter so addressed to him; and if there shall not be a greater number of candidates, so proposed and seconded, and consenting as aforesaid, than are by such writ required to be elected, the Returning Officer shall declare such candidate or candidates to be duly elected, and make his return accordingly; and, in the event of there being more candidates so proposed, and seconded, and consenting as aforesaid, than are by such writ required, the Returning Officer shall give notice, at such chief voting place, of the names of the candidates, and of the names of the persons by whom they have been proposed and seconded, and of the other voting places in his district, and of the day appointed in the writ for the taking of votes and of the time of voting.
Proceedings on the day of election
31. The election of Members of the Legislative Council and House of Assembly, at each voting place shall be held before the Returning Officer or his deputy, and the voting at every election shall commence at nine o’clock in the forenoon, and shall finally close at five o’clock in the afternoon of the same day, and shall be conducted in manner following, that is to say–Every elector entitled to vote, and who shall vote in the election of Members of the Legislative Council or House of Assembly, as the case may be, shall vote at the voting place in the district or division for which his name appears on the electoral roll, and shall present himself to the Returning Officer or his deputy at such voting place, and state his Christian and surname, abode and profession, or occupation; and, in case of voting for a Member of the Legislative Council, the nature of his qualification, and the place where the property or qualification is situated; whereupon the Returning Officer or his deputy shall place a mark against the voter’s name on the electoral roll, and hand to such voter a voting paper bearing the initials of the Returning Officer or his deputy, and containing the Christian and surname of each candidate, and a blank square printed opposite to the name of each candidate, with a number corresponding with the order of nomination inserted in such square; and, in the event of two or more candidates being of the same name, the voting paper shall contain the description of each such candidate, in addition to his Christian and surname, and number, and no other matter or thing; and there shall be provided separate apartments, or places forming part of the polling booth, into which the voter shall immediately retire, and there, alone and in private, without interruption, indicate the name of the candidate for whom he intends to vote, by making a cross within the square opposite the name of such candidate, and shall then fold the same paper and immediately deliver it so folded to the Returning Officer or to his deputy, who shall forthwith publicly, and without opening the same, deposit it in a box to be provided for that purpose; and no voting paper so deposited in any box shall, on any account, be taken therefrom, unless in the presence of scrutineers after the close of the election: Provided, that no voting paper shall be received unless it be so folded as to render it impossible for the Returning Officer, or any other person to see for what candidate or candidates the vote is given; and any voter wilfully infringing any of the provisions of this clause, or obstructing the voting by any unnecessary delay in performing any act within the polling booth, or room, shall be deemed guilty of a misdemeanor.
No inquiry of a voter except as to his identity whether he has voted before on the same election and as to qualification
32. No inquiry shall be permitted at any election as to the right of any person to vote, except only as follows, that is to say: the Returning Officer or his Deputy shall, if required by any two electors entitled to vote in the same Electoral District, put to any voter at the time of his tendering his vote, and not afterwards, the following questions, or any of them, and no other:–
Form of questions to he put as to these points
First–Are you the person whose name appears as A. B. in the electoral roll now in force for this Electoral District (or Division, being registered therein for property described to be situated in (here specify the street or place described in the electoral roll) ?)
Second–Have you already voted at the present election?
Third–Had you, at the time of being registered, the qualification for which your name now stands in the electoral roll for the district of (specifying in each case the particulars of the qualification as described in the electoral roll), and are you still possessed of the same qualification? (or as the case may be. Are you of the age of twenty-one years, and did you at the time of being registered, and do you still reside within the District of ?)
Punishment for false answer
And no person required to answer any of the said questions shall be permitted or qualified to vote until he shall have answered the same, nor if he shall have answered the same in such a manner as to show that he is not qualified to vote, and if any person shall wilfully make a false answer to any of the questions aforesaid, he shall be deemed guilty of a misdemeanor, and may be indicted and punished accordingly.
Punishment for voting twice, or personating voters
33. Every person who shall vote a second time, or offer to vote a second time, at the same election, for any Electoral District, or who shall personate any other person for the purpose of voting at such election, shall be guilty of a misdemeanor; and upon being thereof convicted, shall be imprisoned for any term not more than two years, at the discretion of the Court who shall try such person.
Deputies to seal box and voting papers and deliver them forthwith to Returning Officers
34. Immediately before taking the votes, the Returning Officer or Deputy Returning Officer shall exhibit the ballot box empty, and each Deputy Returning Officer shall immediately on the close of the voting, publicly close and seal the box containing the voting papers which have been taken at the voting-place whereat he presided, and shall, with the least delay possible, deliver or cause the same to be delivered to the Returning Officer of the Electoral District, or to the Deputy Returning Officer for the Electoral Division, as the case may be; and in cases of elections of members to serve in the Legislative Council, the Deputy Returning Officers for each division shall, with the least delay possible, deliver or cause to be delivered the whole of such boxes to the Returning Officer for the said Province; and any Returning Officer or Deputy Returning Officer convicted of illegally dealing with the ballot boxes, shall be guilty of a misdemeanor and be liable to a penalty of not less than Fifty nor more than Two Hundred Pounds, and to imprisonment until the same be paid.
Names of persons elected to be declared by Returning Officer
35. The Returning Officer of each Electoral District shall at the place of nomination, and as soon as may be practicable after the election shall have been held, in the presence of two or more scrutineers, whereof each candidate shall name one, open all the boxes containing the voting papers delivered in at such election, and shall examine the same, and shall reject all voting papers which shall contain the names of more persons than are required to be elected at any such election, or shall contain any matter or thing other than such names, and shall openly declare the general state of the votes at the close of the election, as the same shall have been made up by him from the voting papers taken at the several voting-places; and he shall at the same time and place declare the name of the person or persons who may have been duly elected at such election; and in the event of the number of votes being found to have been equal for any two or more candidates he shall by his casting vote decide which of the same candidates shall be elected: Provided, however, that no Returning Officer shall vote at any election for the Electoral District of which he is the Returning Officer, except in case of an equality of votes as aforesaid: Provided also, that it shall and may be lawful for the deputy of any Returning Officer to vote at any election for the Electoral District, in like manner as if he had not been appointed and acted as such deputy.
Return of writs with names of elected persons endorsed thereon
36. The name of the person or persons so elected shall be inserted in or endorsed on the writ by the Returning Officer, and the writ returned to the Governor within the time by which the same may be returnable.
Voting papers to be destroyed by the Returning Officer
37. All voting papers shall be destroyed by the Returning Officer forthwith, after the declaration of the names of the persons duly elected.
Formation of Court for trial of complaints against the validity of returns by Returning Officer
38. For the purpose of forming a Court for the trial of any complaints which may be made against the validity of any returns made by the Returning Officers of the several electoral districts hereby created, the Legislative Council, within one week after its first meeting, and thereafter within one week after its first meeting subsequent to each election, shall supply the place of Members who shall retire by rotation, and the House of Assembly, within one week after the first meeting subsequent to every general election, shall elect, each out of its own body respectively, four persons to be Members of the said Court, and the junior or the sole acting Judge of the Supreme Court shall be the President of such Court.
Governor to appoint Members of Court, if Legislative Council or House of Assembly fail to elect
Nomination of Members of Court to supply vacancies
39. If the said Legislative Council or House of Assembly shall fail to elect the said four Members of the said Court within the said one week, such four Members may be nominated at any time afterwards by the President or Speaker, as the case may be; and if any Member shall be incapacitated to attend a meeting of the Court by reason of death, sickness, or any other impediment, his place shall be supplied by a person nominated for that purpose by the Legislative Council or House of Assembly respectively, or, in default of such nomination for the period of one week, by the President or Speaker.
Record of nomination of Members to be proof of proper constitution of Courts
40. The record of the election or nomination of the said Members of the said Court respectively shall be entered by the Clerk of the Legislative Council or House of Assembly on the proceedings of the Houses; and proof of such entry having been made shall be sufficient authority for the proper constitution of such Courts.
Courts not to proceed to business unless convened by the Legislative Council or House of Assembly
41. The said Courts respectively shall not proceed to any business unless convened by order of the Legislative Council or House of Assembly, nor until each Member thereof shall take the following oath of affirmation, as the case may be, which shall be administered by the President to each of the Members, and afterwards by any Member to the President.
Oath to be taken by Members of the Court
“I, A. B., do swear (or affirm, as the case may be) that I will duly administer justice in all matters which may be brought before this Court, and that I will decide in all such matters according to the principles of good faith and equity, without partiality, favor, or affection, and according to the best of my understanding. So Help Me God.”
Powers of Court
43. The Courts thus constituted shall have power to inquire into all cases which may be brought before each Court by the House by which it shall have been appointed, respecting disputed returns of Members to serve in the said House, whether such disputes arise out of an alleged error in the return of the Returning Officer, or out of the allegation of bribery or corruption against any person concerned in any election, or out of any other allegation calculated to affect the validity of the return.
Courts to be guided only by the real justice and good conscience of each case
43. In the trial of any complaints as aforesaid, the Members of the said Courts shall be guided by the real justice and good conscience of the case, without regard to legal forms and solemnities, and shall direct themselves by the best evidence that they can procure, or that is laid before them, whether the same be such evidence as the law would require in other cases or not.
Court may regulate the form of its own proceedings
Decisions to be given within five days, and to be final, without appeal
44. Each of the said Courts shall be an open Court, and shall have power to adjourn its sitting from time to time, as in its discretion it may think proper, provided that the interval of adjournment shall not in any instance exceed four days, and shall be competent to regulate the form of its own proceedings; but such proceedings shall in no one case extend beyond the period of five sitting days, unless by leave of the House by which it shall have been appointed; and that if no decision be adopted by a majority within five sitting days, or any enlarged period as aforesaid, the President of the Court shall, on such evidence as may then be before the Court, pronounce a decision; and that every decision, whether so pronounced by the President or by the Court, shall be final and conclusive, without appeal.
Inquiries by Court to be restricted to identity of voters, and propriety of admission or rejection of votes
45. The said Courts shall not have power to inquire into the correctness of any electoral roll, or into the qualifications of persons whose votes may on the day of election have been either admitted or rejected, but simply into the identity of the persons, and whether their votes were improperly admitted or rejected, assuming the roll to be correct.
Costs may be awarded
46. It shall be lawful for the said Courts respectively to award to the party petitioning, or to the candidate against whom the petition shall have been presented, such reasonable costs and expenses as such Court may deem fit; and such costs and expenses when awarded under the hand of the President, shall be recoverable by action of debt from the party by such award made liable to pay the same.
Complaints of undue returns to be by petition to the Legislative Council or House of Assembly
47. All complaints of the undue return of Members to serve in the Legislative Council or House of Assembly, shall be addressed in the form of a petition to the said Legislative Council and House of Assembly respectively; and no petition shall be noticed, nor any proceedings had thereon, unless it shall have been so presented by a person who was a candidate at the election whereof it may be alleged that an undue return has been made, or by a number of persons who either voted or were qualified to have voted at the said election, amounting to not less than one-tenth of the whole number on the roll of electors; and no petition shall be noticed which shall not be presented within twenty-one days from the day of election, or one week from the meeting of Parliament which shall last happen.
Petition to be referred to Court
48. Any such petition shall, within ten days after the same shall have been duly received, be referred to the Court above-mentioned, appointed by the House to which the said petition shall be addressed.
Proceedings of Courts on petitions
49. The said Courts respectively, in hearing and deciding on the merits of every such petition, shall be guided by the principles of good faith and equity, and shall receive or reject at their discretion any evidence that may be tendered to them, and shall have power to compel the attendance of witnesses and to examine them on oath; and if any such Court shall declare that any person was not duly elected who was returned as elected by the Returning Officer of any Electoral District, the person so declared to have been not duly elected shall cease to be a Member of the Legislative Council or House of Assembly, as the case may be; and if such Court shall declare any person to have been duly elected who was not returned by any Returning Officer, the person so declared to be duly elected shall be sworn a Member of the said Legislative Council or House of Assembly, as the case may be, and take his seat accordingly; and if such Court shall declare any election to have been absolutely void, the President or Speaker, on the same being certified to him by the President of the Court, shall forthwith cause to be issued a new writ for the holding of another election for such district.
What shall be deemed acts of bribery and corruption. 7 & 8 Geo. IV, Cap. 37, s. 2
50. The following acts shall be deemed and taken to be acts of bribery and corruption on the part of any candidate, whether committed by such candidate or by any agent authorized to act for him, that is to say–the giving of money or any other article whatsoever, cockades included, to any elector, with a view to influence his vote, or the holding out to him any promise or expectation of profit, advancement, or enrichment in any shape, in order to influence his vote, or making use of any threat to any elector, or otherwise intimidating him in any manner with a view to influence his vote; the treating of any elector, or the supplying him with meat, drink, lodging, or horse or carriage hire, or conveyance by steam or otherwise, whilst at such election, or whilst engaged in coming to or going from such election; the payment to any elector of any sum of money for acting or joining in any procession during such election, or before or after the same; the keeping open, or allowing to be kept open, any public-house, shop, booth, or tent, or place of entertainment, whether liquor or refreshment of any kind be distributed at such place of entertainment or not; the giving of any dinner, supper, breakfast, or other entertainment, at any place whatsoever, by a candidate to any number of electors, with a view of influencing their votes.
Any of the above acts to disqualify
51. The commission of any one of the above-mentioned acts shall, on proof thereof, by the decision of the above-mentioned Court, be held to render void the election of the person committing such act, and to disqualify him from sitting and voting in the said Parliament, during the whole period that may intervene between the commission of the same and the time of the next periodical or general election.
Principals bound by acts of their agents
52. The acts of all authorized agents, of a candidate or member shall, in matters connected with elections, be held to be the acts of their principal, provided that it shall be proved to the satisfaction of the above-mentioned Courts, that such acts were committed with his knowledge or consent.
Acts of bribery and corruption by persons not being the authorized agents
53. If any of the above-mentioned acts, hereby declared to be acts of bribery and corruption, shall be committed by any person not the authorized agent of any candidate or member, the person so committing, or having committed them, shall be deemed guilty of a misdemeanor, and may be indicted for such acts as for a misdemeanor in the Supreme Court, and punished with fine not exceeding Two Hundred Pounds, or imprisonment not exceeding six calendar months, at the suit or on the plaint of Her Majesty’s Attorney or Advocate-General, or of any registered elector of the district wherein such act of bribery or corruption shall be alleged to have been committed.
Penalty on persons receiving or offering reward for voting or withholding vote
54. If any person who shall have, or claim to have, any right to vote in any election of a Member of the Legislative Council or House of Assembly for any Electoral District shall, directly, or indirectly ask, receive, or take any money or other reward by way of gift, employment, or other reward whatsoever, for himself or for any of his family or kindred, to give his vote or to abstain from giving his vote in any such election; or if any person, by himself, his friends, or by any person employed by him, shall, by any gift or reward, or by any promise and agreement, or security for any gift or reward, procure any person to give his vote in any such election, or to abstain from giving the same, such offender shall, for such offence, forfeit the sum of Fifty Pounds sterling to the person who shall first sue for the same, to be recovered, with full costs, by action of debt, bill, plaint, or information, in the Supreme Court.
No action against candidate for costs or expenses of election
55. No action, suit, or other proceeding shall be maintainable in any Court of the said Province against any persons who may have been a candidate at any election for or in respect of any costs or expenses whatsoever in or about or relating to such election.
Remuneration to Returning Officers
56. For the remuneration of the Returning Officers, there shall be paid to them, in respect to the several matters and things by this Act directed to be performed by them, the several sums mentioned in the Schedule K to this Act annexed, and no other, and such payments shall be made by the Treasurer, in pursuance of warrants under the hand of the Governor.
Provision in the event of impediments of a formal nature
57. No election shall be held to be void in consequence solely of any delay of the holding of such election at the time appointed, or in the return of the writ, or the absence of the Returning Officer, or any deputy, or any error on the part of any Returning Officer or deputy, which shall not affect the result of the election, or of any error or impediment of a mere formal nature; and within the period of twenty days before or after the day appointed for the holding of any election, it shall be lawful for the said Governor, with the advice of the Executive Council, to extend the time allowed for the holding of such election, or for the return of the writ issued for the same, and to adopt or cause to be adopted such measures as may be necessary to remove any obstacle by which the due course of any election may be impeded, and to supply any deficiency that may otherwise affect the same; Provided that any measures so adopted by the Governor, with the advice of the Executive Council, shall be duly notified in the South Australian Government Gazette.
Declarations to be made by officers before a Justice and to be transmitted to Chief Secretary
58. Every person who may, under the provisions hereof, be appointed a Returning Officer, or Deputy Returning Officer, shall, before he enters on the performance of any duty under the same, make and subscribe, before a Justice of the Peace, the following declaration, and the Justice before whom such declaration may be made, is hereby required to transmit the same, by the first convenient opportunity, to the Chief Secretary of South Australia —
"I (A.B.) do hereby dedare that I accept the office of———— and I do hereby promise and dedare that I will faithfully perform the duties of the same, to the best of my understanding and ability, and that I will not reveal or disdose any knowledge that I may acquire in the discharge of my said office touching the vote of any elector."
Penalty on officers refusing or neglecting duty
59. If any Returning Officer, or any Deputy Returning Officer, after having accepted office as such, shall neglect or refuse to perform any of the duties which by the provisions hereof, he is required to perform, every such Returning Officer, or Deputy Returning Officer, shall, for every such offence, forfeit and pay any sum not less than Ten, nor exceeding Two Hundred Pounds; and, in like manner, if any clerk or other officer or person appointed or required to perform any duty, under or by virtue of this Act, shall neglect or refuse to perform any of the duties which by the provisions hereof he is required to perform, every such clerk or other officer or person shall, for every such offence, forfeit and pay any sum not less than Five, and not exceeding Fifty Pounds.
Recovery and application of penalties
60. The respective penalties before mentioned shall be recovered, with full costs of suit, by any person who shall sue for the same within three calendar months after the commission of such offence, by action in the Supreme Court of the said Province; and the money so recovered shall, after payment of the costs and expenses attending the recovery thereof, be paid and apportioned as follows, that is to say-— one moiety thereof to the person so suing, and the other moiety thereof to Her Majesty for the public uses of the Province and support of the Government thereof.
Where matters to be done fall on a holiday
61. When any matter or thing is hereby directed to be performed on a certain day, and that day shall happen to be Sunday, Good Friday, Christmas Day, or other public holiday, the said matter or thing may be performed on the next succeeding day, not being any of the days aforesaid.
Commencement of Act
62. This Act shall come into operation from and after the passing thereof.
Short title
63. In referring to this Act it shall be suffident to make use of the expression "The Electoral Act."
Note. — This act was copied for the author through the courtesy of the Parliamentary Library at Ottawa, Canada.