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Local Government (Amendment) Ordinance (No 2) 2008

PITCAIRN, HENDERSON DUCIE & OENO ISLANDS

No 3 of 2008

Enacted by the Governor of the Islands
of Pitcairn, Henderson, Ducie and Oeno

Date:

LOCAL GOVERNMENT (AMENDMENT) ORDINANCE (No. 2) 2008

An ordinance to amend the Local Government Ordinance, cap. 11.

New Parts 1. IV and V introduced

1. The Local Government Ordinance, cap. 11, is hereby amended by the addition of the following headings and sections, after s 18:

"PART IV—ELECTION OFFENCES

Interfering with or influencing voters

19. (1) Every person commits an offence, and is liable on summary conviction to a fine not exceeding $, who

(a) interferes in any way with any persoperson who is about to vote with the intention of influencing or advising that person as to whether or how he or she should vote:

(b) during the period commencing 1 October and ending at midnight on election day, gives information that he or she knows to be false to any person with the intention of influencing or advising that person as to how he or she should vote.

Offences in respect of official documents

20. (1) Every person commits an offence who

(a) intentionally removes, obliterates, or alters any official mark or official writing on any voting document, or other official document used at or in connection with an election:

(b) forges, counterfeits, fraudulently marks, defaces, or fraudulently destroys any voting document, or other official document used at an election, or the official mark on that document:

(c) supplies, without authority, a voting document to any person:

(d) obtains or has possession of any voting document, other than one issued to that person under this ordinance or any regulations made under this ordinance for the purpose of recording his or her vote, without authority:

(e) intentionally destroys, opens, or otherwise interferes with any ballot box or box or parcel of voting documents without authority.

(2) Every person who commits an offence against subsection (1) is liable on summary conviction to imprisonment for a term not exceeding 6 months or a fine of $2,000 or both.

Voting offences

21. Every person commits an offence, and is liable on summary conviction to imprisonment for a term not exceeding 6 months, wh>

(a) votes or applies to vote more than once at the same election; or

(b) without authority, removes,tes, or otherwise interferes with any voting document, or other record of a vote that has bhas been cast.

Bribery

22. (1) Every person commits the offence of bribery who, directly or indirectly, on that person's own or by another person,

(a) gives, lends, agrees to give or lend, offers, promises, or promises to obtain any money or valuable consideration to or for any elector, or to or for any person on behalf of any elector, or to or for any other person, in order to induce any elector to vote or refrain from voting; or

(b) gives or obtains, agrees to give or obtain, offers, promises, or promises to obtain or to try to obtain any office or place of employment to or for any elector, or to or for any person on behalf of any elector, or to or for any other person, in order to induce the elector to vote or refrain from voting; or

(c) corruptly does any act referred to in paragraph (a) or paragraph (b) on account of an elector having voted or refrained from voting; or

(d) makes any gift, loan, offer, promise, or agreement referred to in paragraph (a) or paragraph (b) for, or with, any person in order to induce that person to obtain or try to obtain the election of any person or the vote of any elector; or

(e) upon or as a consequence of any gift, loan, offer, promise, or agreement referred to in paragraph (a) or paragraph (b), obtains, or tries to obtain, the election of any person or the vote of any elector; or

(f) advances or pays, or causes to be paid, any money to or for the use of any other person, intending that that money or any part of it will be used for bribery at any election; or

(g) knowingly pays or causes to be paid any money to any person in discharge or repayment of any money wholly or partly used for bribery at any election.

(2) An elector commits the offence of bribery if,—

(a) before or during the voting period at the election, he or she, directly or indirectly, on his or her own or by another person, receives, or agrees or contracts for, any money, gift, loan, or valuable consideration, office, place, or employment for himself or herself or for any other person for voting or agreeing to refrain from voting:

(b) after the voting period at the election, he or she directly or indirectly, on his or her own or by another person, receives any money or valuable consideration on account of any person having voted or refrained from voting or having induced any other person to vote or refrain from voting.

(3) Every person who commits bribery is liable on summary conviction to imprisonment for a term not exceeding 6 months.

Undue influence

23. (1) Every person commits the offence of undue influence

(a) who, directly or indirectly, on that person's own or by another person, makes use of or threatens to make use of any force, violence, or restraint against any person

(i) in order to induce or compel that person to vote or refrain from voting:

(ii) on account of that person having voted or refrained from voting:

(b) who, by abduction, duress, or any fraudulent device or means,—

(i) impedes or prevents the free exercise of the vote of any elector:

(ii) compels, induces, or prevails upon any elector either to vote or to refrain from voting.

(2) Every person who commits the offence of undue influence is liable on summary conviction to imprisonment for a term not exceeding 6 months.

Infringement of secrecy

24. (1) The Recorder and every other electoral official

(a) must maintain and assist in maintaining the secrecy of the voting; and

(b) must not communicate to any person, except for a purpose authorised by law, any information likely to compromise the secrecy of the voting.

(2) No person, except as provided by this ordinance or regulations made under this ordinance, may

(a) interfere with or attempt to interfere with a voter when marking or recording his or her vote; or

(b) attempt to obtain, in the building or other place where the voter has marked or recorded his or her vote and immediately before or after that vote has been marked or recorded, any information as to any candidate for whom the voter is about to vote or has voted; or

(c) communicate at any time to any person any information obtained in the building or other place where the voter has marked or recorded his or her vote and immediately before or after that vote has been marked or recorded, as to-

(i) any candidate for whom, or the proposal for or against which, the voter is about to vote or has voted; or

(ii) any number on a voting document marked or transmitted by the voter.

(3) Every person present at the counting of votes must—

(a) maintain and assist in maintaining the secrecy of the voting; and

(b) must not, except as is provided by this ordinance or regulations made under this ordinance, communicate any information obtained at that counting as to any candidate for whom, or proposal for or against which, any vote is cast by a particular voter.

(4) Every person commits an offence who contravenes or fails-to comply with this section.

(5) Every person who commits an offence against subsection (5) is liable on summary conviction to imprisonment for a term not exceeding 6 months.

Criminal proceedings

25.--No person other than the Pitcairn Public Prosecutor may take criminal proceedings for an offence under this ordinance.

PART V—DISPUTED ELECTIONS

Application for recount

26. - (1) If any candidate has reason to believe that • the public declaration. by the electoral officer of one or more of the elected candidates is incorrect, and that on a recount of votes the first-mentioned candidate might be elected, he or she may, within 72 hours after the public declaration and the affixing of the notice of elected candidates referred to in section 16(10), apply to The Island Magistrate for a recount of the -votes.

(2) An application under subsection (1) must be in •writing and specify the grounds upon which it is believed that the counting of votes might be incorrect and shall be deemed to have been made when the application is delivered by hand to the Island Secretary.

(3) Upon receiving an application under subsection (2) the Island Secretary shall immediately transmit it -to the Island

Magistrate.

(4) If the Island Magistrate is satisfied that the applicant has reasonable grounds to believe that the declaration is incorrect and that on a recount the applicant might be elected, the Island Magistrate must, as soon as practicable after receiving the application

(a) cause a recount of the votes to be made; and

(b) give notice in writing to the Recorder, Island Secretary and to each of the candidates of the time and place at which the recount will be made.

Scrutineers

27. — Each candidate may, by notice in writing, appoint 1 scrutineer for the recount.

Conduct of recount

28. — (1) At the recount, the Recorder must produce to the Island Magistrate all the voting documents used at the election.

(2) The recount must be made in the presence of the Island Magistrate, or of a person appointed by him or her for the purpose, and

(a) must, as far as is practicable, be made in the manner provided in the case of the original count unless the Island Magistrate orders otherwise; and

(b) section 24 (relating to security and secrecy) applies, with any necessary modifications, to the recount.

(3) If, on the recount, the Island Magistrate is satisfied that the public declaration was incorrect, the Magistrate must order the Recorder to give an amended announcement and notice under section 16 of the result of the election.

(4) If, on the recount, the Island Magistrate is satisfied that the public declaration was correct, the Island Magistrate must order the Recorder to make an announcement to that effect and affix a notice to that effect on the public notice board.

(5) Where the Island Magistrate has made an order under either subsection 3 or subsection 4 no further application for a recount may be made by any person.

Application for leave to bring petition for inquiry

29. — (1) Any candidate or any 4 electors with a complaint about the conduct of an election may apply for leave to file a petition in the Magistrate's Court

(2) An application for leave under subsection (1) must

(a) be filed within 7 days after public notice is given declaring the result or, as the case may be, the amended result of the election (or, in the case of a recount which results in the affirmation of the result of the election, then within 7 days of that affirmation); and

(b) specify the specific grounds on which the complaint is based.

(c) be accompanied by a filing fee of $200.

(3) An application for leave under subsection (1) shall be filed, and the filing fee paid, by hand delivery to the Island Magistrate, provided that if the Island Magistrate is not present on Pitcairn Island then such application may be filed and fee paid by hand delivery to the Island Secretary.

(4) An application for leave shall:

(a) be determined by a Magistrate other than the Island Magistrate;

(b) be granted only if the Magistrate is satisfied that there are reasonable grounds for the complaint.

(5) The Magistrate may consider and determine the application for leave in any manner he or she thinks fit, and may give a direction that the application —

(a) shall be heard and determined on the papers filed in support of the application for leave; or

(b) shall be heard orally, and in that event the Magistrate may at his or her election call for oral submissions to be presented by way of a live television link at a specified time and place so as to facilitate a hearing at which the Magistrate is outside the Islands.

Hearing of election petition

30.— (1) If the Magistrate grants leave to file a petition the hearing of the petition may then proceed in such manner, and at such time and place, as the Magistrate specifies.

(2) No grounds other than those stated in the application for leave to file a petition may be investigated, except with the leave of the Magistrate hearing the petition.

(3) Leave may be given under subsection (2) on such terms and conditions (if any) that the Magistrate considers just.

Who may be respondent

31. — (1) Notice of an intention to oppose a petition may be filed in the Magistrate's Court by

(a) any candidate or any 2 electors, if the petition concerns an election; or

(b) an electoral officer or other electoral official, if the petition complains of the conduct of the electoral officer or other electoral official.

(2) The person or persons who file a notice under subsection (1) are the respondent or respondents to the petition.

(3) Notices under this section must be given in the same manner as is set out in section 29(2) (b).

Time for inquiry

32. — The inquiry must be commenced within 28 days after the filing of the petition, and not less than 2 days' public notice must be given of the time and place at which the inquiry will be held.

Powers of Magistrate

33. — (1) For the purposes of the inquiry, the Magistrate conducting it-

(a) has and may exercise all the powers of citing parties, compelling evidence, and maintaining order that the Magistrate would have in the Magistrate's ordinary civil jurisdiction; and

(b) may, in addition, at any time during the inquiry direct a recount or scrutiny of the votes given at the election; and

(c) must sit on his or her own without assessors; and

(d) may preside over the hearing of evidence and legal submissions by means of a live television link whereby the Magistrate is outside the Islands and the persons presenting evidence or submissions are within the Islands; and

(e) may appoint a delegate within the Islands to inquire into some or all of the facts and otherwise to provide assistance to the Magistrate, and in that event shall record in his or her decision the result of that inquiry or that assistance.

(2) If a recount or scrutiny is conducted under subsection (1) (b), the Magistrate must disallow the vote of every person who

(a) has voted, despite not being entitled to vote at the election; or

(b) has voted more than once at the election.

Result of Inquiry

34. — The Magistrate must determine whether,

(a) as a result of an irregularity that in the Magistrate's opinion materially affected the result of the election, the election is void; or

(b) the candidate whose election is complained of, or any and which other candidate, was elected.

Election not void by reason of certain irregularities

35. — (1) If subsection (2) applies, an election must not be declared void on the ground of

(a) any irregularity in any of the proceedings preliminary to the voting; or

(b) any failure to hold the election at any place appointed for holding the election; or

(c) a failure to comply with the directions contained in this ordinance or any regulations made under this ordinance as to the conduct of the election or the counting of the votes; or

(d) by any mistake in the use of prescribed forms.

(2) This subsection applies if the Magistrate conducting an inquiry into the conduct of an election considers that the irregularity, failure, or mistake referred to in subsection (1) did not affect the result of the election.

Costs of inquiry

36. — (1) The Magistrate may order that all or part of the expenses of, or incidental to, the inquiry are to be met by-

(a) any party or parties to the inquiry; or

(b) any electoral officer or other electoral official if the Magistrate declares the election void on the ground of intentional or reckless misconduct by that electoral officer or other electoral official.

(2) In particular

(a) any costs which in the opinion of the Magistrate have been caused by vexatious conduct, unfounded allegations or unfounded objections on the part either of the petitioner or of the respondent; and

(b) any needless expense incurred or caused on the part of the petitioner or respondent,

may be ordered to be defrayed by the parties by whom it has been incurred or caused, whether or not they are on the whole successful.

(3) The order may be enforced as a judgment for a debt.

(4) Despite subsection (1), no order may be made against any person who is not a party to the inquiry unless the person has been summoned to appear and give evidence at the inquiry.

New election if declared void

37. — (1) If an election is declared void, a new election must be held under the same provisions, as far as practicable, as those applicable to the void election.

(2) The new election must be held within-28 days of the election being declared void and the Island Council shall appoint the day for the election in accordance with section 13 with such adjustments as are necessary.

(3) The only persons eligible to vote at the new election are the persons who were eligible to vote at the void election.

(4) The Register of Voters to be used for the new election is the one that was used at the void election, without any amendments or additions.

(5) Despite subsections (3) and (4), if an election is declared void as a result of an irregularity in the electoral roll, the Magistrate may order that, for the purposes of the new election,

(a) specified amendments or additions or deletions be made to that Register; or

(b) specified kinds of amendments or additions or deletions be made to that Register; or

(c) an updated version of that roll be prepared incorporating 1 or more of the changes authorised under paragraphs (a) or (b).

(6) The only persons eligible to be nominated as candidates at the new election are the persons who were qualified to be nominated as candidates at the void election.

(7) The Recorder at the new election shall be the person who was Recorder at the void election unless the Magistrate orders otherwise in which case the Recorder shall be appointed by the Island Council at the same time as it sets the new election date under subsection (2).

Order to be final

38. — (1) Every determination or order under this Part is final and may not be removed into the Supreme Court or Court of Appeal by any procedure.

(2) No proceedings may be brought in the Supreme Court questioning the validity of any election under this ordinance.

Elections not to be questioned other than by petition

39. — (1) An election shall not be questioned except by a petition under this Ordinance."